WASHINGTON (Oct. 5)
For 10 years, Jewish lobbyists have been urging Congress to enact legislation that would protect religious practice in the workplace.
But the measure has failed to advance or win significant backing from lawmakers, largely due to opposition from business and labor communities.
Those interest groups have argued that altering current law to make special accommodations would exact a high cost on employers and upset labor practices by granting certain employees unique privileges.
Now, the bill, reintroduced in the Senate last week, could receive a boost as another religious freedom bill founders in Congress. But it still has a long way to go.
Problems for religious people have become all too common in the American workplace, according to advocates of legislation that seeks to clarify the federal law governing the religious rights of workers.
Far too often, advocates say, observant Jews have been forced to work on Shabbat or the High Holidays. Muslim women have been asked to remove their head scarves while on the job. And devout Christians have been compelled to work on a Sunday.
The Workplace Religious Freedom Act seeks to remedy that.
The bill, which has the support of an array of religious groups and every leading Jewish organization, would give employers far less latitude in deciding whether to accommodate a worker’s religious needs.
“These are liberties upon which our country was founded and this legislation writes into law the intent of our founders that religious freedoms are protected,” said Sen. John Kerry (D-Mass.).
A bipartisan group of lawmakers have joined Kerry and the bill’s other lead sponsor, Sen. Sam Brownback (R-Kan.), in backing the legislation, including Sens. Tim Hutchinson (R-Ark.), Joseph Lieberman (D-Conn.) and Barbara Mikulski (D-Md.).
Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs, said, “It is quintessentially American that people should be able to expect that their religious needs will be reasonably accommodated, and they won’t be forced to choose between their religion and their job.
“Every month that passes just brings more and more stories about this kind of problem,” he said.
The bill would clarify a provision of current law that has stood unchanged for nearly three decades. Amendments passed in 1972 to the 1964 Civil Rights Act require employers to “reasonably accommodate” the needs of religious employees unless it causes the employer “undue hardship.” But the law does not define undue hardship, according to proponents of the legislation.
The courts have broadly interpreted undue hardship, resulting in several rulings that give employers a high degree of latitude in deciding whether to accommodate the religious practices of their employees.
The proposed new standard, based on similar language in a federal law protecting the handicapped against job discrimination, would require employers to prove a “significant difficulty or expense” if they decided not to accommodate a worker’s religious needs.
For example, the Orthodox Union recently received a complaint from an observant Jew who said his employer had decided not to allow him to continue taking shorter lunch breaks during the winter months so that he could leave early on Friday afternoons.
The legislation would place the burden on the employer to demonstrate that allowing the practice to continue would constitute a significant difficulty or expense for the employer, Diament said.
“The existing law has never lived up to its promise, and that’s because of judicial interpretations which have essentially made it extremely easy for employers to meet their burden under the law,” said Abba Cohen, Washington director and counsel for Agudath Israel of America.
“Because the bar is so low,” he added, “we’ve gotten to the point that employers don’t even bother seeking an accommodation for their employees, and by the same token, we have employees who don’t even seek to protect their rights.”
Most Jewish activists concede that the legislation stands little chance of becoming law this year, owing in part to a tight legislative calendar.
“It’s been a slow process,” acknowledged Richard Foltin, legislative director and counsel for the American Jewish Committee. “We all hope it will speed up. But above all we have to be persistent in moving this forward and educating members of Congress about the need for this legislation.”
Diament, for his part, said he believes the opposition of business and labor can be overcome this time around because the bill is being advanced by two key senators, Brownback and Kerry, who have close ties to those constituencies.
Beyond that, he said, it’s “a matter of shining public light on this dilemma. It’s true, this is one of those things that can get killed in the back room, but everyone agrees it’s the right thing to do and should be able to move forward.”
Its prospects could improve, observers say, because of the difficulty another piece of legislation related to religious freedom is encountering.
The Religious Liberty Protection Act, which seeks to allow people to practice their religion free from government intrusion, passed the U.S. House of Representatives this summer. But support in the Senate has broken down amid concerns about how religious liberty protections would be reconciled with civil rights laws when the two come into conflict.
For that reason, some observers said the workplace bill could emerge as a way for lawmakers to effect positive change in one key area where abuses are well documented.
“Passage of this law will immediately affect the lifestyles and impact positively on the lives of thousands of Americans and many Jews,” said Michael Lieberman, Washington counsel for the Anti-Defamation League. “There aren’t too many pieces of legislation you can say that about.”