John Whitehead's Commentary

In an increasingly religiously diverse society, we need to adhere to the First Amendment of the United States Constitution, respect individual beliefs and observances, and with regard to the workplace, reasonably accommodate for the religious practices of all individuals.--Sen. Rick Santorum (R-Pa.)

A flight attendant who had been with an airline for 12 years was terminated after reading her Bible during her spare time and talking about her religious beliefs.

An employee for the State of California Department of Education was reprimanded for discussing religion with his co-workers and for keeping religious pamphlets in his work cubicle. His employer told him not to discuss religion in the workplace.

An AT&T employee was told by his employer to sign a document concerning the gay lifestyle which he felt contravened the Bible--or be fired. The employee refused and was terminated.

These are just a few examples of the numerous instances involving discrimination against religious employees in the workplace. Indeed, for years Christians and Jews, among others, have filed complaints with the U.S. Equal Employment Opportunity Commission (EEOC) about being forced to work on their day of Sabbath. Some of the complaints have generated lawsuits. And with the increasing involvement of Muslims, Sikhs and others in the workforce, complaints concerning the wearing of turbans, beards and hijabs have caused complaints and controversy. Indeed, worker complaints of religious discrimination to the EEOC have jumped more than 20 percent in the last several years--driven primarily by claims of retaliation against Muslims.

The increase reflects the changing face of America and the growing interjection of religion into the workplace, which is obviously creating new challenges for employers. The change is due in part to the nation's increasing religious diversity and the fact that employees who take their religion seriously are willing to resist attempts to stifle it. Indeed, there are changing expectations by workers who are openly bringing a religious identity to the job.

Federal law requires an employer to make reasonable accommodation for a worker's religious needs, unless it imposes an undue hardship on the company. Most cases that end up in court involve disputes over what constitutes an undue hardship--a barrier that has proven difficult for religious employees to overcome. In fact, the courts have interpreted federal law so narrowly as to impose few constraints on an employer's ability to refuse accommodation for an employee's religious practices.

Proposed legislation that is co-sponsored by Democratic presidential hopeful John Kerry (and Rick Santorum) would go a long way in remedying the discrimination faced by religious employees. In a recent speech to the Anti-Defamation League, Kerry told his Jewish audience that he co-sponsored the Workplace Religious Freedom Act (WRFA) after hearing about a company that fired two Christians who had arranged for other workers to take their place on Christmas day. Unfortunately, the bill has languished in a Senate committee since being introduced more than a year ago. But with Kerry's candidacy, there is a chance the bill might see the light of day.

Backed by the Interfaith Alliance, which consists of more than 40 diverse religious organizations, the WRFA proposes to change federal law in several important ways.

First, the WRFA addresses the judicial interpretation that regards as an "undue hardship" anything more than a small cost or difficulty to the employer. WRFA defines undue hardship as "an action requiring 'significant difficulty or expense'" and requires that, in order to be considered an undue hardship, the cost of accommodation be quantified and considered in relation to the size of the employer.

Second, the WRFA requires that in order to qualify for reasonable accommodation, an arrangement must actually remove the conflict. For example, a neutral rotating shift arrangement or an "attempt to accommodate" that fails to provide an actual reconciliation or workplace rule with religious practice is not viewed as a reasonable accommodation.

The religious diversity of the United States is continuing to increase. Therefore, it is past time that our laws reflect this change and ensure that our religious citizens are treated fairly. As such, the WRFA creates a meaningful requirement of reasonable accommodation which ensures that all members of society, whatever their religious beliefs and practices, are protected from a form of discrimination that counters our basic belief in religious liberty.

As John Kerry said when he proposed the new law last April:

"Over the last year and a half, we've been reminded that America is the most free, the most tolerant, and to the chagrin of terrorists, the most religious nation on the face of this planet. With all we know and love about our country, it should be clear in our laws that no worker should ever have to choose between keeping a job and keeping faith with their cherished religious beliefs. This legislation asks only that employers make reasonable accommodations for an employee's religious observance--and that we protect the best of America's spiritual life even as we leave employers the flexibility they need to run their businesses."

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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