Testimony of Michael Peabody in favor of the Oregon Workplace Religious Freedom Act (SB 786)

April 9, 2009

Senate Judiciary Committee

Oregon State Legislature

Salem, Oregon

RE:          SB 786 – Oregon Workplace Religious Freedom Act (SUPPORT)

Mr. Chairman and Members,

Thank you for the opportunity to testify before the Senate Judiciary Committee on the Workplace Religious Freedom Act.

 As an attorney I have had the privilege of representing employees in several states who have sought religious accommodation under Title VII of the Civil Rights Act of 1964. Although many of these cases are resolved amicably without the need for judicial intervention, I have also represented employees both in traditional litigation and administrative courts as well as through alternative dispute resolution including mediation and arbitration.  I am currently working as an employment defense attorney representing employers and insurance companies in Southern California.

1.       SB 786 provides defensible factors that will aid employers in determining whether to provide or deny religious accommodation.

Title VII provides that when the employee or has a sincerely held religious belief, the employer must reasonably accommodate that belief, unless such accommodation would cause “undue hardship” to the company.  Oregon courts construe Oregon’s statutory counterpart, Or.Rev.Stat.  § 659A.030, as identical to Title VII.[1]   

Unfortunately, the term “undue hardship” does not provide consistent guidance to employers or employees. The Merriam-Webster Dictionary of Law vaguely defines “undue” as “exceeding or violating propriety or fitness,” and in 1977 the United States Supreme Court wrestled with the definition and stated that “undue hardship” would be anything that would incur more than a “de minimis” cost.[2]

Following this decision, many employers believed that the Court’s decision relieved them of any affirmative duty to accommodate employees’ religious needs.[3]

The EEOC held hearings on this issue in 1978, and the Commission concluded that the widespread confusion over the extent of accommodation required under the Hardison decision led to fewer accommodations of religious practices, including:

·         The observance of a Sabbath or religious holidays;
·         The need for a prayer break during working hours; and
·         The practice of not working during a mourning period for a deceased relative.[4]

In addition, fewer employers were willing to accommodate the religious dress or grooming requirements of particular employees and effectively denied them the opportunity to compete in the open labor market.

SB 786 is important because in defining “undue hardship”, Oregon can provide clear guidance both to employers and employees in this state.   SB 786, in pertinent part, provides that, in reference to grooming and holy day observance:

An accommodation imposes an undue hardship on the operation of the business of the employer for the purposes of this section if the accommodation requires significant difficulty or expense.

SB 786 then lists which factors should be considered in determining whether a request for accommodation would incur a significant difficulty or expense.  These factors include consideration of the nature or cost of the accommodation, the availability of the resources of the facility or facilities involved in the accommodation, the financial resources of the employer, the type of business operations, and safety and health requirements.

Thus, rather than trying to make a vague determination of whether an accommodation requires an “undue hardship,” employers are now given a series of reasonable factors to consider when deciding whether to accommodate or deny a request. If questions about the propriety of the decision arise later, employers will be able to provide defensible evidence of why they made a particular decision.

2.       The term “significant difficulty or expense” provides a reasonable approach that meets a variety of business situations.

The term “de minimis” is a judicial interpretation of the amount of employer-level inconvenience that is required to meet Title VII’s “undue hardship” standard in order to avoid a particular accommodation.  The term “de minimis” should not be confused with “undue hardship.” 

In drafting legislation of this nature, the key is to find language that is specific enough to avoid ambiguity that would permit employers to completely avoid attempt at accommodation as some currently do, yet broad enough to fairly address Oregon’s diverse business situations.  The term “significant difficulty and expense” with SB 786 meets this goal. 

It would be difficult to become more specific without inserting a particular percentage or dollar figure that would unfairly affect smaller businesses.  Determining whether an accommodation requires “significant difficulty or expense” does require some form of judgment call, but when analyzed through the factors in SB 786, it provides clarity lacking in the current “undue hardship” language.

This is beneficial on a practical level.  What does “undue” mean?  Many human resources professionals would not be able to give a clear answer.  But “difficulty” or “expense”?  They can picture that.  

SB 786 provides a simple two-part analysis for employers who simply have to ask whether it is too hard to accommodate a request, or whether it is too costly. 

 In contrast, the current term “de minimis” places the bare minimum floor of responsibility on every employer, thus a multi-billion dollar corporation could apply the same standard as a local specialty manufacturer.  Many employers interpret “de minimis” as meaning they don’t have to do anything or even pretend to make an attempt.  SB 786 fixes this problem.

3.        SB 786 will encourage employers and employees to amicably resolve accommodation disputes while discouraging litigation. 

There are few attorneys who specialize in litigation religious accommodation claims, and those who do often are employed by non-profit or governmental organizations that fund the litigation process as a matter of preserving the integrity of the accommodation provisions of anti-discrimination laws.

Private firms rarely specialize in religious accommodation law because the fees are typically limited to a percentage of lost income.  Such litigation is costly to both sides.  Although employers have the legal burden of demonstrating that such accommodation is not possible, in practice, employers’ current reliance on the de minimis standard leads them to provide very little justification for the decision to deny accommodation. The plaintiff then must conduct extensive discovery through multiple depositions, interrogatories, requests for production of documents, forensic accounting, and other methods to determine what possibilities for accommodation actually existed. It is not unusual for the costs of  promulgating or defending such discovery to eclipse the potential recovery.

Employers who have followed the SB 786 analysis will be able to defend their decisions and to present more compelling arguments for denial or accommodation than simply claim that they refused accommodation because it would present an “undue hardship.”  Employers who analyze a request under SB 786 may also find that they are indeed able to accommodate an employee and will be able to defend the decision to accommodate.

Plaintiff attorneys will also be able to assess the potential value of cases based on the credibility of an SB 786 analysis in deciding whether or not to undertake legal representation.

In those cases that do go forward to the trial level, judges and juries will be able to reach more consistent results as the facts are analyzed through the framework of SB 786.  It will also encourage early settlement as factors are evaluated.

Ultimately, SB 786 will encourage employees and employers to develop and participate in reasonable approaches to accommodation.

Conclusion

In clarifying the obligations of employers to reasonably accommodate their employees’ religious practices, and providing reasonable expectations to employers, the Oregon Workplace Religious Freedom Act will act to bring employees and employers to the table. The true mark of this bill’s success, when it becomes law, will be if there is less, not more, litigation over accommodation of religious practice.