Yesterday, on the same day that some of the Supreme Court noted that Congress hadn’t changed Title VII’s undue hardship standard for religious accommodations, the House and Senate reintroduced the Do No Harm Act, which the bill sponsors claim will “address the increasing use of religious freedom as a justification to undermine civil rights protections.”
The legislation comes about 30 years after the passage of the Religious Freedom Restoration Act (RFRA).
What is the RFRA? The RFRA generally prohibits state and federal governments from “substantially burdening a person’s exercise of religion.” There are two exceptions: the government may burden a person’s exercise of religion if it (1) furthers a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.
The Do No Harm Act’s sponsors posit that Supreme Court decisions from the past decade, such as Burwell v. Hobby Lobby Stores, Inc. in 2014 and the Court’s 2020 decision in Bostock v. Clayton County, have misapplied RFRA. Burwell permitted corporations to rely on RFRA to deny certain health care services to employees. In Bostock, some Justices foreshadowed how RFRA may supersede discrimination protections for LGBT individuals.
Last year, a District Court judge in Texas ruled that the Affordable Care Act’s requirement that employers cover HIV-prevention medication, known as PrEP drugs, violates RFRA.
Under the Do No Harm Act, RFRA would not apply where a provision of federal law: protects against discrimination or the promotion of equal opportunity; requires employers to provide wages, other compensation, or benefits including leave or standards protecting collective activity in the workplace; protects against child labor, abuse, or exploitation; or provides access to and coverage for any health care item or service.
- The list of organizations endorsing the bill can be found here.
- The fact sheet of the bill can be found here.
- The section by section of the bill can be found here.
- The full text of the bill can be found here.