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May 23, 2005
Faith at Work
BY NATHAN J. DIAMENT
May 12, 2005
The New York Sun
It's
not just pharmacists who may confront issues of conscience in the
workplace. Although recent media reports have highlighted a number
of cases in which pharmacists have refused to dispense "morning
after"
pills or contraceptives, making the corner drugstore the next
battleground in the culture wars between right and left, there are
many other workplace situations in which people of faith may have
to choose between their career and their conscience.
Scenarios involving conservative faith traditions are easily
imagined:
the scientist whose lab takes on a new stem cell research project,
the Web designer whose company accepts a contract to design a
pornographic Web site, or the nurse whose hospital undertakes to
perform abortions.
But adherents to progressive faith traditions may confront
conflicts,
too: the engineer whose company is awarded a military contract at
odds with her faith's pacifist teachings, the legal secretary in a
district attorney's office suddenly assigned to work on a death
penalty prosecution, or an attorney at a private firm which takes
on the defense of a tobacco company.
And even the situation of the pharmacists, which has received so
much attention of late in the context of birth control
medications, might be thought of differently were we to consider
pharmacists in Oregon where physician assisted suicide is legal.
Would those who have confidently proposed legislation to compel
pharmacists to dispense any legal prescription be as quick to do
so when the prescription is for poison as opposed to progesterone?
These and countless other situations - presenting a person of
faith with a difficult choice between personal belief and
professional demands - exist in a nation as religiously and
ideologically diverse as America.
There are two approaches to how we can deal with these dilemmas as
a society. The first would be the "free market" approach. People
should consider the possible conflicts between their faith and
their beliefs before taking a job. Accepting the job is accepting
to do whatever the job entails irrespective of one's beliefs, and
the employer owes no duty to try to accommodate those beliefs. If
an employee finds a conflict too much to bear, he is free to quit
and look for a livelihood elsewhere.
While this approach may appeal to libertarian impulses, it is at
odds with American values.
America, of course, was founded to foster religious liberty; first
for the Christian pilgrims, but ultimately codified in the First
Amendment for all persons of all faiths. In the modern era, even
after the Civil Rights Act outlawed religious discrimination in
employment, Congress realized that it was insufficient to only
prohibit outright discrimination without also encouraging
employers to accommodate the religious practices of their
employees in the workplace. Thus, in 1972, the act was amended to
require employers to "reasonably accommodate" the religious needs
of their employees so long as doing so did not impose an "undue
hardship" on the employer.
For a number of years, this legal provision worked well. It
encouraged employers and employees to work out appropriate
accommodations for common situations, adjusting work schedules for
a person to be off on a holy day and allowing people to wear
yarmulkes or other religious garb to the workplace. But a series
of court decisions eviscerated this law and it is now without any
real legal force. If an employer contends he will suffer even a
minimal inconvenience, the employer does not need to provide an
accommodation. Thus, we have seen Sabbath observers fired for not
wishing to work on their holy day, Muslim women fired for wearing
head scarves to work, and Sikh men losing jobs over their beards.
In the face of all these types of issues - scheduling, garb and
conscience - a broad coalition of religious communities - ranging
from the Southern Baptists to the National Council of Churches,
Orthodox and Reform Jews, the Family Research Council, and the
Anti-Defamation League
- has joined congressional sponsors as diverse as Senators
Santorum and Kerry to propose the Workplace Religious Freedom Act;
tri-state area proponents of WRFA include Senators Clinton,
Schumer, Corzine, and Lieberman, Reps. Carolyn McCarthy, Anthony
Weiner, and Major Owens, as well as State Attorney General Eliot
Spitzer.
WRFA would reinstate the principle that an employer should
reasonably accommodate the religious needs of an employee so long
as doing so does not unduly burden the employer's operations nor
adversely affect the interests of other third parties such as
customers or other employees.
Thus, to take the example of the moment, an individual pharmacist
who has an objection to dispensing a "morning after" pill or an
assisted suicide prescription would have her religious belief
accommodated if the pharmacy could still dispense the product it
wishes to sell, presumably through another pharmacist. But WRFA
would also allow for all people of all faiths to have their
religious needs accommodated in the workplace so long as doing so
would not adversely affect others. This approach has been tested
in New York, a state as diverse as any, over the past few years
through a state statute, and there have not been reports of
difficulties to date.
Early drafts of the First Amendment were worded to explicitly
protect freedom of conscience. That text was put aside for a
guarantee of the "free exercise" of religion - the right to not
only believe freely, but to act in conformity with those beliefs.
A neutral rule of religious accommodation in the workplace, which
recognizes the legitimate rights of religious employees, as well
as their employers and customers, is the appropriate and moderate
approach to minimize these conflicts for all Americans.
/Mr. Diament is director of Public Policy for the Union of
Orthodox Jewish Congregations of America/
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