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This spring, the unlikely duo of Sen. Rick Santorum (R-Pa.) and Sen. John Kerry (D-Mass.) have introduced the Workplace Religious Freedom Act of 2003. Its aim is to increase the accommodations related to religious beliefs and practices that employers must make for workers. The bill is endorsed by a wide variety of religious groups, from the American Jewish Committee to the Southern Baptist Convention to the National Sikh Center. Opponents include the American Civil Liberties Union and business lobbyists. Accommodating different religions in a diverse society can be tricky and controversial. President George W. Bush’s faith-based initiatives aim to allow religious organizations into the realm of social services, for instance, and there has been a spate of litigation under the Religious Land Use and Institutionalized Persons Act to challenge zoning laws that affect religious purposes. And now, in the employment field, there’s the WRFA. RELIGION AS A DISABILITY The WRFA treats religious observance like a disability, and might be better named the “Religious Disabilities Act.” Title VII of the Civil Rights Act already forbids discrimination on the basis of religion, which is right there in the list of protected categories, nestled between “race, color” on one side and “sex, or national origin” on the other. The term “religion” is defined to “include[] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to [sic] an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” The Supreme Court in Trans World Airlines Inc. v. Hardison (1977) interpreted the italicized words to mean that any accommodation with more than a de minimis expense is considered an undue hardship and thus beyond reasonable. The proponents of the WRFA think that Hardison is too employer-friendly, and so the bill would overturn the decision by defining “undue hardship” to mean “an accommodation requiring significant difficulty or expense.” It requires that this phrase, in turn, take into account not only “the identifiable cost of the accommodation,” but also “the overall financial resources and size of the employer involved.” The proposed legislation also redefines “employee” to be someone “who, with or without reasonable accommodation, is qualified to perform the essential functions” of a job. It then defines “perform the essential functions” to “include[] carrying out the core requirements of an employment position and does not include carrying out practices relating to clothing, practices relating to taking time off, or other practices that may have a temporary or tangential impact on the ability to perform job functions.” This is in line with the general tendency of civil-rights advocates to limit an employer’s definition of job requirements, so that employees with more than minimal competence are not given an unfair advantage. The WRFA thus continues an interesting back-and-forth between Title VII’s provisions on religion and the Americans with Disabilities Act’s provisions on employment. The ADA (enacted in 1990) borrowed the terms “undue hardship” and “reasonable accommodation” from Title VII (enacted in 1964), but broadened considerably the definition of those terms. The WRFA would amend Title VII to borrow the ADA’s broader definitions. There is no doubt that the WRFA will add to employers’ — and thus consumers’ — expenses. That, of course, is the whole idea: To make clear that not just de minimis expenses (the current law), but costs up to if not including “significant difficulty and expense” are required. So the question is: Is there anything wrong with requiring an employer to accommodate employees who are less productive than he would like because of their religious beliefs, just as he must now accommodate employees who are less productive than he would like because of physical or mental impairments? The ADA itself was bad legislation, so it is not a persuasive precedent. In any event, the reasons for forcing employers to accommodate religious beliefs and practices are less persuasive than the reasons forcing them to accommodate physical and mental impairments. One might, for instance, argue that no one chooses to be disabled, but you are able to choose your religious beliefs and practices. If you choose to believe that God wants you not to work on certain days or at certain times, or to wear a beard or a pro-life T-shirt, that’s fine. But if any of this violates company policy, you may also be choosing to lose your job. To be sure, it might be countered that one doesn’t choose one’s beliefs in the same way that one chooses a sweater. What’s in your heart is in your heart, and while it may be an exaggeration to say that religion is as immutable as one’s skin color, sex, or disability, it is still something that you are more or less stuck with. UNTRUE BELIEVERS But that brings us immediately to a real but touchy problem: fraud. It is harder to fake a disability than it is to fake a religious belief. If an employee sees all his colleagues getting privileges, because of their religious beliefs, that he would like to have, he may assert that he has a similar belief. That is, “I’ve decided that true Baptists should wear baseball caps at their work stations,” or “My interpretation of the Fourth Commandment is that the Sabbath includes both Saturdays and Sundays, so I can’t work on either.” People believe stranger things. So what’s the employer to do? And even without literal fraud, belief is more malleable than is a disability. Observant Jews, for instance, can decide whether or not to trim their beards; the disabled can’t so easily decide whether to use a wheelchair or crutches. The fraud point is buttressed by another argument: There are fewer people who can claim protection from the ADA (even though there are a lot of them) than will be able to claim protection from the WRFA (which includes potentially everyone). Another related argument, also plausible, is that it’s easier for the religion-impaired to find accommodating jobs and employers than (at least some) physically or mentally impaired folks. There are also constitutional problems with applying the WRFA to protect state employees to the same extent that it protects private employees. Congress’ ability to regulate the former stems from Section 5 of the 14th Amendment, while its ability to regulate the latter comes from the commerce clause. The Supreme Court has made clear that Congress can invoke Section 5 only to remedy or prevent violations of the free exercise clause or the equal protection clause. The Court has also made clear that mere failures to accommodate, if unaccompanied by discriminatory intent, violate neither provision. (The Supreme Court’s decision last month in Nevada Department of Human Resources v. Hibbs, which addressed Congress’ Section 5 powers, while wrongheaded, does not affect this analysis.) The application of the WRFA to the private sector also raises constitutional issues. If employers are more likely to make religious accommodations voluntarily than they are to make disability accommodations, then the WRFA is less necessary than the ADA. This line of argument can be put even more strongly: If Congress cannot show that the failure to make religious accommodations “substantially affects” interstate commerce, then under cases like United States v. Lopez (1995) it has failed to show that it has authority under the commerce clause to enact the WRFA in the first place. A 2001 note in the Rutgers Journal of Law and Religion documents persuasively that employers are already quite accommodating to religious employees. If Congress cannot show that there is a widespread hostility to accommodating employees’ religious beliefs and practices, then it should not — and, constitutionally may not — enact this bill. The accommodation of religious beliefs and practices can also create friction in a way that accommodating the disabled does not. Suppose you are an employee and are told that you must work late for two nights in a row because, on each night, a different colleague has to leave promptly at 5 p.m. “Why can’t they stay?” you ask. And suppose that, for one colleague, the reason is “Because she has a circulatory condition in her legs,” but for the other it is “Because that’s when her Sabbath starts.” Would you feel more resentful about one than the other? I suspect a lot of people would be more understanding about accommodating a colleague’s disability than a religious belief. And remember the pro-life T-shirt. Doesn’t the employer have a legitimate interest in limiting the religious expression of one employee if another employee finds it offensive? Also, accommodating one person with a physical disability is unlikely to make it harder to accommodate the physical disability of someone else (although this can happen: People in wheelchairs may want drinking fountains lowered, while people with bad backs want them raised). But the more that religious practice permeates a workplace, the more likely it is that some employees may start to feel uncomfortable, and an employer may decide that he wants to avoid that. Perhaps Jews or Hindus in the office feel isolated by the proliferation of desktop crucifixes. It’s also plausible that the likelihood of a market failure — economically irrational discrimination — is greater for the disabled than for the religious, since the up-front costs are likely more for the former, and they are more likely to be stereotyped as less productive. But probably neither the ADA nor the WRFA can be justified on economic grounds: If employers are declining to make an accommodation, they probably have a good economic reason for doing so. WHAT CONGRESS WANTS But with all that said, whether the WRFA will become law hinges on the extent to which Congress will conclude that it ought to intervene to protect from employers a “wrongfully” disadvantaged and perhaps even “stigmatized” minority. Will Congress decide that it is morally wrong not to accommodate religious people as well as disabled people? Or, somewhat more cynically, does Congress feel sorry for the religious, as it did for the disabled? Or, more cynically still, are religious groups as well-organized politically as disabled groups were? There should always be a strong presumption in favor of leaving the free market alone. The question is not whether and how religion should be accommodated in the workplace. The question is, who decides whether and how religion should be accommodated there, above and beyond the requirements of a tolerably effective law that is already on the books? Should it be federal bureaucrats, judges, and plaintiffs lawyers? Or each of the thousands of businesses in this country? The answer, of course, is the latter. Roger Clegg, a Methodist, is general counsel of the Center for Equal Opportunity, a Sterling, Va.-based think tank. He can be reached at [email protected]. “Discriminating Eye” appears bimonthly in Legal Times.

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