Dear Representative:

     The American Civil Liberties Union strongly urges you to oppose the Workplace Religious Freedom Act (“WRFA”) as written in the 110th Congress--unless it is revised before introduction to ensure that the legislation will not have the presumably unintended consequence of harming critical personal and civil rights of coworkers, customers, or patients.  Unless revised before introduction, WRFA would threaten important rights of religious minorities, racial minorities, women, gay men and lesbians, and persons seeking reproductive health care and mental health services.

     As written in the 110th Congress, WRFA would revise and strengthen the existing requirements imposed on employers to accommodate the religious practices of their employees.  This letter explains:  the current religious accommodation requirements under Title VII of the Civil Rights Act of 1964, the changes made to Title VII by the legislation, WRFA’s potential harm to important personal and civil rights, and the availability of a more targeted alternative to WRFA.

    In preparing this letter, the ACLU reviewed every Title VII religious accommodation federal decision reported either in an official reporter or on Westlaw--since the Hardison decision in 1977 through December 31, 2002--in which a court reached the question of reasonable accommodation or undue hardship.  A quarter-century of reported litigation gives a fairly accurate picture of the full range of cases that employees already win under the current religious accommodation standard, and the cases that employees typically lose under the current standard.[1]  Based on that review, the ACLU[2] has serious concerns about the potential harmful effect of WRFA, but we also see an opportunity for alternative legislation that would address nearly all of the religious accommodation claims that do not involve harm to critical personal and civil rights.

     Over the past 25 years, employees have brought an array of claims for employers to accommodate religious practices that would have resulted in harm to critical personal or civil rights.  If WRFA had been law, the following rejected religious accommodation claims could have been decided differently: 

• police officer’s request to refuse to protect an abortion clinic,

• another police officer’s request to abstain from arresting protestors blocking a clinic entrance,

• social worker’s decision to use Bible readings, prayer, and the “casting out of demons” with inmates in a county prison, instead of providing the county’s required secular mental health counseling,

• state-employed visiting nurse’s decision to tell an AIDS patient and his partner that God “doesn’t like the homosexual lifestyle” and that they needed to pray for salvation,

• delivery room nurse’s refusal to scrub for an emergency inducement of labor and an emergency caesarian section delivery on women who were in danger of bleeding to death,

• two different male truck drivers and a male emergency medical technician request to avoid overnight work shifts with women because they could not sleep in the same quarters with women,

• employee assistance counselor’s request to refuse to counsel unmarried or gay or lesbian employees on relationship issues,

• hotel worker’s decision to spray a swastika on a mirror as a religious “good luck” symbol, 

• private sector employee’s request to uncover and display a KKK tattoo of a hooded figure standing in front of a burning cross, 

• state-employed sign language interpreter’s request to proselytize and pray aloud for her assigned deaf mental health patients, and

• retail employee’s request to begin most statements on the job with “In the name of Jesus Christ of Nazareth.”

These examples were all actual cases brought into federal court by employees claiming that their employers refused to provide a reasonable accommodation of their religious beliefs.  Applying the existing Title VII reasonable accommodation standard, the courts rejected all of these claims.  But Congress has no assurance that courts would continue to reject all of these types of claims if WRFA becomes law.

     The harm that WRFA could cause is completely avoidable.  Congress can--and should--pass legislation tightly focused on strengthening the federal requirements imposed on employers to accommodate workplace scheduling changes for the observation of religious holidays and the wearing of religious clothing or a beard or hairstyle.  These two areas of religious accommodation account for nearly three-fourths of all of the religious accommodation claims rejected by federal courts in published opinions during the past quarter-century.  A narrowly tailored bill could address these problems for religious minorities without any of the harms that WRFA could cause.

Existing Law Provides a Base Level of Coverage

     Title VII of the Civil Rights Act of 1964 requires employers to provide a reasonable accommodation of the religious observance or practice of employees.  Although the Supreme Court, in TWA v. Hardison, 432 U.S. 63 (1977), limited the employer’s obligations under Title VII of the Civil Rights Act of 1964 to accommodate its employees’ religious practices at work, employers continue to have a legal duty to accommodate religious exercise in the workplace that does not cause the employer more than a de minimus cost. 

     During the quarter-century after Hardison, employees have won about one-third of their litigated claims for scheduling changes for observance of religious holidays, nearly one-half of claims for having a beard or hairstyle for religious reasons, and roughly one-fourth of claims for wearing religious apparel.  In addition, employees have won claims for an array of other requested religious accommodations.  Of course, these were claims that were actually litigated and resulted in published opinions.  Presumably, a large number of additional claims were accommodated by employers without employees having to resort to litigation.

WRFA Is Overbroad and Would Likely Harm Critical Personal and Civil Rights

     WRFA would broadly strengthen existing requirements imposed on an employer to provide reasonable accommodations of an employee’s religious observances and practices in the workplace.  Although most of the proponents of WRFA seek only to accommodate the observance of religious holidays and the wearing of beards/hairstyle or religious clothing--and have no interest in harming anyone’s rights--WRFA may have a much broader impact than at least most of its supporters intend it to have.

     As written in the 110th Congress, WRFA would make the following three changes in the law:

• Create a definition of “essential functions of the employment position,” but then exempt restrictions on work “practices that may have a temporary or tangential impact on the ability to perform job functions” if related to participation in a religious observance or practice (emphasis added);
  
• Replace the Supreme Court’s determination that an employer does not have to provide a reasonable accommodation of a religious practice under Title VII if providing the accommodation would cause anything more than a de minimis cost.  Instead, an employer can refuse an accommodation only if it would incur “significant difficulty or expense,” as determined by factors such as “identifiable cost of the accommodation,” the size of the employer, and the location and characteristics of its various facilities; and

• Require that a reasonable accommodation must “remove the conflict between employment requirements and the religious observance or practice of the employee.”

The combined effect of these changes will be radically different analyses of those religious accommodation claims that could result in harm to critical personal or civil rights.  Congress has no assurance that courts will continue to reject claims that could cause important harm.

First, the introduction of the “essential functions” of the job standard into Title VII’s religious accommodation definition raises important questions of which functions of an employee’s job are “essential.”  Increasing numbers of employees will go to court arguing that a refusal to perform all aspects of a job involving health or public safety, unwillingness to comply with employer policies precluding religious or racial harassment, or an objection to sharing overnight work shifts with women do not infringe on any “essential function” of a job.  In many cases, an employee would likely bolster his or her claim that a religious practice does not affect an essential function of a job by claiming that the religious practice has nothing more than a “temporary or tangential impact on the ability to perform job functions,” and is thus entirely exempt from the definition of “essential function.”  Employers will have to determine whether a police officer’s decision to pick and choose who he or she is protecting, a medical or mental health worker’s decision on who he or she will treat and how the person will be treated, a worker’s occasional religious condemnation of a coworker, or the occasional flashing of a swastika or KKK symbol in a private workplace is essential or causes nothing more than a temporary or tangential impact on performance.  And if the effect on work performance is “temporary or tangential,” then the employer will have no choice; it will have to provide the requested accommodation.

Second, WRFA borrows from the Americans with Disabilities Act a definition of a “significant difficulty or expense” which would relieve employers of having to provide the requested reasonable accommodation.  However, the criteria involve primarily financial factors such as loss of productivity, and the relationship of the costs to the size and structure of the employer.  While the definition may be appropriate for a disability rights statute such as the ADA in which the accommodation may require costly changes such as architectural improvements, it has less relevance to a religious anti-discrimination statute.  If WRFA passes, employers may have great difficulty defining the “identifiable costs” of allowing employees to proselytize or harass other coworkers or third parties, such as customers or patients.  The harmful effect of a particular accommodation on another person might be difficult to express in specifics such as loss of productivity or financial losses relative to the size of the employer.

Third, the requirement that a reasonable accommodation must “remove the conflict between employment requirements and the religious observance or practice of the employee” would likely bolster arguments that an employer may not simply choose to transfer an employee to another position in order to accommodate an employee.  Instead, it could require that employers must change the requirements of the employee’s existing position--even when having the employee remain in his or her current position would result in harm to others.  Although it is not clear that this “remove the conflict” requirement would necessarily result in employers having to restructure jobs for employees who insist on performing their jobs in ways that harm others, courts will at least have to resolve the question of whether this provision is directed at the specific job of an employee or simply means an equivalent job.

It is impossible to determine the certain effect of WRFA on all possible claims for accommodations that would cause harm, but it is clear that WRFA would be a significant break from how courts decided religious accommodation cases over the past quarter-century.  And it is equally clear that the drafters of WRFA in the 110th Congress took no steps to ensure that it could not be used to reverse the outcomes of the types of cases decided during the past 25 years in which an employee was denied a claim to use his or her religious exercise in a way that would harm critical personal or civil rights.

Who Could Be Harmed by WRFA

Congress should consider the types of cases that employees have actually lost under the current religious accommodation standard before bolstering the standard through WRFA.  During the quarter-century between the Supreme Court’s 1977 decision in Hardison and the end of last year, employees lost 113 religious accommodation cases reported by either federal reporters or Westlaw in which a federal court considered whether the requested accommodation was reasonable or whether it imposed more than a de minimus cost on the employer.  But 83 of those decisions involved the scheduling of religious holidays or the wearing of religious clothing or a beard.  Employees lost only 30 cases over 25 years that involved claims for something other than scheduling of religious holidays or the wearing of religious clothing or beards.

By examining the 30 reported cases that did not involve religious holidays, religious clothing, or beards, Congress can more easily determine the change in the scope of coverage caused by replacing WRFA with targeted legislation that precludes harm to critical personal and civil rights--and what types of cases would likely confront employers and the courts more frequently if Congress goes ahead and passes WRFA with no changes.  Based on a review of these cases, it should be clear that employees would lose almost nothing more than those claims that harm important rights if Congress amends WRFA to focus solely on reasonable accommodation of religious holidays and religious clothing and beards.

     16 of the 30 reported cases involved some type of harm or potential harm to critical personal or civil rights.[3]  These cases, which would have been analyzed differently--and could have had a different outcome--if WRFA had been law when they were decided, threatened harm to:

    Religious Minorities: The courts have rejected an array of claims by employees claiming a right to proselytize others, or otherwise engage in unwanted religious activities directed toward others, while at work.  

    A county sheriff did not have to accommodate--and thereby risk disrupting the county’s religious neutrality policy--a social worker hired to provide secular mental health counseling to county prisoners, but who used Bible readings, prayer, and the “casting out of demons” with the inmates.  Spratt v. County of Kent, 621 F. Supp. 594 (W.D. Mich. 1985), aff’d, 810 F.2d 203 (6th Cir. 1986).  Similarly, a Veterans Administration hospital had no obligation to accommodate a hospital chaplain in a psychiatric department whose practices included interfering with medical decisions, contradicting religious advice given by another chaplain to a patient, and using graphic metaphors in talks that confused the psychiatric patients--because such practices were antithetical to the medical work of the hospital.  Baz v. Walters, 782 F.2d 701 (7th Cir. 1986). 

    Although a claim by a hotel worker for a religious accommodation to allow his spraying of a swastika on a mirror while setting up for an event as a religious “good luck” symbol was denied by a court because the employee failed to provide notice of his need for an accommodation, the court also stated that providing the accommodation would have imposed an undue hardship on the employer.  Kaushal v. Hyatt Regency Woodfield, 1999 WL 436585 (N.D. Ill. 1999).  Another court held that a private employer provided a reasonable accommodation of an employee’s religiously motivated request to wear an anti-abortion button that included a color photograph of a fetus by requiring her to cover it while at work to minimize its disruptive impact on coworkers disturbed by the display of the photograph--including coworkers who shared both her religion and her anti-abortion views.  Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995). 

    A court held that an employer had no duty to accommodate an employee’s need to write letters to both a supervisor and a subordinate at their homes severely criticizing their private lives and urging religious solutions.  Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012 (4th Cir. 1996).  The court reasoned that accommodating the employee’s need to send these letters would subject the employer to potential liability for not protecting the religious rights of its other employees.  Id. at 1021.  Similarly, a court held that a retail employer did not have to accommodate an employee’s religious belief that “required her to preface nearly every sentence she spoke with the phrase “In the name of Jesus Christ of Nazareth” because it would impose an undue hardship of “offend[ing] the religious beliefs or non beliefs of its customers.”  Johnson v. Halls Merchandising, Inc., 1989 WL 23201 (W.D. Mo. 1989).  In a similar case, an employer reasonably accommodated an employee’s need to say “Have a Blessed Day” to everyone in the workplace by allowing her to use the phrase with coworkers, but prohibiting her from using the phrase with clients that complained about its use.  Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470 (7th Cir. 2001).

    Racial Minorities:  In addition to the claim for an accommodation for the display of a swastika discussed in the religious minorities section above, Kaushal, 1999 WL 436585, a court rejected a claim by an employee in a private workplace to uncover and display his KKK tattoo of a hooded figure standing in front of a burning cross.  The court held that the employer had already provided a reasonable accommodation by allowing the employee to uncover the tattoo when washing it, but that any further accommodation would result in undue hardship because it would violate the employer’s racial harassment policy.  Swartzentruber v. Gunite Corp., 99 F. Supp.2d 976 (N.D. Ind. 2000).

    Women:  Courts have rejected several claims made by male employees claiming that employers failed to accommodate their religious objections to working with women during overnight shifts because they could not sleep in the same quarters as women.  The courts rejected claims by two male truck drivers objecting to overnight runs with women drivers because the employers could not accommodate the requests without incurring undue hardships, Virts v. Consolidated Freightways Corporation of Delaware, 285 F.3d 508 (6th Cir. 2002); Weber v. Roadway Express, Inc., 199 F.3d 270 (5th Cir. 2000), and also rejected a similar claim by a male emergency medical technician refusing overnight shifts with women because the employer had already made a reasonable accommodation by installing folding walls in the break room and authorizing the employee to sleep in alternative places, Miller v. Drennon, 1991 WL 325291 (D.S.C. 1991), aff’d, 966 F.2d 1443 (4th Cir. 1992).

    Gay Men and Lesbians:  Two important claims would have harmed the rights of gay men and lesbians to nondiscriminatory health care and mental health services.  A court rejected a claim from a state-employed visiting nurse who, during a nursing visit to a gay man with AIDS and his partner, explained that they would only have salvation through her view of Christian beliefs and that God “doesn’t like the homosexual lifestyle.”  The court held that accommodating the nurse’s request to proselytize her patients was not reasonable because it would interfere with the state providing services in a religion-neutral manner.  Knight v. Conn. Dep’t of Public Health, 275 F.3d 156 (2nd Cir. 2001).  Another court held that an employer had already provided a reasonable accommodation (by offering to transfer to another job) to an employee assistance counselor who refused to counsel unmarried or gay or lesbian employees on relationship issues, but would have incurred more than a de minimus cost if it was forced to accept the counselor’s request to remain in her current position but allow her to refuse clients.  Bruff v. North Mississippi Health Services, Inc., 244 F.3d 495 (5th Cir. 2001).

    Persons Seeking Access to Reproductive Health Care:  A court held that, because a hospital offered to transfer a nurse who objected to ending any life to a position outside of the labor and delivery section (which does not perform elective abortions) of the hospital, the hospital had no further duty to accommodate the nurse’s refusal to participate in emergency procedures that terminate pregnancies.  The labor and delivery nurse had twice refused to scrub for emergency obstetrical procedures on women with life-threatening conditions; in the second incident, the nurse’s refusal delayed the emergency procedure by thirty minutes--on a woman who was “standing in a pool of blood.”  Shelton v. Univ. of Medicine & Dentistry of New Jersey, 223 F.3d 220 (3d Cir. 2000). 

    Two courts have upheld the denial of requests by police officers to refuse to protect abortion clinics.  A court held that the availability of a transfer to a district without an abortion clinic was a reasonable accommodation of a police officer’s request to refuse to protect an abortion clinic in his assigned district, but that the police department had no further obligation to accommodate the request if the officer chose to stay in a district with an abortion clinic.  Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998).  Another court upheld a police department’s refusal of a police sergeant’s request to refuse to arrest any persons blocking access to abortion clinics, by holding that accommodating the request would be an undue hardship of potentially jeopardizing the “duty to uphold the law which has been passed by the people in order to protect society” and threatening the protection of “individuals inside abortion clinics from others’ interference with their legally protected rights.”  Parrott v. District of Columbia, 1991 WL 126020 (D.D.C. 1991).

    Persons Seeking Access to Mental Health Services:  As discussed above, courts have rejected claims by an employee assistance counselor to refuse to counsel unmarried and gay and lesbian employees on relationship issues, Bruff, 244 F.3d 495, and a hospital chaplain to engage in certain practices viewed by the employer as disruptive of the treatment of psychiatric patients, Baz, 782 F.2d 701.  In addition, in a claim consolidated with the claim by a visiting nurse to proselytize an HIV-positive patient, the Second Circuit upheld the denial of a sign language interpreter’s request to proselytize and pray aloud for mental health patients that she was assigned by the state to interpret.  Knight, 275 F.3d 156.  Relying on the trial court’s finding that the employee’s actions were disruptive, the appellate court held that accommodating the employee’s request would not be reasonable because it would preclude the employer from providing mental health services in a religion-neutral manner.  Id. at 168.

     Congress should replace WRFA with more narrowly drafted legislation that bolsters only the requirements imposed on employers to accommodate the scheduling of leave time for the observation of religious holidays or for the wearing of religious apparel or a beard or hairstyle.  Not only would a narrowly drafted bill address most of the problems actually experienced by employees denied religious accommodations, but it also would be a constitutionally sound approach to legislation.

     Based on our review of 25 years of Title VII religious accommodation federal decisions, we conclude that the vast majority of the religious accommodation claims that are denied by employers fall into three categories:

• scheduling of religious holidays,

• the wearing of religious clothing or a beard or hairstyle, or

• claims that would result in harm to critical personal or civil rights. 

Congress does not have to guess at what types of religious practices it is accommodating or refusing to accommodate when considering WRFA or any changes to it.  The ACLU found that claims for the scheduling of time off for religious holidays or the wearing of religious clothing or a beard together made up 83 of the 113 reported federal decisions since 1977 through the end of 2002 in which the employee lost his or her claim to a reasonable accommodation.

    Changing the approach from WRFA to a bill specifically focused on the problems that real people actually face in the workplace would be consistent with the approach that Congress took a few years ago when it replaced the Religious Liberty Protection Act with the more sharply focused Religious Land Use and Institutionalized Persons Act of 2000.  Not only did Congress create a powerful new tool for protecting religious exercise without harming any other rights, but it also created a vehicle that was so popular that it passed both houses by unanimous consent on the same afternoon.

    Further, a more narrowly drafted bill is more likely to survive an Eleventh Amendment challenge by a state claiming that the statute violates the state’s sovereign immunity.  The existing religious accommodation standard in Title VII is the only provision in Title VII to have been found unconstitutional by a federal court of appeals deciding an Eleventh Amendment challenge.  See Holmes v. Marion County Office of Family and Children, 349 F.3d 914, 627-30 (7th Cir. 2003).  As it considers strengthening the religious accommodation standard in Title VII, Congress must be careful to meet the federalism standards set by the Supreme Court in several recent decisions.  Close tailoring of the legislative solution to the constitutional harm being prevented increases the likelihood that a statute will be upheld against an Eleventh Amendment challenge, and decreases the possibility of establishing additional case law further limiting the power of Congress to provide federal remedies for discrimination.

    We should add that at least some of the sponsors of WRFA already have a draft of a more narrowly focused bill.  This draft bill could become the basis of a consensus approach to protecting religious exercise rights in the workplace.

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    There simply is no reason to create a standard under WRFA that could call into question the resolution of claims such as these requests for accommodations 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.  For these reasons, the ACLU urges you to oppose WRFA as written in the 110th Congress, unless it is revised before introduction to avoid any threat of harm to important personal or civil rights.

    Thank you for your attention to these concerns.  Please do not hesitate to call us at 202-675-2308 if you have any questions regarding this issue.

Sincerely,

Caroline Fredrickson
Director      

Christopher E. Anders
Senior Legislative Counsel                     

Terri Schroeder
Senior Lobbyist

Endnotes

[1]   For the purposes of this letter, a “win” for an employee is either success on the merits or denial of the employer’s motion for summary judgment.

[2]   The American Civil Liberties Union has a long and continuing history of vigorously defending religious liberty.  In Congress and in the courts, we have supported legislation providing stronger protection for religious exercise--even against neutral, generally applicable laws.  The ACLU fought to preserve or restore the highest level of constitutional protection for religious exercise as founding members of the coalition that supported passage of the Religious Freedom Restoration Act of 1993, and we were instrumental in the drafting and support for the Religious Land Use and Institutionalized Persons Act of 2000.  The ACLU has represented persons in court and before regulatory agencies challenging burdens on the exercise of their religious beliefs.  For example, we sued to protect the right of a Jewish student to wear a Star of David pendant at school, we sued to defend the right of conservative Christian activists to broadcast on public access television, we represented a Muslim woman in religious garb who was excluded from the viewing stands at a public pool while her son swam, we represented a Baptist group that was barred from using a river in a public park for Baptisms, we filed a brief in support of two women who were fired for refusing to work at a greyhound racetrack on Christmas Day, we maintain an active and current docket of RLUIPA claims, and we even offered to back the Reverend Jerry Falwell in his 2001 challenge to Virginia laws restricting ownership of church property.

[3]   The remaining 14 decisions did not involve any claim of harm or potential harm to critical personal or civil rights, but no more than four of these decisions would even arguably be affected by WRFA.  Six of the decisions involved requests for a reasonable accommodation of an employee’s refusal to provide a Social Security number to the employer.  The courts upheld the employer’s refusal, typically because the accommodation would have required the employer to violate federal Social Security law.  Seaworth v. Pearson, 203 F.3d 1056 (8th Cir. 2000); Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826 (9th Cir. 1999); Baltgalvis v. Newport News Shipbuilding Inc., 132 F. Supp.2d 414 (E.D. Va. 2001); Weber v. Leaseway Dedicated Logistics, Inc., 5 F. Supp.2d 1219 (D. Kan. 1998), aff’d 166 F.3d 1223 (10th Cir. 1999); E.E.O.C. v. Allendale Nursing Centre, 996 F. Supp. 712 (W.D. Mich. 1998); Hover v. Florida Power & Light Co., Inc., 1995 WL 91531 (S.D. Fla. 1995), aff’d, 101 F.3d 708 (11th Cir. 1996).  Three other decisions involved requests from employees in unionized workplaces to refuse to pay union dues for religious reasons, e.g., Yott v. North American Rockwell Corp., 602 F.2d 904 (9th Cir. 1979), but twelve more recent decisions and EEOC guidelines required unions to accommodate the religious objection to the payment of union dues or a portion of union dues attributable to activities that the employee finds religiously objectionable.  Five other fact-specific decisions involved an FBI agent’s religious objections to investigating peace activist organizations, Ryan v. United States Dep’t of Justice, 950 F.2d 458 (7th Cir. 1991), a county administrator’s use of his secretary to type his Bible study notes and his use of his office for a prayer service before the start of the workday, Brown v. Polk County, Iowa, 61 F.3d 650 (8th Cir. 1995) (holding that the use of the secretary and the office was an expense to the county, but not considering any effect on coworkers), a telemarketing employee’s request to move to a position that would not require her to answer calls seeking products from the employer’s religious organization clients when there were no openings in any other parts of the employer’s business, McIntyre-Handy v. West Telemarketing Corp.,  97 F. Supp.2d 718 (E.D. Va. 2000), aff’d, 238 F.3d 413 (4th Cir. 2000), a request to refuse a drug test authorized by a collective bargaining agreement because of an employee’s religious objection to the overall drug testing scheme, Cary v. Carmichael, 908 F. Supp. 1334 (E.D. Va. 1995), aff’d, 116 F.3d 472 (4th Cir. 1997), and a manager’s objection to carrying out routine personnel and management actions, Ali v. Southeast Neighborhood House, 519 F. Supp. 489 (D.D.C. 1981).