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Over the last 10 years, claims of religious discrimination in the workplace have risen disturbingly. The Equal Employment Opportunity Commission reports that while charges relating to race, gender, and national origin grew by 15 percent in the past decade, those involving religion increased a staggering 85 percent. The spike in religious claims was particularly severe after the Sept. 11 attacks, when Sikh and Muslim Americans faced greater hostility at work. Behind each claim is the story of an American forced to choose between her livelihood and her faith. Frequently, those who put their faith first suffer catastrophic losses, including their homes, their health insurance, their ability to help their children through college, and, in some particularly sad situations, their marriages. Where employers have no good reason for refusing to make religious accommodation, Americans should not face such a harsh choice. In 1972, recognizing that a broad prohibition on religious discrimination in employment was ineffectual if it did not specifically protect the right of employees to get some flexibility to observe their religion, Congress amended Title VII of the Civil Rights Act of 1964. New Section 701(j) provided that employers must accommodate the religious practices of their employees unless they would incur an “undue hardship.” Unfortunately, in Trans World Airlines Inc v. Hardison (1977), the Supreme Court found that the undue-hardship requirement mandates accommodation of an employee’s religious practice only if the employer can do so at de minimis cost or inconvenience. The Court thus vitiated the promise of the 1972 amendment. This year, in response to the rise in workplace religious problems, in part due to that legal imbalance, a new federal statute has been proposed. The Workplace Religious Freedom Act would restore the protection that Congress intended in Section 701(j) by defining “undue hardship.” It would replace the anything-more-than-de-minimis standard with one that obligates an employer to provide a reasonable accommodation unless doing so would require “significant difficulty or expense.” WRFA was introduced in the Senate this past May by Rick Santorum, R-Pa., and John Kerry, D-Mass., and is cosponsored by a bipartisan group of 16 additional senators, including Orrin Hatch, R-Utah, and Hillary Rodham Clinton, D-N.Y. Pushing the bill is the Coalition for Religious Freedom in the Workplace — a group of more than 40 religious and civil rights organizations, including such diverse entities as the American Jewish Committee, the Islamic Supreme Council, the National Council of Churches, the Union of Orthodox Jewish Congregations, the Southern Baptist Convention, the Sikh Council on Religion and Education, and the Seventh-day Adventist Church. As WRFA has gained momentum, it has also picked up a small number of critics. One of them, Roger Clegg, wrote a June 9 commentary in Legal Times critiquing the legislation (“Praying on the Job”). But their objections are, at best, misguided. WRFA is both necessary and, just as importantly, practical. And here is why. BETTER FOR EVERYONEWRFA will reduce litigation. Lawsuits are brought today because under the de minimis standard, recalcitrant companies don’t have enough incentive to accommodate religious practices. But WRFA will create the needed incentive. When both parties have a mind to do so, the vast majority of religious accommodations are easily achieved. There is, if anything, a financial disincentive to bring such lawsuits. The damages in religious accommodation cases are lost wages, which are typically modest as most cases involve relatively low-paid employees. In addition, any attorney fee award is taxed prior to being paid to counsel due to an anomaly in the tax system. Thus even when plaintiffs win cases, they receive less in damages than the combined cost of lost wages and legal fees. And this significant disincentive will remain under WRFA. � WRFA will have a positive economic impact. There was a time when African-Americans, women, Jews, Hispanics, Irish, Italians, American Indians, the disabled, and many others were effectively barred from sectors of the work force. But they are no longer, and we are literally the richer for it. By opening the doors of opportunity to all, we not only ensure that more Americans participate in the mainstream economy (and pay taxes), but that business benefits from the talents of an expanded work pool. Economists have concluded that one reason the American economy continued to expand over the last 50 years was the systematic reduction in barriers against people of diverse backgrounds. WRFA will alleviate yet another market imperfection created by bigotry. � Bogus claims will be rejected under WRFA. A common concern is that fakers will seek illegitimate accommodations based on fraudulent beliefs. But the fact is that courts have for decades engaged in assessing the sincerity of asserted religious beliefs. Indeed, under the Supreme Court’s 1965 decision in United States v. Seeger, the threshold question of sincerity as to religious belief must be resolved as a question of fact. In practical terms, the problem of insincerity in the realm of religious accommodation in the workplace is particularly small. People who do not have a genuine and sincere reason to ask for an accommodation are simply unlikely to risk employer displeasure and social stigma by doing so. In addition, religious accommodation cases are almost always brought after a worker has been fired. Given the economic disincentive to bring such suits, it would be odd for an individual to be fired and then spend financial resources to vindicate a religious belief she doesn’t sincerely hold. Historical precedent indicates that bogus claims are much more prominent in the minds of WRFA opponents than in reality. New York state has had a holy-day accommodation law for many years, yet there is no record of people bringing cases for failure to honor their “Church of the Super Bowl” or “Mosque of the Long Weekend.” It doesn’t happen now, and it won’t happen after WRFA is passed. A CONSTITUTIONAL BLESSINGWRFA is constitutional. Critics assert that WRFA’s religious accommodation provisions are unconstitutional exercises of federal power, both as applied to the states and to the private sector. Let us deal with these assertions in turn. The Supreme Court in City of Boerne v. Flores (1997) laid down this standard: Congress’ power to enact “appropriate legislation” to enforce the equal protection clause of the 14th Amendment against the states does not extend to redefining the states’ substantive obligations. And where congressional action is appropriate, there must be “congruence and proportionality between the injury to be prevented or remedied and the means adopted.” Given the nature of the injury addressed by WRFA — forbidding states from engaging in conduct amounting to religious discrimination is clearly not an extension of the states’ substantive obligations — and the means that WRFA adopts, that standard is surely met. The Court’s decision this past May in Nevada Department of Human Resources v. Hibbs is instructive. The majority upheld the Family and Medical Leave Act as protection against gender-based discrimination. The Court found that, since the discrimination’s impact was significant, and the FMLA afforded a “congruent and proportional” remedy, the statute was constitutional as applied to the states. Significantly, in coming to its decision, the Court found that gender requires a higher standard of scrutiny than age or disability, and therefore “it was easier for Congress to show a pattern of state constitutional violations.” WRFA is directed against discrimination on the basis of religion, which is clearly subject to strict scrutiny — stricter scrutiny, in fact, than gender-based distinctions. Thus, it is even more likely that WRFA is a constitutional exercise of congressional power — especially in light of the EEOC’s reports of increased problems faced by people of faith and WRFA’s moderate remedy. Even if WRFA were found to be inapplicable to the states, the vast majority of Americans work in the private sector. Title VII’s constitutionality as applied to the private sector rests firmly on the commerce clause, as does WRFA. While the Court has in recent years struck down laws that exceeded the outer limits of Congress’ commerce clause power, WRFA addresses conditions relating to a core issue: Employment has broad implications for interstate commerce and has long been subject to both federal and state regulation. BERATING NOT ALLOWEDWRFA will not harm other employees and third parties. Maybe the most serious objection — serious because it plays on the very same commitment to fair treatment that motivates support for WRFA — is that the legislation will empower employees to act in ways that hurt others in the workplace or that cause third parties to fail to receive needed services. But this objection is, stated bluntly, overwrought. First, WRFA will not empower people to come to work each day and berate their co-workers for being gay or Mormon or agnostic. Actions that create a hostile work environment for others, in most cases in violation of longstanding prohibitions on harassment, would clearly impose a significant burden on the employer. In any event, these cases are so rare as to be virtually nonexistent. Cases brought under existing law tend to involve holy days and religious dress, not employees asserting their right to harass the guy in the next cubicle. It is even more unlikely that people, once told to stop bothering hapless coworkers, will choose to be fired and then bring lawsuits. And even on the infinitesimal chance that a lawsuit were brought, the zealous employee would almost certainly lose under any reasonable reading of WRFA. In sum, changing the definition of “undue hardship” will not unleash a wave of badgering or berating. Second, the courts may well find that WRFA does not justify the refusal of essential personnel, like police officers or firefighters, to protect individuals or entities with whom they have moral differences. WRFA requires that employees perform the “essential functions” of their jobs. If they refuse to do so, they can be fired. And to the extent that a court may find that a task-based accommodation is in order in a particular case, such accommodation could not, by any stretch, be required if it meant that the services in question were no longer available to the public. Otherwise, the employer would patently be faced with an “undue hardship.” In short, the fanciful parade of horribles thrown up by opponents of WRFA hardly trumps the stark, well-documented reality of religious intolerance that some workers still face in the American workplace. No one can credibly claim to support workers’ rights and oppose a bill designed to rectify this serious and growing problem for America’s workers. And no American should be arbitrarily forced to choose between faith and an honest living. The passage of the Workplace Religious Freedom Act will be one more step toward ensuring that every Muslim, Jewish, Christian, Sikh, Buddhist, and Hindu American is treated with dignity and respect in the workplace. Richard T. Foltin and James D. Standish are co-chairs of the Coalition for Religious Freedom in the Workplace. Foltin is also legislative director and counsel in the Office of Government and International Affairs of the American Jewish Committee and co-chair of the First Amendment Committee of the American Bar Association’s Section on Individual Rights and Responsibilities. Standish is director of legislative affairs for the Seventh-day Adventist Church and executive director of the North American Religious Liberty Association.

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