Participants: Lincoln Steed (Host), Todd McFarland
Series Code: LI
Program Code: LI000209B
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00:06 Welcome back,
00:07 before the break I was talking with Todd McFarland about 00:12 legal assistance for people that have problems in the workplace. 00:16 And of course it's many unvaried, 00:18 and various union, nonunion, government, 00:23 non-government and so on. 00:24 And there is some positive things that you've laid out. 00:27 And I think the postal service been closed on Sabbath 00:31 or seizing regular deliveries 00:33 that will take away one potential. 00:35 One that I hear a lot about from 00:38 and it totally from people as I travel around that 00:40 it may or may not be as they perceive it, 00:43 but some of the big box stores 00:47 around I say when they apply they are leading questions 00:51 whether they're available on the weekends 00:53 and Sabbath and so on 00:54 and they think that they are being filtered out, 00:58 pre-selected out even before they get the job 01:02 because it's not acceptable to one Sabbath 01:04 or Friday afternoon or Friday after sunset. 01:07 We certainly have reports of that 01:08 and employers can ask about availability. 01:10 Now it'd be difficult for them to say that 01:12 everyone has to be able to work on Saturday. 01:15 Every time we received report that 01:17 we've actually forward up to some of those major employers, 01:19 in fact I actually had some people apply for a job there 01:23 and put open availability except on Saturday 01:25 and they got a bunch of calls asking them to come work. 01:29 So we haven't been able to verify that. 01:31 I would say if anyone can show that 01:33 and especially if the computer screen 01:35 just kick them out of the process, 01:37 give us a call, let us know 01:38 we'd be very interested in talking to that person 01:40 finding who the employer is and verifying that 01:42 and dealing with that issue. 01:43 But to so far, we haven't really able to verify that, 01:47 when you actually get to the concrete details. 01:49 Well, that's good if that so. 01:50 I mean, it's clearly a lot of anecdotal evidence 01:52 from the people or at least 01:55 maybe it's a suspicion made into reality 01:57 by their own action, I don't know. 01:59 And it's a great vulnerability. 02:01 We do know and I'm 100% sure you are aware of this, 02:04 there's a plenty of documented cases in interviews 02:07 where someone before the job offer says, 02:10 well, now I can't work, you know, 02:12 after Friday sunset or on Saturday 02:14 and therefore the job's not offered. 02:16 I mean it's made very clean that 02:17 well, you are not acceptable. 02:19 And we've had those cases, 02:20 we've also had those cases by the way 02:21 which we have taken successfully 02:24 resolved in litigation or short of litigation. 02:26 You know, I always tell-- But, excuse me. 02:28 But you can't litigate less that's been a job offer? 02:30 No, no that's not true at all. Isn't it? 02:32 Oh, no, no, no. 02:33 I thought that there are different rights 02:34 to kick in when the job's offered. 02:36 It is easier once it has been in offer, 02:38 and it's easier once they have a job. 02:39 But no, the interview, 02:41 the nondiscrimination provisions of 02:43 Federal and State law applying the application process 02:45 equally as they do the employment. 02:47 I mean, it's called the employment process 02:49 and it implies just as much as you are applicant 02:51 as you are an employee. 02:52 From the factual standpoint is always easier 02:55 to prove what's an employee. 02:57 But you know, I always tell our church members, 02:58 you know, 'cause they ask, you know, 03:00 what advice do you give them and then I said, 03:02 first of all you can't lie, 03:03 you can't break one commitment to keep another. 03:05 I'm glad you say that I agree with it. 03:07 On the other hand, you don't have to volunteer 03:09 and you don't have to bring the first issue up 03:11 about your Sabbath. 03:12 I mean, the question is, you know, 03:14 is there any day of the week you can't work? 03:15 The answer that is no. You can work all seven days. 03:18 Now on Friday, it's still sundown 03:19 and then on Saturday it's after sundown. 03:21 On weekend-- can you work weekends? 03:23 Absolutely. 03:24 You can work from sundown Saturday and Sunday. 03:27 You know, so there is lot of ways 03:29 to answer the questions truthfully and honestly, 03:31 but yet not raise the whole bunch of flags 03:33 that could put you and an employer 03:35 in a difficult position. 03:36 You're right, I've always tell people that 03:39 just because you don't have to say it, 03:42 if you knowingly create the bad impression or gives, 03:45 you know, or willing, 03:47 you can't be willing to compromise your principle 03:49 just to get the job and then suddenly it emerges after. 03:53 And I like the way you express that. 03:55 Without giving the wrong impression, 03:57 without saying the wrong thing, 03:59 which is morally culpable, 04:01 you can still hold to your rights 04:03 and maybe get accommodation later. 04:06 Right. Do you want to say something? 04:08 I didn't intend on this program, 04:10 but this is probably an appropriate place 04:12 to introduce a piece of legislation 04:14 that we'd all hope for, for many years 04:16 and it's been discussed a lot on this program. 04:18 Workplace Religious Freedom Act? 04:21 Yes, well, we're still hoping for it. Just-- 04:23 Are we? Yes, you know, absolutely. 04:26 Just to be clear for our members 04:28 what is the Workplace Religious Freedom Act, 04:30 lovingly refer to us as WRFA-- 04:32 That's why I hesitated, 04:33 because I'm so in the habit to say WRFA, yeah. 04:36 So just in quick example, just a quick still background 04:39 for our viewers, of course is that 04:42 the standard for undue hardship 04:43 in a religion case is very minimal, 04:46 it's called the Minima, this is for the accommodation. 04:48 This is for the accommodation-- Cost of accommodation. Right. 04:50 For disability, it's higher. 04:52 In other words, if you come and say, 04:54 I need accommodation for disability 04:56 and an employer has to try harder 04:58 and do more than for religion. 05:00 And what Workplace Religious Freedom Act is, 05:01 it would end that disparity, 05:03 would stop that really discrimination 05:05 and it would put religion on the same level as disability. 05:09 And it's a pretty modest law. 05:11 We've been trying to get it passed. 05:13 And, you know, unfortunately 05:15 last several congresses it's not just budgets 05:18 that congress hasn't been able to pass, 05:19 it's been lot of other things. 05:21 And trying to get movement on this law has been difficult. 05:23 But we haven't given up and we're still working for it. 05:27 I've had the feeling like since we had such 05:29 strong bipartisan support in the past, 05:32 even had two congressional hearings on it, 05:35 subcommittee hearings, I thought, 05:38 it didn't go then so it sure isn't gonna get now. 05:40 No, and I take the example we have-- 05:42 If they're still in need. They're still in need. 05:43 And, you know, the thing you got to 05:44 understand things takes time in Washington. 05:46 And, you know, what I wish would to happen 05:48 by now for instance with the American Disability Act, 05:50 you know, it took 20 plus years for that. 05:53 And so if it takes us 20 or 30 05:55 we will still be there trying to get it passed. 05:57 Well, you might be. Yes. Well-- 06:00 No, I'm not that, but hold of it. Yes. 06:03 And we don't want to be the 20s or 30s. 06:04 No, we do not want. It's already been. 06:06 And they are working about six years now. 06:08 Well, it's been, I mean, if you look back to 06:09 it's probably been, you know, 06:11 probably close to 20 that it's in, 06:13 'cause as soon as the bad Supreme Court decision came out 06:16 and TWA versus Hardison back in late 70's, 06:19 there's been some attempt 06:20 to try to fix that case legislatively. 06:22 Now maybe I've been saying it wrong 06:25 and even on this program I've spoken about this before, 06:28 part of what I thought we were trying to do was 06:30 to sort of reverse the burden of proof at the moment 06:33 since it's a de minimis, 06:34 can be as small as a de minimis cost of accommodation, 06:38 lets the employer off the hook often 06:40 if it goes to former. 06:42 This law would turn the other way around 06:44 rather than the employer having a burden 06:46 to prove why they should get something, 06:49 this would be the employer would have to show 06:55 why they can't give up. 06:57 Right, it's really not changing the burden of proof. 06:58 What it's changing is the level of undue hardship. 07:01 So right now, what's known is De Minimis, 07:03 which is a fancy legal word for minimal. 07:05 Like a dollar or nickel. Yeah, right. 07:07 I mean, and my predecessor said, 07:09 you know, 1 nickel which is not accurate 07:12 and it is a little bit higher than the nickel, 07:14 but we had a case against the major US corporation 07:17 and they were happy to quote that against us, 07:20 you know, lawsuit that we have-- 07:21 So we could have got the dollar instead of a nickel? 07:23 Right, so he told Mitch to be careful 07:27 what he says in the future, 07:28 but it is a pretty minimal standard 07:30 and so this would change 07:31 and raise it up to what is the disability standard. 07:34 Okay-- Which is significant hardship for difficulty. 07:38 Okay, and this clearly a need for improvement. 07:39 But what I've tried to say, you know, 07:41 and we need to tell people this 07:43 most of the cases are settled 07:45 before it gets to this full scale litigation. 07:47 Oh, absolutely, and it's usually a matter of 07:49 clarifying with the employer the rights 07:52 that exist on paper and in law 07:56 and State do the right thing then it's all over. 08:00 Well, then it's done well. 08:02 Most of our members will have problems. 08:03 I mean, we have hundreds of cases 08:05 there are various religious liberty personnel 08:06 throughout the country handling in a given year. 08:09 And the vast, vast, vast majority 08:11 those are resolve before they were come to our office. 08:14 But you know, it's not all of them and you know, 08:17 we don't know how many church members are out there 08:19 who aren't getting an accommodation 08:21 that we never hear about. 08:22 So you know, equalizing this burden 08:25 so it's the same as disability something 08:27 I think would put the balance in the right perspective. 08:29 Right now, it is so for the employer 08:32 that there isn't a lot the whole vicinity 08:33 for employers to even try. 08:36 That's very unfortunate, isn't it? It is. 08:38 And, you know, there are employers out there 08:41 who try to do the right thing, but there are some, 08:43 especially large employers who really don't try. 08:46 Now what do you think is changing 08:49 because in some ways I think it's gotten tougher, 08:52 maybe just the job matter has tightened up. 08:55 But is religion thought of less favorably by employers? 09:02 Is it this country which you would think 09:05 superficially has lot of easy talk of 09:07 religious rights and Christian America? 09:10 Is it on the margins religious minorities 09:13 are not respected like before? 09:15 What's changing or changed in the dynamic? 09:18 Well, first of all it's never been a positive environment. 09:21 So I don't know if anything's changed. 09:22 I think it's more than same. 09:24 We've done Focus Groups on this. 09:25 We have lawsuits and talked to people about it. 09:27 I can tell you, the two things 09:29 that have made the most impression. 09:30 First of all, animus against the particular religion 09:32 so forth especially Adventist is maybe 09:35 an inch deep in a mile wide, which is to say, 09:36 yeah, we maybe confuse, but it's not like oh, 09:39 I just hate the Adventist and, 09:40 therefore they're not gonna help me. 09:41 Well, we have no frustration, but we learned 09:42 in the presidential election moments 09:44 and when the elections it's deep and wide. 09:48 Yeah, well, again though when we get 09:50 in these groups really would have bulls down 09:52 to it's to two things. 09:53 First of all what did the employee do 09:56 and how much hardship is gonna be on the employer? 09:58 The second thing it has an impact on it, 10:00 there is this presumption 10:01 amongst the lot of Americans that the employer 10:04 is going to follow the law that they are doing 10:06 the right thing and it really is the employee 10:08 who has to come in and show 10:09 they're not trying to game the system 10:11 or get something special. 10:12 I mean, if I heard one more story about 10:14 the Wal-Mart coffee lawsuit I think I'll, 10:17 you know, throw in the towel, 10:18 because everyone sort of uses that 10:19 as the poster child and so you got to get over 10:21 that jury animus that this is just like 10:23 the McDonalds coffee case. 10:24 Oh, the McDonalds? Yes. 10:26 Not the Wal-Mart. I think, the rest of Wal-Mart? 10:28 Yes. Oh, I apologize, no. 10:30 It's McDonalds because-- McDonalds. 10:31 No, no, no, it was definitely 10:33 McDonalds coffee case in New Mexico. 10:36 And so you know, that sort of prejudice 10:39 for lack of better term against the plaintiff 10:42 can be hard to overcome. 10:44 So you think the prejudice is long existed 10:47 and there's nothing much changed except just the tight, 10:52 you know, the stakes are higher 10:53 in the workplace and it exposes 10:54 perhaps more than we would see. 10:56 Yeah, and I think as we come into 10:57 a more religiously diverse country 11:00 there is more conflicts. 11:01 I mean, you know, 30 years ago who needed 11:03 to have a room to go pray, you know, 11:05 a couple of times a day towards Mecca. 11:06 We have more Muslims now. 11:08 There's dressed in garb cases for others. 11:10 So there is just more diversity-- 11:11 I don't know why you saying what I've thought. 11:13 The US is an admiral country for many things. 11:16 First Amendment is very forthright, 11:19 but there's no lack of religious conflict here. 11:22 I think the reason it's played out differently 11:23 than most countries is it's so diverse. 11:26 Nobody has the whip hand. 11:27 I think if a certain Protestant sect with 90% 11:30 of the population they would be 11:31 vicious against minority. 11:33 But it still's a bubbling, boiling, 11:36 cauldron of many relatively small groups wanting 11:39 the moment on the sun, isn't it? 11:41 Absolutely. So what is-- 11:45 Give a quick summation on 11:46 Religious Liberty and Litigation. 11:48 Is it positive or negative? 11:50 You know, we continue to fight the fight 11:51 with Religious Liberty and Litigation. 11:53 The courts have been more receptive 11:55 recently to our cases. 11:57 But it still a hard fight and we need legislation 11:59 that portrays religious freedom act 12:01 to fix the current problems. 12:04 One of the most telling scenes in the Bible is 12:06 when Jesus surrounded by a bunch of cynical adults, 12:10 took a little child and then said, 12:13 "anybody that deceives the child and causes the child 12:16 to go astray better that he'd be thrown 12:19 into the bottom of the sea 12:20 with a millstone around his neck." 12:22 God obviously cares for conscious and for innocents. 12:26 And I do believe that in the workplace, 12:28 in defending such people those children of faith 12:34 we in Religious Liberty and anybody of consequence 12:38 and ability to make such defense 12:40 is doing the very work of God Himself. 12:43 A faith an innocent faith in any situation 12:47 must be defended. 12:48 It has rights. 12:49 Has a reward as Paul says also when he spoke about 12:52 the Faithful captain sworn and burned 12:55 and they faithful said, 12:57 "All for the faith that they obey their Lord." 13:00 In defending people in the workplace 13:02 those in the religious liberty work, 13:04 I believe, are fulfilling the command of God 13:07 to defend the defenseless, to uphold the faith that 13:11 we all have in higher spiritual values 13:15 and to prepare the way for the coming of the Lord. 13:19 For Liberty Insider this is Lincoln Steed. |
Revised 2014-12-17