Search JTA's historical archive dating back to 1923

Jewish Groups at Odds with Aclu over Religion in Workplace Legislation

June 9, 2004
See Original Daily Bulletin From This Date

Jewish organzations are battling a leading civil liberties group to help pass new laws on religious freedom in the workplace. After months of back-room discussions with the bill’s supporters, the American Civil Liberties Union has decided to oppose the Workplace Religious Freedom Act, which the Jewish community has been pushing for years.

The ACLU campaign against the legislation comes just as proponents had become increasingly optimistic that the U.S. Senate, which has sat on the legislation for more than a decade, would vote on the bill by the end of the year.

Though the Jewish proponents are still hopeful that the vote will proceed, the ACLU campaign could complicate progress on a measure that has long been a priority for some Jewish groups.

The legislation has not yet been introduced in the U.S. House of Representatives.

The legislation, known as WRFA, would give employees the right to seek accommodations for thei! r religious practices as long as they do not create an undue hardship for the employer.

It would give observant Jews the right to wear head coverings and other religious garb, take time off for Shabbat and holidays, and participate in religious practices at work.

Though earlier civil rights bills gave religious protection, Jewish groups say the courts have undermined those provisions by ruling that almost any inconvenience posed an undue hardship on employers.

The proposed legislation would define an undue hardship as a significant cost — financial or logistical — to the place of business.

The measure is widely supported in the Jewish community, across the religious and political spectrum.

The bill has languished in Congress over the years because of private concerns raised by labor and business, concerns that have now apparently been worked out.

In addition, it never got full backing from any prominent leaders in Congress.

Now, however, it has! gained the backing of two influential lawmakers, Sens. Rick Santorum (R-Pa.), chairman of the Senate Republican Conference, and John Kerry (D-Mass.), the presumptive Democratic nominee for president. It also has support from several other religious groups, such as the National Association of Evangelicals and the Southern Baptist Convention.

The ACLU is the first major organization to publicly oppose the legislation. In a seven-page memo sent to all U.S. Senate offices last week, the ACLU claimed the legislation could create scenarios in which people use their religious practices as a crutch to violate the civil rights of others.

The ACLU expressed concern that under the proposed legislation, religious people could legitimately refuse to work with people of the opposite gender or with gays or lesbians, or that they could use the law to justify proselytizing or displaying a swastika.

The ACLU positively points to cases in which the courts have ruled in recent years that employers did not need to accommodate religious practices, and ! question whether the courts would rule the same way under WRFA.

Examples include a police officer’s request to refuse to protect an abortion clinic and a social worker’s use of Bible readings with prison inmates in counseling sessions.

The legislation “is overly broad in the way it was drafted, and could cause problems for employers that want to enforce non-discrimination policies that go further,” Christopher Anders, ACLU’s legislative counsel, told JTA.

The ACLU is seeking a narrower bill, one that would only require employers to provide accommodations for holiday observances, religious clothing and beards.

Many groups in the Jewish community, themselves advocates for abortion rights and non-discrimination, are used to working side by side with the ACLU on legislative matters.

But this time, they think the group is overreacting.

“I really believe they’re wrong,” said Rabbi David Saperstein, director of the Religious Action Center for Reform Judaism! . “This is one of the few times they’re wrong.”

Saperstein predict s that if WRFA becomes law, courts will continue to decide that employees cannot undermine an employer’s effort to prevent discrimination and many of the scenarios the ACLU hypothesizes would not play out.

Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs, agrees.

One thing this legislation does not do in every circumstance “is give employees a trump card to say, ‘My religion requires XYZ and you, the employer, must comply,’ ” Diament said.

Advocates note that no such problems have occurred in the five years since similar rules went into effect for federal employees, after President Clinton signed an executive order to that effect.

“This is a balancing test, and this is a fair balancing test,”Saperstein said.

Jewish organizational leaders say they are frustrated they were unable to overcome their impasse with the ACLU in the eight months they have been discussing the issue.

The civil rights organization has strong ties with! the Democratic minority in the Senate, and it would only take one senator to block the legislation from reaching a vote.

Still, Jewish groups are optimistic.

Santorum’s office has indicated an interest in a vote, and Kerry’s backing is expected to help the momentum among Democrats.

In fact, Jewish leaders believe Kerry’s vocal support for the legislation, which he touted when he spoke to the Anti-Defamation League in May, could counterbalance the ACLU.

“The sense is there is some movement on the bill,” said Richard Foltin, legislative director for the American Jewish Committee. “The ACLU is a voice and people listen when they speak; that doesn’t mean they are always persuasive.”

Recommended from JTA