Talking Points SB 786 – Oregon Workplace Religious Freedom Act

GENERAL Talking Points

Federal Religious Accommodation Law

Defining terms: “Undue hardship.” Title VII of the U.S. Civil Rights Act of 1964 as amended in 1972, requires employers to “reasonably” accommodate the religious practices of their employees unless, by so doing, the employer would incur an “undue hardship on the conduct of the employer’s business.”[1] The act itself does not define the term “undue hardship.”

With scant legislative history to build upon, the Supreme Court found that undue hardship means anything above a de minimis, or minimal, cost or inconvenience.[2]  By so doing, the Court greatly reduced the impact of the accommodation provision so that the dissenting justices, Brennan and Marshall, considered it “effectively nullifying it.” Additionally, some district and circuit courts have interpreted the Title VII standard fulfilled even when a proposed accommodation does not remove the conflict between the employer’s requirement and the faith practice in question. A good example of partial accommodations are offers to give half days off to people of faith whose faith tradition teaches they are to rest from secular labor on a given holy day.[3]

Three primary reasons people of faith find themselves in need of accommodation:

·         First, the economy increasingly operates on a 24 hour, 7 day a week schedules. This schedule necessarily conflicts with people of faith who celebrate particular holy days, whether it is a weekly Sabbath or annual holy days.

·         Second, due largely to changes in immigration patterns, we are an increasingly religiously diverse society, and our religious diversity now exists in parts of the nation that were largely religiously homogenous up until relatively recent times. In the case of religious practice, unfamiliarity may breed contempt or at least intolerance. Intolerance towards non-western religions may be exacerbated by the overlap between religious practice and race, ethnicity and national origin.

·         Third, America is becoming an increasingly materialistic society, in which our other interests, including our family life, our environment, and even our spirituality are becoming subordinated to our mercantile drive.

Whatever the driving factor behind religious discrimination claims, individuals contact Northwest Religious Liberty Association with religious discrimination concerns every week. Over the last three years we have helped to mediate over 120 cases involving religious accommodation needs.

Types of cases. Approximately 75% of reported accommodation cases involve weekly Sabbath days, periodic religious holidays, religious garb (e.g. turbans) and religious grooming (e.g. beards):[4]

·         An employer refuses to make an adjustment to a shift schedule that would allow a Seventh-day Adventist to avoid working on his Sabbath.

·         An employer refuses to allow a Muslim woman to wear the modest garb required by her faith simply because this is not the standard uniform worn by employees, or refuses to allow an observant Jewish man to wear his yarmulke for the same reason.

·         An employer refuses to allow a devout Catholic woman Christmas Day off, even though one of her fellow employees was willing to substitute for her on that day.

Potential Pitfalls

What protections are there to ensure that employees do not make sham religious claims?

Principle objections: increased litigation and sham claims. There are two principle objections to providing protection for people of faith in the workplace. First, there are concerns that protection for people of faith will increase litigation, and particularly litigation involving sham religious claims. Second, there is concern that it will burden third parties.

            Weak provision of the law. Experts in the area employment law agree that one of the contributing factors to religious discrimination claims is the weakness of the accommodation provisions as currently understood. Under the current law there is little incentive for a recalcitrant employer to accommodate the religious beliefs of their employees. This does not deter people of faith in the workplace asserting their rights, however, because many of them are unwilling to compromise their conscience no matter what the legal ramifications might be.

            Needed incentive. WRFA provides an incentive to both employers and employees to work out an accommodation if it is possible. The vast majority of America’s employers value the religious diversity of their workforce and already do this. WRFA will provide an added incentive to recalcitrant employers to do the right thing before a case results in litigation. WRFA is written to provide additional clarity and thereby reduce misunderstandings.

            Financial disincentives. There are significant financial disincentives to bringing religious accommodation cases and these will not change after WRFA is enacted. Damages in accommodation cases tend to consist of lost wages, which are frequently modest because the workers involved are typically on the low end of the wage scale. As a result, finding attorneys willing to bring these cases can be difficult, and it is highly unlikely an attorney would be willing to invest the time and effort to bring a case involving a sham claim.

            Sham claims. In addition, while courts do not examine the validity of religious beliefs them-selves, they do examine the sincerity of the individual’s claim. Although there have been thousands of reported cases under the accommodation provisions of Title VII of the U.S. Civil Rights Act and state collieries over the last three decades, until this point, opponents of the Workplace Religious Freedom Act have not identified a single case in which a sham religious claim prevailed. (See above for more.)

            Rights of customers or other employees. There is also little reason to believe WRFA will burden the rights of customers or other employees (third parties). Employers are not required to accommodate religious practices if by so doing, a significant burden on the employer would be created. No reasonable reading of the standard would result in customers being denied products or services, or fellow employees being harassed. Indeed, if WRFA was a license to harass, many of its most prominent supporters who represent religious minorities would be its most vocal opponents.

In conclusion, for practical financial reasons it is difficult to find an attorney to litigate religious accommodation claims, let alone claims for sham claimants, and courts are empowered to enquire into the sincerity of plaintiff’s religious claims and have effectively done so for three decades.

Conclusion

Additional challenges for employees who have been discriminated against because of religion. It is frequently low paid and poorly educated workers who find their employers unwilling to accommodate their religious beliefs. These workers often have skills suited only to industries in which virtually all employers maintain similar practices, and thus changing employers provides no relief. In addition, finding a new employer can be exceedingly difficult, particularly in times of recession. Some employees are tied to a specific location where there is a limited pool of employers, and thus changing employers is very difficult. In addition, sometimes employees cannot afford the disruption in health-care benefits and similar benefits that frequently accompanies transition between employers.

Loss of employment. But even if these exigent circumstances are not present, losing employment is not an insignificant event. Loss of a job can have significant and lasting impact on a person emotionally, financially, and in their relationships. In recognition of this, our laws have been crafted carefully to protect the disabled, for example, from dismissal without efforts being made to accommodate their needs. It is not too much to ask from a nation founded on the principles of religious freedom for people of faith to be accorded the same respect.

Addendum:

Example of Typical Workplace Mediation Scenario:

“In 2006 you requested and were granted time off for religious observances. It was determined that it would be a “reasonable accommodation” to allow you to not work from sun down on Friday until sun down on Saturday as this is defined as your belief of a Sabbath and as such your faith does no [sic] allow to work on the Sabbath.  However, it was stated and you verbally agreed that those weekends when off-site sales were held created an “undue hardship” as all sales personnel were required to work those weekends as sales personnel were needed both at the dealership and the off-site sale. On Feb. 16-19, 2007 we held an off-site sales event and you failed to report to work on that Saturday.”

Company’s Statement to Employee:

“This Record of Discussion is to document that __________ requested and has been granted time off each weekend from sun down Friday to sun down Saturday as a reasonable accommodation for his religious observances. However, those weekends when off-site sales events are hosted, no time off is given to any sales employee. Business does not allow any sales personnel time off during these events and it constitutes an “undue hardship” and time for religious observances will not be granted. Signed:  Employer          Signed:  Employee“

Amendment Proposal Affecting ORS 342.650:

The Northwest Religious Liberty Association (NRLA) approves of SECTION 4 affecting ORS 342.650:

“A school district, education service district or public charter school does not commit an unlawful employment practice under ORS chapter 659A by reason of prohibiting a teacher from wearing religious dress while engaged in the performance of duties as a teacher, [amended language begins here] unless such religious dress is disruptive to the school environment.“

This language is necessary because it merely acknowledges existing Oregon statutory law that permits religious dress in the Oregon public school arena unless such religious dress is deemed to be disruptive. Thus, we agree to the principle of strengthening this SECTION in order to avoid unnecessary and potential constitutional challenges to SB 786. This was the original intent of former Senator Brad Avakian’s amendatory language during our bill attempts in 2007 with HB 3539-A.