The Workplace Religious Freedom Act: ADA Problems under a New Name

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ABSTRACT

A number of problems for American businesses and workers have arisen as a result of the passage of the Americans with Disabilities Act (ADA). There is now a looming potential for similar problems with the introduction of the Workplace Religious Freedom Act (WRFA). While not yet a law, the WRFA has been introduced several times and will probably continue to be introduced until enactment. This paper looks at the problems caused by the ADA and provides detailed speculation as to how the same or similar problems can result from passage of the WRFA.

INTRODUCTION

Religious discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) are on the rise. EEOC data reveal that 1,939 charges were filed in the year 2000, up from 1,388 in 1992 ("Religion-Based Charges," 2001). In fact, religious-based discrimination charges are the third fastest growing claim, after sexual harassment and disability (Conlin, 1999). This makes the handling of religious expression in the workplace a volatile issue due to sometimes conflicting legal issues and strongly held personal beliefs (Zachery, 1996). "Under Title VII, employers are required to make a reasonable accommodation for an employee's religious beliefs unless doing so would impose an undue hardship. Although simply stated, the standard is hard to apply" (Levy, 2000). In an attempt to clarify religious accommodation, some members of Congress are attempting to modify Title VII through the passage of the Workplace Religious Freedom Act (WRFA) of 2002 (Gaddy, 2002). Senators John Kerry (D-Massachusetts) and Dan Coats (R-Indiana) and Representative William Goodling (R-Pennsylvania) first introduced WRFA in Congress in 1997 (Baker and Daniels, 2000). The bill failed to pass but was re-introduced in 1998 ("Religious Freedom in the Workplace, 2001). Representative Jerrold Nadler (D-New York) re-introduced the bill in 2000 (Baker and Daniels, 2000), leading to its debate by the House Education & Workforce Committee and the Subcommittee on Employer-Employee Relations (Bill Summary & Status for the 106th Congress, 2001). In May, 2002 the bill was introduced by a bipartisan coalition and subsequently referred to the Committee on Health, Education, Labor and Pensions (Gaddy, 2002). Title VII prohibits workplace discrimination based on race, color, religion, sex or national origin. Unlike the other Title VII categories, no absolute prohibition exists against discrimination based on religion (Bennett-Alexander and Pincus, 1998). As the law now stands, the employer must reasonably accommodate an employee's religious practices unless the accommodation results in an undue hardship. The U.S. Supreme Court [TWA v. Hardison 432 U.S. 63 (1977)] has defined the term undue hardship as anything more than a minimal effort or expense (Hansen, 1998).

The WRFA, as proposed, consists of these five changes to Title VII (Baker and Daniels, 2000):

The definition of "undue hardship" would be comparable to that found in the Americans with Disabilities Act (ADA); that which is seen as a "significant difficulty or expense."

WRFA would clarify for the courts the considerations defining "significant difficulty or expense." First, the court would question if the employee could not perform the essential function of the job as a result of not being accommodated. Next, the court would consider the cost of accommodation, the number of employees involved and for multi-facility employers, the level of extra administrative and fiscal burden that would result from geographic differences.

In 1977, the U.S. Supreme Court ruled that it would be an undue hardship for an employer if the company had to violate the seniority provision in a union collective bargaining agreement in order to accommodate an employee. Under WRFA, a company may no longer adhere to the seniority provision. Employees would be able to accommodate religious beliefs by exchanging shifts, even if this were in violation of a seniority system. …

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