Last month, the Supreme Court upheld a 2000 federal law that requires prisons to make exceptions to rules that conflict with the religious practices of inmates. The litigants in Cutter v. Wilkinson read like a Quentin Tarantino remake of the old joke about a priest, a reverend, and a rabbi: Their religious affiliations include Wicca, whose followers are known as witches; Asatru, a religion based on ancient Norse theology; the Christian Identity Church, whose teachings include white racial supremacy and the belief that Jews are the children of Lucifer; and Satanism, whose name about says it all. They won by arguing that the 2000 law doesn’t offend the First Amendment’s separation of church and state.
The law at issue in Cutter applies in only two areas: land-use regulation and prisons. But the political momentum in favor of expanded religious accommodation has broader implications. For the last 15 years, there has been a periodic tug of war between Congress and the courts over the definition of religious freedom. Now the battle over religious accommodation is moving to the sphere of private employment. The Workplace Religious Freedom Act of 2005, introduced in the Senate this spring, has an odd constellation of supporters and opponents. Its sponsors include Pennsylvania Sen. Richard Santorum, a religious conservative, and Massachusetts liberal John Kerry. In what must be a sign of the end of days, Hillary Clinton has found common cause with Orrin Hatch in support of WRFA. On the other side, civil rights activists, including the ACLU and the National Women’s Law Center, have joined with businesses in opposition.
Employment discrimination on the basis of religion has violated federal law for 30 years. But reasonable people can and do differ as to what qualifies as discrimination. The easiest cases are intentional. Most employers, however, aren’t dumb enough to announce their illegal intentions (“Let’s forbid head coverings so we can get rid of all the Sikhs and Muslims”), so it can be hard to prove intentional discrimination. Instead, many cases involve rules that don’t target religion but incidentally penalize religious practice. A dress code that forbids headwear screens out the Sikh’s turban and the Muslim’s headscarf, along with the cowboy’s Stetson and the beatnik’s beret. A requirement that employees work on Saturdays cuts into the social life of all employees and into the religious life of observant Jews and Seventh Day Adventists. A rule that employees refrain from non-work-related conversations with customers penalizes the chatty and the Evangelical Protestant whose beliefs require her to spread the Gospel.
Supporters of WRFA suggest that such policies should be illegal for the same reason policies that exclude blacks or segregate women are often illegal: They effectively exclude members of a discrete group. But do rules that inadvertently exclude members of a group count as discriminatory? Sometimes. The law forbids policies that have a demonstrable, even if unintentional, disproportionate effect (“disparate impact,” in legal argot) on groups protected by anti-discrimination law. Still, an employer typically only has to worry about this sort of liability if its challenged policy doesn’t have a good, nondiscriminatory rationale. For instance, a requirement that all employees be able to lift 200 pounds would eliminate a disproportionate number of female job applicants. It would flunk miserably as an entry test for the job of law professor (who need carry nothing weightier than her own arguments), but it would be permitted for the job of stevedore.
In addition, the courts have almost uniformly limited employees’ protection against disparate-impact discrimination to characteristics that they cannot easily change. For instance, a dress code that prohibits “unconventional hairstyles,” including dreadlocks, is perfectly legal, even though it may disproportionately affect black employees who would describe dreadlocks as a form of racial expression. Whereas a requirement that a potential employee lift 200 pounds would exclude most women, a dress code doesn’t really exclude anyone. Instead it presents all job applicants with a choice: Change your look or look for a different job. Being asked to sport a conventional haircut is no different, legally speaking, than being asked to show up at the office at 9 a.m. and put in eight hours in front of the computer.
At the same time, existing law recognizes that religious discrimination is different in this regard. Since the very essence of religious affiliation is behavior—not the case with race or sex—the law requires employers to make religious accommodations when the cost of doing so is small. So an employer who could easily rearrange employees’ schedules to give a Seventh Day Adventist her Saturdays off must do so. A worshipper whose faith requires 15-minute devotionals every hour, on the other hand, would be asked to choose between strict observance and her job.
WRFA would replace the current legal standard for religious accommodation with one similar to that applied to the disabled. Employers are required to accommodate disabled employees (by modifying facilities, reassigning jobs, or changing work schedules) unless doing so would cause the employer undue hardship. There are good reasons, however, to distinguish religious observance from disabilities. Religious employees forced to decide whether to honor a religious belief or stay at a job face a difficult choice, to be sure. But people with disabilities have no choice at all. In the absence of a wheelchair or seeing-eye dog, many of them can’t work.
Pious employees will insist that their religious observance is, well, sacred. But religious mandates aren’t always etched in stone, and some religious beliefs are hard to distinguish from more earthly ideological commitments—which, of course, employees must set aside when they conflict with work. And sometimes, religious commitment should have to bend to workplace goals. Employees have rightly been rebuffed in court when they’ve complained that co-ed dormitories conflict with their religious beliefs. However sincere, such claims—often inspired by religious admonishments to avoid temptation—could discourage employers from hiring women. Pharmacists with religious objections to contraception say they should have a right to refuse to fill birth-control prescriptions, and police officers have argued that religious liberty entitles them to refuse to protect abortion clinics. If sufficiently widespread, such refusals could effectively nullify the constitutional right to reproductive freedom. Social workers have argued that counseling gay and lesbian couples offends their religious convictions. Here WRFA could amount to a federal right to discriminate and come into direct conflict with the civil rights laws of some states. In each of these cases, the expansion of religious rights in the workplace that WRFA envisions would require courts to intervene in ideological disputes between employers and employees.
Of course, not all requests for religious accommodation are demands to shrug off unpalatable aspects of a job. Shouldn’t employers allow largely symbolic forms of religious expression, like Sikh turbans, and grant reasonable requests to accommodate religious observances, like an observant Jew’s appeal to work on Sundays rather than Saturdays? Yes, which is why anti-discrimination law already requires employers to do so when the associated cost is relatively small. WFRA would make it easier for employees to demand scheduling changes and dress-code exemptions. But it would also make it easier for them to press the more troubling sorts of claims. And judges trying to separate the spiritual wheat from the ideological chaff would be forced to interpret religious doctrine, an imprudent and probably unconstitutional entanglement of church and state.