When some Muslim cab drivers at the Minneapolis airport refused to carry passengers with alcohol, they were testing the very fabric of the First Amendment. While we often think of the First Amendment as freedom of speech, it also includes freedom of religion. But a person's right to express his or her religion, particularly in the workplace, is not absolute.
"Now the state of federal law is that if an employer would have even a minimal inconvenience accommodating an employee's religious needs, the employer does not have to accommodate those religious needs."
Under Title VII of the Civil Rights Act, an employer doesn't have to accommodate a person's religious practice if doing so would cause undue hardship on the business.
A coalition of religious organizations says the courts have watered down the hardship standard so that employees have little chance to express their religion at work. Nathan Diament, Public Policy Director for the Union of Orthodox Jewish Congregations, says the coalition wants Congress to pass the so-called Workplace Religious Freedom Act because it would require more from employers.
"Now the state of federal law is that if an employer would have even a minimal inconvenience in accommodating an employee's religious needs, the employer does not have to accommodate those religious needs. So the Workplace Religious Freedom Act or WRFA is designed to reinstate the original congressional strength of that provision of the Civil Rights Act," says Diament.
Under the act, an employer could avoid accommodating a person's religious practice if doing so would be significantly difficult or expensive. The new standard largely gauges an employer's hardship financially; the cost of lost productivity, retraining or hiring of additional employees, and of accommodating someone's religion in relation to the employer's revenues.
The American Civil Liberties Union and the U.S. Chamber of Commerce oppose the bill because they say it's too broad. Christopher Anders, the ACLU's legislative counsel, says the legislation could cause more harm than it intends to remedy; for example protecting workers who refuse to provide healthcare services.
"If someone wants to refuse to provide a health care service, whether it's refusing to fill a prescription for an emergency contraceptive or take someone to a hospital for an emergency termination of a pregnancy, it would be much easier for the employee to claim that he or she has a religious objection to doing those things," Anders says.
The breadth of the legislation is a concern even for some religious believers who want to carry their religions into the workplace. That's according to Richard Garnett who's a visiting law professor at the University of Chicago and a former law clerk to Chief Justice William Rehnquist. Garnett says there's another concern. He says the bill defines a business' hardship largely in financial costs when workplace culture can also be a loss.
"Somebody says, 'Well look, I want to come to work wearing a shirt that has a statement on it that I think is important for my religion, but is really offending some people,'" Garnett says. "It's not like it's costing the employer money to say, 'Well if your religion says you have to put that message on your shirt, 'God doesn't like divorced people,' it's not going to cost money to accommodate you. It's this other goal for (the) workplace, namely a certain kind of culture."
There've been several other versions of the Workplace Religious Freedom Act that failed to pass Congress. Supporters of the 2007 version say they have a better chance of getting the bill passed this year with a Democratically-controlled Congress.