Bill To Expand Religious Freedom at Work Worries Liberals, Splits Jewish Groups

By Jennifer Siegel

Published March 30, 2007, issue of March 30, 2007.
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As gay rights activists and liberal interest groups gear up for a fight against a broad-based religious alliance over a bill to expand rights in the workplace, Jewish organizations are struggling to determine which side to line up on.

At issue is a proposed bill, the Workplace Religious Freedom Act, aimed at strengthening a federal law that requires employers to accommodate the religious needs of workers. The measure is backed by a coalition that includes more than 40 faith organizations spanning the political spectrum.

The bill is opposed by civil rights advocates and other liberal groups who say it could be used to favor the free-exercise claims of religious conservatives over the civil rights and personal health and safety of co-workers, clients and customers.

The opponents of the bill, which include the Americans Civil Liberties Union, the Human Rights Campaign and Planned Parenthood, argue that it could enable religious employees to harass or proselytize co-workers, particularly gay colleagues, and to resist performing certain tasks, such as filling contraceptive prescriptions.

Recent religious accommodation cases have included a police officer’s request to be exempted from protecting an abortion clinic and a social worker’s use of Bible readings with prison inmates in counseling sessions.

In recent years, religious conservatives have increasingly squared off against liberal activists over the appropriate extent of religious accommodations in public life. On “gay rights, but also on abortion and contraception, traditional religious groups and the civil rights community are at loggerheads that are irreconcilable,” said Marc Stern, general counsel of the American Jewish Congress, which is backing WRFA. This is “really a culture war.”

The workplace accomodation bill has been introduced in Congress since the early 1990s, but came closest to passing in 2004, when opposition from the ACLU and the Chamber of Commerce derailed the measure. At that time, several liberal Jewish groups vocally backed the measure, including the Reform movement.

At least one Jewish organization, the National Council of Jewish Women, opposes the bill.

Several other prominent Jewish organizations belong to the coalition pushing the bill. Among them is the Orthodox Union, which tends to line up with other religious conservatives on such matters, as well as three groups — the American Jewish Committee, the AJCongress and B’nai B’rith International — that generally side with liberals on church-state issues.

Two other Jewish groups in the coalition, the Anti-Defamation League and Hadassah, have told the Forward that they now favor amendments to the measure.

There is concern “that this legislation, whose intent is to serve as a shield against religious discrimination, may be used by some to advance their majority religious agenda, which could result in discrimination, proselytizing or harassment,” wrote Deborah Lauter, national civil rights director of the ADL, in an e-mail to the Forward.

Lauter told the Forward that the ADL now favors a compromise, originally proffered by the ACLU in 2004, that would limit the bill to claims involving religious dress and grooming, and time off for religious observance.

The Religious Action Center of Reform Judaism, which is in the workplace coalition and reportedly opposed the ACLU’s compromise several years ago, declined to comment.

In the current Congress, the measure has received bipartisan support. In the House of Representatives, its roughly one-dozen co-sponsors include Rep. Chris Van Hollen of Maryland, who is chairman of the Democratic Congressional Campaign Committee, and the House’s only Jewish Republican, Eric Cantor of Virginia. The bill has not yet been introduced in the Senate, but last time around it was sponsored by then-senator Rick Santorum, a leading conservative lawmaker and Pennsylvania Republican, and by Senator John Kerry, a prominent liberal and Massachusetts Democrat. Other Democratic backers in the Senate included Hillary Rodham Clinton and Charles Schumer, both of New York, and Senator Joseph Lieberman of Connecticut.

Both supporters and opponents of the bill back putting new teeth in Title VII of the Civil Rights Act of 1964, which requires employers to guarantee some measure of religious accommodation to workers. Since the 1977 Supreme Court decision Trans World Airlines v. Hardison, the courts have required employers to show that granting religious exemptions would cause only relatively minor burdens, making it easier for the employers to prevail in court. Meanwhile, religion-based accommodation claims have mushroomed in recent years, increasing about 50% since 1997, according to the Equal Employment Opportunity Commission.

According to one study conducted by the ACLU of some 900 workplace religious accommodation suits brought since 1977, the vast majority of claims fell into the categories of dress, grooming and time off.

Supporters of WRFA argue that civil liberties groups are pushing “nightmare” scenarios unlikely to play out even if new teeth are added to the Civil Rights Act. The backers say a clause in the bill, allowing employers to reject religious accommodations that constitute a “significant burden,” would enable them to refuse accomodations that entail proselytizing, or speech that targets gays and lesbians or other minorities.

“You can’t have a one-size-fits-all approach,” said Nathan Diament, Washington director of the Orthodox Union. “The way we crafted the bill, it’s meant to be flexible, it’s meant to take into account a set of factors.”

If the bill moves forward, Jewish groups in the coalition backing it are likely to find themselves increasingly divided.

Several of the Jewish organizations, including the O.U., the AJCommittee, the AJCongress and B’nai B’rith, say they will oppose any effort by the ACLU to narrow the bill.

That amendment “creates two levels of religious claims,” Stern said. “If I’m a Muslim wearing a hijab, I get a higher level of protection. If I’m a conservative Christian saying I can’t dispense contraception — which is exactly the same claim in the workplace — it gets a lower level of protection.”

But leaders of Hadassah say they may join the ADL in backing the ACLU’s compromise or other changes.

“Religious freedom has always been one of the major tenets of our public policy agenda,” said Shelley Klein, Hadassah’s director of advocacy. “But what happens when religious freedoms in the workplace can burden the civil rights or reproductive rights of co-workers, clients or patients? We’re very much interested in striking a balance.”


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