Why we need a Workplace Religious Freedom Act

By K. Hollyn Hollman

Church-State Intersection
May 1, 2002

Most people are aware that federal law prohibits discrimination based upon religion. Religion has long been one of the categories protected by our nation's civil rights laws, alongside race, sex, and national origin. Indeed, we are quite accustomed to hearing companies tout themselves as equal opportunity employers.

But what does that principle mean in practice? Certainly, covered employers cannot hire or fire employees because they belong to a particular faith. But what if the employee's religious beliefs and practices conflict with the employer's business operations? Do employers have an obligation to give employees time off from work to observe the Sabbath or other religious holy days? Must an employer make an exception to its dress code for an employee whose religion requires a particular kind of clothing?

In 1972, Congress amended federal law to address these questions. It defined religious discrimination as including the failure "to reasonably accommodate an employee's religious observance unless such accommodation would impose an undue hardship on the employer's business." Congress did not define or offer examples of what constitutes an undue hardship, leaving that job to the courts.

Judicial interpretations have been uneven at best. Many rulings have severely limited the rights of employees. Beginning with a Supreme Court decision in 1977, courts have found that anything more than a minimal ("de minimus") cost to an employer amounts to an undue hardship, often relieving the employer of the duty to accommodate the employee. Judges have even found an undue hardship when employers show that providing a requested accommodation would merely lower morale among other employees.

As a result, employers today believe they can comply with the law while offering few if any accommodations to their religious employees. With the deck seemingly stacked against them, some religious employees do not even bother to request accommodation. Thus, under current law, employees understandably may choose to compromise their beliefs in order to avoid risking their jobs.

In recent years, Congress has proposed legislation that sensibly responds to this problem. The Workplace Religious Freedom Act, sometimes referred to as "WFRA," would put teeth into the requirement that employers reasonably accommodate an employee's religious observances. It defines an undue hardship as one that entails significant difficulty or expense. Determinations would be based on the identifiable cost of the accommodation and the size and financial resources of the employer.

Passage of WFRA will not guarantee that an employer will grant every request for accommodation. It will not end all conflicts between the religious practices of employees and the job requirements of their employers. In many cases, however, it will give employers an incentive to remove unnecessary burdens on religious employees, whose practices are too easily ignored under current law.

While WFRA has not been introduced in this Congress, its proponents remain hopeful. Some criticisms of the draft legislation from the labor community have recently been resolved, and a coalition of diverse religious organizations, led by the American Jewish Committee, continues to support the effort. The coalition includes many groups that disagree sharply on other issues, such as the American Jewish Congress, the Union of Orthodox Jewish Congregations, the Baptist Joint Committee, and the Ethics and Religious Liberty Committee of the Southern Baptist Convention.

Last week, New York's Attorney General and Assembly Speaker jointly announced the introduction of legislation similar to WFRA. If enacted, the statute will give employees in New York a level of religious freedom that should extend to all Americans. Congress should follow suit so that employees do not have to choose between piety and a paycheck.