In Defense of the Workplace Religious Freedom Act: Protecting the Unprotected without Sanctifying the Workplace
Morgan, James F., Labor Law Journal
"The twenty-first century... is dawning as a century of religion."1
Reflecting a decades-long ethos, the prevailing business culture in the United States views negatively the mixing of religion with work. As a result, employees commonly believe they should not bring expressions of their faith to the workplace. Many further surmise that the law restricts workers from practicing aspects of their religion while at work, even though Congress expressly mandated that employers accommodate the religious needs of workers in 1972. Unfortunately, narrow judicial interpretations during the past 30 years have thwarted congressional efforts to assure that religious workers-those who desire to express their religious or spiritual beliefs at work-are accommodated. The plight of the religious employee is now coming to the public policy foreground. In response to emboldened religious workers and ever-increasing religious pluralism, Congress is considering legislation aimed at establishing unequivocally the rights of employees who respectfully wish to bring aspects of their faith to work.
The Workplace Religious Freedom Act of 2003 (WRFA)2 was introduced with co-sponsors stretching the ideological gamut from Republican Senators Rick Santorum and Orrin Hatch to Democratic Senators john Kerry and Hillary Rodham Clinton.3 The breadth of congressional support for the WRFA is compelling evidence that religious workers deserve a greater level of legal protection and that the issue of providing appropriate protection for workers respectfully expressing their faith at work resonates at a core level, distinct from the typical litany of issues that invoke partisan wrangling so common within the halls of Congress.
This article unabashedly states a case in favor of the WRFA, presenting a minority view in terms of current commentary on the subject.4 The first section examines society's failure during past decades to provide religious employees with adequate legal protection. The next section addresses the sea-change occurring at work today as employees become increasingly comfortable practicing their religions beliefs at work and as the religions brought to the workplace become more varied. Salient aspects of the WRFA, which was drafted in part to deal with a more religious-and a more religiously diverse-workplace, are then analyzed. The article concludes that a close examination of the WRFA reveals that its provisions are well-suited to offer needed protection for religious workers.
RELIGIOUS EMPLOYEES' STRUGGLE FOR PROTECTION
Current treatment of religious employees in the workplace reveals a tension between two branches of government. Congress provided initial support for the rights of religious workers in early civil rights legislation and later supplemented that backing with a more specific dictate. United States Supreme Court rulings interpreting the statutory provisions, on the other hand, appear to thwart the intent of Congress by severely restricting the rights of religious workers. Lower courts, struggling in recent years to follow Supreme Court edicts and also pay homage to the intent of Congress, have created a patchwork of decisions interpreting the rights of the religious employee. As a result, employees who desire to bring their faith to the workplace are left grappling with a significant number of judicial decisions that not only appear at variance with congressional intent, but also fail to recognize the need for adequate protection.
Congressional and administrative action
Congress recognized the importance of religion to workers in the United States by providing in Title VII of the Civil Rights Act of 1964 (Title VII) that employers are forbidden to discriminate on the basis of an applicant's or employee's religion, which along with race, sex, national origin, and color, form the five prohibited bases for discrimination relating to work.5 With Congress focused primarily on proscribing racial discrimination in passing Title VII, legislative history pertaining to the religion category is scarce. …