Bill calls for concessions to religion in workplace

Sunday, August 1, 1999

Some Americans can't work on Saturday. Others need to leave work early on Friday. This isn't because they would rather fish or play golf; it's because they must observe the Sabbath as required by their faith.

There are some Americans who must wear a head scarf to work, while others must wear a yarmulke and still others, a turban. These folks aren't making a fashion statement or trying to be different; they're trying to be faithful.

In a nation founded on religious freedom, you might assume that employers would routinely make these and other accommodations for religious practices. Unfortunately, some business owners are too busy worrying about the bottom line to be concerned about claims of conscience.

What's their message to workers? Make the cruel choice between being faithful and keeping your job.

Thus, in some workplaces in the “land of the free,” Muslim women are told to take off their scarves. Orthodox Jews and Seventh-day Adventists are told to work on Saturday. Christians are told to come in on Good Friday and Christmas.

Since these are private employers-and not the government-the First Amendment's free-exercise clause can't be invoked. But surely the spirit, if not the letter, of the First Amendment calls on all Americans to guard liberty of conscience in every way possible.

After all, claims of conscience are not about “doing what I want to do.” They're about “doing what I must do, as required by God.”

James Madison famously put the matter this way: “The religion of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.”

For much of our history, Congress has paid attention to Madison's argument. That's why Title VII of the 1964 Civil Rights Act was intended to require employers to accommodate the religious practices of their employees when possible. But the courts have interpreted the act so narrowly that little protection remains for religious liberty.

Now a bipartisan coalition in Congress is trying to remedy the problem by amending Title VII with the Workplace Religious Freedom Act (WRFA). If passed, the act would require employers to make reasonable accommodation for an employee's religious observance — unless the accommodation would impose “undue hardship” on the employer.

WRFA was first introduced two years ago by Sen. John Kerry, D-Mass., and Sen. Dan Coats, R-Ind. It didn't make it to the floor of the Senate.

This month, Senate supporters are expected to try again. With strong support from a broad coalition of religious and civil rights groups, the act stands a good chance of passage this time around.

The key issue, of course, is the meaning of “undue hardship.” The act defines the term much in the same way it is defined in the Americans with Disabilities Act. Undue hardship would be when “significant difficulty or expense” is imposed upon the employer. Such factors as size of the business and operating costs would be taken into account.

WRFA isn't intended to make life more difficult (or expensive) for business owners. The act would simply encourage more flexibility in scheduling and more sensitivity to the religious requirements of workers.

These protections are already in place for federal workers, thanks to an executive order issued by President Clinton two years ago. Passage of the Workplace Religious Freedom Act would extend the same considerations to workers in the private sector.

When employers accommodate the religious observances of their employees, they uphold the core principle — freedom of conscience — that lies at the heart of the American experiment in liberty. We shouldn't need legislation to get Americans to do the right thing. But we do.