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June 29, 2004
Defend
the Civil Right to Freedom Of Religion for America's Workers By
Eliot Spitzer
Published in The Forward - June 25, 2004
At first glance, Donovan
Reed and Kalman Katz have very little in common.
Though both are from New York State, Reed is an
African-American from Mount Vernon,
while Katz is an chasidic Jew from Borough Park. But both
Reed and Katz are devoutly religious, and both were put in
the untenable position of having to
choose between keeping their faith and keeping their jobs.
Katz and Reed were both repair technicians who were denied
employment by Sears because of their
refusal to work on their Sabbath. After receiving
their complaints and conducting a
thorough investigation, my office obtained
a court-ordered consent decree ensuring that Sears no
longer would ask employees of faith to choose between career and
conscience.
During the course of our investigation, we became convinced that
New York's law governing the
accommodation of employees of faith was too vague. Employers were
required to accommodate some religious practices but not others,
and while employers were excused from accommodation in the case of
"undue hardship," that term was not defined. Working together
with State Assembly Speaker Sheldon Silver, we crafted a
law patterned after the Workplace
Religious Freedom Act, a federal bill known as WRFA
that is currently pending in Congress that expanded the
scope and nature of the required accommodation.
Recently, the American Civil Liberties Union has started a
campaign to lobby against WRFA, contending that it may violate the
reproductive rights of women and the
rights of others. I have the utmost respect for the ACLU, but on
this issue they are simply wrong.
New York's law has not resulted in the infringement of the rights
of others, or in the additional
litigation that the ACLU predicts will occur if WRFA is
enacted. Nor has it been burdensome on business. Rather, it
strikes the correct balance between accommodating individual
liberty and the needs of businesses and the delivery of services.
So does WRFA.
New York's law extends the "reasonable accommodation" requirement
to all religious practices and beliefs not just in matters of
scheduling or religious garb and defines
"undue hardship" to mean a significant difficulty or expense. The
law requires courts confronted with a claim of undue hardship to
consider the cost of the accommodation in relation
to the size of the employer. The law also recognizes that
an accommodation is not necessary if it would prevent the employee
from performing the "essential function" of the job.
New York's law and WRFA is a significant improvement over the
current federal law governing religious accommodation in the
workplace. In 1977, the Supreme Court
ruled that TWA would suffer "undue hardship" if it were required
to spend $150 to accommodate an employee who refused to work on
his Sabbath. That decision made it too difficult for employees to
prevail in religious accommodation cases. In fact, in 1997
President Clinton conveyed his dissatisfaction with the federal
law governing religious accommodation by issuing "Guidelines on
Religious Exercise and Religious Expression in the Federal
Workplace," which enhanced the protections afforded to federal
employees of faith.
Employees of faith are already enjoying the protections of New
York's law, which went into effect almost two years ago. My office
has sued FedEx, which prohibits
employees who wear beards or dreadlocks for
religious reasons from being promoted to positions that
require customer contact. And we are investigating a complaint
filed by a Sikh whose insistence on
wearing his turban cost him his job.
The same benefits can be expected from WRFA. The bill has broad
bipartisan support in the Senate, where its chief sponsors are
Democrat John Kerry and Republican Rick Santorum. WRFA also has
the support of an incredibly diverse
coalition of organizations such as the Religious
Action Center of Reform Judaism, the National Council of Churches,
the National Council of Muslim Women and the Southern Baptist
Convention.
WRFA redresses federal court decisions that have expanded the
"undue hardship" exception to the religious accommodation
requirement of Title VII of the Civil
Rights Act of 1964 to include any de minimus cost or minimal
inconvenience. Like New York's law, WRFA will require an
accommodation unless it would impose a significant difficulty or
expense or the employee would no longer be able to perform the
job's essential functions.
Take the ACLU's example of reproductive rights. WRFA would not
permit a nurse who has a religious objection to participating in
abortion procedures to abandon the "essential function" of her job
and refuse to assist a woman arriving at a hospital who requires
an emergency abortion procedure. However, if the hospital arranges
for all prescheduled abortions to take place on a particular day
of the week, WRFA would empower the nurse to find alternative
solutions, such as asking her employer to help her find another
nurse who would be willing to swap shifts. Her religious beliefs
would be accommodated without impacting the hospital's ability to
provide abortion services.
Those of us who are pro-choice need to recognize that this would
be an appropriate outcome.
From the Family Medical
Leave Act to the Americans with Disabilities Act,
Congress has taken great strides to expand the obligation
to assist members of society who traditionally have been excluded
from the workplace. Employees of faith are entitled to that same
protection.
The ACLU has proposed
narrowing WRFA so that its accommodation requirements are limited
to scheduling or religious garb requests. The framers of the First
Amendment did not define religious liberty so narrowly and neither
should we.
Somewhere in America, the next Kalman Katz or Donovan Reed is
explaining to his family that his faith has cost him his
job. It is wrong for employers to
force employees to make that choice, and it is wrong for the ACLU
to attempt to frame WRFA as requiring a choice between
religious and reproductive rights.
Eliot Spitzer is attorney general of New York.
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