HR Minute

Georgia’s Proposed “Religious Liberty” Bill: Mostly Dead…Or Slightly Alive

dreamstime,bigstockRemember the old adage about not discussing religion or politics in polite company?  Georgia legislators seem to have forgotten this, creating havoc at the Capital and among Georgians. If the bill were to pass, it may impact the way some Georgia employers interact with employees and customers. Georgia employers are watching closely.

What is the Fuss About?

At issue is the fate of SB 129, titled the “Religious Freedom Restoration Act” (RFRA). As drafted, the bill would bar the state (as well as county and local governments) from substantially burdening religious exercise unless necessary to further a compelling state interest. Many states have similar laws, including the much recently publicized Indiana bill. Supporters of the law claim that the proposed legislation will protect religious freedom and make it harder for the government to interfere with people’s religious practices.

To be protected by S.B. 129, an individual must first prove that he or she have a sincere religious belief which has been substantially burdened by the government action in question. Only then can the claim move forward. If a claim moves forward, the Government is not permitted to substantially burden a person's exercise of religion, unless the government demonstrates that the burden “to the person is: (1) Essential to achieve a compelling governmental interest; and (2) The least restrictive means of achieving that compelling governmental interest.” In other words, if the government can show it has compelling interest in burdening the religious practice then the individual’s claim for religious protection supposedly would lose.

However, aspects of the proposed Georgia law have raised troubling questions about the unintended consequences of such a law. Specifically, opponents have claimed that the law could be used to permit business owners to refuse service to certain people based upon the religious beliefs of the owners. More specifically, Georgia’s proposed RFRA law could be used to legitimize certain types of discrimination such as sexual orientation discrimination, critics charge.

The arguments against the bill gained steam last week. An amendment was proposed to make clear that the law was not to be used to further discrimination; however, a legislator supporting the bill charged that the anti-discrimination language would “gut” the purpose of the bill.

The proposed legislation raises a number of problematic questions for employers and employees, as it relates to arguably immunizing certain otherwise discriminatory conduct. Would there be a possible religious-based defense for a business refusing to serve a particular customer? Would a protesting employee have any rights? Could a public employee refuse to provide a government service to a particular individual?

Georgia’s thriving convention and hospitality communities have been vocal in speculating about the potential negative economic impact from a perception that Georgia somehow condones or sanctions discriminatory treatment, particularly within the LGBT community.

Bottom Line

At present, the bill does not appear likely to leave the House Judiciary Committee before the 2015 legislative session expires. However, the ultimate fate of SB 129 is far from clear. A similar bill in Indiana has caused quite an uproar and news publicity. Many employers and outside groups have been vocal and threatened to boycott or reduce investments in the state. Given the possible repercussions, employers will be watching closely.

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