II 

112TH CONGRESS 

2D SESSION S. 3686 

To amend title VII of the Civil Rights Act of 1964 to establish provisions 

with respect to religious accommodations in employment, and for other 

purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 17, 2012 

Mr. KERRY introduced the following bill; which was read twice and referred 

to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend title VII of the Civil Rights Act of 1964 to 

establish provisions with respect to religious accommodations in employment, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Workplace Religious 

5 Freedom Act of 2013’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 


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1 (1) In enacting title VII of the Civil Rights Act 

2 of 1964 (42 U.S.C. 2000e et seq.) (referred to in 

3 this Act as ‘‘title VII’’), Congress— 

4 (A) recognized the widespread incidence of 

5 and harm caused by religious discrimination in 

6 employment; 

7 (B) expressly intended to establish that re8 ligion is a class protected from discrimination 

9 in employment, as race, color, sex, and national 

10 origin are protected classes; and 

11 (C) recognized that, absent undue hard12 ship, a covered employer’s failure to reasonably 

13 accommodate an employee’s religious practice is 

14 discrimination within the meaning of that title. 

15 (2) Eradicating religious discrimination in em16 ployment is essential to reach the goal of full equal 

17 employment opportunity in the United States. 

18 (3) In Trans World Airlines, Inc. v. Hardison, 

19 432 U.S. 63 (1977), the Supreme Court held that 

20 an employer could deny an employee’s request for 

21 religious accommodation based on any burden great22 er than a de minimis burden on the employer, and 

23 thus narrowed the scope of protection of title VII 

24 against religious discrimination in employment, con25 trary to the intent of Congress. 


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1 (4) As a consequence of the Hardison decision 

2 and resulting appellate and trial court decisions, dis3 crimination against employees on the basis of reli4 gion in employment continues to be an unfortunate 

5 and unacceptable reality. 

6 (5) Federal, State, and local government, and 

7 private employers have a history and have estab8 lished a continuing pattern of discrimination in un9 reasonably denying religious accommodations in em10 ployment, including in the areas of garb, grooming, 

11 and scheduling. 

12 (6) Although this Act addresses requests for ac13 commodation with respect to garb, grooming, and 

14 scheduling due to employees’ religious practices, en15 actment of this Act does not represent a determina16 tion that other religious accommodation requests do 

17 not deserve similar attention or future resolution by 

18 Congress. 

19 (7) The Supreme Court has held in Fitzpatrick 

20 v. Bitzer, 427 U.S. 445 (1976) that Congress has 

21 clearly authorized Federal courts to award monetary 

22 damages in favor of a private individual against a 

23 State government found in violation of title VII, and 

24 this holding is supported by Quern v. Jordan, 440 

25 U.S. 332 (1979). 


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1 SEC. 3. PURPOSES. 

2 The purposes of this Act are— 

3 (1) to address the history and widespread pat4 tern of discrimination by private sector employers 

5 and Federal, State, and local government employers 

6 in unreasonably denying religious accommodations in 

7 employment, specifically in the areas of garb, groom8 ing, and scheduling; 

9 (2) to provide a comprehensive Federal prohibi10 tion of employment discrimination on the basis of re11 ligion, including that denial of accommodations, spe12 cifically in the areas of garb, grooming, and sched13 uling; 

14 (3) to confirm Congress’ clear and continuing 

15 intention to abrogate States’ 11th amendment im16 munity from claims made under title VII; and 

17 (4) to invoke congressional powers to prohibit 

18 employment discrimination, including the powers to 

19 enforce the 14th amendment, and to regulate inter20 state commerce pursuant to section 8 of article I of 

21 the Constitution, in order to prohibit discrimination 

22 on the basis of religion, including unreasonable de23 nial of religious accommodations, specifically in the 

24 areas of garb, grooming, and scheduling. 


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1 SEC. 4. AMENDMENTS. 

2 (a) DEFINITIONS.—Section 701(j) of the Civil Rights 

3 Act of 1964 (42 U.S.C. 2000e(j)) is amended— 

4 (1) by inserting ‘‘(1)’’ after ‘‘(j)’’; 

5 (2) in paragraph (1), as so designated, by strik6 ing ‘‘he is unable’’ and inserting ‘‘the employer is 

7 unable, after initiating and engaging in an affirma8 tive and bona fide effort,’’; and 

9 (3) by adding at the end the following: 

10 ‘‘(2) For purposes of paragraph (1), with re11 spect to the practice of wearing religious clothing or 

12 a religious hairstyle, or of taking time off for a reli13 gious reason, an accommodation of such a religious 

14 practice— 

15 ‘‘(A) shall not be considered to be a rea16 sonable accommodation unless the accommoda17 tion removes the conflict between employment 

18 requirements and the religious practice of the 

19 employee; 

20 ‘‘(B) shall be considered to impose an 

21 undue hardship on the conduct of the employ22 er’s business only if the accommodation imposes 

23 a significant difficulty or expense on the con24 duct of the employer’s business when considered 

25 in light of relevant factors set forth in section 

26 101(10)(B) of the Americans with Disabilities 


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1 Act of 1990 (42 U.S.C. 12111(10)(B)) (includ2 ing accompanying regulations); and 

3 ‘‘(C) shall not be considered to be a rea4 sonable accommodation if the accommodation 

5 requires segregation of an employee from cus6 tomers or the general public. 

7 ‘‘(3) In this subsection: 

8 ‘‘(A) The term ‘taking time off for a reli9 gious reason’ means taking time off for a holy 

10 day or to participate in a religious observance. 

11 ‘‘(B) The term ‘wearing religious clothing 

12 or a religious hairstyle’ means— 

13 ‘‘(i) wearing religious apparel the 

14 wearing of which is part of the observance 

15 of the religious faith practiced by the indi16 vidual; 

17 ‘‘(ii) wearing jewelry or another orna18 ment the wearing of which is part of the 

19 observance of the religious faith practiced 

20 by the individual; 

21 ‘‘(iii) carrying an object the carrying 

22 of which is part of the observance of the 

23 religious faith practiced by the individual; 

24 or 


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1 ‘‘(iv) adopting the presence, absence, 

2 or style of a person’s hair or beard the 

3 adoption of which is part of the observance 

4 of the religious faith practiced by the indi5 vidual.’’. 

6 SEC. 5. EFFECTIVE DATE; APPLICATION OF AMENDMENTS; 

7 SEVERABILITY. 

8 (a) EFFECTIVE DATE.—Except as provided in sub9 section (b), this Act and the amendments made by section 

10 4 take effect on the date of enactment of this Act. 

11 (b) APPLICATION OF AMENDMENTS.—This Act and 

12 the amendments made by section 4 do not apply with re13 spect to conduct occurring before the date of enactment 

14 of this Act. 

15 (c) NO DIMINUTION OF RIGHTS.—With respect to re16 ligious practices not described in section 701(j)(2) of the 

17 Civil Rights Act of 1964, as amended by section 4(a)(3), 

18 nothing in this Act or an amendment made by this Act 

19 shall be construed to diminish any right that may exist, 

20 or remedy that may be available, on the day before the 

21 date of enactment of this Act, for discrimination in em22 ployment because of religion by reason of failure to pro23 vide a reasonable accommodation of a religious practice, 

24 pursuant to title VII of the Civil Rights Act of 1964 (42 

25 U.S.C. 2000e et seq.). 


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1 (d) SEVERABILITY.— 

2 (1) IN GENERAL.—If any provision of an 

3 amendment made by this Act, or any application of 

4 such provision to any person or circumstance, is held 

5 to be unconstitutional, the remainder of the amend6 ments made by this Act and the application of the 

7 provision to any other person or circumstance shall 

8 not be affected. 

9 (2) DEFINITION OF RELIGION.—If, in the 

10 course of determining a claim brought under title 

11 VII of the Civil Rights Act of 1964 (42 U.S.C. 

12 2000e et seq.), a court holds that the application of 

13 the provision described in paragraph (1) to a person 

14 or circumstance is unconstitutional, the court shall 

15 determine the claim with respect to that person or 

16 circumstance by applying the definition of the term 

17 ‘‘religion’’ specified in section 701 of that Act (42 

18 U.S.C. 2000e), as in effect on the day before the 

19 date of enactment of this Act. 

Æ 


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