Civil Rights, 40 Years On

By Kathryn Joyce

Nationwide, the media today marked the 40th anniversary of the Civil Rights Act, which outlawed discrimination in public places on the basis of race, color, religion or national origin. Earlier this week NPR aired Barbara Bradley Hagerty’s three-part series on religion in the workplace, exploring the increasingly common implementation of “faith-friendly” corporations; the coercive effect felt by some employees who were non-believers or of a different religion than their employers; and the several lawsuits brought by Christian employees who claimed their company’s diversity guidelines infringed on their right to freely practice their religion. Notably absent from both is mention of the proposedTitle VII amendment which binds them to one another, and thereby to the larger, ongoing debate about the proper place of religion in American politics and law.

The bill that links Hagerty’s workplace religion and the Civil Rights Act is S. 893, the “Workplace Religious Freedom Act of 2003” (WRFA)—sponsored in what must be an increasingly-uncomfortable alliance by Senators Rick Santorum (R-PA) and John Kerry (D-MA), among others. (An earlier version of the bill was sponsored by Kerry and Sen. Dan Coats (R-IN) in 1997, and it has been re-introduced every year since, with the support of a range of senators including Orin Hatch (R-UT), Joe Lieberman (D-CT) and Hillary Clinton (D-NY).) The aim of the bill, Roger Clegg wrote last year in Legal Times, is to increase the accommodations related to religious beliefs and practices that employers must make for their employees. These “increased accommodations” would include an employee’s right to wear overtly religious clothing or hairstyles in the workplace, and to take needed time off for religious reasons–provisions which have sparked little controversy. However, the bill also mandates accommodation of “other practices” involved with the employee’s observance of their religion–a vaguely-defined term that, opponents fear, invites abuse.

The bill has been endorsed by an orgy of strange bedfellows, including the Southern Baptist Convention, the Anti-Defamation League, the National Sikh Center, the National Association of Evangelicals, the Church of Scientology International and the American Jewish Committee. It’s opposed by the American Civil Liberties Union, business lobbyists, the Human Rights Campaign (America’s largest gay rights group), Naral-Pro Choice, Americans United for the Separation of Church and State and, in a recent switch, the National Council of Jewish Women. For more than two-and-a-half years, Ori Nir writes in The Forward, the religious coalition supporting the bill and the ACLU worked to negotiate the more controversial parts of the bill–those extending beyond clothing, grooming and time off. But two weeks ago those negotiations ceased, and the ACLU sent a letter to senators warning of the potentially harmful consequences of passing the bill.

“The ACLU’s letter charts out scenarios in which defending the religious rights of workers would violate the civil rights of clients, patients or co-workers,” Nir writes. “All these scenarios are taken from lawsuits brought by employees in the past several years against employers. In one, for example, an anti-abortion police officer who refused to protect an abortion clinic sued his department; another was brought by a state-employed nurse who told an AIDS patient and his partner that God ‘doesn’t like the homosexual lifestyle’ and that they needed to pray for salvation.”

New York State Attorney General Eliot Spitzer also addressed the issue in The Forward, chiding the ACLU for exaggerating the amount of additional litigation or infringement on the rights of others that would result from the amendment. An anti-abortion nurse’s religious beliefs can easily be accommodated, Spitzer offers, if the hospital reschedules all abortion-related activity to occur on a specified day when the nurse wouldn’t have to be there. In such a case, the WRFA “would empower the nurse to find alternative solutions, such as asking her employer to help her find another nurse who would be willing to swap shifts.”

Aside from any judgments on its practicality, Spitzer’s compromise doesn’t seem to address the type of lawsuits actually mentioned by the ACLU and Hagerty, wherein the alleged infringements on religious freedom were intertwined with the pre-existing civil rights of other people. Clegg argues that the WRFA “treats religious observance like a disability, and might better be named the ‘Religious Disabilities Act.’” Indeed, Clegg notes, the WRFA would amend the Civil Rights Act to incorporate the broader definitions of “undue hardship” and “reasonable accommodation” used in the Americans with Disabilities Act.

Among the problems Clegg finds with this expansion: no one chooses to be disabled, while at least on a basic, literal level, there is choice involved with religious observance; it’s easier to “fake” religious responsibility than physical disability; and it’s “easier for the religion-impaired to find accommodating jobs and employers than [at least some] physically or mentally impaired folks.” Most importantly perhaps is what seems to be the crux of the ACLU argument: while it’s possible that accommodating one person’s physical disability will make it more difficult to accommodate another’s, the likelihood of this happening is raised exponentially when the “disability” in question is religion.

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