Defend the Civil Right to Freedom Of Religion for America’s Workers

By Eliot Spitzer

Published June 25, 2004, issue of June 25, 2004.
  • Print
  • Share Share

At first glance, Donovan Reed and Kalman Katz have very little in common. Though both are from New York State, Reed is an African-American from Mount Vernon, while Katz is an chasidic Jew from Borough Park. But both Reed and Katz are devoutly religious, and both were put in the untenable position of having to choose between keeping their faith and keeping their jobs.

Katz and Reed were both repair technicians who were denied employment by Sears because of their refusal to work on their Sabbath. After receiving their complaints and conducting a thorough investigation, my office obtained a court-ordered consent decree ensuring that Sears no longer would ask employees of faith to choose between career and conscience.

During the course of our investigation, we became convinced that New York’s law governing the accommodation of employees of faith was too vague. Employers were required to accommodate some religious practices but not others, and while employers were excused from accommodation in the case of “undue hardship,” that term was not defined. Working together with State Assembly Speaker Sheldon Silver, we crafted a law — patterned after the Workplace Religious Freedom Act, a federal bill known as WRFA that is currently pending in Congress — that expanded the scope and nature of the required accommodation.

Recently, the American Civil Liberties Union has started a campaign to lobby against WRFA, contending that it may violate the reproductive rights of women and the rights of others. I have the utmost respect for the ACLU, but on this issue they are simply wrong.

New York’s law has not resulted in the infringement of the rights of others, or in the additional litigation that the ACLU predicts will occur if WRFA is enacted. 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.

New York’s law extends the “reasonable accommodation” requirement to all religious practices and beliefs — not just in matters of scheduling or religious garb — and defines “undue hardship” to mean a significant difficulty or expense. The law requires courts confronted with a claim of undue hardship to consider the cost of the accommodation in relation to the size of the employer. The law also recognizes that an accommodation is not necessary if it would prevent the employee from performing the “essential function” of the job.

New York’s law — and WRFA — is a significant improvement over the current federal law governing religious accommodation in the workplace. In 1977, the Supreme Court ruled that TWA would suffer “undue hardship” if it were required to spend $150 to accommodate an employee who refused to work on his Sabbath. That decision made it too difficult for employees to prevail in religious accommodation cases. In fact, in 1997 President Clinton conveyed his dissatisfaction with the federal law governing religious accommodation by issuing “Guidelines on Religious Exercise and Religious Expression in the Federal Workplace,” which enhanced the protections afforded to federal employees of faith.

Employees of faith are already enjoying the protections of New York’s law, which went into effect almost two years ago. My office has sued FedEx, which prohibits employees who wear beards or dreadlocks for religious reasons from being promoted to positions that require customer contact. And we are investigating a complaint filed by a Sikh whose insistence on wearing his turban cost him his job.

The same benefits can be expected from WRFA. The bill has broad bipartisan support in the Senate, where its chief sponsors are Democrat John Kerry and Republican Rick Santorum. WRFA also has the support of an incredibly diverse coalition of organizations such as the Religious Action Center of Reform Judaism, the National Council of Churches, the National Council of Muslim Women and the Southern Baptist Convention.

WRFA redresses federal court decisions that have expanded the “undue hardship” exception to the religious accommodation requirement of Title VII of the Civil Rights Act of 1964 to include any de minimus cost or minimal inconvenience. Like New York’s law, WRFA will require an accommodation unless it would impose a significant difficulty or expense or the employee would no longer be able to perform the job’s essential functions.

Take the ACLU’s example of reproductive rights. WRFA would not permit a nurse who has a religious objection to participating in abortion procedures to abandon the “essential function” of her job and refuse to assist a woman arriving at a hospital who requires an emergency abortion procedure. However, if the hospital arranges for all prescheduled abortions to take place on a particular day of the week, WRFA would empower the nurse to find alternative solutions, such as asking her employer to help her find another nurse who would be willing to swap shifts. Her religious beliefs would be accommodated without impacting the hospital’s ability to provide abortion services.

Those of us who are pro-choice need to recognize that this would be an appropriate outcome.

From the Family Medical Leave Act to the Americans with Disabilities Act, Congress has taken great strides to expand the obligation to assist members of society who traditionally have been excluded from the workplace. Employees of faith are entitled to that same protection.

The ACLU has proposed narrowing WRFA so that its accommodation requirements are limited to scheduling or religious garb requests. The framers of the First Amendment did not define religious liberty so narrowly — and neither should we.

Somewhere in America, the next Kalman Katz or Donovan Reed is explaining to his family that his faith has cost him his job. It is wrong for employers to force employees to make that choice, and it is wrong for the ACLU to attempt to frame WRFA as requiring a choice between religious and reproductive rights.

Find us on Facebook!
  • "'What’s this, mommy?' she asked, while pulling at the purple sleeve to unwrap this mysterious little gift mom keeps hidden in the inside pocket of her bag. Oh boy, how do I answer?"
  • "I fear that we are witnessing the end of politics in the Israeli-Palestinian conflict. I see no possibility for resolution right now. I look into the future and see only a void." What do you think?
  • Not a gazillionaire? Take the "poor door."
  • "We will do what we must to protect our people. We have that right. We are not less deserving of life and quiet than anyone else. No more apologies."
  • "Woody Allen should have quit while he was ahead." Ezra Glinter's review of "Magic in the Moonlight":
  • Jon Stewart responds to his critics: “Look, obviously there are many strong opinions on this. But just merely mentioning Israel or questioning in any way the effectiveness or humanity of Israel’s policies is not the same thing as being pro-Hamas.”
  • "My bat mitzvah party took place in our living room. There were only a few Jewish kids there, and only one from my Sunday school class. She sat in the corner, wearing the right clothes, asking her mom when they could go." The latest in our Promised Lands series — what state should we visit next?
  • Former Israeli National Security Advisor Yaakov Amidror: “A cease-fire will mean that anytime Hamas wants to fight it can. Occupation of Gaza will bring longer-term quiet, but the price will be very high.” What do you think?
  • Should couples sign a pre-pregnancy contract, outlining how caring for the infant will be equally divided between the two parties involved? Just think of it as a ketubah for expectant parents:
  • Many #Israelis can't make it to bomb shelters in time. One of them is Amos Oz.
  • According to Israeli professor Mordechai Kedar, “the only thing that can deter terrorists, like those who kidnapped the children and killed them, is the knowledge that their sister or their mother will be raped."
  • Why does ultra-Orthodox group Agudath Israel of America receive its largest donation from the majority owners of Walmart? Find out here:
  • Woody Allen on the situation in #Gaza: It's “a terrible, tragic thing. Innocent lives are lost left and right, and it’s a horrible situation that eventually has to right itself.”
  • "Mark your calendars: It was on Sunday, July 20, that the momentum turned against Israel." J.J. Goldberg's latest analysis on Israel's ground operation in Gaza:
  • What do you think?
  • from-cache

Would you like to receive updates about new stories?

We will not share your e-mail address or other personal information.

Already subscribed? Manage your subscription.