Testimony of Gregory Hamilton in support of the Oregon Workplace Religious Freedom Act (SB 786)

April 9, 2009

Senator Floyd Prozanski, Chair
Senate Judiciary Committee
Oregon State Legislature
900 Court Street NE S-417
Salem, Oregon 97301

RE: SB 786 – Oregon Workplace Religious Freedom Act

Mr. Chairman and Committee Members:

The Northwest Religious Liberty Association (NRLA) represents the constitutional and workplace discrimination concerns of all people of faith in the states of Alaska, Idaho, Montana, Oregon and Washington.

We are pleased that House Speaker Dave Hunt is sponsoring the Oregon Workplace Religious Freedom Act, and that the same bill passed the House by a 68% percent margin during the 2007 legislative session (see HB 3539-A). This was a tremendous moment for our organization and for all people of faith, including religious minorities, in the state of Oregon. But this, of course, was not enough for this vital piece of religious liberty legislation to become law. We need the Oregon Senate to comprehend its supreme value in helping ordinary Oregon citizens to get a fair shake in the workplace.

This bill narrowly and reasonably bolsters the requirements of employers to accommodate the scheduling of leave time for the observation of religious holy days, or for the wearing of religious apparel in the workplace. More specifically, it restores the federal Title VII legal standard involving religious discrimination which originally obligated employers to demonstrate that they reasonably attempted to accommodate the sincerely held religious beliefs and practices of their employees before claiming that such beliefs and practices posed a "significant difficulty" and "expense" for their business(es).

In January 2008, the U.S. Equal Employment Opportunity Commission (EEOC) encouraged employers, in an official Title VII religious discrimination guideline, to document how and why a religious accommodation posed an "undue" business "hardship." But this guideline is just that, only a guideline, and thus unenforceable. While the guideline is a helpful encouragement to employers, it essentially leaves employers unaccountable, leaving them free to wave the claim of "undue hardship" like a magic wand without having to define, explain, or demonstrate what that "undue hardship" is to the employee or how it really adversely affects their business in administrative terms or in dollars and cents. As a result, this significantly places people of faith at a disadvantage in the workplace, including potential and unnecessary unemployment hardships of their own. That is why we believe "undue hardship" must be defined as a "significant difficulty" and "expense" and why it will also help relieve employers of so many discrimination claims against them.

From 2005 to 2009, the Northwest Religious Liberty Association has mediated 297 workplace accommodation situations in the state of Oregon alone, and a total of 634 in the states of Alaska, Idaho, Montana, Oregon and Washington combined. The number of cases that we have mediated helps to shed light on why the number of claims that Oregon's Bureau of Labor and Industries (BOLI), and the U.S. Equal Employment Opportunity Commission (EEOC) has received and processed has risen during this time period. On the national level, nearly 1,000 mediation claims involved Seventh-day Adventist Christians in 2006, which does not include the thousands of cases involving many other people of faith in this country, including religious minorities, on an annual basis.

The types of cases we mediate typically involve religious minorities who seek an accommodation to worship on their holy days or Sabbaths. This is usually a one-day-a-week commitment backed by a sincerely held religious belief and/or spiritual requirement to observe the Sabbath according to their Scriptures (i.e., Holy Bible, Torah, Quran, Bhagavad-Gita, etc.).

However, it is important to understand that this is not an unconstitutional "affirmative action" bill for religious minorities, even though religious minorities are benefited. [See Estate of Thornton v. Caldor, Inc. (472 U.S. 703) 1985.] Religious minorities, in the truest sense, involve devout Sunday Sabbath-keeping Christians, as well as respectful Muslim citizens who keep Fridays, and Orthodox Jews and Seventh-day Adventist Christians who keep Sabbath from Friday sundown to Saturday sundown. Understandably, this list also includes, Hindus, Sikhs, Jehovah's Witnesses, and Latter-Day Saints.

It has been demonstrated in a couple of recent religious surveys – one conducted by the Pew Forum on Religion and Public Life, and the other by Baylor University – that religious minorities not only make up the fastest growing population segment among faith adherents, but also the largest percentage of faith groups that take their faith seriously.

This partly explains why religious minorities are the ones who often struggle to balance their sincerely held religious beliefs in the workplace with their employers' or supervisor's demands-to work on their Sabbath (whether that be Friday,Saturday, or Sunday), or to disregard the religious belief or custom they are required to follow. This is a characteristic that most of our clients share in common.

But they typically take their jobs seriously as well. Please understand, these people do not go out of their way to be difficult employees. Just the opposite is usually the case. They seek to be the best employees, the most competent and skillful, and the most productive. And they often are.

Approximately 75% of reported accommodation cases involve weekly Sabbath days, periodic religious holidays, religious garb (e.g. turbans) and religious grooming (e.g. beards):[1]

·         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 say prayers during designated times, or 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. (See below for an example of a typical workplace situation.)

There are obvious situations and reasons where an employer would find it to be an undue safety hazard to grant accommodations. (This bill does not seek to weaken Title VII protections for employers.)

Experts agree that one of the contributing factors to the dramatic rise in claims is the weakness of the accommodation provisions as currently written. Since the U.S. Supreme Court's decision in 1977, a case known as TWA v. Hardison (432 U.S. 63), a de minimis (i.e., minimal) standard has been applied. This de minimis standard reinterpreted the federal Title VII provision of the Civil Rights Act of 1964, and as amended in 1972, to conclude that employers were not required to demonstrate that they did all they could to accommodate an employee's religious request(s) before claiming an "undue hardship" on their business. This has allowed for policy-based corporate discrimination to thrive in some quarters of the business world (e.g., John Stumph EEOC case with Horizon Airlines.) We believe this reasoning should be legally amended in Oregon. We believe sincere people of faith-particularly those who prove to be hard and productive workers, are honest and ethical, and devoted to the business mission of their employers-should not continually be forced to choose between their place of employment and their faith.

What about sham claims? The principle objection to providing protection for people of faith in the workplace is that people of faith will increase litigation, and particularly litigation involving sham religious claims.

There are significant financial disincentives to bringing religious accommodation cases and these will not change after Oregon's Workplace Religious Freedom Act 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.

In addition, while courts do not examine the validity of religious beliefs themselves, 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.

Oregon's Workplace Religious Freedom Act provides an incentive to both employers and employees to work out an accommodation if it is possible. This bill does not give employees a "blank check" to demand any accommodation in the name of religion and receive it. Rather, it restores the standard that an employer should reasonably accommodate an employee's religious needs so long as that accommodation does not impose a "significant difficulty" or "expense" upon the employer. In short, this bill would happily balance the business interests of employers-both small and large business owners-with the sincerely held religious beliefs and practices of employees. It is a great bill-a bill that truly represents the best of America's traditions, religious freedom.

As George Washington once wrote: "In this Land of equal liberty it is our boast, that a man's religious tenets will not forfeit the protection of the Laws � of the United States." With this testament from our country's greatest Founder in mind, and in the spirit of attempting to truly guarantee the Title VII religious freedom rights of all people of faith in the workplace, including religious minorities, the Northwest Religious Liberty Association respectfully urges you to pass this bill in Committee and send it to the Oregon Senate for a vote.

Thank you very much,

Gregory W. Hamilton, President
Northwest Religious Liberty Association (NRLA)