A better solution than the Kerry/Santorum Discrimination Act

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.