Workplace Religious Freedom Act
U.S. Congressman Mark Souder of the 3rd District of Indiana recently introduced the Workplace Religious Freedom Act. This Act expands on Title VII of the Civil Rights Act of 1964. Previously, the act was expanded to require employers to accommodate the religious observations of their employees unless there was "undue hardship" on employers. This expansion was limited by the Supreme Court to to define "undue hardship" as anything which would produce employers minimal cost or inconvenience.
Excerpted from a fascinating article written by Mark Schoeff, Jr:
Souder wishes . . . businesses would make . . . efforts to accommodate the spiritual beliefs of their workers. Instead, he's concerned that the Supreme Court interpretation of an existing workplace religious freedom law enables companies to, for example, deny a Jewish worker the right to take off a holy day and force a pharmacist to dispense morning-after pills even when doing so conflicts with her religion.
Excerpted from a fascinating article written by Mark Schoeff, Jr:
Souder wishes . . . businesses would make . . . efforts to accommodate the spiritual beliefs of their workers. Instead, he's concerned that the Supreme Court interpretation of an existing workplace religious freedom law enables companies to, for example, deny a Jewish worker the right to take off a holy day and force a pharmacist to dispense morning-after pills even when doing so conflicts with her religion.
- Do you think that this additional protection is necessary for employees?
- Argued also in the Schoeff article is the opinion that because workplaces already lose legal battles regarding discrimination against employees exercising their religions that further protection beyond Title VII is needed. What do you all think?
- How should "undue hardship" in regards to religious accomodations be defined?
A hat tip to George at George's Employment Blawg for previously writing on this very relevant topic.
posted by Anonymous at
8:04 PM
1 Comments:
This is a topic we'll spend some time on after spring break, so I thank Ben for teasing it a couple of weeks early.
The Workplace Religious Freedom Act has bounced around in Congress (both the Senate and the House) for a number of years. It certainly has produced some strange bedfellows. For instance, Hillary Clinton and John Kerry have joined with Rick Santorum (to name just a few) in co-sponsoring the legislation in the Senate. The major co-sponsors in the House include Souder and Carolyn McCarthy of New York. The two seldom find themselves on the same side of a (potentially) controversial issue.
At the end of the article to which Ben points us, Schoeff mentions the recent legislative hearing about WRFA. There was a video stream of the hearing available on the House website as late as last week, but it appears to have been taken down. Nevertheless, the written testimony and witness list from that hearing is available. Most of the prepared remarks are quite short, as the speakers were limited to five minutes or so. In particular, for an interesting take on why the WRFA presents a number of problems (not the least of which is the potential that it may be unconstitutional under the First Amendment's religion clauses) you can read the short testimony of Samuel Marcosson.
You know that article I teased in a previous comment? Well, it deals directly with this issue of accommodation for religious observances and practices, especially the expressive kinds, and how the undue hardship standard has been manipulated to produce result-oriented outcomes, rather than a coherent standard. My co-author and I argue that the WRFA standard would do no better. Jenny's intuition is probably spot on when she says in the previous comment that it is "difficult to define on a genearl basis" how to define undue hardship. We offer a way to approach these cases that might help increase coherence and consistency in these cases. I'll explain more in class . . . if you're lucky, you may get to actually read an excerpt or two!!!
Moreover, in the Schoeff article, he reports that Souder provides the following explanation for how WRFA might work: "He cited a worker placing a Bible on her desk as an appropriate religious observance. However, a company could take action if she posts a Bible verse that can be interpreted as anti-homosexual shortly after a business announces a new benefits policy for same-sex couples." Interestingly, these two examples are relatively similar to two actual cases decided under the current accommodation/undue hardship standard and the outcomes in both were exactly what Souder suggests. So why the need for a change? And, what exactly is the difference between the two that (in the absence of specific evidence as to the harship caused) would lead Souder to conclude that the former would/should automatically be accommodated and the latter would/should not?
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