**TESTIMONY OF\
JAMES D. STANDISH**

**DIRECTOR OF LEGISLATIVE AFFAIRS\
SEVENTH-DAY ADVENTIST CHURCH\
WORLD HEADQUARTERS**

**SUBMITTED PURSUANT TO THE REQUEST OF THE**

**SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR & PENSIONS**

**UNITED STATES HOUSE OF REPRESENTATIVES**

**On**

**THE WORKPLACE RELIGIOUS FREEDOM ACT (H.R. 1431)**

**February 12^th^, 2008**

![](media/image1.jpeg){width="2.4895833333333335in"
height="2.4895833333333335in"}

**Seventh-day Adventist Church World Headquarters**

**12501 Old Columbia Pike\
Silver Spring, MD 20904**

**Ph: (301)680-6683 Fax: (301)680-6695**

**TESTIMONY IN SUPPORT OF\
THE WORKPLACE RELIGIOUS FREEDOM ACT (WRFA)**

James D. Standish, JD, MBA[^1]

**Introduction**

Chairman Andrews, Ranking Member Kline and Subcommittee Members, I am
grateful for the opportunity to testify in support of the Workplace
Religious Freedom Act, H.R. 1431 (WRFA), on behalf of the Seventh-day
Adventist Church.

-   The Seventh-day Adventist Church has 15 million members worldwide.

-   Adventists operate 165 hospitals, 432 clinics and dispensaries, 123
    nursing homes and retirement centers, and 34 orphanages worldwide.
    In addition, Adventists operate three medical schools, three dental
    schools, 50 schools of nursing and six schools of public health.

-   There are 62 Adventist hospitals located in the United States.

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-   Adventists operate 6,709 schools, 99 colleges and universities, 39
    training institutes, with a total enrollment of 1,254,179 students
    worldwide.

-   There are 1,020 Adventist schools in the United States.

I am particularly proud that Seventh-day Adventist healthcare provides
critical treatment in some of the world's most impoverished regions. For
example, Adventist hospitals and clinics provide care for over 800,000
HIV/AIDS sufferers in sub-Saharan Africa each year.[^2] Further, in many
areas of the world, Adventist schools provide the only accessible
education for children from disadvantaged families.

This practical ministry of healing and teaching is the outworking of our
faith commitment that has at its core a trust in the saving grace of our
Lord, Jesus Christ. As part of this commitment, Seventh-day Adventist
Christians aspire to keep the Ten Commandments under the grace of
Christ. This includes resting from secular work on the seventh day of
the week as required by God in the Ten Commandments.[^3]

While there is debate within the Christian community regarding which day
of the week to keep holy, and further if or how to keep the Sabbath
holy, there is no debate that throughout church history some Christians
have continued to keep the Sabbath day holy on the seventh day of the
week (Saturday). Further, there is no debate that the Seventh-day
Adventist commitment to setting aside the Sabbath to worship God is
based on a sincerely held religious belief.

Today there is significant discussion over if and how the Ten
Commandments should be displayed in government buildings. As important
as these debates may be, a much more important question is how people
are treated when they actually keep the Ten Commandments.

Sadly, the experience of Seventh-day Adventist Christians in recent
years indicates an increased hostility to accommodating Sabbath
observance. Indeed, the rise in hostility to accommodating the sincerely
held religious beliefs of American workers is not limited to Seventh-day
Adventist Christians, but rather falls across the faith spectrum. We
know this both from reporting done by the various faith communities, and
from statistics kept by the United States Equal Employment Opportunity
Commission (EEOC) that will be discussed in the next section of this
testimony.

I co-chair a coalition of 49 national religious organizations who have
come together in support of WRFA. A full list of the coalition members
is provided as Exhibit A to this testimony. It is rare that entities
with such diverse theological views and public policy priorities agree
on any given piece of legislation. Indeed, at this time there may well
be no other issue that shares such deep and broad multi-faith support.
The increase in hostility to religion in the American workplace has
brought this disparate group together to support a vital improvement in
the law to protect the religious freedom of America's workers.

**Deficiency in the Current Legal Standard**

Title VII of the U.S. Civil Rights Act of 1964 as amended in 1972
requires employers to "reasonably" accommodate the religious practices
of their employees unless, by so doing, the employer would incur an
"undue hardship on the conduct of the employer's business."[^4] The Act
itself does not define the terms "reasonably accommodate" and "undue
hardship," and thus it was the role of the courts to provide
clarification.

With scant legislative history to build upon, the Supreme Court found
that undue hardship means anything above a *de minimis* cost or
inconvenience.[^5] By so doing, the Court greatly reduced the impact of
the accommodation requirement.[^6]

Further, there is a split among federal courts on the definition of
"reasonable" accommodation. Some Circuits have held that in order to be
considered a reasonable accommodation for the purposes of Title VII, the
accommodation must eliminate the conflict between the religious practice
in question and the employer's requirement. The 8^th^ Circuit, on the
other hand, recently held that an employer may "reasonably accommodate"
by an offer to only partially accommodate the religious practices of
employees.[^7]

Thus, under the current legal standard, an employee in some
jurisdictions faces two prohibitive barriers to successfully bringing a
Title VII accommodation claim: First, if an employer offers a partial
accommodation the court may hold the offer is a "reasonable"
accommodation. In this case, the employee loses, whether or not the
employer could have offered an accommodation that removed the conflict
entirely. But employers also get a second bite of the apple. Even when a
court finds an offer of partial accommodation does not meet the Title
VII threshold, an employer wins if he can show that accommodating an
employee's sincerely held religious beliefs would result in anything
above the most minimal inconvenience.

For employers unwilling to respect the religious diversity of the
American workforce, the weakness of the current standard provides a
two-pronged gift of legal impunity.

The weakness in the current law created a growing problem of religious
discrimination in the American workplace. The U.S. Equal Employment
Opportunity Commission reports that claims involving religious
discrimination in the workplace increased 83% between 1993 and 2006.[^8]
In contrast, racial discrimination claims declined by 8% during the same
period, and other major categories of claims have held roughly steady or
declined.[^9]

Thus, the rise in religious discrimination claims is not an artifact of
an increasingly litigious society. Rather, the rise in religious
discrimination claims while other major classes of discrimination have
remained level or falling, indicates a substantive growth in intolerance
of religion in the American workplace. This is particularly perplexing
as the rise comes at a time when many American employers have
implemented programs and policies to advance the acceptance of diversity
in the workplace.

Four primary reasons have been advanced to explain the increase in
religious discrimination.

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

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

-   Third, the number of religious discrimination claims saw their
    largest increase after 9/11 when Muslim and Sikh Americans reported
    a sharp spike in demands to remove any garb or grooming that would
    indicate their faith affiliation. Unfortunately, the level of claims
    reached after 9/11 has not subsided in the years subsequent.[^10]

-   Fourth, America may be becoming an increasingly materialistic
    society, in which our family life, our environment, and even our
    spirituality are becoming subordinated to our mercantile drive.

Whatever the factors behind the meteoric rise in religious
discrimination claims, the impact on individuals cannot be overstated.
To lose a job does not merely mean losing an income. As one worker put
it: "I have been through a divorce, I've buried both my parents, but
nothing has been as painful as losing my job, because without work, I've
lost my independence." Another stated: "when I lost my job, I didn't
just lose an income, I lost my self esteem, I lost my health insurance,
I lost my ability to support my children, and I lost my dreams."

**WRFA Addresses the Loopholes in the Current Law**

The serious increase in religious discrimination claims, with the
accompanying personal hardship caused, requires us to close the current
loopholes in the law that permit employers to arbitrarily fire American
workers in retaliation for them following their faith commitment. WRFA
is a simple piece of legislation that has two central provisions:

The first provision defines the meaning of "undue hardship" in Title VII
as an accommodation that would require *significant* difficulty or
expense.[^11] By clarifying the meaning of "undue hardship," WRFA
increases the protection from the current *de minimis* standard that
provides virtually no protection to American workers, to a legal
standard that provides moderate incentive to work out an accommodation.

The second central provision of WRFA states that an accommodation of
religious practice is not a "reasonable accommodation" unless it removes
the conflict between the religious practice and the work
requirements.[^12]

It is vital to understand how these two provisions work together. For an
accommodation to be considered reasonable, post-WRFA, it must eliminate
the conflict between the employer's requirements and the employee's
religious practice. Thus, for example, an accommodation that would offer
a Seventh-day Adventist Christian employee two Saturdays off every
month, would not qualify as a reasonable accommodation as it would not
remove the conflict. This does not mean, however, that the Adventist
employee would prevail in her claim.

Rather, once the accommodation options available to remove the conflict
are determined, the court will then analyze whether the employer can
implement the reasonable accommodation without incurring a significant
difficulty or expense. If the employer can show that removing the
conflict cannot be done without incurring a significant difficulty or
expense, the employer wins.

In practice, the vast majority of accommodation issues are handled
informally in the workplace. The new WRFA standard provides an incentive
for reticent employers to seriously explore whether they can accommodate
the needs of America's religiously diverse workforce. In the
overwhelming majority of cases, accommodations can be worked out with
little fuss if there is a willingness -- and incentive -- on both sides
to do so. The employee always has an incentive, as her job is on the
line. WRFA provides the necessary incentive to recalcitrant employers to
search for an accommodation in good faith.

**Objections to WRFA**

There are two principle objections to providing protection for people of
faith in the workplace.

-   First, there are concerns that protection for people of faith will
    increase litigation, and particularly litigation involving sham
    religious claims.

-   Second, there is concern that protecting American workers will
    burden third parties.

> *WRFA Will Reduce, Not Increase, Litigation*

WRFA will reduce litigation for three reasons. First, it eliminates the
current incentive for recalcitrant employers to refuse to explore
accommodation options. Second, it does not change the current financial
disincentive for attorneys from the private bar to represent victims.
Third, it does not eliminate the legal and financial disincentive to
bring sham claims. The experience in New York State bears out the fact
that religious discrimination claims drop after the implementation of
the WRFA standard.

[WRFA Eliminates Incentive to Arbitrarily Refuse
Accommodation]{.underline}

Experts in the area of employment law agree that one of the contributing
factors to the dramatic rise in religious discrimination claims at the
federal level is the weakness of the accommodation provisions as
currently understood. Mitch Tyner, who managed more than 200 Sabbath
accommodation cases[^13] during his career in the general counsel's
office at the headquarters of the Seventh-day Adventist Church, states
"a contributing factor to the dramatic rise in religious discrimination
claims at the federal level in recent years is the weakness of current
federal law." Todd McFarland, associate general counsel at the
headquarters of the Seventh-day Adventist Church states: "Most of the
claims can easily be resolved when there is a will on both sides. The
weakness in federal law, however, provides an incentive for recalcitrant
employers to hold out rather than working constructively to find a
solution. They know that in the remote chance a claim is litigated, the
employer holds all the cards."

While there is relatively little incentive for a recalcitrant employer
to accommodate the religious beliefs of their employees under current
law, this does not deter people of faith in the workplace asserting
their rights. This is because people of strong religious conviction are
committed to following their conscience. In the words of the Apostles,
they believe "we must obey God rather than men."[^14] As a result, the
remote chance of prevailing under current law does not reduce the number
of claims asserted. Rather, the law encourages recalcitrant employers to
refuse accommodation, while having little impact on the willingness of
the faithful to follow their convictions. These two forces combine to
increase the number of claims under the current weak legal standard.

WRFA provides an incentive to both employers and employees to work out
an accommodation if it is possible. Although the rise is religious
discrimination claims is alarming, religious intolerance in the
workplace remains the experience of a minority of employees indicating
that the majority of America's employers value the religious diversity
of their workforce and already work out accommodation. WRFA will provide
an added incentive to recalcitrant employers to do the right thing
before a case results in litigation. WRFA is written to provide
additional clarity and thereby reduce misunderstandings. In addition, as
discussed below, the economics of bringing religious accommodation cases
discourage litigation and virtually eliminates sham religious claims.

[WRFA Doesn't Eliminate Financial Disincentive for Bringing
Claims]{.underline}

There are significant financial disincentives to bringing religious
accommodation cases and these will not change after WRFA is enacted.
Damages in accommodation cases tend to consist of lost wages, which are
frequently modest because the workers involved are typically on the low
end of the wage scale. As a result, finding attorneys willing to bring
these cases can be difficult, and it is highly unlikely an attorney
would be willing to invest the time and effort to bring a case involving
a sham claim. In addition, while courts do not examine the validity of
religious beliefs themselves, they do examine the sincerity of the
individual's claim.[^15]

To date, critics of WRFA have not been able to identify a single sham
religion claim that has succeeded under Title VII or its state
equivalents during the 35 years the religious accommodation requirement
has been in place. The lack of financial incentive to bring a sham
claim, combined with the court's power to investigate whether a claimed
religious belief is indeed sincerely held, likely explains the dearth of
examples. Sham claims are not a factor in accommodation claims to date,
and there is nothing in WRFA that would change this reality.

An example helps to illustrate the financial disincentives of brining
workplace accommodation cases. If an employee earns \$20,000 per annum,
and is fired by an employer who refuses to accommodate her religious
convictions, and if that employee is out of work for an entire quarter,
the damages involved in the case are only \$5,000. The expense of going
through the administrative process and then litigation seldom justifies
the damages involved. It is not surprising that many Title VII
accommodation cases brought today are brought by religious entities
attempting to vindicate a principle, rather than by attorneys in the
private bar. The financial disincentive involved in bringing these cases
will not change post WRFA.

[Accommodation Claims in New York Dropped Dramatically Post
WRFA]{.underline}

If there were any doubts at all about the impact of WRFA, the experience
of New York State addresses them. Since adopting the WRFA standard,
religious discrimination claims have been lower in four out of five
years.[^16]

There is no reason to believe the passage of WRFA will increase the
number of religious discrimination claims or encourage sham claims.
Rather, WRFA will reduce the number of claims as it provides an
incentive to work out commonsense accommodations. This is the experience
in New York State and it will be the experience nationwide.

*WRFA Will Advance Civil Rights, Not Harm Them*

It is important to remember when discussing the civil rights impact of
WRFA that religious liberty is our first civil right. The Pilgrims fled
from Britain to the Netherlands, and from the Netherlands to America in
order to experience religious freedom. Roger Williams left Massachusetts
to found Rhode Island in order to experience religious freedom. The
first provisions in the First Amendment to our Constitution are designed
to protect religious freedom. And many Americans can trace our roots
back to a family member who fled to the United States to escape
religious intolerance. Ensuring that American workers are not
arbitrarily forced to choose between their livelihood and their faith is
a vital step forward to advancing our core civil right of religious
freedom.

Critics of WRFA have raised emotive objections but lack evidence to
support them. Specifically, they claim WRFA will privilege harassment
and the denial of reproductive healthcare services. On March 20^th^,
2007, the ACLU circulated a letter opposing WRFA. In the letter, the
ACLU referred to a miniscule minority of cases brought under Title VII
in the last three decades that involved emotive claims. [In every case,
the plaintiff lost. There is no rational basis to believe the outcome
would be any different post-WRFA]{.underline}. Despite this, the ACLU
urges Congress to oppose WRFA because "Congress has no assurance that
courts will continue to reject claims that could cause important harm."
The ACLU is wrong. Congress has every reason to believe that claims that
would harm third parties will not succeed under WRFA. WRFA will not
privilege the denial of products or services to customers. We know this
for two reasons.

First, the bill's modest accommodation requirement is insufficient to
require employers to turn away customers, let alone compromise patients'
healthcare or public safety. Further, there is no rational basis for
concluding the bill will privilege the harassment of employees. If there
was, the minority faiths currently supporting the bill would be the
first to oppose it since our members are vulnerable to religious based
harassment in the workplace.

Second, New York State law that tracks the WRFA standard can be
observed. Critics of WRFA have not been unable to point to a single
incidence in which the NY State law has been interpreted to privilege
employees denying customers/patients services or products in a timely
manner. Nor have they found a single case in New York where WRFA was
interpreted to privilege harassment[. It is incumbent on those making
remarkable claims to back those claims up with solid evidence. Critics
of WRFA have been unable to do so.]{.underline} As such, while the
emotive scenarios presented by critics of WRFA may elicit fear, it is an
irrational fear.

Opponents of virtually every piece of legislation presented in Congress
create a parade of horribles to discourage its passage. Rather than
succumb to irrational fear, we must keep in mind the reality of WRFA's
modest accommodation standard and the experience at the state level. In
the case of WRFA, we have a serious, growing, well documented violation
of civil rights occurring. Against this reality, critics parade the most
speculative negative outcomes of its passage without a single case to
back up their conclusion that WRFA will result in their outcomes.
Between the facts presented by the supporters of WRFA, and the emotive
fiction of its adversaries, the choice is clear.

Indeed, it is not only the diverse coalition supporting WRFA that
rejects the critics' parade of horribles. Governor Eliot Spitzer wrote
the following critique of the ACLU's efforts to defeat WRFA when he was
New York Attorney General:

> "I have the utmost respect for the ACLU, but on this issue they are
> simply wrong. New York\'s law has not resulted in the infringement of
> the rights of others, or in the additional litigation the ACLU
> predicts will occur if WRFA is enacted. Nor has it been burdensome on
> business. Rather, it strikes the correct balance between accommodating
> individual liberty and the needs of businesses and the delivery of
> services. So does WRFA."[^17]

Despite the lack of evidence for the critics' objections to WRFA, the
coalition supporting WRFA is not opposed to inserting language into the
bill that specifically indicates the WRFA standard is not to be
interpreted to require accommodations that would cause harm to third
parties -- whether they be coworkers or customers. The ACLU has rejected
this offer to date, preferring to insist on creating a legal standard
that would provide a higher level of protection to selected religious
practices they find innocuous and a lower level of protection for all
other practices. We believe this approach to be both unjust on its face,
and possibly unconstitutional.

[Restricted Bill is Unjust & Creates Constitutional
Questions]{.underline}

The ACLU's proposed a restricted bill would provide the WRFA standard to
a limited set of religious practices which the ACLU selects, while
leaving all other religious practices unprotected by WRFA. The
restricted approach strikes at the heart of indivisible freedoms because
it aims to provide one set of religious practices preferential treatment
under the law vis-à-vis all other religious practices.

Specifically, the ACLU proposes to provide WRFA protection to requests
to accommodate religious holy day, garb and grooming requirements. This
limited bill would exclude all other religious practices from coverage.
Among the wide range of religious practices that would be excluded under
the ACLU restricted bill are:[^18]

-   A Jehovah's Witness employee who requests to opt out of raising the
    flag and pledging allegiance at work;

-   A Methodist attorney who requests accommodation not to represent
    tobacco interests;

-   A Quaker (Society of Friends) employee who requests to be
    transferred to non-military related accounts;

-   An Orthodox Jewish woman who requests permission not to shake the
    hands of male customers;

-   A Hindu employee who requests permission not to greet guests with
    the phrase "Merry Christmas;"

-   A Christian employee who requests to be assigned to work that does
    not involve embryonic research;

-   A Muslim hospital employee who requests to be exempted from duty in
    which she would be present when a member of the opposite sex is
    unclothed;

-   A Christian webpage developer who asks to be reassigned from a
    pornographic website development project;

-   A Muslim truck driver who requests to be assigned to routes that do
    not involve delivering alcoholic beverages.

These are just a few of the uncovered religious claims, and do not
include claims that arise from indigenous faiths, many major Eastern
religions and the wide variety of claims arising from the diverse
branches of Christianity. To understand the weakness of the restricted
approach, it is worth considering sample claims post-passage of the
ACLU\'s restricted WRFA:

Post-passage of a restricted WRFA, if an Evangelical Christian delivery
driver requests her employer to accommodate her sincerely held religious
conviction to attend church on Sunday, her claim would be analyzed under
the WRFA significant difficulty or expense standard. If a Muslim
delivery driver working for the same company asked the same employer to
accommodate her sincerely held religious conviction that requires her
not to delivery alcoholic beverages, her claim would be analyzed under
the existing *de minimis* difficulty or expense standard. As such, the
Muslim employee would be much more likely to lose even if the two
accommodation requests presented precisely the same challenge to
accommodate. It is difficult to understand how anyone could believe such
disparate treatment is a just outcome.

Further, it is unclear whether such disparate treatment could withstand
constitutional scrutiny under either the Equal Protection or the
Establishment Clauses.

In defense of their restricted proposal, critics note that the religious
practices covered constitute the majority of claims made in reported
Title VII cases over the past three decades. This defense is faulted in
two ways.

First, a bill that protects the majority of claims is hardly
justification for disfavoring minority religious practices.

Second, it assumes that future accommodation claims will mirror the
past. This is a deeply faulted assumption. America's religious
demographics are changing dramatically. As immigrants from Asia, Africa,
the Pacific and other areas of the world come to the United States, they
bring their religious practices with them. It is very likely that
prospectively, we will see far more claims from these faith communities
as they become established in America. We cannot afford to exclude
religious practices from protection simply because they were not
prevalent in the U.S. during the 70s and 80s. Indeed, as we go forward,
newer faith communities are likely to need the protection of WRFA at
least as much - if not more than - established communities.

Disparate treatment is something the ACLU has stood against in the past
on issues ranging from free speech to religious liberty. Sadly, they
have abandoned their core values and in the process are acting in a
manner counter productive to the liberties they claim to protect.
Criticism of WRFA is unjustified by the facts, and the proposed
"solution" is deeply unjust and likely unconstitutional.

**Conclusion**

Losing employment is not an insignificant event. Loss of a job can have
the most dire impact on a family emotionally, financially, and in their
relationships. In recognition of this, our laws have been crafted
carefully to protect the disabled, for example, from dismissal without
efforts being made to accommodate their needs. And this Congress passed
the Employment Non-Discrimination Act to protect gay, lesbian and
bisexual employees. It is not too much to ask from a nation founded on
the principles of religious freedom for people of faith to be accorded
the same respect.

Rather than succumb to the irrational objections of WRFA critics. It is
vital that Congress address this very real, well documented problem.
Americans from all religious faiths need protection. WRFA provides a
modest level of protection to ensure that American workers are no longer
arbitrarily forced to choose between their faith and their livelihood.

Today, on behalf of the Seventh-day Adventist Church and on behalf of
the religious community writ large, I urge each member of the
subcommittee to support WRFA's passage through the House of
Representatives and into law. Enough American workers have been
humiliated and marginalized for no crime other than remaining faithful
to their understanding of God's requirements. Our national values and
our common humanity dictate that we provide the modest, commonsense
protection encapsulated in WRFA - and that we delay no longer.

**EXHIBIT A**

**ORGANIZATIONS SUPPORTING**

**THE WORKPLACE RELIGIOUS FREEDOM ACT**

Agudath Israel of America       

American Jewish Committee

American Jewish Congress 

Americans for Democratic Action

American Islamic Congress

American Values

Anti-Defamation League

Baptist Joint Committee on Public Affairs

Bible Sabbath Association

B\'nai B\'rith International

Center for Islamic Pluralism

Central Conference of American Rabbis

Christian Legal Society 

Church of Scientology International

Concerned Women for America 

Council on Religious Freedom

Family Research Council

General Board of Church and Society,

   The United Methodist Church

General Conference of

   Seventh-day Adventists

Guru Gobind Singh Foundation

Hadassah - WZOA

Institute on Religion and Public Policy

Interfaith Alliance

International Association of

   Jewish Lawyers and Jurists

International Commission on

   Freedom of Conscience

International Fellowship of

   Christians and Jews

Islamic Supreme Council of America

Jewish Council for Public Affairs

Jewish Policy Center

NA\'AMAT USA

National Association of Evangelicals

National Council of

   the Churches of Christ in the U.S.A.

National Jewish Democratic Council

National Sikh Center

North American Council for

   Muslim Women

North American

   Religious Liberty Association

Presbyterian Church (USA)

Rabbinical Council of America

Religious Action Center of Reform Judaism

Republican Jewish Coalition

Sikh American Legal Defense   

   Education Fund 

Sikh Council on Religion and Education

Southern Baptist Convention,

   Ethics and Religious Liberty Commission

Traditional Values Coalition

Union of Orthodox Jewish Congregations

Union for Reform Judaism

United Church of Christ

   Office for Church in Society

United Synagogue of Conservative Judaism

U.S. Conference of Catholic Bishops

**EXHIBIT B**

Excerpt From the American Bar Association's Human Rights Magazine\
**"Reconciling Faith and Livelihood**: **Religion in the Workplace and
Title VII"\
**By Richard T. Foltin and James D. Standish

**The Civil Rights Act of 1964**

In a 1963 message to Congress, President John F. Kennedy vowed to
protect Americans from workplace discrimination on the basis of "race,
creed or ancestry." A year later, President Lyndon Johnson signed the
omnibus Civil Rights Act (Act), in part as a legacy to his assassinated
predecessor. The milestone legislation included Title VII, which
prohibited discrimination in the workplace on the basis of race, color,
religion, sex, or national origin.

It was clear that the prohibition on religious discrimination and the
application of nondiscrimination principles to religious entities
presented special issues. As originally drafted, the Act afforded a
sweeping exemption for religious entities. By the time Congress
completed its work on Title VII, however, that exemption was
significantly narrower. Pursuant to section 702, religious entities were
exempted from the provisions prohibiting hiring based on religion. In
addition, section 703(e)(2) provided an exemption that allowed religious
educational institutions to hire and employ employees of a particular
religion. Yet like all other employers, they were subject to Title VII's
prohibition on discrimination on the basis of race, color, sex, and
national origin. The exemption was limited, moreover, to employee
positions "connected with the carrying on . . . of \[the entities'\]
religious activities."

While dealing at least to some extent with the special concerns of
religious organizations, the Civil Rights Act did not directly address
the question of whether an employer has an obligation to accommodate
employees' religious practices or beliefs. The problems presented by
this lacuna were evident almost from the start. An employer need not
hang a sign in his window stating "no Jews need apply"; he merely needed
to require work on Saturday to accomplish the same end.

The newly created Equal Employment Opportunity Commission (EEOC) was
quick to issue regulations, in 1966, providing that employers must
afford accommodation unless it would cause "a serious inconvenience to
the conduct of business." In 1967 the EEOC refined the regulations to
require accommodation unless it would incur "undue hardship on the
conduct of the employer's business." Lawsuits quickly challenged the
EEOC's authority to take this action. One such case---an appeal from a
Sixth Circuit decision finding that the prohibition on religious
discrimination should not be read to require accommodation---reached the
U.S. Supreme Court, but it was split down the middle, resulting in an
affirmance without national precedential authority. *Dewey v. Reynolds
Metals Co*., 402 U.S. 689 (1971), *affirming by an equally divided
Court* 429 F.2d 324 (6th Cir. 1970).

In 1972, Congress reentered the fray, amending Title VII to add a new
section 701(j), which required employers to "reasonably" accommodate the
religious practices of their employees unless, by so doing, the employer
would incur an "undue hardship on the conduct of the employer's
business." The scant legislative history associated with this amendment
gave little indication of precisely what Congress considered reasonable
accommodation and what constituted undue hardship. This was left up to
the courts. But, as Justice Thurgood Marshall would later observe in his
dissent in *Trans World Airlines v. Hardison*, 432 U.S. 63, 89 (1977),
the record demonstrated, at least, that section 701(j) was introduced by
Senator Jennings Randolph (D-WV) explicitly "to protect Saturday
Sabbatarians like himself from employers who refuse 'to hire or continue
in employment employees whose religious practices rigidly require them
to abstain from work in the nature of hire on particular days.'" Citing
118 CONG. REC. 705 (1972).

At the same time, Congress amended section 702 to conform with section
703(e)(2) to broaden the religious discrimination exemption, allowing
religious organizations to make hiring decisions on the basis of
religion with respect to all employee positions, not just with respect
to work connected with "religious activities." As Professor Melissa
Rogers has shown in her recent examination of the legislative history
leading up to enactment of this latter amendment, the sponsoring
senators---Sam Ervin (D-NC) and James Allen (D-AL)---"considered an
institution-wide exemption for religious organizations from Title VII to
be crucial to religious autonomy and freedom."

The premise on which sections 702 and 703 (e)(2) were based---that
protecting the autonomy of religious institutions is a necessary
corollary of the Constitution's protection of the free exercise of
religion---has not been subject to serious debate. Indeed, the courts
have read a constitutionally mandated "ministerial exception" into Title
VII pursuant to which religious institutions may discriminate *on any
basis*, not just with respect to religion, when it comes to employment
decisions involving clergy. Rather, debate has focused on the extent to
which exemptions for religious organizations should be carved out so as
to protect the groups' autonomy. Thus cases questioned the
constitutionality of the 1972 expansion of the section 702 exemption.
The Supreme Court upheld the exemption in 1987. Other cases, with
varying results but generally protective of religious institutions, have
examined the question of just how "religious" a religious institution
has to be to qualify for a section 702 or section 703(e)(2) exemption,
as well as whether given employment decisions were made on the basis of
sex or pregnancy, as opposed to religion---and would therefore, at least
with respect to nonministerial employees, not fall under the exemption.

Most recently, as a result of the push for "charitable choice" and
faith-based initiatives, there has been extensive debate as to whether
the exemptions afforded under sections 702 and 703(e)(2) apply to social
services programs provided by religious institutions when federal funds
are involved. Some have argued that the exemption applies nevertheless;
others have argued that Congress never intended the exemption to cover
other than privately funded positions or projects---and that, in any
event, to practice such discrimination with public funds is
constitutionally problematic.

Others have noted that there is nothing in the text of the statute to
suggest that it was Congress's intent to limit the exemption to entities
that do not receive federal funding.

**Hardison and Its Aftermath**

If the meaning of sections 702 and 703(e)(2) remains unsettled, the
courts have been more clear in their reading of section 701(j).
Unfortunately, the decisions have not always viewed religious
accommodation in the workplace as a serious civil rights issue.

The seminal Supreme Court case in this area is *Trans World Airlines v.
Hardison*, 432 U.S. 63 (1977). Larry Hardison was a member of the
Worldwide Church of God and believed it was his religious duty to rest
from secular work on Saturdays (his Sabbath). Trans World Airlines
discharged Hardison because he refused to work on Saturdays in a
position as a clerk that required staffing twenty-four hours per day,
365 days per year. In ruling for TWA, the Court determined---in a 7-2
decision---that anything more than a de minimis cost to an employer
constituted an "undue hardship" for purposes of section 701(j), and
found that accommodations proposed by Hardison would have imposed such a
cost because they "involved costs to TWA, either in the form of lost
efficiency in other jobs or higher wages." The Court also found that TWA
had made reasonable efforts at accommodation.

In a dissent joined by Justice William Brennan, Justice Thurgood
Marshall argued that the Court's reading of section 701(j) reflected the
belief that Congress, in drafting the 1964 Civil Rights Act to require
employers to make reasonable accommodations for religious practice, did
"not really mean what it \[said\]." Marshall and Brennan also argued
that the Court's reading of section 701(j), in particular the de minimis
interpretation of "undue burden," so vitiated the obligation to
reasonably accommodate as to result in "effectively nullifying it."

The history of religious accommodation litigation since 1977 bears out
Justice Marshall's concerns. It would be an overstatement to say that
employees seeking a reasonable accommodation of their religious
practices never prevail in court. Many cases never reach litigation
because employees and employers work out an accommodation amicably. But
for the most part, to borrow the title of one law review article on the
subject, the courts have concluded that "heaven can wait."

Turning to the specifics of section 701(j), one might expect a
"reasonable accommodation" to remove the conflict with religious
practice, with employers then required to show an "undue hardship"
before being relieved of the obligation to provide such an
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 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.

It is the *Hardison* Court's interpretation and application of "undue
hardship" that has most often affected religiously observant employees.
Frequently, even in the absence of substantial economic cost, the courts
have found that the provision of a reasonable accommodation amounts to
an undue hardship. Sometimes the "hardship" is no more than the
administrative task of adjusting schedules.

Beginning with *Hardison* itself, the existence of a seniority provision
in a collective bargaining agreement has been invoked as a basis for
undue hardship because, for instance, to allow an employee his Sabbath
off would violate the seniority rights of another employee. To be sure,
section 703(h) of Title VII expressly provides that "the routine
application of a bona fide seniority system \[i.e., without intention to
discriminate because of race, color, religion, sex, or national
origin\]" is not unlawful. But all too often, this conclusion is reached
without further inquiry as to whether the bargaining representative
might have been enlisted in a search for voluntary swaps or whether an
exemption might be sought to technical violations of the collective
bargaining agreement that stand in the way of an amicable arrangement.

These constrictive readings of section 701(j) are inconsistent with the
principle that religious discrimination should be treated as seriously
as any other form of discrimination. The civil rights of religious
minorities should be protected by interpreting the religious
accommodation provision of Title VII in a fashion consistent with other
protections against discrimination. Since these constrictive readings
turn on judicial interpretation of legislation, rather than
constitutional doctrine, they are susceptible to correction by the U.S.
Congress. Legislation now pending in Congress would do exactly that.

**EXHIBIT C\
Change in Religious Discrimination Receipts Filed at the U.S. Equal
Employment Opportunity Commission\
vis-à-vis Racial Discrimination Receipts Filed**

  ----------------------------------------- --------- -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- --------
  **Percentage Annual Change in Charge                                                                                                                                     
  Receipts Filed at the U.S. EEOC**                                                                                                                                        

  *Source:                                                                                                                                                                 
  http://www.eeoc.gov/stats/religion.html &                                                                                                                                
  http://www.eeoc.gov/stats/race.html*                                                                                                                                     

                                                                                                                                                                           

                                                                                                                                                                           

  **Religious Discrimination**              **FY      **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY
                                            1992**    1993**   1994**   1995**   1996**   1997**   1998**   1999**   2000**   2001**   2002**   2003**   2004**   2005**   2006**

  Charge Receipts Filed                     1,388     1,449    1,546    1,581    1,564    1,709    1,786    1,811    1,939    2,127    2,572    2,532    2,466    2,340    2,541

  \% Annual Increase                                  4.4%     6.7%     2.3%     -1.1%    9.3%     4.5%     1.4%     7.1%     9.7%     21%      -1.6%    -2.6%    -5.1%    8.6%

  \% Increase Over Period                   **83%**                                                                                                                        

                                                                                                                                                                           

                                                                                                                                                                           

  **Racial Discrimination**                 **FY      **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY
                                            1992**    1993**   1994**   1995**   1996**   1997**   1998**   1999**   2000**   2001**   2002**   2003**   2004**   2005**   2006**

  Charge Receipts Filed                     29,548    31,695   31,656   29,986   26,287   29,199   28,820   28,819   28,945   28,912   29,910   28,526   27,696   26,740   27,238

  \% Annual Increase                                  7.3%     -0.1%    -5.3%    -12%     11.1%    -1.3%    0.0%     0.44%    -0.1%    3.5%     -4.6%    -2.9%    -3.4%    1.9%

  \% Increase Over Period                   **-8%**                                                                                                                        

                                                                                                                                                                           

                                                                                                                                                                           

  **Religious Discrimination Charge         **FY      **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY     **FY
  Receipts as a % of Racial Discrimination  1992**    1993**   1994**   1995**   1996**   1997**   1998**   1999**   2000**   2001**   2002**   2003**   2004**   2005**   2006**
  Charge Receipts**                                                                                                                                                        

                                            4.70%     4.57%    4.88%    5.27%    5.95%    5.85%    6.20%    6.28%    6.70%    7.36%    8.60%    8.88%    8.90%    8.75%    9.33%

                                                                                                                                                                           
  ----------------------------------------- --------- -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- --------

**Notes on the EEOC data:**

1)  First, religious discrimination claims may be filed at the state or
    federal level, and in some cases, the local level. The EEOC numbers
    do not include the state and local claims. Thus the EEOC statistics
    likely exclude a large number of claims, this is particularly true
    as in some states, e.g. California and New York, it is preferable to
    bring these cases under state law in state courts than under federal
    law in federal court.

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1)  Many religious discrimination claims never make it to the complaint
    stage. There are a number of reasons for this, including:

    a.  In our experience, most of the people impacted by a refusal to
        accommodate are at the lower end of the socio-economic spectrum,
        and a disproportionate percentage are recent immigrants. They
        are often very fearful of authority figures and thus unwilling
        to file a claim. In addition, many have limited access to legal
        assistance and limited understanding of their rights under U.S.
        law.

    b.  People of sincere faith are sometimes unwilling to assert their
        rights in court because they believe to do so would violate
        their faith, e.g. it is "un-Christian" to sue an employer.

    c.  Many people when facing dismissal or discrimination in the
        workplace use their limited time and energy to find another job,
        and once they have found one, move on with their lives without
        filing complaint about the discrimination they suffered.

    d.  Often damages in religious discrimination cases, which are
        generally limited to lost wages, are low because the low wages
        of those involved. Thus there is little financial return on the
        time and effort needed to successfully bring a claim through to
        conclusion either for the potential plaintiff or for the lawyers
        who might bring the cases.

> 3)   The EEOC data does not breakout the number of religious
> discrimination claims that focus on facial religious discrimination in
> hiring, and the number that involve a failure to accommodate a
> religious practice.

[^1]: James Standish is director of legislative affairs for the world
    headquarters of the Seventh-day Adventist Church. He earned his law
    degree, *cum laude*, from Georgetown University, his MBA from the
    University of Virginia, and his BBA from Newbold College, England.

[^2]: There are 29 Seventh-day Adventist hospitals in sub-Saharan
    Africa, and these hospitals are complemented by a number of
    Adventist clinics and dispensaries. In total, these facilities
    accounted for 62,912 inpatient admissions, and 1,601,950 outpatient
    visits in 2004. More than 50% of the patients served in these
    facilities are HIV positive.

[^3]: Exodus 20:8 -- 11 (NKJV): "Remember the Sabbath day, to keep it
    holy. Six days you shall labor and do all your work, but the seventh
    day *is* the Sabbath of the LORD your God. *In it* you shall do no
    work: you, nor your son, nor your daughter, nor your male servant,
    nor your female servant, nor your cattle, nor your stranger who *is*
    within your gates. For *in* six days the LORD made the heavens and
    the earth, the sea, and all that *is* in them, and rested the
    seventh day. Therefore the LORD blessed the Sabbath day and hallowed
    it."

[^4]: 42 U.S.C. § 2000e(j). (Employers have a duty to accommodate an
    employee's religious practices as long as they can "reasonably
    accommodate" the practices and the accommodation does not cause
    "undue hardship" on the employer's business.)

[^5]: *Trans World Airlines, Inc v. Hardison*, 432 U.S. 63, 84 (1977).
    (Accommodation of religious beliefs requiring more than a *de
    minimis* cost to the employer normally results in "undue hardship"
    and therefore is not required by current law.)

[^6]: For more on the history of the accommodation provision of Title
    VII, please see Exhibit B at the conclusion of this testimony.

[^7]: *Sturgill v. UPS*, 2008 WL 123945 (8^th^ Cir. Jan. 15, 2008)
    ("What is reasonable depends on the totality of the circumstances
    and therefore might, or might not, require elimination of a
    particular, fact-specific conflict."  Slip Opinion at 6.).

[^8]: Exhibit C at the conclusion of this testimony contains a
    year-by-year analysis of religious and race based discrimination
    receipts received by the U.S. EEO.

[^9]: See Exhibit C.

[^10]: See Exhibit C.

[^11]: Workplace Religious Freedom Act, Section 2 ("...the term \`undue
    hardship\' means an accommodation requiring significant difficulty
    or expense.").

[^12]: Workplace Religious Freedom Act, Section 2 ( "...for an
    accommodation to be considered to be reasonable, the accommodation
    shall remove the conflict between employment requirements and the
    religious observance or practice of the employee.").

[^13]: A majority of cases did not go to litigation.

[^14]: Acts 5:29 (NIV).

[^15]: See, e.g., *United States v. Seeger*, 380 U.S. 163 (1965).

[^16]: New York State Division of Human Rights

[^17]: Eliot Spitzer, "Defend the Civil Right to Freedom of Religion for
    America's Workers," *The Forward*, June 25, 1990, at 1, 7.
    http://www.forward.com/main/article.php?ref=spitzer200406241125

[^18]: List compiled by the Coalition for Freedom of Religion in the
    Workplace.