S.677 -- "Workplace Religious Freedom Act of 2005"

by catastrophile, Thu Apr 14, 2005 at 11:56:36 AM EST

I am certainly hot and bothered over this bill, and I do not share the subdued outlook of catastrophile. However, I undoubtedly recognize that this is something we need to be talking about, and of all the diaries on the subject, this one best serves that purpose--Chris

All right, since people are all hot and bothered over this thing, it seems like a good idea to actually take a look at it and see what's actually being proposed here. This bill has been referred to the Senate Committee on Health, Education, Labor, and Pensions. An identical bill has been introduced in the House, which I'm not going to bother researching because this thing has eaten up a big enough chunk of my life as it is.

Below the break is the US Code as it would read if this bill were passed in its current form.

This is a direct link to the CR page with the text of the bill, but past experience leads me to expect it won't work for very long. You can also search the Congressional Record for the bill. It's on pages S3057 and S3058).

Below is the text of 42 USC 2000e (j) as it would be modified by S.677 (language which the bill would add is in bold, while language which the bill would delete is italicized):
(j)

   (1) The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable, after initiating and engaging in an affirmative and bona fide effort, to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.

   (2)

      (A) In this subsection, the term 'employee' includes an employee (as defined in subsection (f) {editorial note: (f) defines "employee" as excluding elected officials and their appointees}), or a prospective employee, who, with or without reasonable accommodation, is qualified to perform the essential functions of the employment position that such individual holds or desires.

      (B) In this paragraph, the term 'perform the essential functions' includes carrying out the core requirements of an employment position and does not include carrying out practices relating to clothing, practices relating to taking time off, or other practices that may have a temporary or tangential impact on the ability to perform job functions, if any of the practices described in this subparagraph restrict the ability to wear religious clothing, to take time off for a holy day, or to participate in a religious observance or practice.

   (3) In this subsection, the term 'undue hardship' means an accommodation requiring significant difficulty or expense. For purposes of determining whether an accommodation requires significant difficulty or expense, factors to be considered in making the determination shall include--

      (A) the identifiable cost of the accommodation, including the costs of loss of productivity and of retraining or hiring employees or transferring employees from 1 facility to another;

      (B) the overall financial resources and size of the employer involved, relative to the number of its employees; and

      (C) for an employer with multiple facilities, the geographic separateness or administrative or fiscal relationship of the facilities.

To put the next part of the bill in context, here's the first paragraph of 42 USC 2000e-2 (Unlawful Employment Practices):

(a) Employer practices

It shall be an unlawful employment practice for an employer -

   (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

   (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

And here's the text which would be added at the end of 42 USC 2000e-2 by S.677:

(o)

   (1) In this subsection:

      (A) The term 'employee' has the meaning given the term in section 701(j)(2) {editorial note: this is the same as 42 USC 2000e(j)(2) in the above quote. The numbers are different because the bill refers to the section numbers of the original legislation, rather than the US Code sections}.

      (B) The term 'leave of general usage' means leave provided under the policy or program of an employer, under which--

         (i) an employee may take leave by adjusting or altering the work schedule or assignment of the employee according to criteria determined by the employer; and

         (ii) the employee may determine the purpose for which the leave is to be utilized.

   (2) For purposes of determining whether an employer has committed an unlawful employment practice under this title by failing to provide a reasonable accommodation to the religious observance or practice of an employee, 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.

   (3) An employer shall be considered to commit such a practice by failing to provide such a reasonable accommodation for an employee if the employer refuses to permit the employee to utilize leave of general usage to remove such a conflict solely because the leave will be used to accommodate the religious observance or practice of the employee.

Parker's recent diary cited an ACLU letter listing three areas of concern with the 2004 WRFA:

First, the introduction of the "essential functions" of the job standard into Title VII's religious accommodation definition raises important questions of which functions of an employee's job are "essential." { . . . } In many cases, an employee would likely bolster his or her claim that a religious practice does not affect an essential function of a job by claiming that the religious practice has nothing more than a "temporary or tangential impact on the ability to perform job functions," and is thus entirely exempt from the definition of "essential function."

Second, WRFA borrows from the Americans with Disabilities Act a definition of a "significant difficulty or expense" which would relieve employers of having to provide the requested reasonable accommodation. { . . . } If WRFA passes, employers may have great difficulty defining the "identifiable costs" of allowing employees to proselytize or harass other coworkers or third parties, such as customers or patients. The harmful effect of a particular accommodation on another person might be difficult to express in specifics such as loss of productivity or financial losses relative to the size of the employer. { . . . }

Third, the requirement that a reasonable accommodation must "remove the conflict between employment requirements and the religious observance or practice of the employee" would likely bolster arguments that an employer may not simply choose to transfer an employee to another position in order to accommodate an employee.

In terms of these specific objections, here is where the current bill stands:

  • essential functions: the phrase is used in reference to who qualifies as an "employee" for the purposes of the subsection. The part about "temporary or tangential impact" specifically refers to "the ability to wear religious clothing, to take time off for a holy day, or to participate in a religious observance or practice." This language appears to require only that a person's religious beliefs not be a factor when determining whether or not the person can be considered a viable candidate for the job in question.

  • significant difficulty or expense: this language is largely as the ACLU letter describes it -- the factors listed are focused entirely on the financial impact of accommodation relative to the employer's ability to pay. However, the "identifiable costs" of letting someone preach on the job are probably more readily quantifiable than the letter suggests.

  • remove the conflict: this language establishes a standard for determining whether an employer's attempt at accommodation is reasonable or not. My guess would be that it's intended to exclude offers by the employer which don't address the employee's complaint -- "don't want to work on Sundays, huh? What if I throw in donuts?"

The ACLU letter also seems to make much of the idea that people will demand that all sorts of ridiculous behavior are protected under the language cited above. However, it also acknowledges that it will be up to the courts to decide whether, say, allowing an employee to display a swastika, or retaining a nurse who refuses to participate in life-saving emergency procedures which result in the death of fetuses, qualify as reasonable measures to accommodate a person's religious beliefs. What I find remarkable about the ACLU's implication that new legislation will result in cases like these being brought is that these cases, and all the others listed here, have already been brought! Speculation that language here might have caused a different result in such extreme cases is just that -- speculation, and I don't see anything in this bill that would cause a court to rule that displaying a "KKK tattoo of a hooded figure standing in front of a burning cross" is a legitimate religious practice.

Anyway, there it is. Let the gnashing of teeth and rending of garments commence.



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Workplace Religious Freedom Act Links (3.00 / 1)

I'd been collecting resources for a diary on the "Workplace Religious Freedom Act" but hadn't pulled them together yet. Since you've already put out this informative diary I'll go ahead and stick them in here.

John Kerry has reportedly been involved with this bill since 1996. At one point it was co-sponsored by Dan Coats (R). He has a summary from 2002 on his Senate web site.

Several religious groups are pushing for it and the ACLU and at least one gay organization is against it.

The Seventh Day Adventist Church is for the bill.

Jewish groups for the bill. 1 2

Baptist groups for the bill. 1 2

Selected snips:

Kerry, when asked by a reporter if his sponsorship of the bill was part of the campaign to make Democrats look more faith-friendly, laughed. "Look, I started this years ago," he said. "I believe in this because I have constituents -- two Catholic ladies who lost their jobs because they wouldn't work on Christmas -- and I said, you know, 'What's going on?'"

Bill supporter Rep. Mark Souder (R-Ind.) backed Kerry up, saying the support for WRFA was a "rare kind of bipartisan moment."

Souder -- one of Congress' most staunch religious conservatives -- noted that when the bill was originally introduced in the House, there were more Democrats who co-sponsored it than Republicans. He also said WRFA may face more opposition on his side of the aisle than the Democrats' because of his ideological cohorts' employer-friendliness.

"We have to work on the Republican side as well, if not a little harder," Souder said. "There, we may face some business opposition."

The Senate version of the bill is S. 677. The House version is H.R. 1445.

The bill is supported by a wide array of religious and civil-rights organizations, including the Baptist Joint Committee for Religious Liberty, the Southern Baptist Convention's Ethics and Religious Liberty Commission, the American Jewish Committee and the Union of Orthodox Jewish Congregations.

However, a handful of other civil-rights groups oppose WRFA, fearing the bill as currently written would allow too much room for employees to flout local laws and infringe on others' religious rights. Americans United for Separation of Church and State, the American Civil Liberties Union and the Human Rights Campaign all oppose it.

Seventh Day Adventist rationale for support:

"There are three reasons Seventh-day Adventists should care about the Workplace Religious Freedom Act," stated Standish. "First, if you care about our young people, you'll care about this bill because more and more employers are pressuring our youth to work on Sabbaths. Secondly, if you care about evangelism, you'll care about this bill because the first challenge that many new converts face is an employer who is unwilling to take reasonable steps to accommodate the convert's new fidelity to God's law. Finally, if you care about religious liberty, you'll care about this bill because it is essential to ensuring people of faith across the spectrum are treated with the dignity and respect our fundamental values require."

Gay-rights group, Human Rights Campaign, objections to bill:

Legislation introduced in the House and Senate could harm LGBT workers the nation's largest gay rights organization warns.  
..<cut>..

In a letter sent to members of Congress, HRC expressed concerns about the ways in which the bill could be used to evade non-discrimination policies.

"The concern here is that employers would have serious difficulty resolving instances where an employee posts a sign reading 'God hates fags' in his office or cubicle; where workers proselytize on the 'sins of the homosexual lifestyle' over lunch and on breaks; where a social worker proffers a religious objection to being the case manager or counselor for a youth who is gay or transgender; or where a truck driver on 24 hour driving shift who gives a religious reason for refusing to drive with an co-driver who is gay, lesbian, bisexual or transgender," wrote HRC's Smith and Christopher Labonte, legislative director.

The letter continued, "WRFA would arguably allow health care professionals to refuse to provide basic health care services to a gay or transgender patient."


by Curt Matlock on Wed Apr 13, 2005 at 07:32:35 PM EST

Freedom of religion/freedom to not be religious.. (none / 0)

I would support a bill that gave workers the right to take at least one day off a week, of their choice.

But the GOP is just USING these people to create their wet dream of a workplace where only the politically loyal (read- extreme right-wingers) can get jobs.

Increasingly, federal money goes to these 'religious' organizations that can now, legally discriminate.. (of course, a zillion other prohibitions against other kinds of discrimination are now history as well..)

Also, now that the 'death tax' has been replaced by a 'birth tax' nonprofits are going to have a very difficult time getting money, and so they will have to go to the government.

Those that aren't affiliated with Christianity will probably find themselves out of luck and money...

The fact that Jesus would have hated this.. well, its just not relevant.. to them..

....NOW.....

But it will be.....later...

:o

by ultraworld on Wed Apr 13, 2005 at 09:07:45 PM EST

I'm for this bill (none / 0)

As a Jew who would suffer discrimination with the no-hate dress code, I am for this bill.
The Kentucky Democrat
by kydem on Wed Apr 13, 2005 at 10:25:43 PM EST

Re: I'm for this bill (none / 0)

You are already protected. This bill does not address that.

What is says is if a police officer because of his religous beliefs does not want to protect an abortion clinic he does not have to.

This is about stripping away rights not adding to them.

Besides telling us how to live, think, marry, pray, vote, invest, educate our children and, die, the GOP has done a fine job of getting gov't out of our lives.
by Parker on Thu Apr 14, 2005 at 03:17:18 AM EST
[ Parent ]

Clarification (none / 0)

The ALCU address this issue which catastrophile conveniently ommitted:

A Narrowly Drafted Bill Is a Better Response to the Problem

Congress should replace WRFA with more narrowly drafted legislation that bolsters only the requirements imposed on employers to accommodate the scheduling of leave time for the observation of religious holidays or for the wearing of religious apparel or a beard or hairstyle.  Not only would a narrowly drafted bill address most of the problems actually experienced by employees denied religious accommodations, but it also would be a constitutionally sound approach to legislation.

Based on our review of 25 years of Title VII religious accommodation federal decisions, we conclude that the vast majority of the religious accommodation claims that are denied by employers fall into three categories:

  • scheduling of religious holidays,

  • the wearing of religious clothing or a beard or hairstyle, or

  • claims that would result in harm to critical personal or civil rights.  

Congress does not have to guess at what types of religious practices it is accommodating or refusing to accommodate when considering WRFA or any amendments to it.  The ACLU found that claims for the scheduling of time off for religious holidays or the wearing of religious clothing or a beard together made up 83 of the 113 reported federal decisions since 1977 through the end of last year in which the employee lost his or her claim to a reasonable accommodation.
Changing the approach from WRFA to a bill specifically focused on the problems that real people actually face in the workplace would be consistent with the approach that Congress took a few years ago when it replaced the Religious Liberty Protection Act with the more sharply focused Religious Land Use and Institutionalized Persons Act of 2000.  Not only did Congress create a powerful new tool for protecting religious exercise without harming any other rights, but it also created a vehicle that was so popular that it passed both houses by unanimous consent on the same afternoon.

Further, a more narrowly drafted bill is more likely to survive an Eleventh Amendment challenge by a state claiming that the statute violates the state's sovereign immunity.  The existing religious accommodation standard in Title VII is the only provision in Title VII to have been found unconstitutional by a federal court of appeals deciding an Eleventh Amendment challenge.  See Endres v. Indiana State Police, 334 F.3d 618, 627-30 (7th Cir. 2003).  As it considers strengthening the religious accommodation standard in Title VII, Congress must be careful to meet the federalism standards set by the Supreme Court in several recent decisions.  Close tailoring of the legislative solution to the constitutional harm being prevented increases the likelihood that a statute will be upheld against an Eleventh Amendment challenge, and decreases the possibility of establishing additional case law further limiting the power of Congress to provide federal remedies for discrimination.

This solution would address everyone's concerns yet not allow free for all discrimination.

Besides telling us how to live, think, marry, pray, vote, invest, educate our children and, die, the GOP has done a fine job of getting gov't out of our lives.
by Parker on Thu Apr 14, 2005 at 05:50:51 AM EST
[ Parent ]

THESE WERE ACTUAL CASES THE ACLU FOUGHT (none / 0)

catastrophile:

The ACLU letter also seems to make much of the idea that people will demand that all sorts of ridiculous behavior are protected under the language cited above.

is just that -- speculation

Uh... no it is based on facts because history shows us that they have, now we are going to open the floodgates fro every looney to preach God or HATE in the workplace

If WRFA had been law, the following rejected religious accommodation claims could have been decided differently:  

  • police officer's request to refuse to protect an abortion clinic,

  • another police officer's request to abstain from arresting protestors blocking a clinic entrance,

  • social worker's decision to use Bible readings, prayer, and the "casting out of demons" with inmates in a county prison, instead of providing the county's required secular mental health counseling,

  • state-employed visiting nurse's decision to tell an AIDS patient and his partner that God "doesn't like the homosexual lifestyle" and that they needed to pray for salvation,

  • delivery room nurse's refusal to scrub for an emergency inducement of labor and an emergency caesarian section delivery on women who were in danger of bleeding to death,

  • two different male truck drivers and a male emergency medical technician request to avoid overnight work shifts with women because they could not sleep in the same quarters with women,  

  • employee assistance counselor's request to refuse to counsel unmarried or gay or lesbian employees on relationship issues,

  • hotel worker's decision to spray a swastika on a mirror as a religious "good luck" symbol,  

  • private sector employee's request to uncover and display a KKK tattoo of a hooded figure standing in front of a burning cross,  

  • state-employed sign language interpreter's request to proselytize and pray aloud for her assigned deaf mental health patients, and

  • retail employee's request to begin most statements on the job with "In the name of Jesus Christ of Nazareth."

LET THE FLOOD GATES OF FOOLS OPEN

You know this means that if the workers in Shaivo's hospice would be protected in denying her husbands wishes to remove the feeding tube.

KERRY IS JUST WRONG and I'd like to see these two old ladies who were fired for not working on Christmas. And there is no way in hell he will be nominated again, it was a fluke this time... he needs to go hide under a rock and stop hurting the party.

Besides telling us how to live, think, marry, pray, vote, invest, educate our children and, die, the GOP has done a fine job of getting gov't out of our lives.
by Parker on Thu Apr 14, 2005 at 03:27:22 AM EST

Re: THESE WERE ACTUAL CASES THE ACLU FOUGHT (none / 0)

Would you please show me language in the bill that would allow for the straw-men you've set up above?

What in the bill would allow a nurse to ignore a woman bleeding to death?

What would allow a hotel worker to spray a swastika on a mirror as a religious "good luck" symbol?

Show me the language instead of the hype and maybe I'll take you seriously. Until then, you just sound shrill to me.

by Curt Matlock on Thu Apr 14, 2005 at 09:56:46 AM EST
[ Parent ]

Re: THESE WERE ACTUAL CASES THE ACLU FOUGHT (none / 0)

What in the bill would allow a nurse to ignore a woman bleeding to death?

`(i) an employee may take leave by adjusting or altering the work schedule or assignment of the employee according to criteria determined by the employer; and

What would allow a hotel worker to spray a swastika on a mirror as a religious "good luck" symbol?

`(2) For purposes of determining whether an employer has committed an unlawful employment practice under this title by failing to provide a reasonable accommodation to the religious observance or practice of an employee, 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.

That is the point it is SUBJECTIVE

Besides telling us how to live, think, marry, pray, vote, invest, educate our children and, die, the GOP has done a fine job of getting gov't out of our lives.
by Parker on Thu Apr 14, 2005 at 10:56:15 AM EST
[ Parent ]

Out of context again: (3.00 / 0)

(i) an employee may take leave by adjusting or altering the work schedule or assignment of the employee according to criteria determined by the employer; and

This is not a law, it's part of the definition of "leave of general usage" -- they're defining vacation time, not allowing people to make their own schedules!

failing to provide a reasonable accommodation to the religious observance or practice of an employee

So, once again: you think spray-painting a swastika on a mirror is a legitimate religious practice?

Sure, it's subjective. But by your standards, we should repeal the entire Equal Employment Opportunities code.

After all, I'm sure you could dig up a case where somebody was fired for beating up his coworkers, or stealing from his employer, and then claimed his firing was racially-motivated.

I'll bet there's somebody out there who's sued over nationality bias because their English wasn't good enough to get a telemarketing job.

Yes: people abuse the system. People file lawsuits of opportunity. People lie, squirm, and do anything they can to screw each other. Judges and juries see it all the time, and their job is to separate the reasonable from the bull$#!+. As much respect as I have for the ACLU, I don't find these coulds and mights very convincing.

Yeah, I'm cynical.
by catastrophile on Thu Apr 14, 2005 at 02:38:02 PM EST
[ Parent ]

I SAID THESE WERE ACTUAL CASES (3.00 / 0)

That's uncanny, dude. Here you accuse me of "conveniently omitting" a full page of the ACLU's recommendations for writing a better bill in what's already my longest diary to date. I read that comment right before I read this one, where you quote me but omit several sentences to suggest I said something I didn't say.

Not only did I specifically mention that the cases cited "WERE ACTUAL CASES" that had already been brought, I noted that the cases had failed. You "conveniently omitted" that part to suggest that I was saying the opposite.

The point of this diary is that I can't find any language in this bill that would have caused these cases to be decided differently. The ACLU may think that they could have, but that's just speculation.

I take it that you consider spray painting a swastika on a mirror, or displaying a KKK tattoo, a legitimate religious practice?

I take it that you consider assisting in life-saving procedures tangential to the role of a hospital nurse?

I take it that you would consider allowing a salesperson to preface her statements with "in the name of Jesus Christ of Nazareth" to be a reasonable accommodation, notwithstanding all the potential customers who would be weirded out or just bored away by it?

This is essentially what you're suggesting by saying that the bill would protect these acts.

Yeah, I'm cynical.
by catastrophile on Thu Apr 14, 2005 at 02:10:30 PM EST
[ Parent ]

This is the bill (none / 0)

109th CONGRESS

1st Session

S. 677
To amend title VII of the Civil Rights Act of 1964 to establish provisions with respect to religious accommodation in employment, and for other purposes.

IN THE SENATE OF THE UNITED STATES

March 17, 2005
Mr. SANTORUM (for himself, Mr. KERRY, Mr. ENSIGN, Mr. LIEBERMAN, Mr. BROWNBACK, Mrs. CLINTON, Mr. SMITH, Mr. SCHUMER, Mr. TALENT, Mr. CORZINE, Mr. COBURN, and Mr. HATCH) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions [Great company....not]


A BILL
To amend title VII of the Civil Rights Act of 1964 to establish provisions with respect to religious accommodation in employment, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Workplace Religious Freedom Act of 2005'.

SEC. 2. AMENDMENTS.

(a) Definitions- Section 701(j) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(j)) is amended--

(1) by inserting `(1)' after `(j)';

(2) by inserting `, after initiating and engaging in an affirmative and bona fide effort,' after `unable';

(3) by striking `an employee's' and all that follows through `religious' and inserting `an employee's religious'; and

(4) by adding at the end the following:

`(2)(A) In this subsection, the term `employee' includes an employee (as defined in subsection (f)), or a prospective employee, who, with or without reasonable accommodation, is qualified to perform the essential functions of the employment position that such individual holds or desires.

`(B) In this paragraph, the term `perform the essential functions' includes carrying out the core requirements of an employment position and does not include carrying out practices relating to clothing, practices relating to taking time off, or other practices that may have a temporary or tangential impact on the ability to perform job functions, if any of the practices described in this subparagraph restrict the ability to wear religious clothing, to take time off for a holy day, or to participate in a religious observance or practice.

`(3) In this subsection, the term `undue hardship' means an accommodation requiring significant difficulty or expense. For purposes of determining whether an accommodation requires significant difficulty or expense, factors to be considered in making the determination shall include--

`(A) the identifiable cost of the accommodation, including the costs of loss of productivity and of retraining or hiring employees or transferring employees from 1 facility to another;

`(B) the overall financial resources and size of the employer involved, relative to the number of its employees; and

`(C) for an employer with multiple facilities, the geographic separateness or administrative or fiscal relationship of the facilities.'.

(b) Employment Practices- Section 703 of such Act (42 U.S.C. 2000e-2) is amended by adding at the end the following:

`(o)(1) In this subsection:

`(A) The term `employee' has the meaning given the term in section 701(j)(2).

`(B) The term `leave of general usage' means leave provided under the policy or program of an employer, under which--

`(i) an employee may take leave by adjusting or altering the work schedule or assignment of the employee according to criteria determined by the employer; and

`(ii) the employee may determine the purpose for which the leave is to be utilized.

`(2) For purposes of determining whether an employer has committed an unlawful employment practice under this title by failing to provide a reasonable accommodation to the religious observance or practice of an employee, 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.

`(3) An employer shall be considered to commit such a practice by failing to provide such a reasonable accommodation for an employee if the employer refuses to permit the employee to utilize leave of general usage to remove such a conflict solely because the leave will be used to accommodate the religious observance or practice of the employee.'.

SEC. 3. EFFECTIVE DATE; APPLICATION OF AMENDMENTS.

(a) Effective Date- Except as provided in subsection (b), this Act and the amendments made by section 2 take effect on the date of enactment of this Act.

(b) Application of Amendments- The amendments made by section 2 do not apply with respect to conduct occurring before the date of enactment of this Act.

Kerry is shadowing Hilliary. This is how he got the nomination by shadowing Dean until the leadership opened both barrels on Dean and took him out... Kerry (with his personal check of 6 million dollars) was the only man standing.

Besides telling us how to live, think, marry, pray, vote, invest, educate our children and, die, the GOP has done a fine job of getting gov't out of our lives.
by Parker on Thu Apr 14, 2005 at 07:42:50 AM EST

What is Up with the BLOG MEN (none / 0)

Chris

I am sorry that you are not "hot and bothered" by this issue but I guess that is because you don't by the pill and men don't need presriptions to by condoms.

I am sure the men would be howling if they had to be interrogated by nuns to buy condoms and viagra.

Then Kos has madwe another derogatory remark about pro-choicers on his front page.

...then you guys have the nerve to contemplate openly why there aren't more women using you blogs... go figure.

Let me just remind the fellas that without women in the Democratic party ...it would no longer exist...  so it is about time that you guys started to get hot and bothered about womens issues...

Young women are staying home on election day because both parties are ignoring their needs.

Besides telling us how to live, think, marry, pray, vote, invest, educate our children and, die, the GOP has done a fine job of getting gov't out of our lives.
by Parker on Thu Apr 14, 2005 at 01:11:49 PM EST

Re: What is Up with the BLOG MEN (none / 0)

oops ...never mind I read it as not hot and bothered
Besides telling us how to live, think, marry, pray, vote, invest, educate our children and, die, the GOP has done a fine job of getting gov't out of our lives.
by Parker on Thu Apr 14, 2005 at 01:13:33 PM EST
[ Parent ]

Sure ... but... (none / 0)

Yeah.. .that's it. Anybody who doesn't agree with your take on the bill is against women. John Kerry is against women.

What I am saying is that the claims you are making about what this bill will allow are overblown to the point of being ridiculous.

I don't want women to need to put up with crap from a pharmacist either. But this isn't the "Let pharmacists give women crap bill". It allows people to keep their jobs who have a host of religious problems when they do work. If what Kerry said in his editorial the other day is true, there would need to be another pharmacist on duty to service anyone wanting birth control pills. Yeah, maybe a pharmacist will end up being snotty but the pills will be available or (according to Kerry) the pharmacist would be in violation of the law.

Do I like this? No. But should the government use its power to make sure that every pharmacist in America must dispense birth control pills? To me, that's an open question. Isn't that something we should be able to debate without turning to charges of sexism to try to beat the other side?

Whether it truly opens the door to the hypotheticals you've been putting out is highly questionable. Women dying on the operating table because of this bill? Give me a break. Policemen getting away with dereliction of duty? That's not in the bill that I can see.

There may be good reasons to oppose this bill but they are getting lost in all the hyperbole put out by its opponents.

Frankly, I don't get where the argument about separation of church and state is coming from. The separation of church and state is one of my biggest concerns with the direction of America. You'll find me arguing against Roy Moore til I'm blue in the face but I just can't see where the "state" is establishing religion in this bill. I don't see it as promoting an establishment of religion at all.

Pro-choice? I'm there. That's why I don't want to see the Democrats turn to Bob Casey in Pennsylvania. But turning this workplace religious freedom bill into a battleground over women's rights just doesn't seem justified to me. Certainly, accusing supporters of the bill of prima facie sexism is also unwarranted.

Personally, I have concerns with the bill but the arguments I've seen put out against it rely more on emotional appeals than they do on reason and careful analysis.

by Curt Matlock on Thu Apr 14, 2005 at 02:23:47 PM EST
[ Parent ]

Re: Sure ... but... (none / 0)

Michigan just past a bill that allows DOCTORS to not treat gays... what is your problem... this bill stinks to high heavens... KERRY IS DEAD WRONG ON THIS

all you have to do is look who else signed ...Coburn for heavens sakes aka Dr. Mengele who perforn=med sterilizations on poor women in Oklahoma WITHOUT their consent.

Besides telling us how to live, think, marry, pray, vote, invest, educate our children and, die, the GOP has done a fine job of getting gov't out of our lives.
by Parker on Thu Apr 14, 2005 at 05:36:07 PM EST
[ Parent ]

Wolves and Sheep (none / 0)

My problem? I have an aversion to crying wolf until I see a wolf. At the moment I can't tell if this bill is a wolf or a sheepdog. But I'm hearing alot of noise about how tigers are dangerous.
by Curt Matlock on Thu Apr 14, 2005 at 05:42:11 PM EST
[ Parent ]

Re: Wolves and Sheep (none / 0)

If WRFA passes, employers may have great difficulty defining the "identifiable costs" of allowing employees to proselytize or harass other coworkers or third parties, such as customers or patients. The harmful effect of a particular accommodation on another person might be difficult to express in specifics such as loss of productivity or financial losses relative to the size of the employer. { . .

The major fear I have after working for years in an overwhelming protestant evangelical  environment is that this law change will sanction the evangelizing at all times at work against all other workers and clients.  I believe when these evangelical characters are in the majority, if this behavior at work becomes sanctioned, their behavior will drive others either into a shell, crazy, or away from that employment.  That is unfair.  Even when in the minority, the true believers can drive lots of other folks nuts with their incessant insecurities.  

This is the type of behavior in the workplace which will lead to violence at worse and loss of productivity at best and for what?  When it comes to work and religion, my motto is do leave home without it!  I hate to see this huge step backwards in our country!

by NG on Thu Apr 14, 2005 at 07:59:10 PM EST
[ Parent ]

The debate is (none / 0)

whether this bill would actually sanction such conduct. I personally don't buy the argument that a business owner wouldn't be able to effectively gauge the financial impact of employee behavior.

Businesses, even small businesses, have all sorts of metrics available to determine worker productivity and similar financial gauges.

They can determine exactly how much money they lose every year from people surfing MyDD instead of working. They can determine whether their customers would respond better to a blue or red background for their promotional literature. They can even do a cost/benefit analysis on providing free Starbucks to workers. I'm supposed to believe that they can't gauge the effects of an employee stumbling around trying to convert everything that moves?

Just seems unlikely to me. You don't even need a firm number -- if you know for sure that this client threatened to drop his contract or that customer left without buying what she came in to buy, you've got an impact on your business.

As far as do leave home without it goes: I'd call that impossible. If your fundamental beliefs fall away as you pass through your front door, they're hardly fundamental beliefs, are they?

Yeah, I'm cynical.
by catastrophile on Thu Apr 14, 2005 at 09:28:06 PM EST
[ Parent ]

Re: The debate is (none / 0)

very Let me put it this way for you! IMO, there is a fine line between mental illness and overwhelming fundamentalist religious beliefs that totally interfer with an ability to function with others.  Get it now?
by NG on Fri Apr 15, 2005 at 10:01:36 AM EST
[ Parent ]

What you say is true, (none / 0)

but I'm not sure how it relates to this bill. If a person's religious beliefs totally interfere with their ability to function with others, than no amount of reasonable accommodation is going to allow them to operate effectively in a work environment. If that's the case, then this bill doesn't protect them.

This bill doesn't exclusively protect bigoted theocrats. If it protects one person's belief that God hates gays, then it also protects my belief that God hates bigots. And it protects the beliefs of a person I met at a pagan ritual not long ago, who insists that God is an authoritarian construct designed to destroy his patron Goddess. The bill would protect all these beliefs in equal measure -- as far as I can tell.

Yeah, I'm cynical.
by catastrophile on Fri Apr 15, 2005 at 02:23:22 PM EST
[ Parent ]

Re: What you say is true, (none / 0)

Well, it gets to the point sooner or later when a padded cell is the only thing that can provide this much protection.  Now that would be a good work environment, no?

This door does not need opening.  The zealots will come out of the wordwork if you give them such an invitation to show their true colors, so why give them the invitation.  Why is this bill needed, or where is the motivation coming from to go down this road at all????  

Looking at the sponsors of the thing, and I am at a total loss what the heck is happening here!  A total loss!

by NG on Fri Apr 15, 2005 at 07:41:32 PM EST
[ Parent ]

Is there an urgent need for this? (none / 0)

Arguably not. I posted this diary in response to what struck me as some very alarmist and overstated claims as to the impact this bill would have. If the bill died or was voted down I wouldn't mourn it, but I have a reflexive distaste for misrepresentation. Primarily, I've been begging people to back up their arguments that this bill would plunge us into practical workplace theocracy, because I don't see it happening.

As to the motivation, there's plenty of reason to expect that one of those Christian zealots you're familiar with, if given the opportunity, might take steps to fire or penalize an employee who didn't share his beliefs. The bill essentially says that the employer can't fire an employee over an issue of religion unless the issue is actually affecting job performance and the employer first tries and fails to reach an reasonable compromise.

I'm inclined to think that this would protect members of religious minorities more than it would defend the excessive behaviors of some crackpot Christian theocrats -- and apparently at least a few Jewish and Muslim organizations agree.

Will some people try to claim that their outrageous behavior is protected? Absolutely. But, as the ACLU points out, such people are already making that claim under existing law. Their big complaint is basically that the courts will have to keep deciding whether outrageous behavior is protected under this bill. I don't see why it would be.

Yeah, I'm cynical.
by catastrophile on Fri Apr 15, 2005 at 09:31:25 PM EST
[ Parent ]

Re: Is there an urgent need for this? (none / 0)

As to the motivation, there's plenty of reason to expect that one of those Christian zealots you're familiar with, if given the opportunity, might take steps to fire or penalize an employee who didn't share his beliefs

Hmmmm, well I guess I can see that from the employer side.  Let me leave this thread with these ending thoughts, however.  

First, employers usually respond in ways that help them make money, and bringing/allowing zealot evangelical ideas into the workplace may hurt the bottom line, but I suppose not in all cases.  

Second, the big thing in my experience with evangelical christians is that they feel they have failed their God(?) if they do not get the other person to see it their way. Therefore, an evangelical christian employer would more likely harass a non-believer employee than fire him.  I doubt this law does much directly to help or prevent such harassment, but just bringing this religious freedom B.S. out in the open for more and more discussion may give a tacit approval for these evangelical harassing actions as OK because they are a basic tenant of that religion!

by NG on Sat Apr 16, 2005 at 11:47:53 AM EST
[ Parent ]

misplaced anxiety (3.00 / 1)

I really don't see what all the uproar is about here, and this is coming from an atheist who is very uncomfortable with the current level of separation between church and state in this country.  If we're going to criticize this bill, we need to figure out first how it will work in practice.

In my mind, what will likely happen is that employers will tell potential employees what their job duties will be, including any duties that the employer perceives is of a sensitive nature to people of some faiths.  The employer will ask up front, either at the hiring stage or immediately thereafter, if the employee is uncomfortable with performing some of these duties.  If so, and the employer does not feel that the duty is an essential function (or doesn't want to hash it out in court), somebody else will be called upon to do that duty.  If the employee doesn't speak up, later refuses to perform a duty, and is punished as a result, the company may have a defense that the employee's assertion of religious objection was not sincere (particularly if they had performed similar duties in the past).  Some of the posters here seem to be equating an employee's refusal to perform a certain function with the employer's total refusal to perform that function (i.e., a police officer's request to protect an abortion clinic - the police department can assign somebody else to do it and the clinic will still be protected).  The only thing that the bill really does is make employers have a greater gatekeeper role over their employees and possibly require the hiring of additional employees to perform work the religious dissenters object to.  I don't read the bill as authorizing employees to refuse to perform their duties with impunity, then after the fact claim that it was because of their religion.

As the diary also noted, the text of this bill is fairly open ended and many of the supposed horribles that would arise from this bill could be addressed by the courts through interpretation of the essential functions test.  While none of us know exactly how that clause would be interpreted by a given court, there are strong arguments that most if not all of the listed ACLU cases involve essential functions, and punishment was therefore justified.  

This bill makes it harder for an employer to fire individuals who object to certain job duties, but it doesn't necessarily reduce the services that the employer performs.  In fact, perhaps someone harmed by the employer's failure to provide an essential service because of such an objector could sue the employer for a lack of diligence in discovering the source of contention (and maybe an employer SHOULD be held liable for its failure to find out if its employees are religious whackos).  The bill does not speak to when an employee must notify the employer that a job duty is objectionable, and so I would argue that terminating an employee for his/her sudden objection to a reasonably foreseeable job duty, and/or one which the employee had performed in the past (such as inducing emergency labor), may still be possible after its passage.

by rfahey22 on Thu Apr 14, 2005 at 02:33:57 PM EST

I think we're missing a distinction here (3.00 / 1)

This is an amendment to the Unlawful Employment Act. The Unlawful Employment Act generally prohibits discrimination by employers based on characteristics of employees.

Three problems:

  1. This bill provides protection to employees for their conduct. It actually permits and protects discriminatory conduct, based on unstated religious views. That is a very broad brush. I don't think we have a clue in how many different situations individuals will decide to exercise their "conscience without consequence" rights under this bill.

  2. I believe all of the penalties for non-compliance under the Unlawful Employment Act apply to employers. What is the penalty if a pharamcist or any other employee violates this law? I haven't seen anything about the consequences an employee faces if he or she violates the procedural safeguards built into this amendment.

  3. I could be wrong, but it seems like the penalties would be against the employer for failing to make the proper staffing and scheduling improvements that would allow an employee to exercise their "right" to discriminate based on their religious prejudices.

The fundamental problem is that this is still a conscience without consequence bill, that protects an unlimited "right" of religious discrimination. I believe a similar battle has played out in the area of housing. A person's religious beliefs do not allow them to discriminate against another citizen, in the area of renting or selling housing, based on that persons religious prejudices against blacks, inter-racial couples or gays.

I see all kinds of problems with this bill. It doesn't seem to fit into the overall framework of the Unlawful Emplyoment Act.

by Gary Boatwright on Thu Apr 14, 2005 at 03:10:44 PM EST

Re: I think we're missing a distinction here (3.00 / 1)

If you can tell me where in the language of this bill it states that an employee can suddenly refuse to perform a duty that they have agreed to peform, and then either during or after the fact claim that this was due to religion and suffer no adverse employment consequences as a result, please let me know.  Don't you think a much more logical reading of this bill is that the employee has to declare any possible objections to a certain job duty before the employee is called upon to perform that duty?  I really think you're conflating two issues: the right to object to the performance of certain job functions generally and to have the employer accomodate these wishes, and the sudden refusal to perform job functions that one has previously agreed to.  This bill doesn't protect cases that fall in the latter category, in my opinion.  Whackos that didn't follow through on their assigned duties without first requesting an accommodation could rightly be punished for not bringing their objections to their employers' attention in a timely manner.  At least, I don't read the bill as prohibiting that.

I don't entirely understand your question about the penalties for pharmacists.  The bill is aimed at employment practices, and so non-management employees are not really subject to it.  If you're asking whether someone can't perform an essential function of the job because of religious reasons, then of course that person can still be legally fired or otherwise disciplined.  I don't know what would happen on their pharmacist license status; that may differ from state to state.  

As far as housing is concerned, I'm sad to say that you are at least partially mistaken.  The federal Fair Housing Act, which bars discrimination in housing, only applies to complexes that have more than 5 rooms to rent (I believe).  States such as Massachusetts additionally have found that religious rights under the state constitution permit landlords to discriminate on the basis of religion (though they would still have to comply with the FHA if they met the statutory requirements).

by rfahey22 on Thu Apr 14, 2005 at 03:36:54 PM EST
[ Parent ]

Re: I think we're missing a distinction here (3.00 / 1)

I thought my post was very clear. If there are no penalties for an employee who discriminate against a customer, then discrimination based on religious prejudice is protected. I don't have to point out where the bill specifically states that. The general rule is that whatever is not prohibited, is permitted.

If there are no penalties for an employee who discriminates based on their religious prejudice, then such discrimination is permitted. I believe the only sanctions in the entire bill are against the employer. If the employee states they are exercising their religious rights under this bill, the employer is not allowed to fire them.

The onus is on the employer to make arrangements to protect their customers. I'm not sure, but this could mean that pharmacies and a lot of other businesses, will have to provide double coverage if one of their employees refuses to dispense certain medication, based on their religious prejudice.

in my opinion.  Whackos that didn't follow through on their assigned duties without first requesting an accommodation could rightly be punished for not bringing their objections to their employers' attention in a timely manner.

That's an interesting opinion, but I don't think that is what the legislation provides. The entire focus of the bill is protecting the right of individuals to discriminate based on their religious prejudice.

The bill is aimed at employment practices, and so non-management employees are not really subject to it.  If you're asking whether someone can't perform an essential function of the job because of religious reasons, then of course that person can still be legally fired or otherwise disciplined.

How an "essential function" is defined is vague. I think you are mis-reading the legislation.

I didn't specifically mention the Fair Housing Act. I said "in the area of housing." I am most familiar with California laws. I haven't looked into it in a couple of years, but I believe California has very stringent laws in this area. Other states probably have more robust protection for minorities against housing discrimination than the federal statute.

What I was suggesting with my comment, was that this law may very well over rule other statutes and judicial decisions. I don't know that for a fact. I merely suspect that is the case. I am not aware of any other law that permits discrimination against an individual based on someone's religious prejudice.

A large number of courts could very well decide that this amendment clearly expresses the intent of Congress to protect a person's right to discriminate based on their religious prejudice. I'm just guessing, but I don't think that can be ruled out.

by Gary Boatwright on Thu Apr 14, 2005 at 04:11:26 PM EST
[ Parent ]

Re: I think we're missing a distinction here (none / 0)

I think you're missing my point, which is that the statute does not speak to the situation in which an employee 1) tells an employer that s/he will perform a specified duty, and 2) then decides not to perform that duty allegedly due to a religious objection, without first alerting the employer to said objection.  Therefore, an employer can still fire the employees for their insubordination.  You are trying to turn the bill's silence into a prohibition on the part of employers to fire insubordinate employees.  Whatever is not prohibited is permitted, as you so aptly note.  

Contrary to your assertion that this bill gives employees free reign to discriminate, I would argue that it actually protects customers while allowing people with religious objections to remain employed to the extent that they remain employable.  To get protection under this bill, an employee would have to come to the employer and tell the employer that one of the employee's duties might require the employee to discriminate on religious grounds.  To prevent such discrimination, the employer will then presumably give the objectionable duty to someone else.  The end result of this process is that fewer customers will be discriminated against, which I think we would all agree is a good thing. Since these employees would be removed from positions in which they could exercise their discriminatory beliefs, I fail to see how the bill would encourage discrimination.

I'm not sure of the economic impact of this bill, though it's possible that you're right on that score.  In places where there are many religious objectors, someone who owns a pharmacy might have a problem staffing the store with people who didn't object to selling birth control.  However, that presumably would be true with or without this bill - while some potential employees would conform their conduct to the employers' wishes, I imagine that true believers would object regardless of whether or not they would be fired for it (God's law is higher than man's).  So, I don't know how much this bill would compound an already existing problem.  I assume that such questions would come up during the job hire process, and that employers would generally choose people that didn't object to such medications, assuming all other qualifications were equal.

, I would argue that the bill protects potentially bigoted/hateful individuals' ability to retain positions  

Obviously,

by rfahey22 on Thu Apr 14, 2005 at 07:14:13 PM EST
[ Parent ]

Re: I think we're missing a distinction here (none / 0)

disregard the last few sentences there - I didn't notice that I hadn't deleted them before posting.
by rfahey22 on Thu Apr 14, 2005 at 07:26:47 PM EST
[ Parent ]

Re: I think we're missing a distinction here (3.00 / 1)

I'm not speaking to your concern, because it is irrelevant. You are missing a major point that Curt raised upthread:

"The concern here is that employers would have serious difficulty resolving instances where an employee posts a sign reading 'God hates fags' in his office or cubicle; where workers proselytize on the 'sins of the homosexual lifestyle' over lunch and on breaks; where a social worker proffers a religious objection to being the case manager or counselor for a youth who is gay or transgender; or where a truck driver on 24 hour driving shift who gives a religious reason for refusing to drive with an co-driver who is gay, lesbian, bisexual or transgender," wrote HRC's Smith and Christopher Labonte, legislative director.

The letter continued, "WRFA would arguably allow health care professionals to refuse to provide basic health care services to a gay or transgender patient."

I don't know what the effect of the bill would be if a specific employee were given a specific order and the employee refused on religious grounds. It looks to me like the employee would be on solid ground and the employer would have to suck it up and hire an additional employee.

The customer would be screwed, because they would have no remedy. In most cases, it would not be worth their effort to sue a business because they could not purchase medication or fill a prescription.

You can argue that this bill protects customers, but you would be wrong. There is nothing in the bill that provides protection for customers. Nothing.

Your conclusion was accurate and that is why I find the bill objectionable:

I would argue that the bill protects potentially bigoted/hateful individuals' ability to retain positions.

We agree on that.

by Gary Boatwright on Thu Apr 14, 2005 at 07:37:14 PM EST
[ Parent ]

Re: I think we're missing a distinction here (none / 0)

First of all, as I read the bill, an employer would be required to make accommodations to the extent that a person's religious viewpoint conflicted with on-the-job duties.  The bill does not say that an employer has to accommodate a person's beliefs even if they do not conflict with job duties, so I don't see where you're getting the idea that an employer would have to accommodate discriminatory epithets or proselytization over the lunch break, since I doubt such actions would be job-related and, in any event, since productivity is an actual element within the statute, I feel like an employer who fired an employee who was actively antagonistic to other employees would have a pretty strong case.  But, feel free to explain your straw men if you wish.

To the extent that there are actual job-related duties that conflict with the religious beliefs of the hateful/ignorant crowd, the employer has a couple of options.  The first and best option would be for the employer to probe potential employees about their beliefs up front.  That way, the potential employee, if hired, will be removed from a position in which s/he can espouse discriminatory beliefs.  The employer may also make a good faith effort to resolve the conflict, then fire the person.  The employer may determine that the duty is an essential function, and fire the person.  Or, the employer can find someone else to do the job and make the bigot do something else.  

None of these cases involve screwing the customer, though, provided that the duties are known by employer and employee during the hire process.  I mean, pharmacists generally know that they may be called upon to fill an order for birth control medication, this isn't some wildly fluid profession we're talking about here.  Therefore, an employer can ask potential employees whether or not they would be comfortable doing that.  If they say yes, and then the boss later finds out that the employee engaged in discrimination, that employee can be fired for being a liar.  Nothing in this bill prevents an employer from firing an insubordinate employee.  Even in cases where job duties are more fluid and an employee objects to a duty on the spot, the employer is still only required to make a good faith effort at resolving the conflict, and then may fire the employee if it doesn't work out.  What this statute really requires is for employers to thoroughly discuss job duties with potential employees, so that they aren't screwed by a lot of pissed off customers when one of the employees goes crazy Christian on them.  So long as the hiring managers are somewhat intelligent, I don't see where the problem lies.    

by rfahey22 on Thu Apr 14, 2005 at 08:22:18 PM EST
[ Parent ]

Prospective Employees (none / 0)

You've latched onto an important point that seems to have been thought of in this bill. Notice the italicized portions of this snip:

Below is the text of 42 USC 2000e (j) as it would be modified by S.677 (language which the bill would add is in bold, while language which the bill would delete is italicized):

(j)   (1) The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable, after initiating and engaging in an affirmative and bona fide effort, to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.

They took out "or prospective employee's" from the bill which has the effect of allowing pre-employment screening.

by Curt Matlock on Thu Apr 14, 2005 at 08:34:40 PM EST
[ Parent ]

Re: Prospective Employees (none / 0)

That's a good point, though I guess I interpret the deletion of the "prospective employee" language as the deletion of surplusage, since prospective employees are defined as "employees" for purposes of the bill, and so I feel like deletion of that language would really have no effect.  From various experiences, though, I understand that it is very difficult for a person who applies for a job, as opposed to someone who has a job, to establish discrimination in hiring.  So, I don't believe that whatever the bill actually purports to do would prevent employers from actually discriminating against such religious objectors, provided that they could base their refusal to hire on some other reason.  

What would solve a lot of the issues that many on this board have brought up is if professional licenses were granted on pain of non-discrimination.  That way, it would seem pretty likely that discrimination would violate an essential function of most businessses dealing with emergency health care issues, since employees who did discriminate would lose their licenses and the employer would not be able to conduct business.  Unfortunately, some states seem to be moving against that ideal (including my home state of WI, sadly).  I don't feel that the bill we've been discussing has that much independent force - it will neither prohibit discrimination that employers currently fail to curb, nor really promote discrimination.  It really doesn't change the status quo that much in my opinion, and that's the reason it doesn't piss me off as much as some people here.  To eliminate the threat that we all recognize - the threat of fundies dictating our lifestyles to us - we will either have to stop the current movements in the states or require the federal government to regulate licensing.

by rfahey22 on Fri Apr 15, 2005 at 12:56:01 AM EST
[ Parent ]

Re: I think we're missing a distinction here (none / 0)

We discussed the problem very thoroughly in the Walmart discriminates against women diary. I see nothing in this bill that prevents pharmacists from refusing to sell legal medication to women.

The employer will have the burden of trying to accommodate the religous prejudice of employees, but there is essentially no protection for customers.

by Gary Boatwright on Thu Apr 14, 2005 at 08:51:02 PM EST
[ Parent ]

Kerry's Own Words (none / 0)

According to John Kerry, consumers of birth control bills will be protected. From a joint letter to the editor of the NY Times (emphasis added mine)

"Moralists at the Pharmacy" (editorial, April 3) addressed "scattered reports" of pharmacists refusing to dispense certain medications that conflict with their personal moral or religious beliefs and women seeking to have these prescriptions filled. We believe that there is a solution that accommodates the needs of both parties.

Recently, we introduced the Workplace Religious Freedom Act, which clarifies current law to say a person's religious beliefs should be recognized and accommodated in the workplace as long as this does not adversely affect the employer's business or customers.

The bill is supported by a diverse coalition of more than 45 religious and civil rights groups as well as a bipartisan group of senators and representatives.

If the bill becomes law, a pharmacist who does not wish to dispense certain medications would not have to do so long as another pharmacist is on duty and would dispense the medications.

The Workplace Religious Freedom Act provides a sensible solution to the potential conflict between an employee's religious conviction and the needs of pharmacy customers.

(Senator) Rick Santorum
(Senator) John Kerry


by Curt Matlock on Thu Apr 14, 2005 at 09:28:02 PM EST
[ Parent ]

Who cares what Kerry says? (none / 0)

Kerry's opinion doesn't mean squat. Show me the enforcement mechanism and the penalty if a pharmacist refuses to sell birth control pills to a customer.

I don't see it.

Let's take Walmart, for example. Walmart is already on record saying they support pharmacists who refuse to fill prescriptions for birth control pills. I don't see anything in this bill that affects that decision. The bill requires employers to accomodate employees who refuse to sell certain products for religious reasons. There is nothing that requires Walmart to acccomodate customers.

Let me repeat that point. The employer must accomodate the employee. If Walmart wants to accomodate the customer then Walmart may schedule two pharamicsts for every shift. If they aren't that worried about a small segment of their market, they can post a sign saying what hours the pharamacist who is willing to sell birth control pills will be on duty. There is no duty to sell contraceptives on all shifts.

I don't see the section in the legislation that requires Walmart to sell birth control pills on every shift, at all hours they are open. Maybe I missed that section.

by Gary Boatwright on Fri Apr 15, 2005 at 01:32:13 AM EST
[ Parent ]

Re: Who cares what Kerry says? (none / 0)

I agree that in the bill in question there's nothing explicit that says anything about pharmacies and there's no explicit protection for customers. That's cause for concern.

I do wonder about whether any protections in the larger Civil Rights Act that this bill amends might apply. It's been my impression that for women, the aged, the handicapped, and for minorities that they are protected against discrimination of this sort. Gays are of course not protected by the act. That's why I believe you see gay rights groups protesting the proposed amendment but less outcry from prominent women's or minority rights groups. That's also why I think many of the hypotheticals put out just don't make sense because they'd run afoul of the larger Civil Rights law even though the amendment under consideration doesn't explicitly protect against them.

That's a point that needs to be stressed. This is an amendment to the long-standing Civil Rights Act of 1964. That larger, more comprehensive bill is the one that protects against discrimination by race, gender, etcetera. The Workplace Religious Freedom Act is intended to spell out new rights of employees to express their religion.

I'd love to hear from someone familiar with protections against discrimination on whether they believe the Civil Rights Act applies and would protect most customers. I don't know the answer myself.

by Curt Matlock on Fri Apr 15, 2005 at 02:04:37 AM EST
[ Parent ]

Re: Who cares what Kerry says? (none / 0)

The Denny's Restaurant discrimination cases come to mind. Denny's was prosecuted for failure to serve black customers based on race. The problem with this amendment is that it legalizes a refusal to provide service. That is my core problem. Under this bill discrimination is OK if it is based on religious prejudice. That's why I started off saying it does not fit in with the rest of the Civil Rights Act:

I see all kinds of problems with this bill. It doesn't seem to fit into the overall framework of the Unlawful Emplyoment Act.

The problem is lack of a reasonable and timely remedy. There is a big difference between refusing to serve food and refusing to fill a medical prescription. The harm to the customer is greater and this bill grants a legislative right to refuse service. I will state categorically that nowhere else in the Civil Rights Act is there a right to refuse retail service to a customer. There is a slight chance that there may be some technical exceptions to the long standing rule that the right to retail service is absolute.

The entire thrust of the Civil Rights Act is that refusal to provide retail service is a fundamental right. This bill turns that standard on its head. This bill will generate massive amounts of lawsuits. In the meantime, until those lawsuits are resolved, a customer will have to sue Walmart to get the right to have a legal prescription filled "last month."

Until somebody proves me wrong, I will continue to insist that this thing is a Civil Rights abomination.

by Gary Boatwright on Fri Apr 15, 2005 at 08:07:13 AM EST
[ Parent ]

Re: Who cares what Kerry says? (2.00 / 0)

You are wasting aour breath...

Cas. only concern is trying to cover up a Kerry public relations castastrophe ... he couldn't give a hoot about this bill... as it obviously shows.

Besides telling us how to live, think, marry, pray, vote, invest, educate our children and, die, the GOP has done a fine job of getting gov't out of our lives.
by Parker on Fri Apr 15, 2005 at 10:56:18 AM EST
[ Parent ]

Really? (none / 0)

"this bill grants a legislative right to refuse service."

I'm not finding that anywhere. The moment an employee starts refusing business against the employer's wishes, they are no longer carrying out the core requirements of an employment position and are not protected by this bill. If Wal*Mart, Denny's, or anyone else choose to allow their employees to refuse service, that has nothing to do with this. This bill speaks to disputes between employers and employees. It doesn't give establishments any new rights, or take away any rights of customers. In fact, I'd call the lawsuits and penalties resulting from an employee's decision to violate the civil rights of a customer a decidedly undue hardship, entitling the employer to 'can their ass.

The problems you're describing already exist, and I don't see how this bill would make it any worse -- especially since lawsuits are brought under EEO after a person has been fired or otherwise penalized. That means that while the lawsuit is being resolved, that person won't be in that position.

If pharmacists currently have the right to refuse service to certain people, that's something that needs to be remedied. As far as refusing to dispense certain products goes, I still don't know how best to handle that, but I don't see anything in this bill that mitigates a customer's civil rights, or binds the employer to significantly change his business practices to cater to the employee's beliefs.

I also don't see the "massive amounts" of lawsuits. The biggest change I see to the code resulting from this bill is the requirement that the employer make an honest attempt at accommodation -- which any honest employer would do anyway -- before saying it's too hard. It doesn't make suits any easier to file, or increase the payout for a court victory.

Also, keep in mind that if this bill does do what you suggest, it does it for everybody, not just extremist  Christian theocrats. That means it would allow Jewish store clerks to refuse to sell Holy Bibles and "Left Behind" books -- blasphemous material. It would protect a Muslim employee's right to tell Christian co-workers and customers that calling Jesus the Son of God is idolatry. Since I believe that we are commanded to be stewards of the Earth, it would allow me to refuse to sell products with nonrecyclable packaging. And on and on and on.

But I don't see any of that in this bill. I sincerely doubt that anybody wants to open that can of worms.

Yeah, I'm cynical.
by catastrophile on Fri Apr 15, 2005 at 03:14:53 PM EST
[ Parent ]

THANK YOU (none / 0)

for your well-reasoned and evenhanded counterpoint.

I read it differently. I don't see the bill as requiring the employer to kowtow to the employee's beliefs or allow destructive conduct; it appears to me that it would:

  • Require an employer to make an honest attempt to accommodate an employee's beliefs before 'canning them, though not necessarily to go to extraordinary lengths in the process;

  • Require that a religious practice must have a negative impact on the employee's ability to perform their duties to be used as a reason for 'canning them;

  • Exclude the wearing of religious garb as an acceptable grounds for 'canning an employee;

  • Prevent an employer from refusing time off for holy days; and

  • Prevent an employer from refusing to grant requested vacation time just because the employee intends to use that time for a faith-related purpose.

Now, in any Equal Opportunity religion case, I believe it would have to be established that (a) there is an actual legitimate religious principle at issue, and (b) that principle is the reason for the person was fired or not hired. Even once that's established, the employer can get off the hook by showing that they tried to work the problem out, but the required measures were or would have been too costly or disruptive to work. Every one of the cases the ACLU cites seems to me to fit into that defense, and I'd love to meet a judge that would say otherwise

As to penalties, here's what I've found, in 42 USC 2000e-5(g)(1):

If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate.

I imagine the only penalties that would be levied against employees would be for abuse of process, i.e. filing a false claim.

There might be more, but I have to go afk for a little while.

Yeah, I'm cynical.
by catastrophile on Thu Apr 14, 2005 at 04:49:19 PM EST
[ Parent ]

Re: THANK YOU (3.00 / 1)

That penalty only applies to employers. Unless there is something that specifically applies to employees who discriminate based on their religious prejudice, I don't believe this legislation will prevent any employee, in any line of work, from doing anything they want to and claiming religious beliefs.

If the bill does not address this issue, it is seriously flawed. It protects the employee from the employer, but doesn't protect the customers from the employee.

by Gary Boatwright on Thu Apr 14, 2005 at 05:08:09 PM EST
[ Parent ]

Fair enough. (none / 0)

Equal Employment Opportunity restricts the grounds on which an employee can be 'canned or not hired. This bill only amends the EEO sections of the code. It doesn't prescribe penalties for employees who violate the civil rights of others. That's not the purpose of EEO -- presumably, it would fall somewhere under harrassment, "hostile workplace," or other civil rights regulation.

What it does do is clarify the standards for determining what constitutes a reasonable accommodation under EEO. If an individual's personal beliefs are interfering with your ability to do business -- for example, by causing them to refuse to serve certain customers, or chasing customers away by preaching at them -- you still get to 'can their ass. If they want to take their vacation days at a certain time to go on a pilgrimage to Mecca, you don't get to arbitrarily fire them for that reason. If they refuse to sell Harry Potter books and keep sticking the "Left Behind" series in nonfiction, you can let them go; if they have to take their lunch break at a certain time to pray, you're expected to try and work around that.

I wouldn't be averse to adding to the bill, such as requirements that businesses that serve the public do so without respect to . . . well, what exactly? Even in the pharmacies example, it's tough for me to figure out how to make a business behave. Do you require every pharmacy to carry every legal prescription drug? Make the legislation specific to birth control? What about every other industry? If you just say that people can't use their religion to make these decisions, they'll come up with another excuse.

But what the heck, let's give it a shot. We've got plenty of bright minds here. We (more accurately, some of you others) manage to get legislators' attention once in a while. Let's hash out what the legislation should say and start pushing for it.

I just can't see opposing this bill for what it doesn't do. Do we oppose the fire code because it doesn't prevent child pornography? (All right, silly example, but you get my point.)

Yeah, I'm cynical.
by catastrophile on Thu Apr 14, 2005 at 06:17:54 PM EST
[ Parent ]

Re: Fair enough. (none / 0)

I think the ACLU's version is probably the way to go. I think people are reading things into the bill that aren't there. For example:

If an individual's personal beliefs are interfering with your ability to do business -- for example, by causing them to refuse to serve certain customers, or chasing customers away by preaching at them -- you still get to 'can their ass.

That may have been the case before this legislation. If this thing passes, it looks to me like employees can absolutely refuse to serve certain customers. Chasing them away might be questionable, but refusing to sell any number of medications or products appears to be permissible.

I think this bill just might give landlords permission to refuse to rent to gay couples or bi-racial couples. That is not the law now, but this law could very easily be interpreted as the intent of Congress on all kinds of issues that relate of "conscientious objection" based on religious beliefs.

If there is a limitation on how far this bill can be stretched, it is somewhere besides the body of this bill.

by Gary Boatwright on Thu Apr 14, 2005 at 07:41:57 PM EST
[ Parent ]

"the term 'undue hardship' (none / 0)

means an accommodation requiring significant difficulty or expense."

Wouldn't you think that hiring a second person where one should be sufficient, or having to turn away (or risk losing) paying customers, qualifies as 'undue hardship' relieving an employer of his duty to respect the strictures of the employee's faith? That's what I'm reading into this bill.

If, let's say, you're the sole clerk at a liquor store, but you absolutely refuse to sell condoms, you are by definition not qualified to work in the store -- because the job of the clerk is to handle all customers who come in, not just people who want to buy twinkies, booze, or cigarettes. On the other hand, if you work in a drugstore where there are always at least two or three people on duty, asking to have somebody else handle birth control products whenever possible isn't necessarily grounds to 'can your ass. That's what I would call reasonable accommodation.

If you feel an irresistable calling to tell people who are buying condoms that they're going to Hell, shifting you from customer service to inventory or something might be appropriate, but I don't see how this bill can be construed as giving an employee the right to walk around pissing people off all day, hurting the employer's business without repercussions.

The line between reasonable and unreasonable behavior can never be completely charted, only approximated. That's why we have judges, to determine who's on which side of the line in a given dispute.

Yeah, I'm cynical.
by catastrophile on Thu Apr 14, 2005 at 08:24:41 PM EST
[ Parent ]

Re: THANK YOU (none / 0)

The employer would protect the customer by removing the objectionable duty from the employee's tasks and giving it to another employee that didn't object.  Employees aren't empowered by this bill to do "anything they want to"; they are allowed to perform other tasks than those that they object to without retaliatory termination.  Regardless of whether or not religious objectors should be protected in this way, the customers will not be harmed.
by rfahey22 on Thu Apr 14, 2005 at 07:20:47 PM EST
[ Parent ]

BTW . . . (none / 0)

Thanks, Chris, for promoting this diary . . . against your better judgement?
Yeah, I'm cynical.
by catastrophile on Thu Apr 14, 2005 at 04:55:39 PM EST

I am very interested in this (none / 0)

I am very interested in this
尖锐湿疣 性病 尖锐湿疣 咪喹莫特 明欣利迪 疣迪 尖锐湿疣 咪喹莫特 咪喹莫特 疣迪 明欣利迪 疣迪 艾达乐 咪喹莫特 尖锐湿疣 尖锐湿疣 尖锐湿疣 尖锐湿疣
by hpvv on Tue Dec 20, 2005 at 03:02:40 AM EST

"Undue Hardship" (none / 0)

I'm way late to this party but, meh...

The Supreme Court has defined "undue hardship" as anything that would cause the employer to incur more than a "de minimis" cost. (See TWA v. Hardison from 1977, I think, or Ansonia v. Board of Education from '89). That cost has been defined as including loss of employee morale, loss of money, or a diminution in customer care. The new language would explicitly change that definition to a much higher threshold. and keep in mind that this works prior to hiring as well as for firing. So it wouldn't be enough for a pharmacy owner to say "we sell the morning after pill, if you can't fill those prescriptions, then you can't work here."  


by Jilliker on Wed Mar 01, 2006 at 01:10:24 PM EST


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