Why HB 1528 and SB 5446 don’t constitute an attack on religious freedom

On January 29th, a blogger calling himself Republican By Default wrote that these bills, introduced to the Washington State Legislature, are a liberal attack on religious freedom. For those who haven’t heard, the bills (which vary only slightly in their language), would revise the RCW employment discrimination sections thusly:

NEW SECTION. Sec. 2. (1) An employer may not require an employee to attend a meeting, or listen to, or respond to, or participate in, any other communication when a purpose of the requirement is to ensure that employees receive communications relating to political or religious matters or to influence the employee’s beliefs, opinions, or actions about political or religious matters.   

(2) An employer may not take or threaten to take an adverse employment action against an employee because the employee:

(a) Refuses to attend a meeting or listen or otherwise respond to, or participate in, any other communication that the employee reasonably believes violates or would violate this section; (b) Challenges or opposes any practice or action that the employee reasonably believes violates or would violate this section; or (c) Makes a claim, files suit, testifies, assists, or participates in any manner in any investigation, proceeding, or hearing involving any practice or action that the employee reasonably believes violates or would violate this section.

(b) Challenges or opposes any practice or action that the employee reasonably believes violates or would violate this section; or   

(c) Makes a claim, files suit, testifies, assists, or participates in any manner in any investigation, proceeding, or hearing involving any practice or action that the employee reasonably believes violates or would violate this section.

Our conservative friend would have you believe that this is a violation of the free exercise clause of the first amendment. He feels that this unduly “gags” employers who are religious in general, and Christian in particular, by not allowing them to perform a central part of their religious practice, that of evangelizing.  He also argues that this bill is nebulous, and allows for spurious lawsuits by employees who are unhappy for other reasons, which creates a chilling effect for business in general in the State of Washington.

If, however, you actually read the bill, the net effect is much simpler, and akin to many other, well-validated laws which prevent other types of speech within the workplace. Further, there are protections for expressly religious organizations, nonprofits, etc.:

(3) This section does not:

(a) Apply to any requirement related to meetings or any other communications about religious matters by an employer that is a religious organization, corporation, association, educational institution, or society;   

(b) Prohibit any employer from requiring its employees to attend a meeting, listen or otherwise respond to, or participate in, any other communications that are (i) reasonably necessary to the performance of actions by the employees that may be lawfully required; and (ii) related to the normal operation of the employer’s business or enterprise.

The principle behind this bill is simple. If you work for an employer, and that employer forces you to go to meetings in which he, or another person, uses their authority to preach, prostelytize, or attempt to influence the religious or political views of employees, and makes that meeting a condition of employment, or punishes those who refuse to attend, they are committing acts of discrimination. This should be a no-brainer. You can’t hold mandatory meetings at work in which the employer rails against people of other races, or makes statements that would be defined as sexual harassment. By the same token, no employer can hold mandatory meetings and espouse their atheism. It’s very simple.

Further, there is nothing in the bill that disallows voluntary meetings based on religious or political practices, nor does it prevent anyone within the company, bosses included, from evangelizing. There are no penalties for the boss stopping at your cubicle and talking about how much he believes that Dianetics will change your life, or how sacrifices to Quetzalcoatl will stave off the end of the world. You can still have your gathering around the flag at your high school. You are equally free to tell that person that you are not interested in their nonwork related conversation with as much force as office politics will allow. The prohibition is limited to meetings only, and even then only to required meetings.  

There is some ambiguity in the bills, which will require clarification. If the boss calls you into his office and preaches to you, behind closed doors, is that a meeting? I tend to think that it is, but it will fall into the “burden of proof” category that plagues sexual harassment cases. Also, it will be very hard to prove recrimination, as most whistleblowers will tell you. There are many ways for an employer to punish or fire an employee that are easy to enforce, and hard to combat. Washington State is an “at will” state, where employment can be terminated in some cases with no reason given at all.

It’s likely that this law will not affect a large number of businesses. I can name perhaps one place in Olympia, for example, that does business in a way that might bring it under scrutiny. But for those that do, this is as clear-cut as laws that restrict workplace speech, such as hate speech. In my workplace (currently the United States Army) there are regular announcements about chapel services, intonations by chaplains at virtually every official function, and the vast majority of soldiers and civil workers identify as religious, mostly christian. At the PX, there are no books on Judaism, Islam (except as a tool of terrorism) or atheism, but entire racks are set aside for books on christianity.

Having said all this, I have never been punished for refusing to bow my head for a prayer, or for having dogtags that say “Atheist,” or for expressing my atheism to others in my workplace. We’ve had some spirited discussions, but I’ve never been forced into anything. It has happened, however, to other soldiers, and those soldiers have had their complaints dismissed, under the twisted logic that says that an atheist cannot be subject to religious discrimination because, by definition, they do not have a religion and cannot therefore invoke First Amendment protections regarding free expression of religion.

In the United States, despite the alarmist rhetoric trumpeted by conservatives, it is rarely the person of faith who is persecuted. They enjoy a comfortable majority, and many protections in their private lives. Nonreligious people are openly scorned and mocked in public discourse, portrayed as bitter and angry, as “party poopers” who want nothing more than to rain on the parades of those who believe in gods, particularly the christian one. If surveyed, it’s likely that all of the sponsors of these bills will claim belief in a god of some kind, because to admit otherwise is political suicide, even in a relatively liberal and secular state like ours.

This is not an attack by atheists upon the good, god-fearing people who make up “real America,” as the esteemed Governor of Alaska expressed, but an attempt to protect those who just want to make a living from being cornered into church, like having to sit through a sermon at the Salvation Army to get your soup and a cot. It is, by the way, the same sort of protection that ought to be extended to charities that accept state and Federal dollars for their operation.

As it stands, faith-based charities that receive Federal assistance and imprimateur are free to hire and fire based on religious affiliation, or even to deny gays and lesbians employment if their religious doctrine states that homosexuality is an abomination. But that’s a matter for another day, and those suits are wending their way through the courts as we speak.

Conservatives will tell you that this is another attempt by government to insert themselves into the private workings of American companies who are doing legitimate business. I agree. It is. But then again, you can’t tell racist jokes without facing a lawsuit, and few conservatives will admit to believing that this is a bad thing. 

I also don’t think that this would be receiving nearly as much attention from our conservative friends if the issue at hand was an Islamic business that forced Christians to attend meetings in which they were forced to pray to Mecca, or if the boss read from Christopher Hitchens. All of these behaviors will be restricted if this becomes law; it’s only the threat to the door-knockers that doesn’t sit well with our fundamentalist friends.