Monday, April 18, 2005

Religious Freedom, Pharmacists, and Me

I'll admit it -- in the 2004 election, I was an avid Kerry/Edwards supporter more because I disliked Bush than because I liked Kerry. While I agreed with the Dem party line on most things, I didn't know a lot of Kerry's personal stances on a lot of issues. Well, it seems I may have found at least one thing I know I agree with Kerry on, at least in principle. And this is something I hope won't get my feminist membership card revoked. Recently, there has been a flurry of debate over the right of employees to express their religious freedom in the workplace. Senators Clinton and Kerry have introduced the Workplace Religious Freedom Act (WRFA), which is intended to revise an existing act that has basically been interpreted to mean that, employee religious freedom can only be respected so long as compensating for that freedom has no major financial consequence. Or, in other words, if you want to take Good Friday off, you only have the right to do it so long as your employer can afford to hire someone to replace you. Meanwhile, the WRFA is intended to establish that an employer must, by law, protect an employee's religious freedom as long as the effect is "tangential" or the employer does not have to undergo what the act calls "undue hardship" to accomodate the employee's religious freedom. From

Below is the text of 42 USC 2000e (j) as it would be modified by S.677 (language which the bill would add is in bold, while language which the bill would delete is italicized): (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 or prospective 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) {editorial note: (f) defines "employee" as excluding elected officials and their appointees}), 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. To put the next part of the bill in context, here's the first paragraph of 42 USC 2000e-2 (Unlawful Employment Practices): (a) Employer practices It shall be an unlawful employment practice for an employer -    (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or    (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. And here's the text which would be added at the end of 42 USC 2000e-2 by S.677: (o)    (1) In this subsection:       (A) The term 'employee' has the meaning given the term in section 701(j)(2) {editorial note: this is the same as 42 USC 2000e(j)(2) in the above quote. The numbers are different because the bill refers to the section numbers of the original legislation, rather than the US Code sections}.       (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.
Now, the concern right now is that pharmacists are refusing to fill out prescriptions to morning-after pills based upon a claim to religious freedom in the workplace. It's not hard to imagine that WRFA would directly address this issue, though the ACLU claims that the act would be harmful to the civil rights of fellow co-workers. My take is this: while I absolutely recognize the need for people to have proper access to life-altering medicine that they are allowed under the law, we tread a dangerous line if we're willing to sacrifice the religious freedom of others to do it. While it's distasteful for pharmacists to play God (with every implication that statement has) by refusing legal medicine to others, the fact that this borders on a women's rights issue still doesn't mean I support the tearing down of the pharmacists' right to believe whatever they want to believe. I think the spirit of the WRFA is crucial -- there should absolutely be protection for employees to express their religion, because more often than not, the religion that gets persecuted in the workplace are those with little or no societal protection. The Muslim gets a hard time when wearing the turban or burkha, the Buddhist who wishes to take a religious holiday off is perceived as having less just cause than those wishing to take Christmas or Easter off. America tantalizingly offers a freedom of religion in its Constitution and yet there is little legislation to actively protect that right if it doesn't fit into the 'accepted' and 'normal' religion of Judeo-Christianity. And, after all, if someone has a moral objection to genocide -- whether it's in a pharmacy or in Vietnam -- we legally expect that person to express it. However, now that I have read the WRFA, I do not support the actual act because I have to agree with the ACLU, the text is vague and unclear -- what is meant by 'tangential' and 'temporary'? What falls under the term 'undue hardship'? What is a core requirement for a job? When I imagine my compromise between religious employees and their duties, I imagine something similar to the principles of the WRFA. I imagine that a pharmacist should have the right to deny giving a morning-after pill to someone with a prescription, based upon their own morality. But, since that constitutes an inability to perform the basic duty of a pharmacist (that being the act of giving a drug to a person seeking a drug), I don't see why there should be more than a basic protection of that right. Yes, that pharmacist has the right to express their religion, and the employer should not dismiss that employee based only on the employee's beliefs -- otherwise, would we then be seeking only secular or atheistic pharmacists and establishing a religious test for all applicatns? But, if the employer wants to dismiss the pharmacist because that pharmacist can't carry out his or her basic duty, then so be it -- your right to express yourself is one thing, but hampering your own ability to perform your job is another. But, should an employer find that the pharmacists' religious freedoms can be accomodated, then there should be some protocol for dealing with a situation like that. An employer should be able to keep a religious pharmacist on the payroll provided they offer a regulated protocol for anyone seeking medication. While that pharmacist is on-duty, for example, there should always be a pharmacist on duty who can fill the prescription and the pharmacist with the moral issues should be required to courteously and quickly hand the prescription over to the alternate pharmacist to fill without incident. Nonetheless, the ACLU rightly argues that the WRFA is full of holes and needs a revision of language to make it more clear. If a person's expression of their religion affects their job performance or the environment of the job, than it absolutely cannot be accomodated, but there should be no financial limit to what the employer should do to try and accomodate the employee's religion. Even if the liberals like me find some religions to be distasteful and hateful, the religious person still has the right to believe what he or she wants to believe, but it shouldn't be about catering to the religious and ignoring the problems that extreme orthodox religion can bring to the workplace. Until the time that the WRFA can accomodate that, while I applaud what Kerry is trying to do, I hope he and Clinton will take their lips out of the asses of the religious right and work to make things really fair and just.


Anonymous unfurling said...

yep - from my comfy seat in London, I'm revoking your feminist club membership.

4/18/2005 05:51:00 PM  
Blogger Jenn said...



4/18/2005 10:38:00 PM  
Anonymous tekanji said...

But, should an employer find that the pharmacists' religious freedoms can be accomodated, then there should be some protocol for dealing with a situation like that.

But that's the problem, isn't it? Current legislation does not give that provision - it ensures a that a pharmacist can deny access to drugs they don't agree with without ensuring that the customer involved can have access to said medicine.

I'm all for letting people practice their beliefs as long as it doesn't cause undue harm on existing people. If a pharmacist does not feel comfortable doling out a specific legal drug, then s/he should work at a pharmacy that does not sell that drug. If a store chooses to stock a drug, then I believe it is that company's responsibility to ensure that their customers have reliable access to that drug. If said company employs a pharmacist who does not feel comfortable with filling a certain med, then it is up to the company and the pharmacist to work something out that doesn't interfere with a customer being able to purchase a product that is available at the store.

If the religious legislation included provisions for fair and clear protocols that protect all parties involved, then I'd be all for it. Until then, I'm going to agree with you and the ACLU; that kind of legislation is a bad idea.

4/19/2005 03:40:00 PM  
Blogger Jenn said...

tekanji, I agree with you in principle but I have a feeling that pharmacists won't take it upon themselves to invest the extra money to either respect the employee's religious freedoms or ensure that every customer has proper access to every carried drug.

I would argue that we need legislation to ensure that employers respect both those basic rights. I think the WRFA comes close, but it's still too vague and falls a little too hardly on protecting religious freedom in lieu of protecting the consumer.

I would argue that there's a way to realistically do both and shaft neither party, but if there really must be a compromise, than the pharmacists should be the one to get the shorter end of the stick because, when you come right down to it, the pharmacists are still performing poorly in their basic duties by refusing to fill a prescription.

... I really wasn't very articulate in this post. O.o

4/20/2005 10:34:00 AM  
Anonymous tekanji said...

Jenn, I'm totally with you. I think you were basically spot on with the post, but when tackling such a broad subject it's hard to cover all your bases. Also, I like to ramble on about my opinion even if it's rather close to preaching to the choir. ^^;

There are just so many different ways to look at this issue, but finding a compromise is rarely proposed (probably because it's a touchy issue on both sides). So, yeah, good article and all that jazz. It's nice to see a moderate opinion that attempts to find a balance that makes everyone happy.

4/20/2005 02:27:00 PM  
Blogger Jenn said...

thanks! personally, i ramble a lot too so...

and this evil cold/flu/virus whatever thing I got has made my brain all slushy this past couple of days. Re-reading some of these old posts, I don't understand what the hell i was trying to say. :p

4/20/2005 04:17:00 PM  

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