Working For Freedom

James D. Standish May/June 2002

Working For Freedom

By James D. Standish

The name Eric Liddell may have faded into obscurity, but at the 1924 Paris Olympic Games, Eric's name was on everyone's lips. Eric, a strapping Scotsman with an enormous athletic prowess, had done what few others have. After years of training, and with the Olympic expectations of his country riding on his shoulders, he chose to turn down the opportunity to run in his specialty event, the 100 meters. Even more remarkably, he turned down the opportunity because of his religious faith.

Liddell was, it turned out, not only a serious athlete but also a man of serious faith. And his faith taught that participating in athletics on Sunday was sinful. He therefore would have nothing of running in the 100 meters, which would have required him to run on Sunday in the qualifying heats. Liddell was vilified by some, who saw his choice as a betrayal of his nation and the actions of a fool. Nevertheless, he was firm in his commitment. In an accommodation of Liddell's religious faith he was permitted to enter in the 400 an event he had little expectation of winning.

He ran well in the qualifying heats of the 400 meters, but hopes for his victory faded at the outset of the final. Liddell came out of the blocks at a 100 meters pace, and it appeared clear to those watching that he could not sustain the pace over 400 meters. To everyone's surprise, however, Liddell stayed well ahead his more experienced competitors and flew over the finish line, not only taking the gold but also setting a new world record. Liddell's inspiring story adversity and achievement was eventually told in the film Chariots of Fire, and although his name may have faded, his example continues to burn bright.

There are Eric Liddell's in the American workplace today. They are men and women who desire to work hard, to support their families, their communities, and their nation, and they aim for the very highest levels of performance. But before all of this they put their commitment to follow their faith. Unfortunately, like those who met Liddell's decision with hostility and ridicule, many of today's employers treat these faithful men and women shamefully. Surprisingly, employers can often do this with legal impunity.

The case of Teresa George is a case in point.1 Ms. George is a Roman Catholic who felt convicted that she should not work on Sundays. She communicated this conviction to her employer, Home Depot. Home Depot offered to permit Ms. George to have time off on Sundays to attend Mass, but refused to accommodate her need to spend all of Sunday in rest and spiritual reflection. When Ms. George remained steadfast in her religious conviction, Home Depot refused to explore other options. Rather, she was promptly fired.

Ms. George's case would seem to be an open-and-shut one. After all, civil rights law states employers have a duty to accommodate an employee's religious practices as long as they can "reasonably accommodate" the practice and the accommodation does not cause "undue hardship" on the employer's business.2 In this case, Home Depot had not explored whether Ms. George could swap shifts with other employees, had not offered her an alternative position, had not explored ways in which her shifts could be arranged around her religious beliefs. Rather, they had given her a take-it-or-leave-it offer, an offer that clearly did not permit her the spiritual rest she believed God requires on Sundays. It is a matter of conscience of course, not doctrinal certainty, as others including Seventh-day Adventists, point to Saturday as the scriptural day of rest.

Ms. George's case was heard by the Eastern District of Louisiana and decided on December 6, 2001. Home Depot filed for summary judgment, claiming that they had acted well within their legal rights to fire Ms. George. The court agreed, finding that Home Depot had accommodated Ms. George's religious convictions to the point required by law and that her refusal to accept that "accommodation" eliminated any burden on Home Depot.

In coming to its conclusion, the court stated: "George refused to accept the accommodation offered, refused to consider any accommodation except on her terms and therefore did not make a good faith effort to cooperate in the search for a resolution. Home Depot was not obligated to search for other accommodations that were more favorable to plaintiff. By providing at least one reasonable accommodation [note: the accommodation offered was no accommodation at all, as George would still have had to violate her conscience by work-

ing on Sunday], the defendant discharged its obligation.... Because Home Depot offered George a reasonable accommodation, it need not prove that it could not offer such accommodation without undue hardship."

It may come as a surprise to Americans, who are used to hearing about the wide range of civil rights enjoyed in the workplace, that religious beliefs remain so vulnerable. While civil rights law requires employers to attempt to accommodate their employees' faith,4 the Supreme Court has interpreted this requirement to impose a very low level of responsibility on employers. The Court concluded that employers are merely required to accommodate believers if the cost of doing so is de minimis or minimal.5 In addition, as in the George cases, courts frequently find that as long as an employer offers an accommodation, even if such an accommodation does not resolve the conflict, they have met their legal responsibility.

Some employers have taken advantage of these decisions, refusing to make any real effort to accommodate the sincerely held religious beliefs of their workers even when it is well within their ability. Because of the minimal legal protection rogue employers can engage in such arbitrary actions with impunity. Indeed, lawyers who represent people of faith in the workplace indicate an increasing number of cases in which employers have refused to take even the most basic steps to accommodate the religious faith of their employees. In part this is a natural outgrowth of our drift toward a 24-hour, seven-day economy—an environment in which Americans are spending more of their lives in the workplace—and the increase in religious diversity in America. But this does not appear to explain the increasing caseload adequately. After all, many employers have expended significant resources on building a sensitive workplace in which ethnic, gender, and sexual-preference diversity is respected and accommodated. In addition, in 19% Congress passed the Americans With Disabilities Act to ensure that those with disabilities are accommodated in the workforce. It therefore appears out of keeping with the times to find that the ability to practice one's faith seems to be increasinglv disregarded by employers.

Yet freedom of faith is central to the American experiment. It is the essence of what it means to be free; it is at thef heart of human dignity; and it is this freedom that defines! America as a nation of liberty. That this freedom should br protected as much as is practicable in the workplace flow naturally from our core values. And yet it often is not.

In view of the compelling problems faced by people of faith in the workplace, a diverse coalition of 38 organizations has formed to push for legislative protection. The focus of s coalition is a piece of proposed legislation entitled the "workplace Religious Freedom Act (WRFA). WRFA is designed as an important step in rectifying the current legal imbalance. It has two central provisions. The first requires employers to accommodate employees' religious practices unless such accommodation would require significant difficulty or expense. Second, it states that an accommodation of religious beliefs is not a sufficient accommodation unless it removes the conflict between the religious practice and the work requirements.

It is recognized that there is a point at which the burden of accommodating religious beliefs in the workplace is excessive. There would be no point, for example, to require a company to accommodate the religious beliefs of its workforce if to do so would bankrupt the enterprise and therefore result in all employees losing their jobs. On the other hand, while there are some necessary limitations on religious freedom, these limitations should not be imposed lightly. Requiring employers to take reasonable steps to accommodate the sincerely held religious beliefs of their employees is a small price for freedom. For this reason, WRFA does not mandate religious beliefs always be accommodated by employers. Rather, it requires that employees' religious beliefs must be accommodated only if the employer can do so without incurring significant difficulty or expense. This is similar to the balance struck by the Americans With Disabilities Act.

The second central tenet of WRFA would appear obvious; employers have not accommodated their employees until the conflict between work and faith is resolved. The George case demonstrates, however, that such a clarification the law is necessary.

When the issue of accommodation of people of faith in workplace is raised, it is sometimes suggested that employees who experience problems in the workplace mid simply find a new employer. While many employees doubt do exactly that, sometimes the situations employees face are not that simple.

It is frequently low paid and poorly educated workers who find their employers unwilling to accommodate their religious beliefs. These workers often have skills suited only to industry in which virtually all employers maintain similar practices and thus changing employers provides no relief. In addition, finding a new employer can be exceedingly difficult, particularly in times of recession. Some employees are tied to a specific location where there is a limited pool of employers, thus changing employers is very difficult. In addition, sometimes employees cannot afford the disruption in health-care benefits and similar benefits that frequently accompanies transition between employers.

But even if these exigent circumstances are not present, losing employment is not an insignificant event. Loss of a job can have the most dire impact on a person emotionally, financially, and in their relationships. In recognition of this, our laws have been crafted carefully to protect the disabled, for example, from dismissal without efforts being made to accommodate their needs. It is not too much to ask from a nation founded on the principles of religious freedom for people of faith to be accorded the same respect.

We began this piece by examining Eric Liddell's experience; it is fitting to end with a lesson from his experience. All of Great Britain rejoiced when Liddell won the gold in the 400 meters. And this rejoicing was compounded when a fellow Briton won the gold in the 100 meter. By accommodating Liddell Great Britain got two gold medals instead of only one. Similarly, accommodating employees' religious faith in the workplace is not a zero-sum gain. Rather, accommodating people who take their faith seriously can, and often does, result in keeping star performers in the workforce. Even more important it is a significant sign when a society values what is most important to its citizens, and appropriately protects them. "

WRFA is set to be introduced this legislative session. With a number of influential senators behind it, including Senator John Kerry of Massachusetts, Senator Gordon Smith of Oregon, Senator Barbara Mikulski of Maryland, and Senator Rick Santorum of Pennsylvania, there are high hopes that it will pass. Should it do so, it will be a major step toward adequate legal respect for the balance between the obligations of employers to employees, employees to employers, and employees to their God. And the Eric Liddells of the American workforce will be a step closer to enjoying the respect their fidelity deserves.

James Standish is director of Legislative Affairs for the Seventh-day Adventist Church. He has become a regular contributor to Liberty, as much because of his effective communication of the religious liberty imperative to legislators as because of his writing skill, which is considerable. He writes from Silver Spring, Maryland.
' George v. Home Depot, Inc., 2001 WL 1558315 (E.D.La.). The facts presented in this article are based on the court's opinion.

' 42 US.C.
Article Author: James D. Standish