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EARTHA MELZE
Friday, March 25, 2005
U.S. senators Rick Santorum (R-Pa.) and John Kerry (D-Mass.) have introduced a
bill that would amend the Civil Rights Act of 1964 to require employers to do
more to accommodate religious employees.
Kerry and other supporters — including gay-friendly U.S. Sen. Hillary
Clinton (D-N.Y.), a possible Democratic presidential candidate in 2008 —
have characterized the Workplace Religion Freedom Act as a bill that would protect
people from being penalized for taking time off to observe religious holidays
or from being discriminated against for wearing turbans, headscarves or other
religiously required clothing.
Christopher Labonte, legislative director at the Human Rights Campaign, said
many religious groups support the bill, including organizations such as the
Religious Action Center and the Anti-Defamation League, which have been longtime
allies on gay and lesbian rights issues.
Labonte said that though the bill was apparently created with good intentions,
the way it is written could cause harm to gay people.
HRC outlined its objections about WRFA in a letter March 15 to members of Congress:
“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 a co-driver who
is gay, lesbian, bisexual or transgender.”
HRC also expressed concern that WRFA could allow health care professionals
to refuse to provide basic services for a gay or transgender patient.
“Kerry has made promises that he would try to fix the bill, but his office
has been adamantly unwilling to make changes,” said Christopher Anders,
legislative counsel for the ACLU Washington office.
April Boyd, press secretary for Kerry, said that the former presidential candidate
has a 100-percent approval rating from HRC and would not sponsor legislation
that diminishes the rights of gays.
Officials in Clinton’s office did not return calls from the Blade by
press time.
Anders, at the ACLU, said several groups, including the National Women’s
Law Council, the National Council of Jewish Women and Planned Parenthood, have
held meetings with the Democratic co-sponsors “to try and show them that
there are ways to fix the bill without harming access to civil rights or health
care.”
“They could have added language so WRFA could not be used to override
state or federal civil rights laws or company non-discrimination policies or
block access to health care,” he added. “This has not been done.”
Anders said it is important that the bill be changed because there have been
attempts under current law to use religion to justify workplace discrimination
against gay men and lesbians.
He mentioned cases in which a counselor cited her religion in refusing to counsel
gay employees on their relationship issues; a nurse refused to treat men dying
of AIDS unless she was allowed to proselytize to them; and a man who responded
to a workplace poster celebrating diversity month by posting a homophobic biblical
quote from Leviticus in his office.
“The two main targets of misuse of WFRA are going to be gay men and lesbians
and people seeking reproductive health services, especially emergency contraception,”
Anders said.
He pointed out that six of the eight Democrats who are sponsoring the bill,
which was simultaneously introduced in the House and Senate, are from New York.
That state already has a religious accommodation law and protects people against
discrimination based on sexual orientation. It also protects access to health
care for gay men and lesbians.
“With this bill, people in New York could override these protections,”
Anders said.
He also said that for Democrats who have signed on to WRFA, being supporters
of a religious bill seems to outweigh concern about gay and lesbian issues.
Current federal law prohibits discrimination based on religion. But in cases
where an employee’s religious beliefs conflict with requirements of his
or her job, courts have interpreted “undue hardship” as anything
more than a minimal cost or difficulty for the employer.
The bill would define “undue hardship” for employers as an action
requiring “significant difficulty or expense.” This new standard
of accommodation under the proposed measure would be similar to the standard
under the Americans with Disabilities Act, which employers are required to meet
in accommodating disabled employees.
Civil rights groups contend that conservative organizations such as the American
Center for Law & Justice, the American Families Association and Focus on
the Family are prepared to take advantage of an expanded accommodation requirement
and bring cases to expand religious freedom at the expense of gay and lesbian
employees.
“Title VII of the Civil Rights Act of 1964 is the cornerstone of civil
rights laws, and of all laws it should not be made available to be used as an
anti-civil rights weapon,” said Aaron Schuham, legislative director for
Americans United for Separation of Church & State.
President Bush established the Office of Faith-Based Initiatives several years
ago to end discrimination against religious organizations in federal social
service funding and, earlier this month, the House passed the Workplace Investment
Act, H.R. 27, which would allow federally funded faith-based organizations to
circumvent local and state laws banning discrimination based on sexual orientation.
There is no federal law against discrimination based on sexual orientation.
The Employment Non-Discrimination Act, first introduced in Congress in 1994,
would have added sexual orientation to the list of protected categories in the
1964 Civil Rights Act but it did not pass.
While the ACLU and the Human Rights Campaign have stated that some simple reworking
of the language in WRFA could protect religious practice as well as the civil
rights of gay men and lesbians, the Family Research Council is openly supporting
the bill as a means to protect those who would otherwise lose their jobs for
following religious beliefs and for refusing to distribute contraceptives.
The Traditional Values Coalition is among the groups supporting the measure.
Officials there did not return calls for comment. On its Web site, the Traditional
Values Coalition claims that the Employment Non-Discrimination Act would have
prohibited discrimination against people based on sexual orientation and, therefore,
violated freedom of religion for Christians.
Santorum’s office refused to offer examples of the types of religious
discrimination that prompted him to sponsor the bill, which spokesperson Christine
Shott said has been a long-term interest of his.
She would not comment on whether the bill was designed to protect people who
want to proselytize at work.
Eartha Melzer can be reached at emelzer@washblade.com.
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