The rights of religious people in the American workplace are all the rage these days. So much so that two U.S. senators, John Kerry, a Massachusetts Democrat, and Rick Santorum, a Pennsylvania Republican, normally opposites on the political spectrum, are co-sponsoring a bill that would provide employees with greater freedom to express their religious beliefs at work and not have to worry about getting fired.
The Workplace Religion Freedom Act (WRFA), its supporters say—among whom are B’nai B’rith, the Family Research Council and the American Jewish Committee—would strengthen civil rights laws and require employers to make “reasonable accommodations” for their employees to practice their faith in the work environment as long as such accommodations don’t create “undue hardship” and are only “temporary and tangential” to the employees’ essential functions.
“We cannot afford to have our fellow citizens suffer religious discrimination because of a narrow interpretation of pre-existing laws... no American should ever have to chose between keeping a job and keeping faith with their cherished religious beliefs and traditions,” Kerry said at a March 17 press conference he held with Santorum to announce the introduction of the legislation and urge its passage.
WRFA has even attracted the endorsement of Sen. Hillary Rodham Clinton, a New York Democrat, and possible contender, along with Kerry himself, for the 2008 Democratic presidential candidate.
However, many liberal advocacy groups have warned that WRFA could limit the scope of state, local and employer-based anti-discrimination statutes and rules, as well access to healthcare for women and gay people.
Christopher Anders, national legislative director for the American Civil Liberties Union, said the bill provides many ways for a healthcare provider such as a nurse or pharmacist to refuse to serve a client because they object to the person’s sexuality or the medicine they require.
Anders used the well-known example of a pharmacist refusing to dispense birth-control or morning-after pills because it contradicts their religious beliefs. Current law allows a pharmacist to make this choice if another pharmacist can fulfill the order. However, according to Anders, WRFA would nullify this requirement.
“The law says an employee can exercise their rights only if it has a temporary and tangential impact on the business,” he said. “Well, a pharmacist could argue that the patient who wants birth-control pills is only a single customer out of hundreds and a small part of the overall job.”
Anders also cited an instance where a Hewlett-Packard employee was so upset over a workplace diversity poster he put up his own display condemning gay people with a quote from Leviticus.
“In that case, the employer eventually prevailed, but under WRFA, employers might not be able to provide an office free from harassment for gays and lesbians,” Anders said. “The problem with the law is that it couches everything in economic terms, in how an employee’s practices hurt profitability. How could Hewlett-Packard demonstrate that an anti-gay quote significantly harmed their bottom line?”
Kerry’s spokeswoman, April Boyd, says the bill’s opponents are exaggerating any ill-effects that might come out of the legislation.
“This is all about providing reasonable accommodations,” she said. “It protects religious liberty without infringing on anyone’s civil rights.” Boyd said WRFA was written so that no pharmacist could refuse to fill a prescription if another pharmacist weren’t available.
And would the bill protect those who wanted to proselytize at work, like the Hewlett-Packard employee?
“Absolutely not,” Boyd said. “WRFA is a carefully crafted bill designed to ensure that while an individual employee’s religious beliefs will be accommodated, it will not adversely affect third parties.”
Kerry, according to Boyd, first introduced WRFA back in 1996 after he heard about two Catholic women who were fired for taking off on Christmas Eve even though they had found other employees to take their places.
“New York has a similar law, and since enactment there have been no cases of any one losing access to health care or having their civil rights violated,” Boyd added.
The difference, said Anders, is that New York’s law contains special provisions maintaining other civil rights laws.
It’s this lack in WRFA that raises great concern with another of the bill’s opponents, the Human Rights Campaign (HRC), the nations largest lesbian, gay, bisexual and transgender (LGBT) advocacy group.
“We are supportive of the bill’s intent,” said Chris Labonte, HRC’s legislative director. “However, WRFA will really change the balance of protection for religious expression at the expense of not protecting LGBT employees.”
Liz Seaton, HRC’s legal director, said recent cases decided in favor of employers might not have been under WRFA. The nurse who was forbidden from telling her AIDS patients they were hell-bound because the state she worked in guaranteed religious-neutral care, might have been able to argue that allowing such action was a reasonable accommodation and didn’t interfere with her duties, Seaton said.
“The problem is that this law would be a big club held by an employee,” Seaton said. “An employer would most likely weigh what creates the least liability on their part. In this case, following a federal law rather than a local one, or even a company policy, creates the least liability.”
Labonte said HRC and its allies have met repeatedly with lawmakers to address these issues, and that most have indicated they are interested in working to improve the bill for all concerned parties. He wouldn’t name those lawmakers.
Anders was not as diplomatic.
“Sen. Kerry’s office has rejected any attempt to correct the problems,” he said. “And no matter how good-natured Sen. Kerry is in proposing this, a court is going to look at what the bill says. There’s nothing in there that would stop someone from preaching to their co-workers, or refusing to work alongside gays and lesbians.”
Clinton’s press secretary, Philippe Reines, at least conceded there is some work still to be done.
“Sen. Clinton has responded to the concerns raised by offering to work to make improvements as the committee considers the legislation that will satisfy all stakeholders,” he said.
The other story is how WRFA has pitted traditional allies against each other, and formed alliances among those normally at odds.
Boyd was quick to point out Kerry’s perfect scorecard from HRC and the ACLU, though both organizations have lobbied hard against WRFA.
“That’s evidence that no one has anything to fear with this legislation,” she said. “There is no stronger advocate for civil rights in the Senate.”
Then there’s the matter of the Family Research Council, an ultra-right Christian lobbying organization, backing legislation sponsored by Kerry and Clinton.
Yet some liberal organizations don’t fear WRFA.
John Marble, spokesman for the National Stonewall Democrats, a national gay Democratic organization, put it this way: “We don’t think supporters of this bill are trying to pull something over the gay community.”
Although the Stonewall Democrats have yet to take an official position on WRFA, Marble said the bill was an opportunity to demonstrate Democrats don’t oppose people of faith.
“It’s a piece of legislation a lot of LGBT people—LGBT people of faith especially—can support,” he argued.
Marble said the bill was probably a good guarantee against religious practices being trampled on by employers, incidents of which have been growing in recent years, as public expressions of faith, like reading the Bible at lunch or wearing a cross, become less and less acceptable.
“We have always been quick to tell Democrats when they are not defending the gay community, and we haven’t done that in this case,” Marble said. “And that’s not just because Sen. Kerry is sponsoring it.”
Other left-leaning groups, such as the American Jewish Committee, have come out fully in favor of WRFA.
“The WRFA balancing test affords crucial civil rights protection for religiously observant employees while assuring that accommodation of those employees will not trample the rights of others in the workplace,” the organization said in a release a few days after the Kerry-Santorum press conference.
But in between what the law says and how it might be interpreted once enacted there is a large gap, and that is what scares some.
“No one knows how the balance of ‘reasonable accommodation’ would be worked out,” HRC’s Labonte said. “And given the fact that gay people have absolutely no federal protections, this bill has severe negative implications for our community.”