February (Web-only) 2008

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Congress is again considering a bill to protect religious expression in the workplace, but the bill, which has been bandied about for a decade or more, continues to draw steep opposition from business interests.

The Workplace Religious Freedom Act would require employers to be more accommodating of employees who wish to wear religious headgear, for example, or take time off for holy day observances.

The bill has broad bipartisan support and backing from an unusually large swath of religious groups, including the National Association of Evangelicals, Christian Legal Society, Seventh-day Adventists, Orthodox Jews, Catholic bishops, the Islamic Supreme Council of North America and the Church of Scientology.

But it has also attracted opposition from business groups, like the HR Policy Association, which represents corporate human resources departments, and the American Civil Liberties Union. Both are concerned that one employee's religious expression may unfairly impact co-workers or customers.

Many corporations maintain that Title VII of the Civil Rights Act of 1964 already protects employee rights, and say the bill would confuse an already complicated set of rules, said Michael Gray, an attorney for HR Policy.

"The law goes too far in demanding that companies provide accommodation for one employee while risking unfairly burdening the other employees in the process," Gray testified at a Tuesday House committee hearing.

The debate centers around what steps an employer must take before employees' requests become an "undue hardship" for managers.

Supporters of the bill, including Richard Foltin, the legislative director for the American Jewish Committee, say a 1977 Supreme Court decision weakened protections when it found that anything more than a minimal added cost was to be considered an "undue hardship."

The proposed bill says employers must accommodate employees unless it means a "significant difficulty or expense." It would also provide tests to clarify terms like "reasonable accommodation," and "undue hardship," Foltin said.

"This bill will clarify the employer's responsibility for accommodation," Foltin said.

Some opponents are also concerned that a redefinition might affect the rights of third parties — other employees who would have to cover for fellow workers, for example.

Helen Norton, a law professor at University of Colorado at Boulder, raised the scenario of a patient who is denied access to contraceptives from a hospital employee who objects on moral or religious grounds.

Under the current law, the hospital would not have to make an exception for that employee, but the proposed bill would change that, Norton said.

But supporters say the bill gets to the very heart of American religious freedom. Seventh-day Adventists, for instance, hold worship services on Saturdays, and believers shouldn't be forced to choose between work and faith, said James Standish, the church's legislative affairs director.

"If we raise our daughters to be Seventh-Day Adventists," he asked, pulling out a poster-sized picture of his children, "how can we know they won't be discriminated against?"

Rep. Carolyn McCarthy, D-N.Y., a cosponsor of the bill, said she was confident language could be crafted that would satisfy all sides — as long as all parties are open to compromise.

"We're not that far apart," she said. "If we can come out with a bill that everyone complains about and no one is happy with, that's a good bill."

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The House Committee on Education and Labor site has testimony from Tuesday's hearing, as well as from a similar 2005 hearing.

Information on the bill is available from the Library of Congress's Thomas site.

On Monday, the U.S. Court of Appeals for the Fourth Circuit issued an important decision in a religion-in-the-workplace case. In EEOC v. Firestone, the court ruled that a company needn't allow an employee to take off all Sabbath and religious holidays they wish. "This is not an area for absolutes," the court ruled. "Religion does not exist in a vacuum in the workplace. Rather, it coexists, both with intensely secular arrangements such as collective bargaining agreements and with the intensely secular pressures of the marketplace."

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