Reconciling Obligations: Accommodating Religious Practice on the Job
9:30 a.m. – 2:00 p.m.
9:15 – 9:30
Registration and Continental Breakfast
9:30 – 10:50
History of Relevant Law, Legislation and Enforcement Efforts
Roberto Corrada, University of Denver Law School
Richard Foltin, American Jewish Committee
David Frank, Equal Employment Opportunity Commission
David Lachmann, Minority Staff, Judiciary Committee, House of Representatives
Avi Schick, Office of the New York State Attorney General
11:00 – 12:30
Religion in the Private Workplace: Perspectives of Business, Labor and Religious Observants
Sharifa Alkhateeb, North American Council for Muslim Women
Nathan Diament, Union of Orthodox Jewish Congregations of America
Stuart J. Lark, Christian Legal Society
Lawrence Lorber, Proskauer Rose LLP
Manjit Singh, Sikh Mediawatch and Resource Taskforce (SMART)
Mitch Tyner, General Conference of Seventh-day Adventists
Representative of AFL-CIO
12:30 – 2:00
Lunch and Address: The Past, Present, and Future of Religious Accommodation in the Workplace
Address: Nathan Lewin, Attorney, Lewin & Lewin
Discussion: moderated by Melissa Rogers, Pew Forum on Religion and Public Life
Please Note: Seating is limited. RSVP to Kirsten Hunter at email@example.com or 202/955-5075, acceptances only. When calling, please note any special dietary restrictions.
Panel 1: History of Relevant Law, Legislation and Enforcement Efforts
MELISSA ROGERS: Thank you for being with us this morning. My name is Melissa Rogers, and I’m executive director of the Pew Forum on Religion and Public Life. The Pew Forum serves as a clearinghouse of information and a town hall on issues at the intersection of religion and public affairs. We seek to serve as a true forum rather than an advocate on the issues. We don’t take positions on legislative issues.
The Forum is fortunate to have as its co-chairs E.J. Dionne, a senior fellow at the Brookings Institution and columnist at the Washington Post; and Jean Bethke Elshtain, a professor of social and political ethics at the University of Chicago. The Forum is supported by The Pew Charitable Trusts, and we’re very grateful for that support, and also grateful for the help of Georgetown University that holds the Pew Forum grant.
We are very happy that you were able to join us this morning for our conference, “Reconciling Obligations: Accommodating Religious Practice on the Job.” As the title indicates, this conference deals with the issue of how Americans reconcile the obligations of their faith, and their obligations to their employer and their co-workers.
This issue is still not well known, but it has been brought to greater attention recently by virtue of our increased familiarity, for example, with the obligations that many Muslims believe that the Islamic faith places on them regarding certain religious garb, and certain obligations with respect to prayer. Sometimes these obligations need to be addressed in the workplace.
Before we became more familiar with Islam, we also had another window on this issue as a nation when Senator Lieberman ran for vice president in the last presidential election, and it became known to the American people that there were certain requirements of his faith that he felt that he needed to honor with regard to his practice of the Sabbath. I think that was another educational moment for our country on this very important issue.
Let me offer a brief overview of the conference at this point, because we’ve got a lot to do, and little time to do it in. So, I want to give you an idea of how the day will go. The first panel will begin by addressing the history of civil rights and constitutional law in this area, most prominently, the requirement of Title VII of the Civil Rights Act of 1964 that employers not discriminate against an employee based on race, color, religion, sex or national origin. And this requirement defines religion in such a way that places an obligation on employers to accommodate for religious observance of employees in a reasonable manner unless doing so would cause the employer an undue hardship.
We’ll look at what that requirement means according to current law and the way it has been interpreted by the court as well as enforced both by the federal EEOC and at the state and local level.
We’ll also discuss the history and current efforts to pass legislation that would strengthen the obligation of employers to accommodate religious practice in the workplace, and specifically strengthen the interpretation of that Title VII requirement.
I should mention that we’ll focus mostly on the accommodation obligation that the law places on private employers as opposed to governmental employers. There are particular issues raised when we’re talking about the government, and we’ll mostly avoid those today because we don’t have time to cover them. But I would point out that we have a wealth of written materials out in front, including a copy of some guidelines that were published several years ago under the Clinton administration that address the obligation of governmental employers with regard to employee religious expression. And we want to make that available to you today, although we won’t be discussing it at any great length.
The next panel will address the specific interests of those in the workplace. A number of representatives of various religious communities will speak to the particular needs of their communities regarding religious accommodation in the workplace, and representatives of business and labor will address the particular interest of their constituencies on these issues.
After each of these panels, we’ll have time for question and answer sessions.
Finally, for those of you who have made reservations for lunch, we’ll adjourn into the next room, and we’ll hear remarks from Nathan Lewin, a distinguished attorney who has addressed these issues before many august audiences, including the United States Supreme Court. And we should have a sizeable chunk during that lunch period of time to allow for back and forth discussion among all of us, and with Nathan Lewin.
Let me introduce each of our panelists. Jay Lefkowitz, we’re very glad that you’ve been able to join us today. Mr. Lefkowitz is Deputy Assistant to the President for Domestic Policy. And in the first year of the Bush administration, he served as general counsel for the Office of Management and Budget. Before joining the administration, Mr. Lefkowitz was a partner in a D.C. law firm, and served under the first Bush administration. He has also served as a delegate to the U.N. Human Rights Commission in Geneva, and we’re very grateful that he could join us today.
So, I will go ahead and introduce him, and depending on his schedule, we may allow for a little Q&A if he has to leave the conference a bit early.
Thank you very much, and we’re very glad that you could come and address this topic from your position with the current administration.
JAY LEFKOWITZ: Thank you.
I appreciate the opportunity to be here to talk to you briefly this morning. I understand that there is a lot of activity on the Hill right now with respect to a proposed workforce religious freedom act which would amend Title VII to require employers to provide reasonable religious accommodation. Obviously, we’ll have an opportunity to look at particular language when it’s introduced, and to comment on it at that time.
But I would like to make a few points. Number one, obviously religious discrimination is prohibited as it should be under Title VII, and the administration and the president are strongly opposed to all forms of religious discrimination, and we are vigorously enforcing all existing laws against discrimination.
The president established the Office of Faith Based and Community Initiatives as one of his signal acts when he became president. John DiIulio, and now Jim Towey, have taken the helm of that. We are working very hard right now to try and get on the floor of the Senate the Senate version of the bill, the CARE Act. It was passed in the House, and obviously it’s undergoing some changes to make it acceptable on the Senate floor, but I do think that there’s a good likelihood that we can get that through this year. If we can, that would be obviously a terrific achievement for all of us, and would really be an important contribution to helping to change the national debate on religious issues.
One of the things this president had often talked about is compassionate conservatism. And obviously there is nothing more compassionate than religious values. Religious organizations in America make enormous contributions every day in very different ways. It’s important for us to recognize that if we don’t promote and protect religious values in our society, and give religious organizations the opportunity to flourish–to do what they do best–and if we don’t give people of religious faith, whatever faith they are, the freedom to exercise it properly, we are not being neutral. There is a sense, I think, among some people in the country that we have to have this inviolate separation between church and state, and that means, in a sense, we almost have to be hostile to religion wherever it exists. And I think that that’s not a proper balance.
Obviously, we have to make sure that we abide by the Establishment Clause, that Congress does not establish any religion in this country. The government cannot directly fund religious programs or religious organizations. On the other hand, to abide by that obligation, it does not mean that we have to divorce the public square 100 percent from religious values, religious people, religious communities. There is a proper balance. The Free Exercise Clause is often left out in discussions of the proper role of religion in American society, and we’re all expecting a decision in the next several weeks from the Supreme Court on a very important case having to do with vouchers for parents. That’s an issue that I have some familiarity with, because I argued the case on behalf of the State of Wisconsin at the Wisconsin Supreme Court several years ago, and I think there’s a very good likelihood that the case will come out in support of the program in Ohio, and it will, again, demonstrate that there is a proper balance, and the proper balance is respecting both the Establishment Clause and the Free Exercise Clause.
So I guess the point I would like to make in closing is that the president is very committed to making sure that our society remains receptive and respectful of religious people, religious values, and religious institutions. We are working hard at a reauthorization of welfare this year. Last week, we had a very good welfare bill come out of the House. We’re working on getting one in the Senate, so that the president has something to sign later this year in terms of the TANF reorganization.
An important component to social welfare and to social justice in America is what the religious communities can do, whether it’s in terms of providing assistance and mentoring to children whose parents are in prison, or whether it’s providing assistance to people who are old and infirm and don’t have help around. Religious organizations can provide an enormous amount of help, and one of the things that we want to do is make sure that there are not unnecessary barriers to giving religious organizations and people of religious faith the full and fair and unfettered opportunity to do what they do best in our society.
MELISSA ROGERS: Thank you very much. I appreciate you being here.
MELISSA ROGERS: Great. And we’ll just welcome a few questions specifically for Mr. Lefkowitz before he leaves, and then carry on with the rest of the panel.
I wonder, given your comments, to the extent that these issues are coming up for the administration as it seems that they are, will the work that is carried out by the administration on these issues be a shared effort on behalf of the Domestic Policy Council and the Office of Faith-Based and Community Initiatives, or has that decision been made?
JAY LEFKOWITZ: We work very closely within the White House. Jim Towey and I talk every day, and participate in a lot of meetings together. The Domestic Policy Council is the kind of procedural vehicle for bringing all domestic policy issues up for consideration, Cabinet consideration ultimately, review and consideration with the president. The Office of Faith-Based and Community Initiatives is kind of the leading edge on all of the issues that relate to religious values, religious issues, and community service. So we work very closely with them, and I think our consideration of these issues will be something on which we’ll work closely with them.
QUESTION: Can you talk about the rights that a person in the workplace does or does not have to not only display his or her religious faith, but to share it with co-workers?
JAY LEFKOWITZ: I think that it’s important as a society that we make sure that our laws protect people who are of religious faith to practice their religion. Obviously, we want to make sure that we don’t have situations of coercion, and I think there are a multitude of state laws, there are different regulations that apply in different situations, in different sectors of our society and our economy. Obviously private enterprises have the right and the obligation to set their own tones for their own workplace environments, recognizing that we need to have a proper balance, and we want to make sure that we simply don’t discriminate against religious people and the practice of their faith.
MELISSA ROGERS: Thanks, and that’s a very important question I’m sure we’ll spend some more time discussing as the day goes on.
We want to get in a few more questions for Jay Lefkowitz before he needs to go. Any of the panelists are free to chime in as well, if you’d like to ask a question.
QUESTION: One of the key issues in charitable choice has been whether religious organizations ought to be allowed to discriminate on religious grounds in their employment practices when they’re receiving public funds. And the administration has been a strong supporter of making sure that that right is the key to charitable choice. I was wondering if you might comment on how you square that commitment, religious discrimination in employment, with what you have said is the administration’s general commitment to religious non-discrimination in employment?
JAY LEFKOWITZ: I think that, again, there are a lot of tough issues that need to be addressed. Some of these, I think, ultimately will end up being addressed in the courts, which is often the venue for difficult and contentious issues. The issue that you raise is one which I imagine will ultimately be resolved in the courts as the court square competing anti-discrimination provisions from different parts of our state and local and federal governments.
MELISSA ROGERS: This is David Frank, he’s with the Equal Employment Opportunity Commission of the United States, and he is the chief counsel there.
DAVID FRANK: To comment also on behalf of the administration, the position the administration is taking is consistent with Title VII. Title VII does carve out a substantial protection for religious organizations in their own employment. So the administration is not doing anything inconsistent here in their policy from the position that Congress essentially laid out in 1964, and the way the courts have traditionally interpreted Title VII historically. So there is no radical departure here that the administration is taking. It’s a philosophically consistent position. I’m happy to talk more about it later, but I just wanted to chime that in.
MELISSA ROGERS: And, David Lachmann would also like to get into the conversation. David is from the Minority Staff of the House Judiciary Committee, House of Representatives.
DAVID LACHMANN: Thank you.
So, you’ve got the Republican and the Democratic David here. I’m interested to hear that as Congress is considering the question of the extent to which discrimination employment on the basis of religion might be permitted in a federally funded program that an administration which prides itself on appointing strict constructionists to the courts would contemplate deferring a significant policy matter of that nature to the courts.
In fact, this is a matter that is before the Congress right now in the form of the Lieberman-Santorum legislation. And that legislation, specifically Title III, is ostensibly silent on the question of employment discrimination by recipients of faith-based funding. However, insofar as the legislation permits direct assistance to religious institutions as David Frank pointed out quite correctly, under the Civil Rights Act of 1964, those institutions would be exempt from the Civil Rights Act’s prohibition on discrimination employment on the basis of religion. And so, Congress is squarely facing a novel step in terms of determining the course of workplace discrimination on the basis of religion.
Will Congress now extend that exception, which was originally intended for the logical purpose of exempting clergy and other similar personnel, to, as some of our members have described it, the person who ladles out the soup. Is there a Presbyterian, or a Catholic, or a Jewish way to ladle out the soup? My mother would say there is a Jewish way to ladle it. But is there a Presbyterian, or Catholic, or Jewish way to design a home for the aged? And, therefore, in terms of being an architect, or a construction worker.
And the courts have, in interpreting the exemption, gone fairly far even into health clubs, and the duty of the tithe by employees who are janitors. So, that exemption has been interpreted quite far. And if Congress does determine to go in this direction, it will be opening a new universe of workplace discrimination and the rights of employees to maintain their freedom of religion, their freedom of conscience when they go out into the workplace. And here, I think it’s important to look at the distinction between religious liberty as an individual right, which is the direction the debate has taken for many years, and the notion of religious liberty as an employer’s right, or as somehow a group right.
Many of us have thought if we worked on this over the last too many years that it was really a right which attached to each and every individual, and one which needed to be protected, but as you went out into the workforce, you would not have to worry that your faith would be a hindrance in employment and in seeking to support your family. As we progress in this direction, that may be less clear, and it’s a change in the tenor, direction, and focus of the employment discrimination discussion that we should probably think very carefully about before the courts get their hands on it.
MELISSA ROGERS: Okay. Any further questions for Jay Lefkowitz before he has to go, or, Jay, if you want to throw in a comment or two before you have to go?
Well, I think this illustrates we’ve got a lot of important issues, particularly when we’re talking about federal funding, there are issues that come up there that can be contentious. But, there’s a fair amount of agreement, I think, on the general obligation and the importance of honoring an employee’s observance, and trying to reconcile that obligation, particularly with workplace demands. It will be an important thing for us to continue to address.
But thank you very much for joining us this morning, and we look forward to further conversations with you on this topic, Jay.
MELISSA ROGERS: Let me introduce our next panelist. We’ve already had partial introductions here. But, it will be Roberto Corrada. Roberto joins us from the University of Denver College of Law; he is an associate professor of law there. Before his life as an academic, Roberto Corrada was a staff attorney for General Motors, and practiced labor and employment law with a Washington, D.C., law firm. He has testified before Congress on the issue of the legal obligation of employers to accommodate religious observance, and has won numerous awards for his public service and academic achievement. And I just want to mention that we asked all of our speakers to really bear a great burden, and that is to keep their comments very brief this morning so we have plenty of time for discussion. And we find this is most difficult for academics and clergy people. So I do know that Roberto will experience some pain in trying to keep his remarks short, but we do appreciate it, and know that it is very difficult to get to all that he has to get to in such a short time. And we appreciate him being here today.
ROBERTO CORRADA: Thank you very much. I want to thank Melissa for her personal work on this, as well as the rest of the staff, and the Pew Forum on Religion and Public Life in particular for having me out.
In 1996 Mahmoud Abdul-Rauf, a point guard for the Denver Nuggets, was suspended without pay from the National Basketball Association and by his team when he refused to stand for the national anthem and face the United States flag. He refused to comply, because to do so would conflict with his religious belief, based on his own personal reading of Muslim scripture that to stand before the flag of the U.S. would be to worship a thing other than God. Although Rauf sat for more than 80 games, the team and the league did not take action until Rauf’s refusal caught the attention of a TV and radio talk show host who criticized the practice, and created a frenzy of public opinion against the ball player.
After missing several games, at a cost to him of a few million dollars, and after consulting with several Muslim leaders about the basis for his religious belief, Rauf changed his stance, proclaiming that he would stand for the pledge of allegiance and pray while so doing. While many celebrated the ball player’s retraction, it is hard upon reflection to view the incident and the sheer weight of public opinion against Rauf as anything but a serious defeat for religious freedom and tolerance in this country.
I gave that introduction at a talk I gave a year and a half ago, and I thought long and hard about giving the same introduction here today, given the events in the world over the last year. But, I thought, I should not change that. I still feel the same way about what happened in that particular incident. What is the law surrounding religious conflicts with work requirements like Rauf’s situation? Title VII of the Civil Rights Act of 1964 included discrimination on the basis of religion, in its prohibitions of conduct by employers. The law was amended, however, in 1972 after an equally divided Supreme Court in the case of Dewey v. Reynolds Metals Company, which upheld a U.S. Court of Appeals decision questioning the validity of EEOC regulations requiring employers to act affirmatively to accommodate religious practice. The decision meant that if an employee’s religious practice came into conflict with a neutral workplace rule, the employee would have to choose between the edict of his or her faith, and often his or her job itself.
The current law provides that it is unlawful to discriminate upon the basis of religion in employment, but also because of the 1972 amendment to Title VII, requires an employer to, “reasonably accommodate” employee religious observance and practice, unless so doing would place an undue hardship on the employer. The amendment was offered by Senator Jennings Randolf, who explained that the primary purpose was to protect Saturday Sabbatarians like himself from employers who refuse to hire them, because of the rigidity of their religious practice. The amendment was unanimously approved by the Senate on a roll call vote, and was accepted by a conference committee whose report was approved by both Houses.
The 1972 amendment to the Civil Rights Act of 1964 remains the law on the books today, but has been importantly interpreted by two U.S. Supreme Court decisions, and an important concurrence in a related U.S. Supreme Court case. Today an employee bringing a Title VII claim for a failure to reasonably accommodate his or her religious belief must show generally, number one, that he or she has a sincere religious belief that conflicts with an employment requirement. Two, the employee must show that the employer had notice of the conflict. Three, the employee must show that he or she was disciplined, or would otherwise suffer for adherence to religious belief, or for failure to comply with the employment requirement. If the employee can show these things, the burden then shifts to the employer to show that it offered a reasonable accommodation, or that any accommodation would cause undue hardship.
One of the reasons for the employer’s actions–the NBA and the league in the Rauf case–may well have been the very tepid protection offered by Title VII as interpreted to religious objectors in the American workplace. While on its face the law prohibits discrimination on the basis of religion, and on its face provides a strong, affirmative obligation to accommodate religious observance or practice, this mandate has been substantially diminished by the United States Supreme Court’s decisions in TWA v. Hardison, and Ansonia Board of Education v. Philbrook interpreting the statutory language of the accommodation requirement. I’m sure we’ll hear more about the TWA case from Nathan Lewin later, since he argued the case before the Supreme Court.
The Hardison case presents a pretty typical accommodation scenario. In that case, Larry Hardison was hired by TWA in 1967 to work as a clerk in its Kansas City maintenance base, a 24-hour operation. Larry was required, as a condition of employment, to become a union member and to abide by the provisions of the collective bargaining agreement. The agreement contained a seniority system as most collective bargaining agreements do. Ordinarily a seniority system is a highly efficient, and properly discriminating method for establishing work preferences. However, in 1968 Larry Hardison began to study and practice the religion known as the Worldwide Church of God, one of whose fundamental beliefs is that the Sabbath must be observed by refraining from performing any work from sunset on Friday until sunset on Saturday. The religion also forbids work on certain specified religious holidays.
The requirements of Larry’s job came into conflict with his new religious beliefs when Larry transferred to a better job within TWA that would allow him to work the day shift. He was asked because of his relatively low seniority to work on Saturdays when a fellow employee took vacation time. Larry requested an accommodation for his religious beliefs, but the union was unwilling to modify the seniority system, and TWA was unwilling to operate without a person to fill Larry’s position. Larry apparently had no choice: he either had to leave his job or violate the strict dictates of his faith. Larry maintained that Title VII required an accommodation from the requirements of the seniority system. Nonetheless, TWA and the union refused to provide one.
In TWA v. Hardison the Supreme Court found that Title VII does not require employers or unions to bear more than a de minimus to reasonably accommodate religious observers, because any greater cost would impose an undue hardship on the conduct of the employer’s business. And so undue hardship, which I mentioned earlier, the language of the statute, now means de minimus burden, because of the Supreme Court interpretation. In denying Larry’s statutory relief, the court reviewed and rejected three accommodation proposals. Those included, first, allowing Larry to work a 4-day work week, using in his place a supervisor, or another worker on duty elsewhere, two filling Larry’s Saturday shift with other available personnel, and three, arranging for Larry to swap jobs with another employee for Saturdays.
The court found that each alternative would impose an undue hardship on TWA or the union, and therefore none was required by Title VII, even though one of the proposals to pay for another employee would have only cost TWA $150 total dollars over the three months that it would have required until Larry could transfer back to his original facility. And arranging a voluntary job swap would have had little appreciable affect on TWA’s seniority system, at least as a hypothetical matter, because TWA and the union never undertook the obligation, nobody could really find out whether it would be the straw that broke the camel’s back, with respect to that accommodation.
The Supreme Court’s 1977 decision in Hardison has had a negative effect on scores of religious individuals whose beliefs and practices conflict with requirements of the workplace. Even practices as benign as voluntary job swaps with other workers have been rejected by employers in some cases. Employer apathy towards religious accommodation is due in no small part, I believe, to the culture of non-accommodation ushered in by the sheer breadth of the TWA opinion. Employers have lawyers look at the case law that interprets Title VII, and they see that nothing more than a de minimus burden is required. I believe that that leads employers to resist, if they are inclined to do so.
Equally as onerous as Hardison, some believe more so, is the Supreme Court’s 1986 opinion in Ansonia Board of Education v. Philbrook. In that case Ron Philbrook, a school teacher and a member of the Worldwide Church of God, was bound by a collective bargaining agreement that provided only three days annual leave for mandatory religious holidays, but contained an additional provision for three days annual leave for necessary personal business. When Philbrook proposed using his personal business days for religious observance, the school district said no. Philbrook was forced to take unpaid leave, or schedule hospital visits in order to claim medical leave to observe the religious holidays of his faith. The Supreme Court held that once a reasonable accommodation is proffered by an employer, in this case unpaid leave, the employer need not implement an accommodation preferred, or even proposed, by the employee, even if it means the employer will suffer financially.
It’s important to note that these Supreme Court decisions involve questions of statutory interpretation of Title VII; they were not results expressly compelled by the Constitution, although it’s fairly clear that the Supreme Court was guided by constitutional parameters in both cases. The Supreme Court’s constitutional Establishment Clause concerns were more evident in a 1985 religious accommodation case that did not involve Title VII. In the Estate of Thornton v. Calder, the Supreme Court struck down as unconstitutional a State of Connecticut law that required employers to absolutely accommodate Sabbath observance–that means no excuses for employers. The court found that the law had a primary effect of advancing religion, and that it privileged Sabbath observance. Nonetheless, probably because she saw that the Calder decision had direct implications for Title VII’s constitutionality, Justice O’Connor in a concurring opinion commented on how Title VII was distinguishable from the Connecticut law. As O’Connor said, Title VII calls for reasonable rather than absolute accommodation, and extends that requirement to all religious beliefs and practices, rather than protecting only Sabbath observants. I believe, she says, an objective observer would perceive it as an anti-discrimination law, rather than an endorsement of religion, or a particular religious practice.
Since the court’s decisions in Hardison, Calder, and Philbrook, the court’s Establishment Clause jurisprudence has softened a bit, making a more proactive accommodation clause even more feasible today than in the past, so long as certain basic principles are adhered to. One, it must not work a forced hardship on other employees; two, it must not favor a particular religion or religious practice; and three, it must not require an absolute accommodation, meaning requiring accommodation regardless of an employer’s circumstances. Certainly, I believe that the Hardison and Philbrook decisions could be overturned in ways that do not violate the Establishment Clause. Requiring an employer to bear some cost of accommodation, or allowing employees to take all available leave as religious leave should not serve to strain Establishment Clause jurisprudence.
Today it seems the constitutional challenge is not so much the Establishment Clause, however, but the constitutional basis for Congress to pass a law requiring religious accommodation. While the commerce clause continues to serve as a strong basis of congressional power to pass discrimination laws involving private employers, it probably will not allow such provisions to bind state governments. Section V of the Fourteenth Amendment, one of the stated bases for the passage of Title VII, is likely no longer available as a source of congressional power for discrimination laws involving religion that are applied either to the states or to private employers.
In sum, the express language of Title VII is sufficiently protective of religious practice in the workplace, allowing those who have religious conflicts with workplace requirements to, like their fellow workers, retain jobs or continue to work in those jobs on the same basic terms as their fellow workers. However, Supreme Court decisions interpreting Title VII have diluted the statutory language, and together send a message to employers and employees alike that requirements of religious conscience are simply not as important compared to the requirements of a job. Imagine the effect on a worker if he is told he need not, and in some cases, cannot swap shifts with another worker to accommodate religious practice, or worse, the effect on workers as a whole when they are told that necessary personal business cannot include leave for religious observance.
Michael Wolf, Bruce Friedman and Dan Sutherland in their 1998 book Religion in the Workplace, have noted that the Supreme Court in Hardison and Philbrook has, in effect, interpreted Title VII to give primary importance to an employer’s economic interest. A cost that is an undue hardship when borne by the employer may nevertheless be reasonable when borne by the employee.
MELISSA ROGERS: Thank you very much. That was a tough assignment. Anybody who asks somebody to trip through that much law really quickly is placing a big burden on someone, and I take responsibility for doing that and appreciate the dispatch with which you did that, Roberto.
Roberto has put so much for us to deal with on the table, but I think we’ll just build along as we go, and then turn it into a discussion among all of us in a bit of time. Let me next call to the table David Frank, who was already briefly introduced to you. He is chief counsel at the EEOC; he was appointed by President Bush in 2001. He previously served, as I mentioned earlier, under Representative Goodling, in the House of Representatives, where he worked on the majority staff in the Committee on Education and Workforce. So he has experience both in the legislative branch, and now the executive branch on these issues. And he’ll speak to the EEOC’s role on these issues, which is very important.
I want to bring to your attention, just before I turn it over to him, that we put some things from the EEOC Web site on the tables out here. David has done some very important work in the wake of 9/11 on protecting the rights particularly of Muslims and Sikhs and others who have experienced discrimination in the wake of 9/11. And so these documents are very helpful plain language documents for employers and employees regarding their rights and responsibilities under the law.
So, David, thank you for joining us today.
DAVID FRANK: Thank you.
My background on this issue is not only serving the last year at the EEOC, but six and a half years on the House Workforce Committee, and while on the Hill I worked for then-Committee Chairman Bill Goodling, who in 1997 introduced the Workplace Religious Freedom Act in the House of Representatives, a bill the colleagues on either side of me will probably spend more time talking about as the program progresses. So I do have a fair amount of background on this issue.
That bill would basically expand the reasonable accommodation obligations of employers. But, let me basically focus on what the law is today, and how we try and enforce it. The commission currently has 34 religious accommodation lawsuits that it’s filed in the last two and a half years. Of those, 17 cases are still pending and 17 are resolved. That is a tiny fraction of the lawsuits that we bring. Religious discrimination constitutes about two percent of the lawsuits that we bring, and religious accommodation is only a partial subset of that.
Let me just talk briefly about the kinds of cases we do have. The largest group of litigation involving religious accommodation involves the termination of individuals who are not permitted to work on their Sabbath–Seventh Day Adventists, Jews, a large group of different Saturday Sabbath observers, primarily Saturday, but sometimes Sunday as well. Another large group is individuals who sought breaks for prayer. This is a particularly timely issue, because it is coming up more and more with the concentration on Muslims in the workforce and their need to pray during work hours. Another category involved is that of refusal to permit individuals to wear religious garb at work, such as head coverings or religious ornaments, jewelry, for example. The other major category is religiously mandated grooming protocols–people who feel obliged to wear a beard, or who cannot shave, hair length, things of that nature. And finally, we even have one case involving a Jehovah’s Witness who was fired for refusing to attend a Christmas party. So there is a variety of litigation out there.
Let me just briefly comment ??
QUESTION: Where was that?
DAVID FRANK: I can look and tell you where that was. I’ll check back and get some more information for you.
One case just decided this year by the First Circuit Court of Appeals that we were involved in is, I think, noteworthy regarding an employee’s religious beliefs and union dues. In EEOC v. the Union Independiente de la Autoridad–I’m going to butcher this name–de Acueductos y Alcantarillados de Puerto Rico (you can tell it’s a Puerto Rican company, so that can tell you where it’s from). The First Circuit Court reversed a summary judgment in favor of the EEOC, who had found that an employee who was required to join a union against his will did not have to pay union dues. The court, in what I think can be construed as a troubling decision, said that was a jury question–the sincerity of the individual’s religious belief–and remanded the case for a trial on the grounds that the employer had challenged the validity of the sincerity of the individual’s religious convictions.
Traditionally the EEOC has taken the position that the sincerity of an individual’s religious convictions, and in particular the nature of an individual’s religious convictions, are not something that should be scrutinized by the employer. And there is a large body of case law that my colleagues can also talk to, that basically says that it does not have to be a traditional, mainstream religion in order for one’s beliefs to be entitled to accommodation by an employer. So I think this is noteworthy that the First Circuit is now sending those issues to a jury.
Let me talk a little bit about our charges. We get about 80,000 charges a year of discrimination before the EEOC. Over the last couple of years roughly two-and-a-half percent of all Title VII charges filed alleged religious discrimination, and of the two-and-a-half percent, only thirteen-and-a-half percent of those charges involved the denial of reasonable accommodation. In 2000 there were 269 charges alleging denial of accommodation 280 charges in 2001, and 197 thus far this year. So I guess that’s the good news–that it’s a relatively rare issue brought to us. Of course, the broader question is, is that because this is not happening, or is it because it’s the kind of civil rights violation that people are less inclined to bring to the federal government? And that’s a question of some debate.
Let me talk a little bit about the context of September 11th. It has obviously brought a whole new focus and significance to the issue of religious discrimination. Three days after September 11th our chair, Cary Dominguez, made a strong public statement about the importance of promoting tolerance in the workplace, and guarding against workplace discrimination. The EEOC has been out front on this issue. We put out a press release just a couple of days after September 11th reminding employers of their non-discrimination obligations, and the importance of having harassment policies–that the obligation to protect employees from harassment not only applies to sexual harassment, but all the bases of Title VII, including ethnicity and religion, and about the vital role employers play proactively preventing individual workers from being singled out on the basis of religion.
We posted a fact sheet on discrimination on the basis of religion, ethnicity, or country of origin within days of September 11th explaining many of these same items. It’s also, I think, worth noting that as we were doing all this in the context of September 11th, that September 11th hit the agency personally, because our own New York offices were in the World Trade Center. So this is an issue that hits home personally, but not withstanding that we were a victim of September 11th in a concrete way, we also felt the great weight of our mandate to be a leader out front in protecting the rights of those who, while Arab or Muslim, had nothing else in common with the perpetrators of September 11th.
We’ve coordinated our response with the principal civil rights enforcement agencies, the Department of Justice and the Department of Labor, to ensure a strong and uniform response. On November 19th we issued a joint statement against employment discrimination in the aftermath of the September 11th terrorist attacks, which basically called upon employers nationwide to abide by the federal non-discrimination laws, and to recognize their obligations to protect their workers.
The first meeting of the Commission under new Chair Dominguez took place on December 11th, and focused almost exclusively on this issue, in which the commission heard testimony and recommendations from a variety of Arabs, Muslims, Sikhs, and South Asian groups and individuals about the backlash that members of their co-religion had experienced post-September 11th. Concerns that the public may have about your employees are not grounds for employment action, that worrying about how your customers or how the public will perceive an employee because of their religious garb is every bit as illegal as refusing to hire someone because they’re black.
Immediately after September 11th we created a new code for tracking backlash discrimination. We’ve always tracked discrimination on the basis of religion, and particular religions. We created a new code to specifically track religion and ethnicity related to September 11th, allowing people to identify whether they believed their alleged discrimination was a specific result of religion or ethnicity related to September 11th. We have 488 such formal charges filed as of May 11. Of those, about half involve termination, and about a third involve harassment. The largest concentration of those charges are in California, Texas, Illinois, Arizona, and Florida.
Over the past 8 months we have received 497 charges by individuals of the Islamic faith. During a comparable period of time in 2000 we got 193 such charges. So that’s about a 150 percent increase, 500 charges is not a lot, but that spike is one that’s very noteworthy, and one that’s troubling. We have, as a result of all this, undertaken a massive grassroots outreach effort through our 51 field offices, and our headquarters in Washington to reach out to the varying religious and ethnic groups throughout the nation. We’ve translated many of our brochures educating individuals about their rights into 15 languages, including Arabic and Farsi.
We’ve partnered with the media, cable, print, and radio in urging employers to enforce their anti-discrimination and non-harassment obligations. And, as Melissa mentioned, we recently put on our Web site, which is www.eeoc.gov, a series of questions and answers in plain, non-legalistic English (I hope), as well as fact sheets–one for workers and one for employers–about their rights and obligations post September 11th. Among the issues addressed specific to religious accommodation are the issue of time off to attend prayer service at a mosque for a short period on Fridays, the issue of wearing turbans by Sikhs on the job, or the use of a conference room in an adjacent building for prayer.
I think it’s important to note that during our commission meeting one of the things we were told by one of the religious groups is that there have been virtually no reported incidents of backlash discrimination in workplaces that had three things in common: where the employer had a significant EEO infrastructure in place, where the CEO sent out a strong policy against discrimination shortly after September 11th, and where internal dispute resolution mechanisms were in place. So we urge all employers to take these lessons to heart, and apply them.
In the federal government we hope that we’re practicing what we preach. Kay Cole James, the head of the Office of Personnel Management, put out a statement shortly after September 11th urging respect for the faith and beliefs of all workers in the workplace. We live in a rapidly changing, unpredictable world, but one thing does remain constant for the EEOC after September 11th: religious discrimination is no more lawful today than it was before. But the commission cannot enforce the laws passed by Congress by itself. We need partners in the employer community, and in the religious community, who share the president’s inaugural pledge to build a single nation of justice and opportunity.
MELISSA ROGERS: Thank you so much, David, and thank you for the important work that the EEOC is doing, and for your leadership there. Particularly in the wake of 9-11 it’s clear that those issues are even more important, and you guys have tackled them ably, and we appreciate that.
I was thinking about that Christmas case – that kind of gives new meaning to “Joy to the World,” doesn’t it, when you’re fired for not going to the office Christmas party? But, we can talk about that later.
Let me next go to the Democratic David, as opposed to the non-partisan David in the audience. David Lachmann is an old friend who serves on the minority professional staff of the House Judiciary Committee. He handles civil rights and constitutional matters for that committee, and previously served as legislative director for Representative Nadler, and Representative Solarz. And he has played a key role in numerous church-state issues on the Hill, including work on the Religious Freedom Restoration Act, and the Religious Land Use and Institutionalized Persons Act, otherwise known as RLUIPA. By the way, the acronym for the Workplace Religious Freedom Act that we’ll talk about at some length later is known as WRFA. So we have all kinds of acronyms that we’ll try not to use too much.
David, welcome, and we look forward to hearing from you about the legislative history of this issue, and your observations from the Hill.
DAVID LACHMANN: I guess the question on everybody’s mind is, where the hell has Congress been since 1977? Let’s start with types of religious discrimination, because I think it’s a good way to parse out the problem. Basically you have the hate rule, the jerk rule, and the idiot rule.
The hate rule is pretty easy – somebody hates another religion for whatever reason, and doesn’t want people of that religion in their workplace, and the laws are pretty clear cut, and fortunately there are employers out there who are not only hateful, but stupid enough to give voice to their hatred, so you can nail them.
The idiot rule would cover, for example, reports of attacks on Sikhs, because people were mad at Islamists, which is something I’m still turning over in my head trying to make sense of. But, that’s covered by the idiot rule.
Unfortunately, most of these cases are covered by the jerk rule, and the jerk rule is more elusive, and it’s one which the Supreme Court has made incredibly difficult to get at. The jerk rule is typified by a couple of cases, one of my all time favorites is Goldman v. Weinberg, which was also argued by Nat Lewin in his day. It involved the case of an Orthodox Jewish chaplain who was doing an excellent job, had great reports, until one day in assisting a member of the service managed to cross a senior officer, who then disciplined him for violating the “no hats indoors” rule, which is an easy one to violate when you’re an Orthodox Jewish chaplain.
We used to say when I was growing up, “don’t make a federal case of it,” but they made a federal case of it. The next thing you know, because of this jerk you’re in front of the Supreme Court, which holds basically there is no First Amendment in the Air Force – they don’t put that on the recruiting posters. So that’s the jerk rule.
After the Supreme Court decided its case in Employment Division v. Smith, the EEOC changed a guideline that it had, which had to do with the wearing of hard hats in construction zones. There had historically been an exception for Old Order Amish, and for Sikhs, for obvious reasons. And this rule was revoked. We called the EEOC and said, look, just because the Supreme Court says you can, doesn’t mean you have to, which was a distinction that unfortunately was lost on someone who was trying to update their rules. Anyway that was changed back.
So if we talk about the universe of discrimination in those terms, we can see that the problems raised by both Hardison and Philbrook become monumental, because, as has already been observed, if an employer doesn’t have to, even if it’s no big deal, an employer is likely not to, especially if it will make other people in the workplace sore. Or maybe the employer isn’t too thrilled with having either a devoutly religious person – which bothers some people – or a person of a particular faith, or a person who just lives life differently – which makes a lot of people uncomfortable. And so a lot of what we see coming through are these kinds of cases.
Congress has been looking at these at least since the 101st Congress, in terms of trying to deal with Hardison and with Philbrook. And we had a very nice coalition put together to do that, until we were rudely interrupted by the United States Supreme Court, which handed down its decision in Employment Division v. Smith, which greatly imperiled, if not obliterated the Free Exercise Clause of the First Amendment, and that became our order of business for the next several years, working diligently trying to at least legislatively protect that which the Constitution no longer appeared to protect.
We were able to pass that, and the Supreme Court was just as able, though much faster than we were able to enact it, to dispatch it in the Boerne case, along with whatever remained of our powers under Section 5 of the 14th Amendment. So it was a great day for all of us. Were it not for the honor, I’d just as soon not have had something I’d worked on be struck down by the Supreme Court. Congress followed with RLUIPA, which deals principally with land use issues, and issues involving people in various types of institutional settings. Again, having to do with governmental power, not with private employment. But, this chain of events really did push WRFA off to the side, and out of Congress’s attention span over the last decade. It’s still out there, it’s still an issue, and if I might humbly observe, probably workplace discrimination affects more people than a lot of the more highly publicized cases we often find ourselves dealing with, just in terms of sheer numbers, and also the impact on people’s daily lives.
The model that Congress has contemplated, in terms of trying to rectify at first Philbrook and Hardison, at this point the focus is mostly on Hardison and the de minimus standard, has been the Americans with Disabilities Act, which has a significant difficulty and expense standard. Which sounded pretty good, and somewhat more forceful than reasonable accommodation and undue hardship, except that if you talk to people who worked on the Americans with Disabilities Act, they’re not at all thrilled with what the Court has done with that either. So we’re back to the court trying to make sense of it. I remember in the early days when we were working on this, I think it was Mitch Tyner who said, don’t you guys have some boilerplate language you can put in there that just says, “We really mean it this time.” No. The Supreme Court always gets the last word, and unfortunately that word is terribly unsatisfying lately.
I think we have people here who are more eloquent on the legal problem, but I want to speak to the political problem of trying to put through religious liberty legislation. And that is that, everyone loves religion, everyone loves religious liberty, everyone wants to protect it, except. And when it was RFRA it was the theory that it could be used to somehow have an ace in the hole, in case the Supreme Court overturned Roe v. Wade and legalized abortion. I’m still after all these years trying to figure that one out, but it persuaded a whole lot of people, and it held up the bill for years.
There was the concern that prison inmates could use it somehow to form a prayer group and make a break, which didn’t turn out to be the case, and interestingly enough, the Congress later in RLUIPA specifically included prisons, as opposed to other arenas of life. There are also now concerns that various religious liberty legislation might, in fact, be used by religious people to violate the rights of others in the workplace. And so people who may be part of the traditional civil rights coalition are suddenly at odds with people who are part of the rest of the religious liberty coalition. I’ll leave it at that, because that brings us to the present day, and the present situation. And perhaps we can turn to New York where they have actually had some success.
MELISSA ROGERS: Thanks very much, David. You put a lot on the table there for us to deal with.
Next we have with us Avi Schick, who is deputy counsel to New York State Attorney General Elliott Spitzer, where he’s worked on a host of matters, including the one that we’re focused on today, accommodation of religious practice in the workplace, and he has, as David mentioned, had some notable successes in this area. And so he can speak to us abut how he’s approaching this, and how the State of New York is approaching this as a state and local matter. So thank you very much for being with us, and we look forward to hearing from you.
AVI SCHICK: Thank you, Melissa. Actually, you left out my main qualification for speaking here today, which is that my middle name is David.
MELISSA ROGERS: There we go, the state and local David.
AVI SCHICK: The state and local David, on the Democrat side.
I’m here to talk about what is happening on the state side in the area of workplace accommodation, and combating religious discrimination, and specifically to focus on what we’ve done in New York over the past couple of years.
One thing I think I should note at the outset – particularly for those who are advocates, or those who are in civil rights organizations – is that I think it is becoming increasingly important to focus on state efforts. We have heard over the past decade and more about how federalism is a revolution that takes power away from the federal government and invests it in the states. And we are probably in certain areas looking at a less activist federal government, over time, not specifically talking about any administration. States can pick up, I think, some of that slack, if they have the commitment and if people turn to them to exercise their abilities.
In New York we have had great success over the last three or four years. I speak only with the perspective of working for Attorney General Spitzer, in combating religious discrimination. We have brought cases, and settled cases in numerous areas. We have brought Sabbath discrimination cases where employers refuse to accommodate the religious rights of Orthodox Jews and Seventh Day Adventists. We have brought grooming cases where Buddhists and Rastafarians were fired from their jobs, because they were wearing dread locks – that’s actually a case that we brought with the EEOC and it is still pending. We did a joint investigation and filed lawsuits at the same time. And we have also brought dress cases, where the parties discriminated against were Jews, Muslims and Sikhs.
In a certain sense, these cases are easier than a lot of other civil rights cases. By and large you’re arguing about the law, because the law is somewhat undeveloped, because the cases are not often brought, you don’t bog down in the sort of factual disputes, the he said/she said which characterize a lot of civil rights litigation, and where it’s really harder to get to the bottom of it. I don’t want to diminish the accomplishments of our office, but I think what has allowed us to achieve the success that we did is not so much any great brilliance or creativity that we brought to the task so much as a commitment to do it, and to take seriously religious rights, and discrimination against employees of faith.
Often employers are quite forthcoming in admitting their discrimination, although they give many reasons for it. The case that is my particular favorite and that I have the most fun repeating is a case that was brought to us by two students at the New York College of Osteopathic Medicine. I didn’t know much about osteopathy before I got into the case, and I’m not sure I understand enough of it now.
But I certainly understood enough to question the following written dress code that is distributed by this college, which states: “All students” ?? and this is for lab courses, and it’s for almost all lab courses for certain years, I think for second-year students – “all students will be required to wear shorts or bathing suits with halter or bikini tops for females.” That’s the written rule. And so we had an Orthodox Jewish, and Muslim and Sikh woman who called us, and after much investigation, I can tell you, we settled the case and determined that the reason for the rule, (because everybody says, what’s the reason for the rule.) After depositions and investigation and discovery, we ascertained that the reason for the rule was that it was written by men. We could come up with nothing better.
The dean of the school went on in a letter to the students explaining that since the student would certainly violate their faith to save the life of a patient, certainly that showed that the dictates of religion could be violated for healthcare, and that means you can wear a bikini in class. There were students of various faiths who found this offensive, who attempted to get an accommodation, and who were unsuccessful. We intervened on their behalf, and we were able to work this out for them, although I will tell you that we met much more resistance than we would have anticipated. But these cases are there for the picking, frankly, if you look for them.
In these Saturday cases, the Sabbath cases, very often you get the employers who say, we cannot do this because Saturday is the busiest day. And, again, if I can give you just a brief moment of background of the settlement of probably the biggest Sabbath observance case that we settled against Sears Roebuck & Company in New York. Sears refused to employ Sabbath observers as repair technicians. We had a number of Orthodox Jewish applicants who were denied employment, including one individual who we learned in discovery got the highest score on the technical test that they administer. We also uncovered during our investigation that they had recently fired a Seventh Day Adventist who was employed as a repair technician, became a member of the faith, informed his manager that he no longer could work on the Sabbath, on Saturday, and three days later he was fired. And the case, essentially, came down to Sears arguing that, listen, everybody wants stuff repaired on Saturday, that’s when people are home, that’s when repairs take place. We’d love to do it, but we can’t. And they went so far, frankly, as to go into the technical training schools, the Apex Tech, and the other schools that advertise on Channel 11 at midnight, and matchbook covers, and they advised their recruiters not to interview Sabbath observers – to ask the school to filter out such individuals.
In any event, we subpoenaed all Sears’ repair records for an 18-month period and, lo and behold, Tuesday was the busiest repair day. I’m not sure why. One can spin theories, but shortly after we brought this to the attention of Sears, the case settled quite favorably for us.
All that is necessary is to really challenge the assumptions, and very often the employers themselves are just working on assumptions, they don’t know. They don’t know really about their businesses. We settled a case last month against Virgin Atlantic, the airline that refused to employ a Sabbath observer as a passenger representative, and we had to work with them, we understood the way they assign shifts, and were able to devise a solution. So, again, if one comes in and one takes these cases seriously, I think most often one can reach a pretty good result.
The other aspect of what we do in New York is to try to educate employers. It is often the case, as I noted with Sears, that the employers don’t understand their businesses in the way that you would think they did. We had it in Sears, we’ve had it in several Sabbath cases. Other cases were less successful. The EEOC was still trying to figure out why Federal Express refuses to employ people who wear dread locks. So it’s sometimes it is a little tougher, and you have to go to litigation.
But employers need to be educated; often they want to be educated. And they do not know. We heard a lot about the federal law and how unfortunately the courts have interpreted Title VII to really constrict the requirement of the obligation of employers. There are state laws out there, and employers often aren’t sufficiently aware of their state law obligations. And one of the things that I think it’s important for us to do in New York, and for advocates and others to do wherever they are, is to educate their employers in their state, educate the business community that they have obligations under state law.
Out of the Sears settlement, we did two things which are quire helpful. The first thing is, we developed what we call the “Religious Accommodation Policy and Process Guide,” copies of which are available outside. This is a guide that explains what they can and can’t ask, how they must respond to request for accommodation. It includes forms for requests. It includes forms that the company keeps in terms of how they dealt with the request. It includes frequently asked questions that the employees, that the managers may confront. And we’ve disseminated that, and we’ve settled half a dozen other cases in which the employer has, as part of the settlement with us, adopted this policy and process guide.
Perhaps even more importantly, when we settled with Sears, aside from the settlement that provided for hiring or back pay for the individuals against whom they discriminated, there was a financial component to it. We got from Sears a quarter of a million for education, and we took that money and we did two very important things. The first is, we engaged ALI-ABA, which is a joint venture of the American Law Institute and the American Bar Association, which holds seminars, to organize a seminar on workplace discrimination. It was a little different than this, it was really for lawyers and HR people given by lawyers and HR people to talk about their obligations, how they respond to requests. It was a video seminar broadcast to 60 locations across the country, and it’s still available from ALI-ABA on tape.
And then, most significantly, we took the bulk of the money, and I went out and I hired a law firm to prepare and to ultimately publish with ALI-ABA the first state-by-state survey of the law of religion in the workplace. This goes through every state, it provides the statutes, it provides the case law, and one would be surprised about the number of states that have addressed these issues in some form or another. It’s certainly helpful, obviously, to advocates, but it’s also helpful to the business community, and we actually sent this to the general counsels of the Fortune 1,000 companies and got back a fair number of letters saying, thank you, I operate in 28 states and this is invaluable, I hadn’t taken it seriously. We did get a lot of comments like that.
I would also like to raise one difficult challenge that confronts us when we settle these cases. When we settle a case with an employer, we obviously want to get from them something more than their assurance that they’re now going to adhere to the law. We want something concrete. At the same time, the employer wants finality. And we’re often finding at the last stages of the negotiation we’re talking about, what percent of the employees in this class, in this group, do we have to take to accommodate? Obviously, the law is very undefined in that, and I’m always hesitant to say, okay, 20 percent is what you have to do, or 30 percent, or whatever it is. But it’s necessary to grapple with that if you’re going to get meaningful relief from the state side and get a company that is going to enter into a consent decree that provides them with some measure of finality. So, if these cases do get taken seriously, and develop further, then I think people have to grapple with that, and whether there are more clever ways to deal with that issue.
Attorney General Spitzer often says that for far too long religious rights have been treated as a step-child of the civil rights community and the civil rights movement. We hope that our efforts in New York have brought them closer into the family. And we believe that if other states and other jurisdictions will take similar efforts, there is no doubt that that will be the case.
MELISSA ROGERS: Thank you very much. Thank you, and we look forward to taking up those questions. Particularly with the resources you mentioned, we’ll try to find a way through our web site so you can link and get these other documents that Avi mentioned that will be very helpful.
Richard Foltin is Legislative Director and Counsel in the American Jewish Committee’s Office on Government and International Affairs in Washington, D.C. Rich is an old hand on these issues as well as many other church-state issues. He chairs a coalition to promote passage of the Workplace Religious Freedom Act, what has been referred to as WRFA, and he will toss into the discussion now anything that has been lacking, including a bit of background on the coalition that supports this legislation.
RICHARD FOLTIN: I also feel like I’m the person who is in that position who gets to say that everything has been said, but not everybody has said it. So, you’ll forgive me if I rustle through my notes a little bit as I try to find things to add to what has been said on what’s a very important topic.
The first thing I want to do is make a couple of observations about the core of what we’re trying to do in the Workplace Religious Freedom Act, which is about to be introduced for the ?? help me, David ?? the 27th time in Congress this week. Senators Kerry and Santorum introduced it on the Senate side, and I’m sure the House will follow in short order. And the two key things that it tries to do is deal with the problems that the courts have had in understanding what the religious accommodation provision of Title VII is all about. Basically by helping us to define, and helping the courts to understand what’s meant by the terms reasonable accommodation of a religious practice, and undue hardship, as in an employer shall provide a reasonable accommodation of a religious practice unless there’s an undue hardship, and the failure to do so is defined as a form of religious discrimination, which it is.
Now, one might expect that a reasonable accommodation is one that actually removes the conflict with the religious practice, with employers then being required to show an undue hardship before being relieved of the obligation to provide the accommodation, but this is often not the case. Perhaps most remarkably, some courts have suggested, beginning with Hardison, that employees’ rights under collective bargaining agreements are in and of themselves reasonable accommodations, even when those agreements make absolutely no provision for employee religious practices that may come into conflict with the requirements of the workplace.
Now, this is totally separate and apart from the question of whether a seniority provision, say, in a collective bargaining agreement takes precedence over a need for accommodation, which appears to be the case simply because Title VII says that a neutral collective bargaining arrangement is not a form of discrimination, so that seems on its face to say that that takes precedence over the need for accommodation, and if the statute doesn’t say it, the court in its interpretation of the Americans with Disabilities Act, which had no such provision on collective bargaining arrangements, recently read the ADA to include, in effect, that kind of version.
That’s the law as it is. But that is not to say that the practice has been accommodated, and we need to deal with that issue of sort of changing the parameters within which the statute is understood and within which the courts understand the legislation and need for the legislation, so that they stop telling us that something that doesn’t accommodate a religious practice is some kind of accommodation.
Now, another aspect of this is the application of the Hardison clause interpretation of undue hardship that has most often caused religiously observant employees to come to grief, often in the absence of non-trivial economic cost. Even in the absence of a non-trivial economic cost to employers, the courts have found that the provision of a reasonable accommodation amounts to an undue hardship. And I’m going to tell you about just one case that reflects that. In that case, Major Singh, a Sikh, forbidden by his religious precepts from shaving his facial hair except in medical emergencies, applied for the position of a manager at a restaurant where he was already employed, but he was denied the position because he would not shave off his beard. The EEOC brought a religious discrimination claim on Mr. Singh’s behalf, but the federal district court ruled that relaxation of the restaurant’s grooming standards would adversely affect the restaurant’s efforts to project a clean-cut image, and would make it more difficult for the restaurant to require that other employees adhere to its facial hair policy.
Now, if you can just imagine in some other context saying that we will not promote a particular employee because that employee, because of his race, because of her gender, doesn’t project the kind of image we want, and therefore the courts uphold that as a legitimate basis upon which to make an employment decision. And yet, here was a federal district court making that determination. And there are unfortunately a lot of other cases in which things that have no economic impact, and certainly not significant economic impact that WRFA would require, that have served as the bases to uphold these really unfortunate interpretations of law.
As Roberto has said, since the problems in this area turn on judicial interpretation of legislation rather than constitutional doctrine, they are susceptible to correction by the U.S. Congress, and this is what the Workplace Religious Freedom Act, WRFA is intended to do. Instead of the de minimus standard, WRFA would define undue hardship as an action requiring significant difficulty and expense, and would require that to be considered an undue hardship the cost of accommodation must be quantified and considered in relation to the size of the employer. And in this respect, it resembles, although it’s not identical to, the definition of undue hardship that’s set forth in the Americans with Disabilities Act.
Interestingly enough, just as a matter of legislative history, the reason the ADA had that stronger definition is because the drafters of the ADA, which followed the religious accommodation legislation, set the path of looking to the law to require accommodation in certain circumstances saw the unhappy history of Section 701(j) of Title VII in terms of how the Court had understood it, and so had put in a definition of undue hardship that was intended to deal with this very narrow understanding of what was meant by undue hardship. So that’s the definition which we think would, the Court willing, put some more teeth into what’s required from an employer.
In addition, WRFA would require that to qualify as a reasonable accommodation, an arrangement must, and here’s the shocker, actually remove the conflict. This would put to rest the notion that a collective bargaining agreement, or any other neutral arrangement, or an attempt to accommodate that fails to accommodate a religious practice might itself be viewed as a reasonable accommodation. Again, the accommodation itself might constitute an undue hardship, it might not be made available because there’s an overriding seniority arrangement, but those are distinctive concepts and things that the courts would have to deal with on a separate basis.
WRFA would also make it clear that the employer has an affirmative and ongoing obligation to reasonably accommodate employees’ religious practices and observance. This doesn’t alter the standard for what’s a reasonable accommodation or undue hardship, but it deals with some cases in which courts have suggested that it’s the employee’s job to go and find someone to swap shifts to accommodate his need to not work on a religious holy day. There have been cases that have said, in effect, the employee has to go around and canvas all of his or her fellow employees trying to find somebody to switch. The employer, for a lot of obvious reasons, is in a much better place to do that, and one of the things WRFA would do is to place an affirmative obligation on the employer to try to work out this accommodation.
So that’s the core of what WRFA would do. This is a bill that has been introduced in a number of sessions of Congress. As David Lachmann said, this goes back a long while. The first version of the bill trying to deal with this issue was introduced by Congressman Stephen Solarz – the Washington cognoscenti will know how far back that takes us. And has been introduced since by Congressman Nadler, Congressman Goodling, by Senator Kerry and Senator Brownback, and is about to be introduced possibly as soon as in a couple of days in the Senate by Senators Kerry and Santorum. And as those responses reflect, this is a bill which, while it does not have the 60 Senate co-sponsors that we would love to have, reflects broad support in terms of ideology. Those who have been focused on the religious liberty needs that it addresses, they have been Republicans, they have been Democrats, they’ve been conservatives, they’ve been liberals, and similarly the coalition that has for many years been working in support of this bill is similarly broad based.
The entire breadth of the Jewish community, which is split on some church-state issues, is united in support of the Workplace Religious Freedom Act. There’s broad support within the Christian community, again, reflecting support from folks who have some very significant differences on other issues. And there’s support as well from Sikh groups, Muslim groups, and others. And we hope some of this support is going to help us carry the day, or we hope that this support will help us to carry the day as we move forward with the legislation for this latest go round.
I want to very briefly address some of the constitutional issues that have been put on the table. They are thorny, but I think easiest one is the claim was made that somehow enactment of the Workplace Religious Freedom Act would violate the Establishment Clause, would violate the prohibition on government establishment of religion.
Now, interestingly, in the Hardison case, these problems were raised by the majority, so this notion that there were Establishment Clause problems which consisted of the more conservative members of the court, and meanwhile it was Justices Brennan and Marshall, dissenting in Hardison, who said that the state does not establish religion over non-religion by excusing religious practitioners from obligations owed the state. They did not see how the state can be said to establish religion by requiring employees to do the same with respect to obligations owed the employer. And they went on to other reasons why there was no violation of the Establishment Clause involved in a vigorous interpretation of the religious accommodation requirement.
I don’t want to resort to ad hominem debate. But since time is short, I don’t have time or anything else, so suffice it to say, if Justice Brennan and Marshall didn’t think that it was an Establishment Clause problem with a vigorous interpretation of this obligation and of this law, it’s hard to see why anybody else would think so.
More problematic is what has been done in recent cases having to do with the Commerce Clause, and with the 11th Amendment. Suffice it to say that while the Supreme Court did strike down the provision of the Violence Against Women Act that provided a private civil action for certain criminal actions, the court’s decision striking that down pointed to the non-economic nature of the regulated activity in that case, and I think if there’s anything that should fall within the purview of economic activity that can be regulated under the Commerce Clause, it’s activity involving the workplace. And so if the religious accommodation requirement as part of Title VII prohibition of religious discrimination can’t be upheld under the Commerce Clause, I don’t know that much else is going to be left of Title VII and of our civil rights laws generally, of which I can only say God forbid we should see that struck down.
On the issue of whether or not these laws can be applied to state governments, which is another issue that has been raised with us, it’s important to note that the most recent case saying that the ADA cannot be utilized to seek monetary damages by an individual from the state – that the court there said that basically disability was not going to be treated as the kind of suspect classification that was cognizable under the 14th Amendment, and it has yet to settle whether or not religion is or is not such a suspect classification. But that’s something, I think, all of us should be committed to fighting in court very strongly for treating religion as a suspect classification.
MELISSA ROGERS: Thank you very much, Rich.
QUESTION: My name is Joshua Salaam and I’m with CAIR, the Council on American Islamic Relations. I’m wondering about the issue of an employer questioning the sincerity of an employee’s religious belief. Where the employer says, well, how do I know you’re a Christian or Muslim or Jew? How do I know that you have to do that? Professor Corrado mentioned the case of Mahmoud Abdul-Rauf who said that it was his understanding of the text, that not necessarily all Muslims believe that, but that’s what he believes. So with the employers being bounced around, maybe saying, well, okay, this person said the answer to that, and this person said the answer to this, and this person is supposed to do that. They’re demanding proof – give me a letter that says, you are this, and that you have to do that. I want to know is there some text on that that kind of guides that, and if I can find it?
My second question is about the situation where an employer says, yes, you can have your religious accommodation, but not here. We’re not going to fire you, but we’re going to put you somewhere else. I remember a case at UPS or FEDEX, where it was a beard issue, they didn’t want them to be seen by the public, but they still allowed them to unload the boxes and things like that, but not out in front with the public image. Has there been some resolution for that also?
DAVID FRANK: As to the second point, it’s always the EEOC’s position that if you’re shunted away from the public for a less prosperous job, that would be discrimination.
As to the first question, questioning the sincerity of your religious beliefs, that’s a different issue. I referred to a case in my remarks, because the courts have not taken the same line as the Commission on this one. Historically, I think our view of this is that it has to be sincerely held religious belief, but you can have your own religious beliefs that may not be in complete accord with the exact teachings of the doctrinaire version of your faith and still be entitled to religious accommodation. You don’t have to go to church every Sunday as a Catholic to be entitled to a religious accommodation.
But the courts have been somewhat more suspect of that. And the case I referenced, in fact, the court said it was a question for a jury to decide whether or not someone’s religious convictions were sincerely held. That’s a decision this year by the First Circuit Court of Appeals.
So, therefore, I don’t have a definitive answer. I wish I had something more definitive to give you. The basic view of the Commission is that an individual simply has to have sincerely held religious beliefs, and an employer is entitled to know that they’re sincerely held, but that they should not have to go get a letter from your minister saying that you’re in good standing and you’ve tithed weekly, and everything else. So that sort of leaves it in a fuzzy area. The answer to your question is that the courts have not defined this issue very consistently, which probably isn’t very satisfying, but is unfortunately the honest truth.
MR. CORRADA: First, discrimination law is replete with cases that say how the public views something in the nature of discrimination is not important. For example, in sex discrimination, when the sex discrimination cases in the early ’70s came involving flight attendants, one of the arguments that various airlines made was that most of our travelers are businessmen, and they like women as flight attendants. The public opinion there was not allowed to subvert discrimination law. And that’s been consistently true of every category of discrimination. So I would think that, like David Frank says, that the public’s view is not important. It’s a question of policy, and the statutory language is what’s important.
On the sincerity of belief question, sincerity of belief is a question that goes to the jury. The case law is very consistent on this. That’s as opposed to the nature of the belief. What the state has no right doing in a court case, or a judge, is questioning the nature of somebody’s belief. For example, whether Islam is a religion. However, somebody’s sincerity of belief, whether the person is a sincere believer in their faith is something that often does go to the jury. It’s a tricky question for employers. Employers have a right to know what the nature of the belief is that causes the conflict in the workplace. In fact, that’s one of the requirements under Title VII, that the employee provide the employer notice of the conflict.
Beyond that, I think it’s risky for employers to really get into whether a particular person is a sincere believer. I think in many of these cases it’s a non-issue. If somebody is willing to lose their job over their religious faith, that alone should cause you pause in questioning sincerity of belief. What I in the past have advised employers on this issue is they should not question the sincerity of belief, they should go ahead and make the accommodation. If they can’t, because it’s an undue hardship, and the case ends up in litigation, then litigation is the time to look at whether the person is a sincere believer. That causes problems as well, but that is an issue that is for a fact-finder to determine, as opposed to the nature of the belief, which is something that courts and the state should not be getting into.
MELISSA ROGERS: And that touches on an issue maybe we’ll get to later about some courts inquiring into whether the belief is mandated by the faith, another issue that we should discuss later.
QUESTION: My name is Mike Tripley, a reporter with the Bureau of National Affairs. You’ve been talking mostly about minority religions. There’s been a wide variety of cases recently involving proselytizing by evangelical Christians, arguing that they need to be accommodated in the workplace to be able to proselytize, because that’s a religious belief. How does that fit in, and specifically with the legislation currently being proposed, how would the issue of proselytizing be dealt with?
RICHARD FOLTIN: Some of these issues were addressed as part of a package of guidelines that was adopted in the previous administration, which I believe is in effect now, on guidelines for dealing with religion in the federal workplace. And there it was quite generous in terms of providing for accommodation for religious practice. Since the president has plenary power over the federal workplace, he was able to direct that certain acts of accommodation take place whether or not they would be required of a private employer, and that was instituted as part of the guidelines. But, the guidelines also made it clear that you couldn’t harass fellow employees. It’s clear that in the civil rights law one may not engage in harassment of fellow employees, whether it’s sexual harassment, religious harassment, or harassment done on the basis of race, or any other protected category.
So just as the old cliché goes, your freedom to make a fist ends where my nose begins. One cannot engage in practices in the workplace which harass fellow employees, and involve continually approaching them, for instance, to proselytize a particular faith, where that other employee does not want to be approached. So I think people should be free to discuss in the workplace religion on the same basis that they’re allowed to talk about other subjects. But, what they cannot do, even if their faith requires them to do so is to impose themselves on fellow employees to the point that it becomes a harassment. So I think there’s a good balance there, and I don’t think we have, therefore, cause to worry about somehow enactment of WRFA opening the door to fellow employees having themselves imposed upon in an inappropriate fashion.
DAVID LACHMANN: Not to put too fine a point on that, but the other employee has an equal right under Title VII, however, it is framed, to a workplace that is non-discriminatory, and certainly harassment meets that definition, and so it would be presumably a violation of law for repeated and harassing attempts to proselytize an individual.
QUESTION: Nick Miller, with the religious practice group of Sidley Austin Brown & Wood. It’s been mentioned that the proposed WRFA has a standard similar to the ADA standard, and we’ve also heard reference to the recent Supreme Court decision regarding the ADA, and that it would not overcome seniority provisions in the workplace. Now, as I recall, it’s been a while since I read Hardison, which set out the de minimus standard, but didn’t Hardison also deal with seniority provisions in the workplace? So my question is, just at the time that we seem to be raising a sort of Title VII religious accommodation standard to meet that of the ADA, is the Supreme Court bringing the ADA down to where the religious accommodation standard has been? And do we need to make adjustments to deal with that? Even if we pass this new bill, are we just going back to the future, or is the ADA going back to where we’ve been?
MELISSA ROGERS: We’ll get a quick answer to that right now, and then I think Nathan Lewin in his lunch remarks may be able to address that further later. Who wants to bite at that?
DAVID LACHMANN: The answer to your question is, yes. It is a problem. The Supreme Court is a terrible problem. In terms of efforts to protect religious liberty it’s been an enormous problem, and definitely the Tyner doctrine – “we really mean it this time” – does apply here. Try as we might to come up with the magic formulation of words that will get the Court to actually protect people, the Court is just as determined to come up with the magic formulation of words to ignore our magic formulation of words. And it’s been a long running game, not unlike professional wrestling. If we come up with the magic words to protect the right, they come up with the magic words that strips us of an enumerated power, by reading the word “another” out of the 11th Amendment, for example, which is also known as strict textualism.
It seemed like a good idea back in 1989 to use the ADA, whether building on the ’72 language would send a message to the Court that we want a stricter standard than is now available under current law, perhaps. But, ultimately that’s something that we have to leave to the nine knuckleheads up the street.
RICHARD FOLTIN: Let me just add, the collective bargaining arrangements issue aside, changing the definition of undue hardship to clarify that it means significant difficulty and expense will be a lot of value added, as it were, regardless of that issue. Saying that an employer has to spend some money, not an awful lot, would be helpful to employees.
Also, regardless of what happened with the ADA, because I think the ADA case is largely irrelevant to the bill, because we never intended in this bill to override seniority arrangements, regardless of what was being done on the ADA. What I think is important to do is to make it clear that it’s not sufficient.
And I think WRFA pushes in that direction without overriding the interests of labor, and of business for that matter, to have regularity in their collective bargaining arrangements. So I think the bill will be important, even though at the end of the day seniority arrangements will prevail if they’re going to be invoked.
AVI SCHICK: If I could just note that, as with litigation, there are state efforts on legislation, as well. New York last month passed through one house, and it’s pending in the Senate, workplace accommodation legislation which is similar but not identical to WRFA, but which contains many of the protections that Richard talked about, and I think works its way around some of the problems regarding CBAs [collective bargaining agreements] and seniority that the questioner raised. Without going into it, copies of the legislation are available on the desk outside.
MELISSA ROGERS: Thanks so much.
I want to thank our panel particularly for their outstanding work this morning. And, by the way, the next panel will include representatives of business, labor, and various religious communities. Let’s take a short break. Unfortunately I do mean a short break. So let’s try to be back in our seats around 11:30. Thank you very much.
(End of panel.)
Panel 2: Religion in the Private Workplace: Perspectives of Business, Labor and Religious Observants
MELISSA ROGERS: Thank you so much. We’d like to start the second panel now because we want to make sure we get you to lunch on time. This next panel, as indicated on your schedule, is to address the interests of various religious communities and their needs for accommodation in the workplace, as well as very important voices of other stakeholders in this issue: the business community and organized labor. We have a representative of each of those communities with us today for our discussion.
We’ll begin that discussion in just a minute. I would like to go ahead and introduce our first speaker. And, again, we’ve asked all of the speakers to hold their comments to a very brief period of time, and so you’ll of course understand if they can’t cover all the waterfront, but hopefully can cover a bit more of it with your good questions in just a moment.
I’d first like to introduce Nathan Diament. Nathan is director of Public Policy for the Union of Orthodox Jewish Congregations of America here in Washington. He previously taught political science at Yeshiva University and practiced law with a New York law firm. He’s testified before Congress on many church-state issues, and he’ll speak to some of the Orthodox Jewish community’s needs for religious accommodation in the private workplace. Thank you, Nathan, and please lead us off.
NATHAN DIAMENT: Thank you, Melissa, and thanks to the Pew Forum for putting on this wonderful conference on a very important issue. This is the parochial panel, if you will: not between Republicans and Democrats but among various denominations. But I suspect that there is going to be a lot of overlap between the needs of the different faith traditions with regard to the issue of religious accommodation in the workplace.
From the Orthodox Jewish perspective, from the observant Jewish perspective, as Melissa mentioned at the outset of this conference, we gained a teachable moment in American society when Senator Lieberman was nominated as the first Jew on a national political ticket last year, or a year and a half ago. And that provided a nice teachable opportunity for people to write op-ed columns in magazines about, what exactly is the Sabbath and how is it observed, and so on and so forth, and a lot of Americans were educated about those issues. And I’m going to try to do a crash course in some Jewish traditional practice for you here this morning.
You can break down our practices and how they might impact on a worker’s activities in the workplace into three categories: scheduling issues; grooming, clothing, appearance issues; and “other.”
The scheduling issues come up with regard to the Sabbath, which in Jewish tradition is observed from sundown on Friday until sundown Saturday, week in and week out. In the summer months when sundown is not until 8:00, or thereabouts in the afternoon on Friday, there is not so much of a conflict with the workplace in many instances, but it always happens that somewhere in December or January if you’re an observant Jew and you’re working and sundown is at, oh, 4:00 in the afternoon, there is a really important assignment that needs to get done that afternoon, and it becomes a scheduling problem.
And I should digress at this moment just to point out that these kinds of issues, scheduling issues and such, generally don’t hit upper-income professionals terribly hard. If you’re an attorney at a nice law firm, or if you’re working at an investment bank or an accounting firm or what have you, at least in my experience when I was in the private sector, you just have to get the job done and the firm doesn’t much care, subject to filing deadlines and things like that, whether you’re doing your work on the document, or what have you, at midnight or at 6:00 a.m. or anywhere in between. But when you get to lower-income working-class people and middle-income people who work hourly shifts, who punch time clocks, that’s really where the scheduling crunch happens.
So for Orthodox Jews, for Sabbath-observant Jews, you have the week in and week out obligations of the Sabbath, which entail desisting from involvement in all kinds of mechanical ways. We don’t use telephones, we don’t use computers, we don’t use pagers, cell phones, BlackBerries, anything else that the industry is about to invent to keep us wired and connected to the world, because electricity is not the thing that we utilize actively on the Sabbath. We can turn our lights on beforehand and the lights in the kitchen stay on all night – sorry, environmentalists, but that’s the obligation.
And there’s a similar obligation with regard to the holidays – some of them you may have heard of, some of them are less famous: Rosh Hashanah and Yom Kipper, the New Year and the Day of Atonement; Sukkoth, the Feast of Tabernacles, which follows those two in close proximity. So it’s often the case that in somewhere around September or October is the real crunch time holiday-wise for orthodox Jews, when you will have seven days that, just like the Sabbath, you may not engage in work activities, again, using electric devices, traveling in cars, planes, trains, et cetera, and you have to desist from engaging in those kinds of productive activities.
Now, the holiday calendar, I should mention, follows the lunar cycle, so you can’t say, well, Rosh Hashanah is always going to fall on September 10th. It shifts around a little bit. And this September will be something of a reprieve for observant Jews who get caught in this bind because the fall holidays are going to fall essentially on Saturday and Sunday, and so there will be less conflict. But it’s just as well that you might find yourself having the two days of Rosh Hashanah falling on a Wednesday and Thursday, followed by Yom Kippur 10 days later in the middle of the week, followed the following week by the Wednesday-Thursday first two days of Sukkoth, followed the following week by the Wednesday-Thursday – the concluding days of Sukkoth, and there you have seven workdays all within a matter of four weeks where an orthodox Jew will not be able to show up at the workplace and do his job.
The other two major holidays where work must be desisted from are Passover, which falls in the spring; and possibly the least famous, Shavu’ot, or Pentecost, which falls 50 days after the beginning of Passover and is a two-day holiday where the revelation at Sinai is commemorated. That adds up to potentially 13 workdays in the calendar year where an observant Jew will not be able to participate in the workplace in a regular schedule and will need some kind of scheduling accommodation, or have enough vacation days to be able to utilize enough vacation days to take off all of those days.
That’s a brief summary of the scheduling. Just to briefly point to some of the other issues:
In the grooming, clothing, appearance category, certainly among the Hasidic traditions, there is a practice to grow beards and sidelocks, otherwise known as peyot, and similar to other religious faiths, those are undertaken as a religious obligation by men that wear beards and peyot, and it comes into the situation where an employer has an appearance preference. With regard to women, observant Jewish women will cover their hair once married, either with a headscarf, or wigs are also permissible to be used. Many women engage in that activity and that observance, and that can come up from time to time as an issue. And finally, just the general notion of observant Jewish women dressing modestly results in Orthodox women preferring to wear skirts or dresses over pants, longer sleeved blouses over short sleeves or tank tops – certainly not the bikini tops that Avi mentioned earlier were required in the School of Osteopathy in New York. And so those kinds of modesty issues can come up with regard to uniforms and so on.
Other things that might come up but are a little more difficult to get a handle on might be something like the requirement to eat kosher food, which could come up, obviously in situations where you have a company retreat or a company picnic and somehow the employees are expected to fully participate in that. Generally, however, kosher food is more and more ubiquitous in America. One of the things my organization does besides be involved in public policy work is we’re the largest certification agency for kosher food products in the country, so when you see a little circle with a “U” in it on your Oreos or on your Coke or whatever it is, that’s us attesting to it being kosher, and so it’s fairly easy to get kosher food coast to coast. And of course there’s always the fruit plate or the vegetarian menu in some fashion where you can also make do very successfully.
Those are the main issues that come up with regard to the accommodations of orthodox Jewish employees, and I think you can see why our community in particular has long been very concerned and very focused upon making sure that these protections are in place, because at the end of the day gainful employment and successful employment is really the gateway to success in the United States in being able to support your family and being a productive member of society. And we strongly believe that whether it’s Orthodox Jews or people of other faiths, that no one should be forced to choose between their career and their conscience.
Thank you very much.
MS. ROGERS: Thank you very much, Nathan. Nathan wrote an op-ed piece, that is also in your materials, on this issue that should be helpful to your understanding. I very much appreciate his participation.
I now want to turn to Larry Lorber, who has kindly agreed to join us and to talk about his experience as an attorney with the Washington office of Proskauer Rose, where he specializes in employment and labor law. And he advises employers with respect to equal employment opportunity issues and a host of other matters. He’s served on congressional commissions and also served under the Ford administration. And Mr. Lorber has been good enough to join us today to represent one perspective of business on these issues. And it’s our great pleasure to have him with us today.
LARRY LORBER: Thank you very much, Melissa. Let me begin by saying that whoever sits up here could certainly not say that they represent the business community. It’s a presumption that I certainly don’t have, but nevertheless, let me try to simply offer some thoughts of practical issues that arise from the whole issue of accommodation of religion in the modern-day workplace.
Let me begin by saying that when Title VII was passed, the religious discrimination provision was not a very exceptional provision in the bill in 1963. The notion was that certainly in our diverse country, people should not be denied employment because of their religion. The issue then became then, what do you do? And the Supreme Court, when it faced the Hardison decision, obviously faced the situation of a formal collective bargaining agreement which had its own precepts and requirements for employers, and employers could not violate those precepts or requirements for fear of violating the National Labor Relations Act. And then we get the government involved in enforcing, through either its enforcement agencies, the EEOC or the other state or federal agencies, or through the courts, enforcing requirements of religious accommodation in the workplace. To put it very bluntly, it means choosing, and let me talk about that.
We are an obviously diverse country, as evidenced by this panel, with various religious requirements. No employer has a right to pick and choose amongst our religions or amongst the religious beliefs of individuals who wish to apply for or work in their establishment. That’s clear, unexceptional and uncontroverted. The real question becomes, then what do you do? Employers have to be 24/7 in order to run their businesses, and the question becomes, does anybody want an employer to have to make the necessary choices to, in effect, triage religious beliefs in order to accommodate various religious beliefs within the workplace so as to accommodate deeply held beliefs? I’m not going to get into the issue as to whether or not it has to be a formal religion or not, but that does come into play and I’ll briefly touch upon that.
But nevertheless, what do you expect an employer to do? The law is clear. The law was clear since 1965 that customer preference does not allow an employer to discriminate. Employer safety needs, however, do come into play, and back in 1999 when we spoke about it at the hearings, there were a lot of OSHA requirements as to specific garb; requirements, for example, of people working on production lines at lathes should not wear skirts.
We talk about accommodating days of religious observance, be they 13 days, as we just heard, or others. But there is a confluence of religious observance days, and we just witnessed one because Passover and Easter came at the same time this year. I think the second night of Passover was Holy Thursday. The question does become, who gets to take off from work? And at the end of the day, what is an employer to do to accommodate the very legitimate requirements of religious belief that require certain of their employees to not work? And that’s an issue which has to be resolved, and do we want an outside force to mediate that issue?
We come to the issue of proselytizing. There have been cases where employers who required their employees to attend Bible services were told they violated Title VII; they violated the law. And so, the real question then becomes, does an employer provide, in its workplace, accommodations for various employees, members of religious groups who may wish to observe their religious beliefs – orthodox Muslims come to mind – and should rooms be set aside in a workplace so that those very legitimate, uncontroverted religious practices can be accommodated?
There are a host of these issues, and I don’t believe many employers or most employers want to get into the business of telling employees what they should or should not do. The real question is, do we establish a statutory regime and therefore a regulatory regime and an adjudicatory regime which would require employers to make choices? Because by definition, we must have a diverse workforce, and by definition we’re going to have a diverse workforce with respect to religious beliefs.
And therefore, there is a tension that’s built into this discussion. It’s not a tension over whether or not we in this country regard religion as something that we protect. Of course we do. We’re unique in the world. The First Amendment is unique. Title VII is unique, if you could look to most other countries, even industrial countries, without protection of persons for their religious beliefs in terms of their entrance into the workforce and their ability to proceed in the workforce.
But we have a lot of other laws. We have, for example, something called the Family Medical Leave Act. That law permits an employer to require of an employee to certify that either they have a serious medical condition or that they are taking care of a covered relative who has a medical condition, and notify the employer what it is. There’s a certification requirement in that law. We find that in other areas as well, so that the issue is, can an employer say, “you tell me you now are observing a religious belief; how do I know?” Well, is it an organized religion? Do you really want the employers to ask those questions and those other questions which must be asked?
And let me finally address one other issue, and this is the Hardison issue; the collective bargaining issue, at least as negotiated between organized labor and employers and, as we know, certainly in the private sector, organized labor is around 11 or 12 percent; or the Barnett issue, the US Air issue, the case that was alluded to where the Supreme Court said seniority, in effect, trumps reasonable accommodation. The point to be made in that case is it was not a collectively bargained seniority system, it was a long-standing employer practice.
And so, the question becomes, when we talk about these issues, what exactly are we asking of the employer community, of the workforce in this country – what exactly are we asking them to do? The law is clear. At the testimony in 1999, it was clear that the EEOC was able to obtain injunctions against restrictions on employees who had to wear certain head garbs for working for an airline on the notion that it was a safety issue. The law is well in force.
And so, let me end by simply suggesting that while we recognize and applaud religious diversity, it simply seems, as a practical measure, any of these efforts to further define what has to be done it seems to me runs headlong into these inevitable and very difficult conflicts as to what one expects an employer to do. What does one expect an employer to do when they’re facing competitive requirements, the requirements that they keep their businesses running? Are we expecting employers to get into the business of picking and choosing; of, in effect, triaging various religious beliefs and accommodating one religious belief at the expense of the other? Because at the end of the day I think that is inevitably going to happen because there will be inevitable overlaps and inevitable conflicts.
And so, it simply seems to me that as well-meaning and as thoughtful as this legislation is and what’s going on, there is a very practical aspect to it which I think transcends, in some respects, the discussion that you’ve heard so far as to what should be done. Because I’m not questioning that any of it should be done; the real question is, what must be done? And are we going to put upon an extraordinarily regulated environment, the workplace, yet another requirement, and give the courts the task of picking and choosing amongst all of these requirements, as they faced in Hardison, as they faced in Barnett, as they face in all of these cases, to make decisions so as to harmonize something that’s fairly disharmonic or sounds like an Irving Ives opus rather than something that perhaps was written by Mozart.
MS. ROGERS: Thank you very much, Larry. That’s put a number of interesting questions to us that I know we’re going to want to grapple with as we move along.
I’ll now move to our next panelist, Tejpal Singh Chawla, who is an associate at Crowell & Moring, and civil rights counsel to Sikh Mediawatch and Resource Taskforce, a non-profit, not-partisan organization. SMART’s mission is to combat prejudice, protect civil rights and religious freedom, and provide resources to empower the Sikh community. He also sits on the U.S. Attorney for the District of Columbia’s Bias Crime Taskforce. So we welcome Tejpal and his comments about the Sikh community’s experience in the workplace on these issues.
TEJPAL SINGH CHAWLA: Thank you very much for inviting us here. I want to thank you and the Pew Forum as well. This opportunity is quite unique, actually.
Many of you have probably heard the word “Sikh” spoken today more often than you have in your entire life. The first panel, I think every single person mentioned Sikhs. The fact of the matter is that Sikh Americans have been in the United States since 1890, been here over 100 years, and have experienced faith discrimination throughout that time, both de jour and de facto discrimination throughout that period.
The reason why you continually hear the word “Sikh” mentioned is that the number of cases that have been brought by Sikh Americans because they have been discriminated against in the workplace and by government is really astounding, given that there are only about a million in all of North America, even today. And that number increased dramatically in the ’80s, and prior to that, you’re only talking about a couple hundred thousand in the United States and North America generally before 1950.
Now, what has happened to the Sikh American community I think is a tale of two worlds; the first was sort of before 9/11 and the second was after 9/11. And those of you who know Sikh Americans are wondering, what did 9/11 have to do with Sikhs? Sikhs are not Arabs; they’re not Muslim. They have nothing to do with what happened on September 11. The sad irony is that it’s because we look different. That’s the only thing that differentiates us. Sikh Americans do not have to take a day off for Sabbath. They don’t have any special dietary restrictions. They don’t have to go home at sundown at certain times. But because we look different we face many discriminations.
People don’t want to hire Sikh Americans. They want to discriminate against them. They want to put them in the back room. Many of the problems that Sikhs face are faced by Muslims, by Jews, because they look different – un-American in some ways. And, let’s face it, Sikhs not only look different – they have turbans, they have beards – but they’re brown too. It’s sort of a magical combination of all your discrimination in one basket. If you want to find someone to discriminate against, you can find it in a Sikh. Relatively speaking, it’s a grab bag.
But let me just tell you a little about who Sikhs are in the world. There are about 20 million worldwide. Sikhs are monotheistic. We reject the caste system but believe in reincarnation. We have a religiously mandated belief that we cannot cut our hair, and Sikh males and some Sikh women wear turbans. That’s pretty much it. We can do everything else. We can work at night, go home late, you know. Everything that can be done by an employee a Sikh can do, except they look different. And what are the ramifications of that? Well, let me give you a few of the examples of how this sort of comes into play.
In the military: Prior to 1980, Sikh Americans were allowed into the U.S. military. After 1980 they were not. It was a regulation determined by the Army. And as we know, after Goldman v. Weinberger, there’s been a whole lot of changes after that. But basically it came down to a single point that Sikhs were permitted in the military, now they’re not. Why? They look different. Not that they can’t do any of the things that they can do otherwise, they just look different and the military restrictions don’t want it.
In New York City there was a man by the name of Amric Singh, who passed his boards to become a police officer in the New York City police department. He passed all of his tests, ranked very highly, but was rejected. Why? Because he wore a turban and had a beard. While they made similar concessions to Orthodox Jews who wore yarmulkes and who had beards, they would not make the same accommodation for Sikh Americans. That fight is ongoing right now in New York City.
In contrast, in D.C., Chief Ramsey has been very open in permitting Sikh Americans to apply to become employed in the D.C. police department. Sikh Americans have enjoyed liberties in many other cities. Sikhs in Canada, Great Britain and almost every other country in the Western world have these liberties. They can become police officers; they can become part of the military. They don’t face these restrictions. But here in America, we have had that problem and we have to break through it.
Other types of examples are restaurants and hotels. They don’t want to hire Sikhs because they have beards. For some reason there is an anti-beard world out there where people think that if you have a beard you’re somehow unclean or unsightly and they don’t want you in the front desk. But many people, many Sikhs who are hired who are qualified to be up front at the front desk are not. Again, this impacts lower-level workers, mostly in the service industry, but there are a large number of Sikh Americans who are of the lower service industry as well, so it definitely impacts them.
I’ll give you just an example of a case that happened against Dominos here in Maryland. There was a Sikh man who wanted to become a franchisee of Dominos, and they rejected him solely on the basis that he had a beard. He said, I’m willing to wear a beard net. It shouldn’t matter what I look like. And Dominos responded by saying, well we don’t want our customers to think that people with beards make their pizza, because we’re afraid of what they will say when they see a Sikh delivering their pizza. He wasn’t going to be delivering the pizza, he was just going to be making the pizza. But they still fought him for 10 years in various forms in Maryland, both on the local level and then into the courts and then back again. And after 10 years Dominos finally relented after they said, Gen Xers, who are mostly people who work at Dominos, are now wearing beards so we’re going to change our policy — not to make the religious accommodation, but because Gen Xers changed their mind.
This is the type of business relationship that Sikh Americans have. I can give you cases in medicine and in law and other places where Sikhs have been accommodated without any problem in the workplace. They have been brought along and have performed very successfully and admirably. Whether it’s Sikh surgeons, who wear beard nets when they perform operations, or wear, you know, shower caps over their heads for sterility purposes, employers have made accommodations in many hospitals. But in other places, Sikhs still face discrimination.
It’s a matter of getting a core standard. As the first panel discussed, religious accommodation as a general matter is something that is not quite understood even by the courts. It’s improperly interpreted and oftentimes not in the favor of Sikhs. Looking at the case law against Sikh Americans when Sikhs are involved, we win only when the employer has made other accommodations for either Muslims or Jews. When it’s a stand-alone sort of Sikh American identity question, we lose.
I think it has more to do with the fact that Shiks look different. We have a turban, we’re unfamiliar, look alien to many Americans, particularly people who are not very sophisticated and have a lot of education, which unfortunately is most of the American public to some extent when it comes to employment decisions. They’ve never met a Sikh. They see me and they think Osama bin Laden. They don’t look at me and say, I was born in Philadelphia, I was raised in the United States, I’m an attorney.
But I will say that it is important that we first identify what the real problems are, that we try to get past employers’ initial tendency to say, we don’t want that person in the front desk, we don’t want that person employed here, and understand that Sikh Americans are law-abiding citizens who’ve been here for a very long time and will continue to be, and we will overcome.
MS. ROGERS: Thank you very much. Thanks, it was very enlightening on the Sikh faith. I appreciate that.
Next I’m going to call on Stuart Lark. Stuart serves as counsel for legislative affairs and advocacy for the Christian Legal Society. Previously he practiced law at a law firm in Colorado Springs, and he’s authored numerous articles on religious liberty and tax-exempt organizations. And he’s going to offer his thoughts on the kind of work that he has done for the Christian Legal Society regarding religious accommodation in the private workplace.
STUART LARK: Thank you, Melissa, and thank you for this opportunity.
I’ll start by saying simply that we believe that God has created individuals with a religious impulse, and that is essential to human identity. When we say someone is created in God’s image, this is what we mean. Further, we believe that individuals are most fully human when this religious impulse flourishes as God intended. But this flourishing cannot be coerced, rather it’s a matter of faith, freely adopted and expressed. Therefore, we want to create a society in which the religious impulses of individuals can flourish as freely as possible. Thomas Jefferson, at the time of the founding, commented – and this is from someone who maybe Christians these days don’t identify with too closely, but his commentary on the Christian religion at the time said that “the holy author of our religion, who being lord of both body and mind, chose not to propagate the religion by coercions on either the body or the mind.”
And so we think that’s a very important, fundamental principle about societal structures, and it applies first to the government and to sort of government action, and we think it’s important that there be a very high threshold on any government action that burdens religious practice. Unfortunately, the Supreme Court doesn’t agree with that right now, but we continue to strive for that standard. But we think it also applies in the private workplace and that there should be a recognition in the private workplace that the religious impulse, the religious conscience of persons is important and to be respected. And in that sense, we think that you cannot separate an individual’s religion – his religious or her religious beliefs – from religiously mandated or religiously motivated conduct or practice. To say to someone that they can have their religion but they can’t practice or observe the religion in terms of what that religion mandates or motivates them to do is the same as saying that they can’t have their religion, they can’t really be of that religion, and that dynamic needs to be recognized.
In response to some of the assertions about how this imposes a cost on the private workplace, that’s true, it does. But we don’t think that that’s unusual in the sense that, you know, the private workplace is well regulated, and maybe we would all argue about whether it’s overly regulated or not, but the fact is that the private workplace needs to incur significant costs with respect to other things that society values, such as the environment, such as the health concerns of individuals, their disability status and family issues. We simply believe that religious conscience or religious impulse, as I’ve called it, is a value of society that should be respected in the private workplace in a similar way that we value – and perhaps even in more of a way – than we value some of the other social concerns that we impose costs on the private workplace to protect.
I think I’ll comment quickly on a couple of other points that were raised in the earlier panel, and then maybe they’ll come back to them in the form of questions, but one question that has come up is whether there is an issue about religious associations having religious liberty rights and religious individuals having religious liberty rights. Our fundamental take on that is that associations formed around religious conviction cannot be separated from the religious liberty interests of the individuals who comprise that association. So if we were to give one individual religious liberty rights, sort of a trump card over the associational rights of others who are formed or come together based on religious conviction, then we don’t think we’d have any true religious liberty protection left. It just follows that religious associations need to be protected, and you can’t acknowledge the religious liberty interests of individuals without respecting and protecting the associations that are formed around religious conviction.
I also will make a quick comment with respect to how this plays out in terms of government-funded programs because that came up, although I know it’s a little bit afield from our immediate question here. But you know, as we’ve sort of laid out here today, it’s clear that religious associations have the right to hire on the basis of religion, and under current Title VII law, and the question is whether they should be required to forfeit that right when they receive certain kinds of government assistance. And we also know that religious organizations today receive government assistance in a variety of forms without having to forfeit that right.
So what about the particular form of government assistance that’s being put on the table when we talk about government-funded programs – what about that converts a practice which we recognize as good and valid into something which is bad? I have yet to hear any answer to that which convinces me that a practice that we respect for religious associations somehow becomes a practice we don’t respect when the association receives government funds of this particular kind.
Okay, so those are some background thoughts. I was asked to make a few comments about how religious liberty issues come up for perhaps the Protestant evangelical Christian community in the workplace, and there is overlap, as has been said. Scheduling, of course, is something that we encounter in terms of those who want to take a Sabbath day and have an accommodation for that.
I’ll focus on three other categories. One is what I’ll call the religious expression of individuals in the workplace, and those could come in the form of materials placed around the individuals desk, or in the sort of more sort of controversial form of what’s been called proselytizing. I love that word because, first of all, it’s hard to pronounce, and secondly, it just has all the wonderful connotations about what certain Christians or other practicers of other faiths do. I noticed this morning it sort of immediately got equated with words like “harassment,” and then a punch in the nose, and that’s something that we should hear because that tells us how people sort of receive or respond to some of the communication that is made.
But I would also suggest that the expression of one’s faith to another person and the discourse on that is not a unique category in societal conversation, and the emphasis should be more on the form as opposed to the content of the expression. If the form of expression, the manner of presentation, causes grief or consternation, then that’s a valid interest, but that’s based not on content, but on form of expression.
Having said that, I think that the right of individuals to express their beliefs in the workplace and enter into dialogue with others is something that should be accommodated. We’re seeing some resistance to that in various contexts, and I think that will continue to be an issue that sort of bubbles beneath the surface or over the surface for some of our constituents at times.
Another one is what would be perceived as a hostile work environment or an unfriendly work environment with respect to the faith convictions of the employees. Recently we became aware of a situation where an employee of a large telecommunications company was assigned to a position where this company used to be just sort of a provider of the channel of communication, but they have moved over into providing content as well. Some of the content they provide is of an offensive, pornographic nature, particularly for this employee, and he was put in a position where he was directly involved in sort of interacting with this content, and he refused to carry on the work in that way and was subsequently let go.
A similar kind of situation has come up in certain so-called diversity training seminars where employees have felt that they were required to participate in and actively embrace some moral concepts that were presented in diversity training sessions that they felt were contradictory to the convictions of their faith. And again, we think that that’s probably an area that will continue and perhaps even expand in terms of the tension that arises there in the future.
And then one other area that I think is perhaps going to even be the biggest area for many of our constituents is in the area of health care and sort of things that kind of emanate out from that. Abortion, of course, is a highly controversial issue in society, and there are many who oppose it on religious grounds who work in healthcare providing industries, and whether they are providing assistance in the medical field and required to provide assistance in abortion operations or serving as caseworkers. We had a case recently where an employee of a services organization like that was let go because he refused to refer persons to abortion services. Dispensing of contraceptives that have an abortive patient effect, or even dispensing of contraceptives as prescription contraceptives is offensive to certain Christian denominations, including Catholics, as well.
And then lastly the whole area of stem cell and cloning research and whether research assistants in institutions will be required to participate in projects that involve the creation and destruction of stem cells or the cloning process in a way that’s inconsistent with their faith I think is going to be another big area of conflict in the future.
MS. ROGERS: Thank you so much, Stuart.
The next speaker is Deborah Greenfield. Deborah joins us from the American Federation of Labor and Congress of Industrial Organizations, otherwise known as the AFL-CIO, where she is associate general counsel, and she specializes in employment, non-profit law and international labor issues. And we’re very, very grateful that she can join us and speak to these issues this morning. Thank you.
DEBORAH GREENFIELD: Thank you very much for giving the AFL-CIO an opportunity to address this important issue.
As a preliminary remark, let me just say that we worked very hard last year with the proponents of the Workplace Religious Freedom Act to figure out where we had some major areas of misunderstanding, and then to craft some language that was mutually satisfactory so that we could go to the Hill and together, as part of a coalition, enthusiastically endorse the bill. We would hope to have another opportunity to do that. We saw it as an important aspect of labor’s work in coalitions. We work increasingly with the religious community on issues of economic and social justice, and we saw this as part of that effort.
Let me just say that in an environment in which employers are or feel the need to operate 24/7, that can only happen with a workforce capable of doing that and willing to do it. Obviously, one of the areas that workers look to when the demands on them are so great is compensation, but compensation comes in a lot of different forms. As we’ve seen over time, both from our perspective as parties in collective bargaining and also I’m sure you’ve seen it as you read articles about what matters to workers, compensation comes in a lot of different forms – not just money – but it comes in the respect that workers demand for who they are so that they can work in an environment in which they feel productive and respected.
In turn, what an employer gets is hard work, loyalty and the kind of flexibility that’s necessary to operate in a global economy.
So the question is, how does this work in practice? And here, I would absolutely agree with Larry Lorber. I want to focus my remarks today on the role that I see unions playing in the whole area of reasonable accommodations.
I think we have a unique role to play here, and I would start by saying that there is a useful comparison to be made with the Americans With Disabilities Act, because I think we know that what the EEOC has told employers is that when a worker makes a request for accommodation it triggers something called the interactive process. That is an obligation on the part of the employer to engage in a back-and-forth with the employee or with the employee’s representative to see if a reasonable accommodation is possible, and if it’s possible, whether – despite the fact that it’s reasonable – it imposes an undue hardship on the employer. We know that the interactive process means more than simply listening, more than simply listening and not responding, and more than simply listening and just saying no; that it really does involve a give-and-take.
Where the difference between the religious accommodation obligation and the disabilities accommodation obligations come in is in how quickly you get to the undue hardship defense. Now, setting aside the issue of undue hardship, we think that you have the right allocation of burdens in the workplace; that is that the employee triggers the request, but the employer has to respond, and the employer bears the ultimate obligation of making the accommodation or justifying why it can’t.
In the area of religious accommodation, right now we’re stuck with Hardison, but I think that really doesn’t mean that we have to give up or be terribly pessimistic, from a legal perspective and from a practical perspective about what kinds of accommodations can be made. And here’s where I go back to my argument that, in a workplace in which there is a collective bargaining representative, the representative has a unique role to play. First, accommodations occur because a person asks for an accommodation, whether it’s religious or on the basis of disability, and that in a sense, pits one worker against the employer, which is a hard burden. In the classic situation in a unionized workplace, the employee has the opportunity to work through a representative whose job it is to represent that employee in such a process.
Now what are you doing with the employer when you request an accommodation? You are negotiating. That is what the interactive process is, and again, this is what unions do. So this is an area in which unions do have a special role to play.
Third, I would go back to Avi Schick’s remarks about some of the situations that he’s encountered in New York State. It’s very difficult for an individual worker to assess the strength or credibility of an employer’s argument about cost, coverage, efficiency, et cetera, because that employee generally sees only his particular workplace within a larger context. A collective bargaining representative, on the other hand, has an obligation to really understand a much larger swath of the employer’s workplace and is really best situated to help the employee evaluate the strength of the undue hardship argument that an employer may be making.
Fourth, the process of coming up with an accommodation really is a process of generating options. Often an individual employee doesn’t have the perspective on the workplace to come up with those options, but a collective bargaining representative does. In the religious accommodation area where we’re primarily talking about hours of work and time off, a collective bargaining representative is in a position to come up with some options that an employee may not have thought of, and quite frankly, that the employer may not have thought of. And this, one hopes, would get you to a place of informal solutions that don’t get you immediately to the point of conflict where you’re coming up against an undue hardship argument or a lack of options being generated on the employer side.
And finally, because we are talking, in so many cases, about the shifting of work hours, this does affect other employees, and I think it’s the union that can play a very productive role here in bringing other employees into the process and explaining, and trying to figure out an informal solution among co-workers.
I would be remiss if I didn’t make a few remarks about seniority in the context of the whole area of reasonable accommodation, religious accommodation. Seniority is, in a collectively bargained situation, the bedrock on which all rights and responsibilities in the workplace depend and flow from. A seniority system under a collectively bargained agreement actually creates rights and expectations on the part of employees and obligations on the part of employers. Now having said that about seniority systems that are collectively bargained, I will say this: There are seniority systems and there are seniority systems, and by that I mean it’s our position that a unilaterally imposed seniority system – one that’s not the product of collective bargaining but has been established and maintained to whatever extent by the employer – is generally not one that creates the kinds of legally enforceable rights and obligations that you have under a collective bargaining agreement. And it is certainly not the case that the existence of a seniority system, whether or not it’s collectively bargained, is prima facie evidence of the employer having made as much of a reasonable accommodation as the employer is going to make.
But I want to emphasize that advocates of religious accommodation should never equate a unilateral seniority system with one that’s collectively bargained in terms of what flexibility the employer has. I will say that in the Barnett case, in which it was a unilaterally imposed seniority system, the employer’s policy, writ large, said this does not create enforceable rights, and the case was remanded so that Barnett can show that in fact it did or didn’t create those rights through practice. We would say that a thorough looking at the record would probably show that this was not a seniority system that was so adhered to by the employer that it created the kinds of rights and responsibilities that would have prevented accommodating Mr. Barnett.
Having said that, there are situations in which the collective bargaining agreement will prevent certain kinds of accommodation, but the thrust of my arguments today in terms of the role that unions can play is really to get people to see that way before you get to that situation. There are lots of practical approaches to achieving an accommodation in the workplace that unions can play a very constructive role in.
MS. ROGERS: Thank you, Deborah.
Those were very good comments on the education role of the collective representative and what could be done in terms of working on this issue in the future. Let me introduce Sharifa Alkhateeb, who is president of the North American Council for Muslim Women, an educational, legislative, policy and advocacy group. She is also president of the Muslim Education Council. She is very active on legislative and educational matters, and we are very glad she could be with us today to speak to these issues from her perspective.
SHARIFA ALKHATEEB: Thank you very much. We’re very grateful for being invited here to participate in this discussion.
I want to give you a few examples of cases that have happened, and then pose some questions. Because I think what’s most important when it comes to workplace discrimination against Muslims – whether they are males or females – is not what the law says, but how people feel. And the law can say whatever it wants, with all of the checks and balances in place to ensure people’s rights, but if people don’t believe generally that you should have rights – whether they are people in schools or in public or in the workplace – you don’t get those rights. They will find all kinds of insidious ways not to give you your rights because they believe that you don’t deserve to have the rights and because they believe you need to be under suspicion constantly. And that is the situation. We have just a bit of a public relations problem.
The problem is that every day the press demonizes every single Muslim – whether we are immigrant, whether we’re not; whether we’re born here, whether we’re not; whether we have a proper visa or whether we don’t; whether we’ve spent our entire lives dedicating it to the United States and building up and making a better America or not. It really doesn’t matter. We are all categorized as potential terrorists. And we have public officials making statements to the effect that they’re intending to use the home security funds to ask neighborhood watches to watch their neighbors who happen to be Arab or Muslim, or they happen to be Middle Eastern, or they happen to look like that – or they happen to be brown. It doesn’t matter what. That puts every single Muslim under suspicion constantly to the extent that whether you walk into a place and they’ve never seen you before, or whether you are walking in the street, or whether you are in your workplace, or whether you are in a hospital or in school – everyone will look at you with suspicion. They will expect you to do something wrong. And so if that’s what they expect automatically, no matter where you are, of course it will overflow into the workplace.
One recent report on civil liberties was done by the Arab-American Anti-Discrimination Committee, and there was a case on September 13th where in Riverside, California, a human resources employee was put on probation despite receiving an excellent evaluation the month before. A supervisor warned her not to mention that her husband is Palestinian American. Since September 11th, several employees have asked about her Koranic necklace charm and the origin of her last name.
CAIR is another organization that has just recently put out a civil rights report. That’s the Council on American Islamic Relations. There is a case that they mention here in this area, in Ashburn, Virginia, where a woman who worked with her company for 11 years and who had many contacts with Saudi Arabia was treated rudely and then terminated without reason after 9/11.
A few days ago, a woman who is Iraqi American and who is becoming an American citizen – has a green card and has the right to work, and has a B.A. in both computers and in accounting – was seeking a job, and she went to go for the interview, and on the phone, they had just about all but hired her. She went to the interview, and when they saw that she had a scarf on, they said, “What did you do before?” Now this particular woman was an accountant for a Hajj ticket place, and so she said, I used to do accounting for religious trips. And as soon as she said that, the woman stood up, shook her hand, said thank you very much, you can go. Immediately. This was right here in Herndon, Virginia.
Another young woman, who is a graduate student working with other graduate students on a research project at one of the area, well-known universities, was asked by one of her colleagues, who had been working with her for an entire six months, “How can you be part of a religion that encourages terrorism and hatefulness toward all the rest of the people in the world?” This was at her workplace.
There is even a case, unfortunately, of an Arab employer here in Washington, D.C., who themselves discriminated against a Pakistani young man who came to look for a job because he was wearing a long coat and a long beard, and they were afraid that if they hired him, the police would follow him and they would have all kinds of public officials and all kinds of State Department and god knows what after them just because they had hired this young man.
So there is an atmosphere of fear that makes people act in ways that are counter to what the law allows, and they will continue to act that way if they believe either that they are taking part in what they are told to do on television. In spying on all their neighbors, and in listening in, everyone is making themselves into a vehicle of human intelligence toward their Muslim workers. There are so many insidious things that are going on that it’s very, very unfortunate. All kinds of statements are being made to people in workplaces that imply that they are some kind of potential terrorist just because they happen to be Muslim or Arab.
And for every one case that is reported, there are ten others that never get reported. And because people are so afraid right now that if they say anything, most Muslims in this country don’t believe they will get their rights under the U.S. law, and so they think if they report something, it will then cause attention to be drawn to them, and that somebody will come and tap their phone lines or go into their computers or come into their house. They have no idea what would happen if they just simply complain about an injustice.
Between September 11 and May 7, the EEOC nationwide reported that they had 497 charges on the basis of Muslim religion reported compared with 193 in the previous year – a huge increase. Of course, most of these issues are about beards, wearing of beards, going to religious prayer on Friday (and so planning that with time spent at other times), wearing scarves in the workplace, wearing religious symbols, having pictures near their workplace, and also wearing head gear.
What’s new is that a kind of discrimination on responsibilities. People who have been working for years are now not allowed to have the codes for the computer that would let them into secret things that they were allowed to be in before. They are now not allowed into meetings, and they make up all kinds of reasons why they can’t let them into meetings that everyone else is invited to. Or they make it at a time at the last minute and fail to inform them – all kinds of things like this, insidious things are going on in the workplace to discriminate against Muslims.
I just want to end by posing a few questions. The recent question and answers that were put out by the EEOC assume that there is an intent to do the right thing. But if there is no intent to do the right thing, then none of these regulations mean anything. For instance, employers are legally bound to take action steps to end harassment. Well, if an employer doesn’t have a right intention to do that, that his action step or her action step could be to simply talk to the employee and mention it to them and do nothing else. And that could be called a good-faith effort, and they could say, well, I’ve done this many times, 20 times, and it could be over a whole year they could be doing this, and they would say, I’m making a good-faith effort to inform them that this behavior is wrong. But are they going to make it stop? No. Because they have no intention to do so.
You’re supposed to be able to ask for an explanation of the business reasons why somebody would not hire you or someone would fire you. Well, they could make up anything they want to if they have no intention to do the right thing in that case.
There is supposed to be punishment for harassers in the workplace. If people are constantly calling you names, insulting you and saying things near you that are insulting about someone else they read in the paper, whatever, these sort of things are going on constantly. And if there’s no intention of the workplace to do anything about it, it will just simply continue.
The situation of having things said near you or at you or around you are particularly troubling when it comes to teenagers. We’ve had several cases where teenage girls and boys have these thing said to them in order to goad them, right near them, and they don’t feel like they can say anything because they’re young in their workplace, and they feel that that will probably make them get fired, so they just stay quiet. And that’s a horrible situation that we in America, as Muslims, feel that we can’t really speak up and seek justice because we won’t get justice, and furthermore, we’ll probably have more injustice thrown at us by simply complaining.
MS. ROGERS: Thank you. I apologize for the short time that each of you had to speak this morning, but it’s good thing to come back to with the EEOC’s plea this morning for education and work together on these important issues.
Mitch, I’m going to let you close us out, and we’ll turn to the questions and turn to lunch after that.
MITCH TYNER: Do we have a problem? About a thousand times a year, I or someone in one of our regional offices in the United States gets a phone call. The voice on the other end says, I’m a Seventh-Day Adventist, I’ve just been fired because I refused to work on the Sabbath. What are my rights?
My answer goes something like this: The law says that an employer must accommodate you unless it’s an undue hardship to do so. An undue hardship is any of four things: anything that violates a labor union contract; anything that diminishes productivity and efficiency; anything that costs more than a nickel a year; anything that interferes with the rights of other employees.
Now what could your employer have done for you that doesn’t do any of those things? And there’s a long pause on the other end. (Laughter.) And properly – because what I just said is a plateful for a practice trial attorney, let alone a blue-collar, high-school dropout who doesn’t know the law, let alone how to cope with it. And that’s where we are.
These are problems of real people. We put a name on it with a face. His name is Adam. There’s a name that predates David, by the way. (Laughter.)
I won’t give you his last name yet. The complaint hasn’t been filed.
Adam was a deputy sheriff in a rural county in a state somewhere south of Maryland, south of the District, and south of Virginia. He went to the sheriff and said, “Sheriff, I’ve become a Seventh-Day Adventist. I cannot work from sunset Friday to sunset on Saturday. I need a religious accommodation.”
The sheriff said, “You knew what the hours were when you came in here. What do you expect?”
“Well, Sheriff, this is what the Bible says.” The sheriff interrupted him and said, “I know what the Bible says. Don’t try to tell me that.” Two days later they fired him.
They said, “I suppose we could have talked about swapping. There are 38 other deputies. Some of them have Monday-to-Friday jobs and court duty; some of them work Monday to Friday on service process; some of them work Monday to Friday on enforcement of child support, things like that. But we’re afraid that even if you got somebody to trade with you once in awhile when you are scheduled on Friday night, they might not show up, it might cause us a problem. You’re out of here.”
The EEOC investigated, sat down with the sheriff, said, “Sheriff, we think you’ve got a problem.” He got up, said, “I don’t have to obey that law,” and walked out. There was no effort to accommodate.
Adam applied for a job in the next town. They said, “We don’t have an opening for a full-time policeman. We would like to use you part-time. We’re going to use you as a special, which means you are sort of on call.” They called him a lot. They liked his work. They said, “Adam, why don’t you apply for a full-time job? There’s one available.” He said, “I’ll do that, but you’ve got to understand I can’t work in Friday nights or Saturdays,” and they said, “That’s fine. We need you on Saturday night. That’s when things get interesting around here.”
He gave them his references, they checked them – meaning they called his last employer – and two days later he was denied that job. While he was working as a special, he saw a car run through a stop sign without stopping, pulled her over, and the lady in the driver’s seat said, “Apparently you don’t know me. I’m Commissioner So-and-So of the county commission.” He said, “Well, lady, I don’t know you, but as a matter of fact, I do need to see your driver’s license.”
She didn’t take that very nicely. About that time, the sheriff happened to drive up, and while Adam was running her driver’s license, he and the county commissioner had a nice chat. Adam gave her a warning ticket, told her to have a nice day. The next day he was put on seven days’ suspension without pay and without explanation.
Since that time he has had a lot of temporary jobs, no permanent ones. Every time they are about to become permanent, something happens. Now is that coincidence or is that retaliation? I’m going to file a complaint by the middle of June, and you can assume what it will say.
Bear in mind that Adam is one of 10 or 15 just last week. There are only a million Seventh-Day Adventists in America. We’re a third of one percent of the population, and we generate that many cases – yeah, I think we’ve got a problem.
Why are these problems happening? I’ve been working on them for something over a quarter of a century, and I think I can make some non-legal observations simply based on observation, and that is that most of them do not come down to real undue hardship. They come down to several other things. One is a feeling that you’re asking for special treatment. You made a choice; you chose a religion. That’s your choice. That is assuming a sort of a cafeteria approach to religion, as though I can say I will be Adventist today, Baptist tomorrow, Catholic next week, Methodist down in the late summer. If I live long enough, I’ll try Zen Buddhism. That’s a cafeteria approach that is not satisfying to anyone who takes their religion seriously. What I say to those people is that when I tell you I am a Seventh-Day Adventist, I’m not making a choice; I’m telling you who I am. That is a matter of self-revelation; it is a statement of a fact. People do not want to approach it in that way. It is not a true choice.
The second reason for these cases has to do with managerial authority and ego. I would guess in 80 percent of the cases that I’m involved in, I find a mid-level supervisor who, in essence, look, buddy, I’m the boss; you’re the worker. I’ll tell you when you work. You won’t tell me. And then he makes a decision not based on undue hardship, but based on his concept of managerial authority and I have seen his superiors spend enormous amounts of money trying to defend him.
Third reason: hostility to sincere, open religious beliefs and actions. I hate to say that, but it’s the fact. We have come in this country to where a large number of people are simply uncomfortable with people who are that overtly religious.
And fourth is a certain amoral corporate approach, the corporate approach that says I am interested only in the bottom line, I want to know what will boost the bottom line and what will boost stock price. Your job as a lawyer is to make it happen. If the law gets in the way, find a way around the law. If we get in trouble, find a way to buy it off as cheaply as possible. And if you don’t believe that happens, follow me around for a few months. That attitude is alive and well.
But, people say, you gripe about the weakness of the law, but aren’t you winning? Sure. We either win or settle 90 percent of the cases that we bring. At what cost? There’s a price, human and financial.
I think of Charlene Pepper, a lady down in Charlotte, North Carolina. The settlement papers for her case are on my desk this morning. She worked for a pharmaceutical packaging company, wouldn’t work on Friday nights. They fired her and then they said they didn’t know that her reason for not being there was religious; they thought she just didn’t want to work on Friday nights. We didn’t have notice – one of the elements of a prima facie case – and then we happened to find a tape of the unemployment benefits hearing where their own H.R. manager admitted that she knew it was for religious reasons. And only at that point did the settlement offer go from $3,000 to $40,000. Lots of cost.
Charlene was out of work for a year and a half. The emotional impact on her and her family was enormous. Charlene is a lady of, shall we say, mature years who would have a hard time finding another job, and yet there was no room for any damages other than her lost wages. Yeah, there’s an impact.
My church puts out about a million dollars a year on the offices, which assist people with these. Should we have to be spending a million dollars a year to get the protection that the law allows, that the law provides theoretically?
What do we need to be doing about it? First, there’s more enforcement, obviously. And yet EEOC is choked with cases. They’ve got far more than they can handle.
Second is obviously a change in attitude, a respect for people’s self-determination.
Third, if we don’t get that, at the very least a change in the law to give me and people like me some tools to make a difference. Right now I can go after the corporations, I can cost them, but it is ultimately a small cost which they can treat as merely the cost of doing business. Until I can escalate that cost to something that is so painful as to change their behavior, this problem will persist. I suggest that WRFA – the Workplace Religious Freedom Act that’s about to be reintroduced – is at least a very good start in that direction.
MS. ROGERS: Thank you, Mitch.
I’d like to take a few quick questions, and bear in mind that we’re going to have time in the lunch discussion period to have a lot of wide-ranging discussion, I think. So if you any have questions for this particular panel, then we can take those and the panelists can answer them quickly at this time.
Q: I’m Jacob Pactor with the Religious Action Center of Reformed Judaism and I have a question for Mr. Lorber. You said that – and I’m paraphrasing – you applaud religious diversity, but it comes in conflict with what an employer should do. And then you said we wouldn’t want to be in a situation where we would have to accommodate one religious decision over another, but doesn’t the government already do that by making Christmas and Easter national holidays, and thus business doesn’t operate on those days, so aren’t they already accommodating people who worship and practice on Christmas and Easter by saying that it’s a national holiday?
MR. LORBER: I don’t believe they are national holidays. They may be observed as such or they may be considered, but they are not. And so, again, the question is, as we’ve simply heard this morning, there is an enormous diversity of religious observances. The sympathy for employers may not be overwhelming here today, but nevertheless, if one takes into account everything that you’ve heard – and many of the examples that we’ve heard clearly violate the law, and I’m, you know, certainly not saying that they don’t – I don’t know what one does about that other than to say that is the system. And we don’t have cease-and-desist authority, though the EEOC has gotten injunction in some instances, so one could look to that. It’s rare and perhaps you could look to that as well.
But the fact remains that what you’re asking of an employer is to make choices, and by definition, those choices will not – I repeat again – will not, I think, either accommodate or respond adequately to each requester. And then you are asking the employer to take the enormous diversity we’ve heard today and to make the very difficult choices. And all I’m simply suggesting is that to the extent to which an employer wishes to do it, works to do it, engages in diversity training, understands the makeup of its workforce, not only is that something that should be applauded, in many respects that is required. But to suggest, as we heard, frankly, that certain seniority agreements are good – 703(h) protected seniority agreements are good, other seniority agreements are bad, and therefore we deal with that, I’ve not heard any acknowledgement that perhaps seniority itself – 703(h) protected seniority has to take second fiddle to something else because it stopped at that edge.
But nevertheless, all I’m simply suggesting is that once you create a statutory basis for what you are talking about, you’re invoking not only the goodwill or the required goodwill of employers, but you are invoking the required responses of government in all of its branches. And it’s simply something that, at least in this context, I think should be well thought out before we move further because there are consequences and unintended consequences which we may not wish to deal with. And that’s why I think the courts understand that, and the courts have simply backed away from the mandates that have been placed on the workplace to deal with a requirement of open entry. But beyond that, the workplace has to work out within its own context how it deals with these issues.
MS. ROGERS: Nathan, and then we’ll go.
MR. DIAMENT: I’m willing to posit that nine times out of 10 the employers are going to want to, quote, “do the right thing,” but that probably seven times out of 10 they need a little, shall we say, encouragement. They need to call up their general counsel and say, “Do I have to sit down and work something out with this guy?” Instead of the general counsel saying, “no, the standard is de miminis; you really don’t have to do anything unless you’re feeling in a benevolent mood today” — that if the general counsel says, “yeah, you really have to try to work something out,” then they’ll work something out.
The choices are being made. Right now the choices unfortunately are not being made in the proper framework, and I would contend that that’s what this effort is all about.
MR. LORBER: Let me just respond to one thing. I’m not aware of any general counsel who would give that response. I’m not aware of any general counsel that’s going to say, go to the protection of Hardison and do nothing, because the general counsels are well aware of the issues and are well aware of the lawsuits and are well aware of all the other issues. And so, the notion that they’re simply going to say no as a legal matter, I think sounds good — it’s a great sound bite — but I don’t think it has any real basis in reality other than to suggest that perhaps we should do something else. And that’s just not my experience and I don’t believe it’s the experience of many in the workplace today.
MS. ROGERS: Unfortunately, we need to run to lunch right now, and I want to give you guys a chance to ask some more questions. So thank you very much, panelists – (applause) – and please see us in the lunchroom next door.
(End of Panel Two.)
MELISSA ROGERS: If I were to ask you what Ed Meese, Jodie Foster, Richard Nixon, and John Lennon have in common, you’d probably be stumped. The answer is that they were all at one time represented by Nat Lewin – probably the only thing they all have in common. He, as so many of you know, is quite a leading light in the area of attorneys generally speaking, but particularly attorneys who pay attention to civil rights litigation and to constitutional litigation. Nat has been helping with all these issues for quite some time, and indeed has argued many of them before the United States Supreme Court.
He currently serves with his daughter in the firm of Lewin and Lewin, and he has had a list of incredibly distinguished jobs – it would take me a long time to review all of them, so I won’t, but I’ll mention a few of them. He previously served as assistant to the solicitor general in the Department of Justice under Solicitors General Archibald Cox and Thurgood Marshall. He has argued before the Supreme Court 27 times, including the prominent case regarding workplace religious accommodation that we’ve already discussed this morning, the TWA v. Hardison case, so he can speak from quite a depth of experience for that case and many others.
He has taught at leading schools. He clerked many years ago for former Associate Justice John M. Harlan in the United States Supreme Court, and many of you know of his leadership in the civic arena, playing roles with various advocacy groups and giving them the benefit of his great wisdom and experience on these issues. I’ve also heard the tale about Nat Lewin’s involvement with the 1972 amendment to the Civil Rights Act, and that’s an interesting story that I trust he will share with us in a minute. So in a way his remarks bring us back full circle to some of the beginnings of these very important topics that we’ve discussed this morning.
That doesn’t do him justice, but it does give you some idea of his great accomplishments. We’re very grateful that he can be here with us today. Please help me welcome Nat Lewin.
NAT LEWIN: Thank you very much for that generous introduction. I’m told I’m such an old timer and go back. One of the introductions somebody once gave me said I worked in the Kennedy and Johnson administration. At which point somebody yelled out, “Which Johnson?”
Now I did argue as an amicus in TWA v. Hardison, but other religion cases that I’ve been involved with have also included Goldman v. Weinberger, the yarmulke case, which I argued in the Supreme Court. People say, did you wear a yarmulke when you argued the yarmulke case, and the answer is, no, I didn’t because I grew up at a time when yarmulkes were not that ubiquitous and I still don’t wear a yarmulke in my office.
I have a couple of terrific yarmulke stories, one of which I have to share with you because it’s kind of relevant really to the subject of this whole conference. A number of years ago I was representing a Hassidic group, Lubavitch Hassidim, in a case that was being argued in the Eighth Circuit in St. Paul, Minnesota, of all places. The whole Eighth Circuit was convening in St. Paul to hear arguments on that day, and this case, which involved this Hassidic group which I was representing, was on the schedule for the afternoon.
I’ve argued in every federal circuit, but this was the first time I’d argued in the Eighth Circuit. I knew my panel in advance. The chief judge of the panel was Judge Theodore McMillan, and I looked him up, as a good lawyer should do in advance, to see what I could learn about Judge McMillan. I learned from the books about judges that he was from St. Louis, he was appointed by President Carter. So I assumed he was generally liberal. I didn’t know much else about him, but of course I wanted to learn about these judges and see them in action.
When I got to St. Paul in the morning, I was not on until the afternoon, so I found where each of my judges in the three panels was going to be sitting that morning. I decided I would visit the courtrooms and listen to the arguments.
So I walked into the courtroom where Judge McMillan, who’s a senior district judge, was sitting and the argument is going on. Up there are the three judges up front, and in front of the judge in the center was a little brass plate that said Judge McMillan. I looked at him, and I have to tell you I almost fainted. Because I looked up at Judge McMillan. He was an African-American. That was something I didn’t know, but that was not so surprising. But what was surprising was that on his head was a yarmulke. Judge McMillan was sitting there in the Eighth Circuit with two other judges wearing a yarmulke. I couldn’t understand what was going on.
There was nothing I had seen in his background that indicated he was Jewish, that he would be wearing a yarmulke. I listened to the argument. He participated in it. I walked out in the hall. As a matter of fact, I met in the hall a young man who was a son of another judge on the Eighth Circuit and who had worked in my law firm for a summer while he was in Georgetown. I said to him, hey, I’m representing a Hassidic group in a case this afternoon and I’ve never been before Judge McMillan. Can you tell me, why does he wear a yarmulke? This young man said, you know, I don’t know. My dad mentioned the other day that Judge McMillan’s wearing a yarmulke and he doesn’t know why.
I went to visit the other two judges, and neither one of them was wearing a yarmulke, you know, in their panels that they were hearing cases on. I went off for lunch. Generally when I have clients of this kind they feed me well, they give me a kosher lunch in some lawyer’s office. And I’m sitting with my clients and they say, are any of the judges Jewish? I said, no, I don’t think so, but you’ve got one African-American judge who sits there in a yarmulke. We wondered why. Nobody could come up with a reason.
We went into court at 2:00 o’clock in the afternoon. My clients are sitting there in the audience section, beards, yarmulkes. The court crier calls, “The court’s in order.” The court comes marching in. Judge McMillan leads the three judges. He comes in and he’s wearing a yarmulke. It’s a yarmulke really kind of like this one. It’s crocheted with this little red design around it. Can’t be mistaken for any other kind of a cap.
Well, we go through the arguments. I present my case, the other side presents its case, I do the rebuttal. And this is in the transcript. At the very end of the argument the court is very active, and I can tell you we won the case. That’s good news. But at the very end of the argument I step back and Judge McMillan says, as judges always do, thank you, counsel, we’ll take the case under advisement.
And as I stepped back, and the transcript reflects this, he said, now in light of the audience in this case and who the parties are, maybe I’d better say something or else people will think I’m prejudiced. He said, I wear this yarmulke – and he called it a yarmulke – not for any religious reason, he said, but there’s an air conditioner up above that blows down on the top of my head and I don’t have as much hair as my colleagues do.
I discovered subsequently that apparently he had complained about the air conditioner and a Jewish colleague had told him, look, here’s the answer, this yarmulke. And he’s been wearing it ever since. His law clerks have told me that he’s been wearing it.
That proves that there can be different motives and different reasons behind specific conduct which could be religiously motivated and could be motivated for other reasons, and I think that’s relevant. Just hold that for a moment. I’ll come back to it. Because what I want to propose to you today may be a somewhat different approach to this question of accommodation, which is a very thorny, difficult, sensitive issue.
I’m supposed to talk about history and about yesterday, today and tomorrow. When the Civil Rights Act of 1964 was first enacted and it prohibited discrimination on the basis of religion in private employment, the amazing thing is that the courts couldn’t decide what the word “religion” meant. Maybe it’s only the students of the history of this realize it, but the Supreme Court divided equally twice on the question of whether religion included religious observance and practice. In a case called Dewey v. Reynolds Metals for the first time, the Court took that case. The EEOC had a regulation. The Court took the case and divided four to four on that issue — did it include religious observance, or only identity of somebody’s religion? You’re born or you were converted to a particular religion. And the Supreme Court couldn’t decide that.
In 1972, after the Supreme Court divided equally in Dewey v. Reynolds Metals, a group of us decided we ought to clarify the statute. The EEOC had this regulation that said, yes, it includes religious observance and practice. And what happened was, we drafted the statute.
Congress was amending the ’64 Civil Rights Act at the time. The bill, without any such amendment, passed the House, and on the floor of the Senate, with the help of a young staff person on the Senate Labor Committee, we gave that amendment to Senator Jennings Randolph of West Virginia, who was then, I think, 73, which seemed to me at that point to be extraordinarily old, and seems very young right now from this vantage point.
Jennings Randolph was highly respected on the floor of the Senate, and he put that amendment in on the floor of the Senate. Would you believe it, it passed unanimously? Not a single dissenting vote on the floor of the Senate. It then went to conference and in conference — when I tell the story to a Jewish audience I tell them it was a miracle that happened on Purim because it was on the Jewish holiday of Purim that the conference committee met – we pulled out all the stops, got people calling members of the conference committee from the House.
That provision, 701(j), went into the bill in 1972 as a result of all those calls that were being made to the members of the House conference committee. The provision in the Senate version went into the bill in ’72. We had great hopes for it, and were winning a bunch of cases. Then of course along came TWA v. Hardison, which was a great blow in terms of the approach and in terms of the breadth of the statute.
Justice White’s opinion in the Hardison case read the statute so narrowly, with a glimmer of a suggestion that maybe what would happen would be that it would raise constitutional doubts if it were read more broadly, that from then on it has been a constant struggle in the courts over how to interpret 701(j) and the degree of accommodation that’s required.
There are two cases that show totally opposite extremes in terms of the attitudes of the Court that involve Orthodox Jews, one of which totally in private employment, a case called Friedman v. MCI Telecommunications. That came down in the DC Circuit in July of 2001. They granted summary judgment for a defendant who had a whole history of incidents in which he said there had been harassment of him, denial of all kinds of things because he was Orthodox Jewish.
On the other side, Abramson v. William Patterson College of New Jersey, which is not a private employment case, but a state case involving a professor at a state college against whom a district judge had granted summary judgment in the Third Circuit in a very refreshing, broad opinion. It read all the events, the efforts, the fact that her superiors deliberately held meetings Friday afternoons, criticized her for being unavailable on Jewish holidays as indicating that that created a hostile workplace.
So, “yesterday,” when the bill was enacted, the prognosis was great. Today it’s all muddled. What about the future?
Well, here’s where what I want to suggest to you is a slightly different approach which I used, frankly, in the Abramson case with the Third Circuit. And I think the thing that has to be considered with regard to an employee’s religion, whether it’s in private employment or in public employment, is what distinguishes religion from the other sort of identifiers in the Civil Rights Act of ’64.
When you speak of race, when you speak of national origin you’re talking about something that the individual employee carries with him or her and is immutable. There’s no way you can change your national origin, there’s no way you can change your race. But the fact is you can modify religious practice. Employees can be pressured to modify their religious practice. I think that’s the key really to what distinguishes religion cases today from the cases that are traditionally thought of in the civil rights context, and maybe it distinguishes two different kinds of religion cases.
I heard this morning the very moving statements about the difficulties that Sikh employees face because of how they look, because of how they appear. And that’s also true, if you’ve heard the discussion this morning, about many cases of Muslim discrimination. It’s geared to how you look, the complexion of your skin, and what’s involved at bottom is the core really of discriminatory conduct. We don’t like somebody because the color of his skin is different, because he looks different. We’re not trying to affect his conduct in any way.
The employer who says to the Orthodox Jewish employee, now why did you miss that meeting on the Jewish holiday, or we can’t employ you at this job because you’re not going to be available on Friday afternoons, is really saying to that employee, if you only change a little, if you modify your principles, if you give up your religion, your religious practice to some extent, the world’s open to you. We’ll advance you. The Seventh Day Adventist who was told essentially the same thing, if you’re available Friday afternoon or Saturday, you’re a great employee. But come in on Friday afternoon or Saturday.
To me the fact that the pressure is really being placed on the employee to modify his religious practice opens up a totally different area to which religious discrimination should be compared, and I think in the future can much more effectively be compared in the courts. That is sexual harassment.
What about the employee who is told, or the implication to the employee who is told, look, if you just grant sexual favors, you’ll be advanced? If you deny the sexual favor, you’re never going to be promoted. To me that is the parallel to the religiously observing employee because the employer is saying, if you modify your conduct in an impermissible way, then we’ll act differently toward you. To me the parallel to the religious employee is the employee who is pressured in the sexual harassment context.
Going back to my Judge McMillan story, an employer who says, you can’t for secular reasons wear a skullcap on the job is perfectly lawful. He can say, look, we’re not going to allow people to wear skullcaps. But when he affects somebody whose religion requires him to wear a skullcap, then the Civil Rights Act says that religion has that higher degree of respect, that we require the employer to acknowledge it and to permit it to be engaged in.
The same thing is true, I put to you, with regard to sexual harassment. An employer can make all kinds of demands to the employee. The employer cannot make the demands to the employee that that employee engage in sexual conduct with his supervisor. And the courts are much more respectful and much more willing to pass the burden on the employer to explain when conduct begins with sexual harassment, when an employee says, look, I’ve been asked to grant a sexual favor in order to be promoted. But when an employee says, look, I’ve been asked to give up Friday afternoon and stay at work on Friday afternoons in order be promoted, the courts are skeptical.
That’s the difference, it seems to me, between status or identity and conduct. When you discriminate against somebody because of how he looks, because of his race, because of his national origin, you’re discriminating on the basis of identity. That the Civil Rights Act has prohibited since ’64 and we clearly say that’s totally impermissible. When you discriminate against somebody because they’re not ready to give up their religious practice, you’re imposing pressures to force conduct of a certain kind, and that, I submit, is the “future.” The way to look at religious discrimination in the workplace in the future is what does it do in terms of the pressures to abandon your faith or abandon your practice.
Now I heard this morning the question of, look, what happens with the employer? How can he be forced to make various choices in terms of accommodation? What are you going to tell him to do? To me, the key again here is, at this part of the issue, is the question of parity, of equality of treatment. There are a whole range of Supreme Court cases recently that said that you can’t treat religion in the public forum as worse or less entitled to respect than any secular consideration. But it is standard that employers treat the question of religious accommodation, particularly when it is looked at totally independently and separately as less important than other accommodations.
I think of my wife, who told me years and years ago when I first began getting involved in this. She recalled that she worked for a publishing house in New York, and she says, “when I told them that I have to leave early on Friday, I really got my boss mad.” And every Friday he’d say, “why do you have to leave early again? Why do you have to leave?” At the very same time, another person occupying the very same job I did, was leaving early on Wednesdays to go to see a psychiatrist.
The employer would accommodate him for the non-religious reason, but not accommodate for the religious observer. That, I think, is the answer. I would not make the statute with regard to accommodation under the law turn on some objective, detached notion of accommodation. I think the answer with regard to accommodation is to say to the employer, you have to treat religion as equal in dignity to everything else, any other excuse that you give to an employee. The requirement of accommodation should be that if an employer allows any other employee to breach seniority in order to get a particular position, to take off at a particular time for some secular reason, the employer has to give the same respect to the religious observer.
That would throw open the employer’s practices in the course of discovery to whatever he does with regard to others for secular reasons. But it would be saying to him, the law says religion is no less important and no less entitled to respect than what you do when you let the fellow off to go and visit his psychiatrist, or to let him go off because he’s a coach at a Little League game so he’s got to go off at 3:00 o’clock in the afternoon on Wednesdays. If you allow him to leave for the Little League game, you’ve got to allow the religious observer to leave because of his Sabbath observance. The same kind of respect has to be given to religion as to any other policy that the employer follows.
The Newark police force had a rule under which its employees, all members of the police had to be clean-shaven. But, said the regulations, if you have a skin condition under which you can’t shave, then you’re entitled, you’re allowed to remain a member of the Newark police force while wearing a beard. Along came a Muslim who said, my religion requires me to wear a beard. The Third Circuit said religion is no less entitled to respect than the medical condition. I put to you that the same principle apply regard with regard to accommodation in the private workplace with regard to all other conditions of employment. That to me is the future of religious accommodation under the law.
There are two principles. First is the principle of viewing religious observance as conduct and not religion simply as status, and seeing whether it is being pressured by the employer. And second, requiring parity in terms of every accommodation between the accommodation that may be made or is requested for religion, with the accommodations that an employer makes or is being requested to make with regard to any secular purpose. Thank you.
MS. ROGERS: Thank you so much. Those were very interesting comments to get us started here. In the introduction of Nat, I wanted to also say that E.J. Dionne has joined us – he’s one of the co-chairs of the Forum. I made a brief introduction of him this morning without him being here, so now that he’s here, I just want to point him out to you as one of the able co-chairs of the Forum, and we’re so grateful for the work that he does here with us.
I want to welcome questions at this time for Nat Lewin, or discussion among you. I wanted to ask one myself just to start us off. The rule that you’re proposing, how would that rule function in a workplace situation if there are sort of similarly situated things that aren’t accommodated – would you still make the argument that religion as a protected basis should be accommodated?
MR. LEWIN: I don’t know of any workplace where there are not accommodations made for something. For health reasons, for employees being able to show up for work, or being dressed in a certain way for some other reason. Assuming it’s a question of dress. Does the employer accommodate and allow variations in terms of dress for some other secular reason? If he has done so in the past, if he has said, look, if what you’re doing is you’re going to go out on a picnic afterwards, you can come without a tie today, well, then there’s no reason why you can’t come with a yarmulke.
In other words, in the real world there are always accommodations that are made. The question is, is the accommodation comparable to the accommodation that’s being asked for by this observer. And what I put to you is that that test is a much more meaningful one. You know, the basic statutory standard back in ’72, make reasonable accommodation and then the employer has to come back and show that there’s an undue hardship for the conduct of his business, that’s still the framework of the law. I’m trying to deal with this assuredly intractable question of how is an employer supposed to know what is it that he’s required to do for the religious employee.
I say if he has done it, or if he has made some accommodation for some secular reason for other employees, he’s required, should be required under the law to make an accommodation which is comparable for the religious employee.
E.J. DIONNE: Has there been any use of your sexual harassment theory in the courts? Is there any case law on this, or are you sort of beginning this effort to create it? And the second question is the flip side of Melissa’s question. I’m very sympathetic to your argument about treating religion as being at least the equal of these other accommodations. Could you end up in a situation where over time if a lot of litigation were brought, you actually create lots of incentives for employers to reduce the number of accommodations made in order to save themselves — I put aside the issue of whether a Little League exemption is in fact for many people a religious exemption. But do you think you’ll create a set of incentives on that?
MR. LEWIN: Okay, let me take those in sequence. First of all, with regard to the first proposition, I don’t know of any case that has made that comparison. I did make that analogy in the oral argument in the Abramson case, which the Third Circuit decided in our favor. Judge Rendell, who was on the panel, and I had a colloquy about it. She did not put it into her opinion. But I do think it’s a valid comparison because it is based on conduct and trying to affect somebody’s conduct in the employment situation.
In answer to your second question, E.J., I think that’s the tail wagging the horse. Employers deal with employees day in and day out. They make very commonsense decisions as to what they will allow the employee to do or not do, and those are matters of record. Presumably when an employee’s absentee record and so on is shown, and you can find out from other employees.
I can’t believe that an employer is going to say, look, I’m not going to allow an employee to take off early for a parent-teacher meeting because I may be faced with a religious employee in the future. What will happen, when the religious employee tries to get the time off, the employer is simply faced with the choice of saying, is this as important as having allowed the other employee to get off for the parent-teacher meeting? Unfortunately in today’s society, as we heard and as I have encountered time and again with Orthodox Jewish people who have called me and complained, employers are not sympathetic. They end up saying, why do I need this? Why do I have to have somebody who’s going to be taking off these 13 days, or early on Friday, and therefore somebody comes in and they say, look, I don’t have to make that accommodation.
If the employer were forced to say, I have to make that consistent with what I do in the nonreligious area, I think you would find a lot more accommodations.
One of the things I will tell you, a little secret among other deep, dark secrets of my past, Justice Nino Scalia is a classmate of mine, law school class of 1960, and we’ve had a lot of frank discussions about religion and about, for example, the Smith case in which he wrote this absolutely terrible opinion. I told him so. I’ve lost a large number of cases in the Supreme Court for religious observers, and he says to me, “Nat, you lose those cases all the time. Why does it make a difference if we have a higher standard under Sherbert v. Verner and some old case? We were rejecting these cases all the time.” I lost TWA v. Hardison; I lost Goldman v. Weinberger; I lost Estate of Thornton v. Calder. I lose these cases left and right. So in the Supreme Court, what difference does it make?
And I have said to him, it makes a big difference when you’re on the line talking to the employer or to his counsel. If you can say to him, the Supreme Court says you need a compelling interest in order to be able to override this religious objection, he listens. But if his lawyer can tell him, look, the Supreme Court’s done away with that, Nino Scalia did away with that in an opinion that he wrote in the peyote case, where are you?
The way these cases are resolved is by talking to the employer, by talking to his lawyer. That’s how you end up getting the accommodation. If the legal standard is there and it supports you, you’ll get the accommodation. If the legal standard isn’t there, you’re defenseless.
AL MILLIKEN: I was interested in how you see warfare, national crisis, and specifically September 11th affecting litigation or just practice and accommodation. I’ve seen news stories of Muslims asserting themselves in the workplace and accommodations being made for the most part. And also I’ve just recently read about the misunderstanding that took place in Massachusetts in a store where various state officials were called in for Muslims praying. These were customers instead of employees.
But what has been disturbing to me is that it seems as part of the American religion today, what is considered politically and theologically correct is to say God Bless America, and it also seemed to be good business practice after September 11th. But someone expressing something contrary to that, suggesting that God was judging America, or even just removing his hand of protection from America, someone implying that an enemy could be courageous or even not totally evil but have some good within him. Those did not seem to be politically correct, or theologically correct as far as where the United States is currently.
MR. LEWIN: I have to tell you, there’s no way that one can defend these instances that we heard of this morning of discrimination against Muslims because they wear kerchiefs. I mean, that’s out and out rank discrimination based on appearance, growing out and relating to religion. That’s indefensible. And unfortunately there has been an increase of that, I think. You know, I can’t defend that.
On the other hand, I think that when it comes to practice, to religious practice, I don’t know whether there has been that much of a difference in terms of the Court’s attitudes after September 11th. The case I talked to you about in the DC Circuit was July 6th. The same decision I’m sure would have been rendered after September 11th. With regard to Muslims, I think when we’re talking about religious practices, I think the courts are still by and large hostile, but I think the reason they’re hostile in part is that they also don’t believe a lot of these religious practices.
As an Orthodox Jew who eats kosher and will wear a yarmulke in his home and keeps the holidays, I find that there are probably who think, look, if you put a little pressure on him, he’ll give it up. And I’ve managed to succeed over all these years in this profession not giving it up. But there are people who, because of economic demands, say, “okay.” I mean, the Jewish community in the United States in the early 1900s was known for the fact that it gave up Sabbath observance because it was just too hard.
What we’re saying with the Civil Rights Act and what we’re saying with protection for religion is, that is something which is totally contrary to a national interest. We keep that as a very high interest in this country which is that people should be entitled to practice their religion fully without any kind of pressure.
QUESTION: I was just wondering, in your practice have you come across any opposing counsel that counsel the employer that they did not have to accommodate a person because of the de minimus situation, or because of one of the Supreme Court cases? This came up just as we were leaving the last meeting.
MR. LEWIN: I have come across counsel who’ve said that. After Smith, after the peyote case and a governmental situation – yes, we don’t have an obligation that applies across the board. Has anybody said to me, this is more than de minimus and therefore I don’t have to do it? I can’t cite to you a particular instance, but I know it’s at the back of my mind when I’m talking to an employer’s counsel as to what I can demand under the cases and under the law. The truth is, many lawyers are not sophisticated enough in this area. So they don’t know the cases. You cite a case or two cases to them, and they’ll say, I’ve go to look at that, and they’ll go back and maybe they’ll find some other case and they’ll discuss it with you.
MR. CHAWLA: I felt compelled to raise this because you brought it up in your comments. It has to do with sort of government accommodation of religious garb generally – from the actions of Chief Justice Rehnquist with regard to the South Asian woman who was wearing a head covering over her head about six months ago to issues related to garb statutes and garb regulations, prohibiting Sikhs, Jews, Muslims from wearing religious garb in school while teaching as well. Do you have a feeling that those accommodations will be more forthcoming in the future? And your perspectives on garb regulations and state interaction generally.
MR. LEWIN: Let me say first of all I heard your remarks before in terms of Goldman. I’ll have to go back to the briefs and the record in Goldman. My recollection was at the time of Goldman I had Sikhs very much in mind. I think we got a question on Sikhs at the oral argument. I said they should be entitled to be in the force and wear turbans. I think there was a history and there was a time, I think even at that time there were military services that were admitting Sikhs.
I mean, again, the bias that comes out, as you say, in the Chief Justice’s comment. There was an orthodox Jewish woman who appeared at counsel table in a case a number of years ago. She was married and wore a hat. Not a big hat, but it covered her head. I think she got a question, not in open court, but she got a note slipped to her asking her, why she was doing this. And when she explained that it was religious, they backed off.
What’s my prediction? Who knows. It depends on who’s in charge at the particular time. And when Goldman v. Weinberger was decided, Casper Weinberger was the secretary of defense. Steve Solarz told me that Casper Weinberger had said he would prefer to lose on the MX missile rather than lose on the yarmulke. So to some people, that becomes such an important issue of principle that at all costs they have to forbid it.
I would hope that this country is headed in a direction that will liberalize that and will not hold garb against somebody.
LINDA WOLF JONES: I’ve been listening here and some other meetings over the last few days to the discrimination against Sikhs and the discrimination against Orthodox Jews, the discrimination against Seventh Day Adventists. I know not in a religious context but just sometimes speaking a foreign language in the workplace, that there is discrimination against Asians or Hispanics. And it just seems to me, and maybe it is happening, that if all these groups could somehow come together they would no longer be little groups to be picked off.
Is there any overarching group or context in which all of them collaborate, work together?
MR. LEWIN: You touch on what has bothered me for 30 years. I have lived through the civil rights revolution, the gender revolution, the battle over sexual preference. All kinds of groups are getting equality, are getting rights under the law. The only groups that are the least favored and that are constantly discriminated against I think are religious minorities. And the answer is that religious minorities don’t march in the streets and they don’t hold big signs and they don’t hold big rallies, and they don’t exercise political pressure that way. I think that’s the reason.
I wish that there could be a coalition of religious minorities that would cause some big gathering on the Mall and would hold big signs and would pressure the Congress. That hasn’t happened. If you ask me, I think that’s the reason that we’re in the fix that we’re in right now. Right.
MR. FOLTIN: I just want to use this moment to make a plug, since you’ve asked this question. There is a Coalition for Religious Freedom in the Workplace, which is made up of a great many of the groups that are represented here today, which has been working to promote the Workplace Religious Freedom Act. We haven’t held any rallies or marches in the street, and maybe it’s time we did that —
MR. LEWIN: I think that’s it. This is a very polite group that meets and talks to each other and all that.
MR. FOLTIN: I’m the co-chair, together with James Standish of the Seventh Day Adventists. It’s a broad and diverse group of representatives of many religious communities, as well as a couple of general civil rights groups.
But I would like to comment, just an additional comment on that. One of the issues for us has been, many of us are civil rights groups that have fought those battles. As we have supported other civil rights groups in their battles, what we need is the support of the rest of the civil rights community in this battle for religious liberty and against religious discrimination. That’s something we also need to do more of is getting that support, in addition to maybe holding some rallies in the streets.
MS. ROGERS: Thank you all for being here with us. We’re very pleased that you would take this amount of your time in your day to discuss these important issues. We look forward to participating with you in a dialogue on this and many other important issues at the intersection of religion and public affairs. Thank you.