Workplace Religious Freedom Act, Some Questions and Answers

Posted on January 3, 2007

(S.677; H.R.1445)
Some Questions and Answers

1. Is “WRFA” seeking to introduce a new concept to federal law?

No. WRFA seeks to restore to Title VII of the Civil Rights Act of 1964 (as amended in 1972) the original congressional intent that required employers to “reasonably accommodate” the religious practices of employees insofar as doing so did not impose an “undue hardship” upon the employer. A series of federal court opinions have, essentially, read this protection out of the law. Thus, too many Americans have been forced to choose between their career and their conscience.

2. Is this a real problem?

Yes. While most employers are accommodating of their employees’ religious needs, some are not. In recent years, this problem has affected Americans of many faiths. Catholics have lost their jobs over declining to work on Christmas; Muslim women have lost jobs over their need to wear a head-scarf and Sabbath observant Jews have been refused employment as appliance repairmen. The EEOC has reported a consistent increase in claims filed for religiously-based employment discrimination over the last 10 years. A 1999 report from the Tannenbaum Center for Inter-religious Understanding found that 66% of respondents to a nationwide survey were concerned about a lack of religious accommodation in the workplace and that 20% of respondents had either personally experienced or witnessed religion-based job discrimination.

3. How does WRFA balance the religious accommodation needs of employees with the need for employers to have a productive workplace?

WRFA does not give employees a “blank check” to demand any accommodation in the name of religion and receive it. Rather, it restores the standard that an employer should reasonably accommodate an employee’s religious needs so long as that accommodation does not impose a significant difficulty or expense upon the employer. Thus, if allowing an employee to alter his/her regular work hours to accommodate a holy day observance or to wear religious clothing at work will not interfere with the employee’s performance of his/her essential functions, the employer would be required to provide the accommodation. If the accommodation would impose a difficulty or expense on the employer, it would not be required to provide the accommodation.

4. Won’t it be harder for some employers to provide accommodation?

WRFA does not apply to employers of less than 15 full time employees. Moreover, it sets forth several factors for determining what is an “undue hardship” that are designed to make the determination context specific so that a relatively small employer – of say 100 employees, will have a different requirement than a larger employer of 1,000.

5. Will WRFA Interfere with Civil Rights or Health Services?

No. WRFA is a carefully crafted bill whose core mechanisms are designed to ensure that while an individual employee’s religious conscience will be accommodated, this will not adversely affect third parties. WRFA’s requirement that an accommodation only be granted when it will not impose a significant difficulty or expense on the employer ensures that employers must be able to deliver their services and products to their customers and clients. WRFA’s requirement that an employee cannot receive an accommodation which interferes with the performance of a job’s “essential functions” also protects third parties against adverse affects, especially in the health services context.

6. Will WRFA lead to more litigation?

No. In fact, it is expected that WRFA will reduce litigation over these workplace issues. Prior to the court decisions eviscerating the undue hardship standard, there were many fewer lawsuits over religious accommodation in the workplace. This is because the law prodded employers and employees to work out these arrangements amicably. Now, employees who take their faith seriously are faced with the choice of violating their faith or losing their job; they have no recourse other than to bring a lawsuit if they feel aggrieved.

7. How Do We Know WRFA Will Operate So Well?

Many states have, either through legislation or court decisions, varying degrees of religious accommodation protections. A few years ago, New York State revised its law to track the provisions contained in WRFA. Since its enactment, in the words of State Attorney General Eliot Spitzer: “New York’s law has not resulted in the infringement of the rights of others, or in the additional litigation that the [critics] predict will occur if WRFA is enacted. Nor has it been burdensome on business. Rather, it strikes the correct balance between accommodating individual liberty and the needs of businesses and the delivery of services.”

8. Who supports WRFA?

This legislation enjoys bipartisan support in Congress and the support of a broad coalition of 45 American religious organizations including: American Jewish Committee, Baptist Joint Committee, Christian Legal Society, General Conference of Seventh Day Adventists, Gobind Sikh Society, National Association of Evangelicals, National Council of Churches, Southern Baptist Convention, U.S. Conference of Catholic Bishops and the Union of Orthodox Jewish Congregations of America.

9. Why should Congress enact WRFA now?

Responses to the tragic events of September 11, 2001 have highlighted in an unprecedented way America’s commitment to religious diversity and tolerance. In an increasingly religiously diverse society we must ensure – through clear rules of public policy – that all Americans can be productive participants in American society. America must continue to demonstrate its commitment to our founding principle of religious liberty as a reproach to those around the world who assert that this liberty can be dispensed with, if not despised. WRFA will make American workplaces more productive, make working Americans of faith more secure in their lives and serve as yet another reproach to the forces of evil and intolerance. The time to pass this legislation could never be better.