The Workplace Religious Freedom Act of 2005 (WRFA) (S. 677, H.R. 1445) would revise and expand the existing requirements imposed on employers to accommodate the religious practices of their employees by amending Title VII of the 1964 Civil Rights Act. WRFA would significantly alter Title VII and could alter long-standing legal precedent that balances a broad range of rights.

Title VII currently requires employers to "reasonably accommodate" an employee’s "religious observance or practice" unless it imposes "undue hardship on the conduct of the employer’s business."¹ There are no statutory definitions of "religious observance or practice," "reasonably accommodate," or "undue hardship." The federal courts, however, have established nuanced understandings of these terms in an attempt to balance the rights and obligations of employees and employers. New statutory definitions proposed in WRFA are at odds with these balanced interpretations of the law that have developed over the last forty years.

Religious Observance or Practice

According to the National Women’s Law Center , WRFA would require employers to accommodate three specific categories of employees’ religious practices: 1) wearing religious clothing, 2) taking time off for religious holidays, and 3) engaging in other religious observances and practices that have a "temporary or tangential impact on the ability to perform job functions."²

Current interpretation of the law already protects employees’ rights to wear religious clothing and take time off for religious holidays. Several women’s rights and civil rights organizations oppose WRFA because they fear that the inclusion of the third category could threaten the rights of a broad range of people and possibly impact current freedom from discrimination in access to essential medical services. As "temporary and tangential impact" is undefined, this section of the bill could be interpreted to protect behavior that would occur infrequently in the course of a job but could, for example, endanger those in need of emergency health care. Consider the following scenarios³ :

• An employee of an ambulance company could argue that refusing to drive a woman from a hospital to an abortion clinic (or visa versa) does not affect her/his ability to perform the job because this type of assignment is only one among many.⁴
• A pharmacist could argue that refusing to fill prescriptions for both emergency contraception and birth control does not compromise her/his job performance because these prescriptions are only brought to the pharmacy infrequently.
• A nurse could argue that refusing to participate in an emergency caesarian delivery for a pregnant woman who is in danger of bleeding to death and is "standing in a pool of blood" only "temporarily or tangentially impacts" her/his job performance, because the procedure constitutes a very small percentage of her/his work.⁵

Reasonable Accommodation

WRFA would add a new standard of "reasonable accommodation," stating that in order for an accommodation to be considered "reasonable," it must "remove the conflict between employment requirements and the religious observance or practice of the employee."⁶ Eliminating the conflict, however, may not always be possible. For example, how would a pharmacy with only one pharmacist, who refuses to dispense birth control pills or emergency contraception on religious grounds, remove the conflict? Moreover, the bill does not clearly state what exactly constitutes the removal of conflict. Consider the following scenario:

• A delivery nurse who refuses to participate in an abortion because of her religious beliefs and is, therefore, moved to another department, could argue that the transfer does not remove the conflict and she must be accommodated within the labor and delivery department.⁷

What is an Undue Burden

Under current law, based on a 1977 federal court interpretation of Title VII, "undue hardship" occurs when accommodation would result in "more than a de minimus⁸ cost" to the employer.⁹ The new statutory definition of "reasonable accommodation" would allow an employer to avoid providing an accommodation if it imposes "undue hardship" on the employer but limits "undue hardship" to economic burden.¹⁰ It fails to take into account non-economic factors such as the health and well-being of the customer or patient. Consider the following scenario:

• A police officer could refuse to protect an abortion clinic, based on religious beliefs, even though this could deny women of their legally protected right to clinic access under the Freedom of Access to Clinic Entrances Act, arguing that this is only one of his/her many duties as an officer.¹¹
• A state-employed visiting nurse could freely decide to tell an AIDS patient and his partner that God "doesn’t like the homosexual lifestyle" and that they need to pray for salvation. ¹²
• A court hearing a religious discrimination claim by a pharmacist fired for refusing to dispense emergency contraception could find that it is unable to consider the inability of the pharmacy’s clients to obtain the medicine they need on a timely basis even though time is a critical factor in the use and efficacy of emergency contraception.

The National Women’s Law Center fears that, as written, WRFA would allow employees to "use their religion in order to justify dangerous or discriminatory behavior against women."¹³ In addition, the American Civil Liberties Union believes that, "there simply is no reason to create a standard under WRFA that.would result in harm to critical personal or civil rights.  Congress can, and should, pass legislation that focuses narrowly on the real problems of scheduling time off for religious holidays and the wearing of religious apparel or a beard."¹⁴

For more information about the Workplace Religious Freedom Act, please visit:

National Women’s Law Center www.nwlc.org

American Civil Liberties Union www.aclu.org

Planned Parenthood Federation of America www.ppfa.org

References

¹ Senate and House Bill, Workplace Religious Freedom Act of 2005, Filed 17 March 2005, accessed 8 April 2005, < http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SN00677: >.

² Ibid.

³ Most of the scenarios included in this update are examples from previously decided cases that legal experts fear may be in jeopardy if this new law passes.

⁴ Shelton v. Univ. of Medicine & Dentistry of New Jersey , 223 F.3d 220 (3d Cir. 2000).

⁵ Shelton v. Univ. of Medicine & Dentistry of New Jersey , 223 F.3d 220 (3d Cir. 2000).   

⁶ Workplace Religious Freedom Act of 2005.

⁷ Workplace Religious Freedom Act: A Threat to Women. ( Washington , DC : National Women’s Law Center , June 2004), accessed 8 April 2005, < http://www.nwlc.org/pdf/WRFAFactSheetJune2004.pdf >.

⁸ De minimis is a Latin expression meaning about minimal things, suggesting that law is not interested in trivial matters or something which is beneath judicial notice

⁹ Trans World Airlines, Inc. v. Hardison , 432 U.S. 63, 84 (1977).
< en.wikipedia.org/wiki/De_minimus >.

¹⁰ Workplace Religious Freedom Act of 2005; Rodriguez v. City of Chicago , 156 F.3d 771 (7th Cir. 1998).

¹¹ "Workplace Religious Freedom Act: A Threat to Women."; Knight v. Conn. Dep’t of Public Health , 275 F.3d 156 (2nd Cir. 2001).

¹² American Civil Liberties Union , " ACLU Letter on the Harmful Effect of S. 893, the Workplace Religious Freedom Act, on Critical Personal and Civil Rights," Letter published June 2, 2004, accessed 11 April 2005, < http://www.aclu.org/ReligiousLiberty/ReligiousLiberty.cfm
?ID=15886&c=142 >.

¹³ "Workplace Religious Freedom Act: A Threat to Women."

¹⁴ " ACLU Letter on the Harmful Effect of S. 893, the Workplace Religious Freedom Act, on Critical Personal and Civil Rights."