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.