Like a hardy perennial, the Workplace Religious Freedom Act (WRFA) blooms in Congress every spring —
only to wither and die when cold political reality sets in.
Right on cue, lead sponsors Sens. Rick Santorum, R-Pa., and John Kerry, D-Mass., reintroduced WRFA on March
17 — putting this legislation before Congress for a remarkable seventh consecutive session.
The ultra-conservative Santorum and the famously L-word Kerry are joined by a bipartisan list of strange
bedfellows that includes everyone from Orrin Hatch, R-Utah, to Hillary Clinton, D-N.Y. And WRFA is endorsed by more than 40
religious groups — a mind-boggling coalition ranging from the Southern Baptist Convention to the North American Council
for Muslim Women.
The common cause is the battle against religious discrimination in the workplace. Kerry began pushing this
bill years ago after he heard from ''two Catholic ladies who lost their jobs because they couldn't work on Christmas.'' Other
senators cite similar stories — and hundreds of complaints about discrimination received each year by the Equal Employment
Opportunity Commission. Sikhs and Muslims are told to remove their head-coverings. Seventh-day Adventists are fired because
they can't work on Saturday. The list goes on.
Beyond headgear and holy days, religious workers sometimes need accommodation for other claims: A Christian
lawyer who asks not to work on tobacco litigation; a Quaker who requests a transfer to a division that doesn't work on armaments;
an Orthodox Jewish woman who requests permission not to shake the hands of male customers.
Under the Civil Rights Act of 1964 (as amended in 1972), employers are supposed to ''reasonably accommodate''
these requests — unless doing so would cause undue hardship. Unfortunately, the courts have interpreted this to mean
that even a minimal cost or difficulty can be considered ''undue hardship.''
WRFA would strengthen the current standard, requiring employers to accommodate unless doing so would involve
''significant difficulty or expense.''
According to Santorum, the bill would help ensure that workers aren't forced ''to choose between dedication
to the principles of their faith and losing their job because their employers refuse to accommodate certain needs.''
If the need is so clear, why does Congress fail to act on WRFA year after year?
Because, just as left-right voices speak for the bill, left-right voices also speak against it. Conservatives
hear opposition from business interests worried that accommodation would mean higher costs. WRFA proponents acknowledge that
the bill may require some extra effort by employers, but point out that nothing in WRFA would lead to excessive hardship or
expense for businesses. On the contrary, they argue, more sensitivity to the religious requirements of workers can go a long
way in creating a more committed and productive workforce.
Liberals are nervous about opposition from the American Civil Liberties Union. Although the ACLU would support
a more limited bill (targeting the most frequent requests for accommodation such as dress and time off), the civil liberties
group contends that the current version would harm ''personal and civil rights of coworkers, customers, or patients.'' Harm
how? The ACLU warns that WRFA might protect workers who proselytize in the workplace in ways that others experience as harassment.
WRFA supporters respond that this concern is misplaced. Since courts now regard harassment as a significant hardship, ''employers
will continue to win harassment cases post-WRFA as handily as they have won them until now,'' according to religious groups
endorsing WRFA. The ACLU also is concerned that WRFA would make it possible for workers to opt out of essential functions
of their jobs. A police officer, for example, might be permitted to refuse to guard an abortion clinic.
As it happens, New York State has had a WRFA-like law since 2002 — without dire consequences. New
York Attorney General Eliot Spitzer noted, ''New York's law has not resulted in the infringement of the rights of others …
. 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.'' With endorsements like this, WRFA supporters are
optimistic that this may finally be their year. But they've thought so before — only to be disappointed by the repeated
failure of Congress to act.
If more Americans knew about WRFA, public opinion would pressure Congress to pass it. After all, in a nation
founded on freedom of conscience, should people be forced to choose between career and Creator?
Charles C. Haynes is a senior scholar at the First Amendment Center in Nashville, Tenn.
