A Look Behind the Workplace Religious Freedom Act

One of our most interesting freedoms is also one of the most misunderstood. Our First Amendment rights guarantee, among other things, our freedom to worship in the manner that our personal religions dictate, although there are a few caveats built into the legal code of the United States. However, this “separation of church and state” is not actually part of the language of the Constitution or any of its amendments. The phrase originated during a Supreme Court decision that outlined the extent of the First Amendment protection. Largely because of that misconception, the actual defenses raised by the First Amendment are not clearly understood

In particular, the First Amendment only guarantees the freedom to worship and to have one’s beliefs honored by the government. The government is expressly forbidden to select one religion as a national faith and may not, as currently limited, prohibit the free exercise of religion save when that exercise unfairly harms another (i.e. human sacrifice, although a part of several ancient religions, is banned on the grounds of murder). However, private enterprise has no such restrictions. For many years, it was not only allowable but acceptable to discriminate based on faith. Jews, Protestants, Catholics: all have been vilified at some time or another.

In 1964, with the passage of the Civil Rights Act, this practice was banned as well. Religion was expressly listed as a civil right that neither government nor business could legally infringe upon. And though hundreds of cases since then have proved that people (and government) still do, the courts have routinely backed the law. But, in this new world, where people of certain faiths are looked upon with revulsion, as an enemy, the older and less civilized practices are beginning to come back to haunt us.

Specifically, individuals who have before been protected have begun to be fired from their positions, and many cannot find replacement work in their fields, due to their beliefs. Whether it is worship on a day other than Sunday, or the daily pause for prayer, or the wearing of certain articles of clothing, many have been put aside from jobs that they perform well. As time goes on, and the conflicts in the Middle East intensify it is likely that the problems will increase. Court actions are painfully slow, and many feel that thy do not have the strength of case or the time to wait for court redress.

Largely to handle this practice, some of the more far-sighted members of our legislature have drafted a new law, which outlines all of the practices of religion which are protected, either implicitly or explicitly in the 1964 Civil Rights Act. It also expands upon those protections and defends such practices as Friday or Saturday worship, the wearing of burqa or turban (depending on faith), the daily prayer and many others. The Workplace Religious Freedom Act (WRFA) expressly defines what hiring and firing practices are illegal and provides not only civil redress, but criminal penalties as well.

To no one’s surprise, the big business lobby has fought this Act with vehemence. What is surprising, though, is the amount of enmity it has garnered from the self-proclaimed champion of civil rights: the American Civil Liberties Union (ACLU). The ACLU has decried the new bill as unfairly promoting the rights of minorities and of handicapping businesses that are seeking to eliminate unwanted elements. We will leave the fact that the ACLU has sought to promote the rights of the very same minorities in the past aside for the moment, and will instead focus upon the second charge.

The rights of business, as opposed to the rights of the individual, are nearly non-existent. A business must accede to the wishes of the individual in matters of privacy, ownership of property and many other areas. Should an individual wish to no longer receive telephone marketing calls from a business, the business must accede to the individual’s wishes or face severe penalties. Likewise, the individual may opt out of mailings, request identifying information be destroyed and the like. How then is the right of the business to self-determine the preferred elements of society based on race, class, gender or religion superior to the right of the individual to be of the vilified race, class, gender or religion? In reality, of course, the business has no such right whatsoever. The protections laid out in WRFA are extensions of the Civil Rights Act of 1964, not a new and different set.

One could look at the real reasons for the ACLU’s incredible flip-flop on this piece of legislation: money (the ALCU has been retained by two high-profile corporations to stop this Act). The corporations argue that such a law would require them to hire Americans rather than people of their own nationality and thus require them to dilute their board with non-native persons. Yet, stunningly enough, WRFA makes no mention of nationality. It merely prohibits, explicitly and with severe penalties, the practice of discrimination based on religion. And, even more stunningly, as an answer to the ACLU’s last complaint against the bill (that it would require employers to accommodate any request even if it meant significant cost or trouble), we are invited to look at New York’s workplace act. In language and protection, it is practically identical to WRFA.

Total number of cases decided under it that would have gone the other way using current law? Three. Total harm to businesses in terms of financial loss or market share as a result? None.