This is a response to a diary posted earlier regarding a
New York Times article that included this statement:
Senator John Kerry, Democrat of Massachusetts, and Senator Rick Santorum, Republican of Pennsylvania, have introduced the Workplace Religious Freedom Act, which would allow a pharmacist to refuse to dispense certain drugs as long as another pharmacist on duty would.
I have two problems with this statement from the Times --
(1) it does not appear to be true, and
(2) it is completely misleading about the actual bill.
More after the jump.
After reading the article, and comments in
this diary, I was all set to angrily delist myself from Kerry's email distribution list. But then I read the actual bill. (If you want to do the same, go to gpoaccess.gov, Congressional Bills and search on 'Workplace Religious Freedom Act'; it is bill S. 677).
The bill does not mention pharmacists at all. The statement from the Times states as a fact that it would allow pharmacists to refuse to fill prescriptions, but that is not at all clear from the actual text.
The key language of the bill is the phrase "religious observance or practice". Although the act opens the door to litigation about the precise meaning of this phrase, it likely would not cover refusal to perform an act on "moral" grounds. Instead, it would cover such things such as daily prayers of Muslims (a religious observance) and the wearing of yarmulkes by Jewish men (a clear religious practice). Refusing to engage in an act on "moral" grounds may stem from certain religious beliefs, but this is most likely way too broad to be considered a religious practice or religious observance in the way the bill contemplates.
Below, I edited the text of the current statute according to the instructtions in the bill. This is what the bill proposes.
1) Change this current definition of religion in the 1964 Civil Rights Act from this:
42 USC 2000e(j) The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.
To this:
42 USC 2000e(j)
(1) The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable, after initiating and engaging in an affirmative and bona fide effort, to reasonably accommodate to an employee's religious observance or practice without undue hardship on the conduct of the employer's business.
(2)(A) In this subsection, the term `employee' includes an employee (as defined in subsection (f)), or a prospective employee, who, with or without reasonable accommodation, is qualified to perform the essential functions of the employment position that such individual holds or desires.
(B) In this paragraph, the term `perform the essential functions' includes carrying out the core requirements of an employment position and does not include carrying out practices relating to clothing, practices relating to taking time off, or other practices that may have a temporary or tangential impact on the ability to perform job functions, if any of the practices described in this subparagraph restrict the ability to wear religious clothing, to take time off for a holy day, or to participate in a religious observance or practice.
(3) In this subsection, the term `undue hardship' means an accommodation requiring significant difficulty or expense. For purposes of determining whether an accommodation requires significant difficulty or expense, factors to be considered in making the determination shall include--
(A) the identifiable cost of the accommodation, including the costs of loss of productivity and of retraining or hiring employees or transferring employees from 1 facility to another;
(B) the overall financial resources and size of the employer involved, relative to the number of its employees; and
(C) for an employer with multiple facilities, the geographic separateness or administrative or fiscal relationship of the facilities.
2) The bill also adds the following to the section on Unlawful Employment Practices) (42 U.S.C.
2000e-2):
42 USC 2000e-2(o)
(1) In this subsection:
(A) The term `employee' has the meaning given the term in section 701(j)(2).
(B) The term `leave of general usage' means leave provided under the policy or program of an employer, under which--
(i) an employee may take leave by adjusting or altering the work schedule or assignment of the employee according to criteria determined by the employer; and
(ii) the employee may determine the purpose for which the leave is to be utilized.
(2) For purposes of determining whether an employer has committed an unlawful employment practice under this title by failing to provide a reasonable accommodation to the religious observance or practice of an employee, for an accommodation to be considered to be reasonable, the accommodation shall remove the conflict between employment requirements and the religious observance or practice of the employee.
(3) An employer shall be considered to commit such a practice by failing to provide such a reasonable accommodation for an employee if the employer refuses to permit the employee to utilize leave of general usage to remove such a conflict solely because the leave will be used to accommodate the religious observance or practice of the employee.
So in my opinion the NY Times has made an ass of itself by summarizing the bill the way they did. Now Santorum may be convinced that the bill would allow pharmacists to refuse to fill prescriptions...but OTOH he is a moron.
In the spirit of full disclosure, here is what the man said on record when introducing the bill this session:
By Mr. SANTORUM (for himself, Mr. Kerry, Mr. Ensign, Mr.
Lieberman, Mr. Brownback, Mrs. Clinton, Mr. Smith, Mr. Schumer,
Mr. Talent, Mr. Corzine, Mr. Coburn, and Mr. Hatch):
S. 677. A bill to amend title VII of the Civil Rights Act of 1964 to establish provisions with respect to religious accommodation in employment, and for other purposes; to the Committee on Health, Education, Labor, and Pensions.
Mr. SANTORUM. Mr. President, I rise today to introduce the Workplace Religious Freedom Act. I am pleased to be joined in this effort by Senator Kerry and appreciate the work he has done on this bill over the years. I am also pleased to have a number of Senators, both Democrats and Republicans, liberals and conservatives, join me in cosponsoring this important legislation.
The bill we introduce today is intended to ensure that employees are not forced to choose between their religious beliefs and practices and keeping their jobs. It recognizes that an individual's faith impacts every part of their life, including the many hours spent in the workplace. America is distinguished internationally as a land of religious freedom, and it should be a place where people are not forced to choose between keeping their faith and keeping their job. This simple proposition is why we are re-introducing the Workplace Religious Freedom Act (WRFA), which provides a balanced approach to reconciling the needs of people of faith in the workplace with those of employers.
Title VII of the Civil Rights Act of 1964 was meant to address conflicts between religion and work. It requires employers to reasonably accommodate the religious needs of their employees so long as it does not impose an undue hardship on the employer. The problem is that our federal courts have essentially ruled that any hardship is an undue hardship and have thus left religiously observant workers with little or no legal protection. WRFA will re-establish the principle that employers must reasonably accommodate the religious needs of employees. This legislation is carefully crafted and strikes an appropriate balance, respecting religious accommodation while ensuring that an undue burden is not forced upon employers. WRFA is also careful to ensure that the accommodation of an individual employee's religious conscience will not adversely affect the delivery of products or services to an employer's customers or clients.
The balance that this legislation seeks to establish is evident in the broad spectrum of groups supporting this bill, including the Union of Orthodox Jewish Congregations, the Southern Baptist Convention, the National Council of Churches, the North American Council for Muslim Women, the Sikh Resource Taskforce, the Seventh Day Adventist Church, the American Jewish Committee, Agudath Israel of America, the U.S. Conference of Catholic Bishops and many others.
America is a great nation because we honor not only the freedom of conscience, but also the freedom to exercise one's religion according to the dictates of that religious conscience. This fundamental freedom is protected and strengthened in this legislation by re-establishing an appropriate balance between the demands of work and the principles of faith.