II

105TH CONGRESS

1ST SESSION S. 1124

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

with respect to religious accommodation in employment, and for other

purposes.

IN THE SENATE OF THE UNITED STATES

JULY 31, 1997

Mr. KERRY (for himself and Mr. COATS) introduced the following bill; which

was read twice and referred to the Committee on the Judiciary

A BILL

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

establish provisions with respect to religious accommodation 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 1997’’.

6 SEC. 2. AMENDMENTS.

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

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

9 (1) by inserting ‘‘(1)’’ after ‘‘(j)’’;
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1 (2) by inserting ‘‘, after initiating and engaging

2 in an affirmative and bona fide effort,’’ after ‘‘un3 able’’;

4 (3) by striking ‘‘an employee’s’’ and all that fol5 lows through ‘‘religious’’ and insert ‘‘an employee’s

6 religious’’; and

7 (4) by adding at the end the following:

8 ‘‘(2) As used in this subsection, the term ‘employee’

9 includes a prospective employee.

10 ‘‘(3) As used in this subsection, the term ‘undue

11 hardship’ means an accommodation requiring significant

12 difficulty or expense. For purposes of determining whether

13 an accommodation requires significant difficulty or ex14 pense—

15 ‘‘(A) an accommodation shall be considered to

16 require significant difficulty or expense if the accom17 modation will result in the inability of an employee

18 to perform the essential functions of the employment

19 position of the employee; and

20 ‘‘(B) other factors to be considered in making

21 the determination shall include—

22 ‘‘(i) the identifiable cost of the accommo23 dation, including the costs of loss of productiv24 ity and of retraining or hiring employees or

25 transferring employees from one facility to an-
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1 other, in relation to the size and operating cost

2 of the employer;

3 ‘‘(ii) the number of individuals who will

4 need the particular accommodation to a reli5 gious observance or practice; and

6 ‘‘(iii) for an employer with multiple facili7 ties, the degree to which the geographic sepa8 rateness or administrative or fiscal relationship

9 of the facilities will make the accommodation

10 more difficult or expensive.’’.

11 (b) EMPLOYMENT PRACTICES.—Section 703 of such

12 Act (42 U.S.C. 2000e–2) is amended by adding at the end

13 the following:

14 ‘‘(o)(1) As used in this subsection:

15 ‘‘(A) The term ‘employee’ includes a prospective

16 employee.

17 ‘‘(B) The term ‘leave of general usage’ means

18 leave provided under the policy or program of an

19 employer, under which—

20 ‘‘(i) an employee may take leave by adjust21 ing or altering the work schedule or assignment

22 of the employee according to criteria deter23 mined by the employer; and

24 ‘‘(ii) the employee may determine the pur25 pose for which the leave is to be utilized.
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1 ‘‘(C) The term ‘undue hardship’ has the mean2 ing given the term in section 701(j)(3).

3 ‘‘(2) For purposes of determining whether an em4 ployer has committed an unlawful employment practice

5 under this title by failing to provide a reasonable accom6 modation to the religious observance or practice of an em7 ployee, an accommodation by the employer shall not be

8 deemed to be reasonable if such accommodation does not

9 remove the conflict between employment requirements and

10 the religious observance or practice of the employee.

11 ‘‘(3) An employer shall be considered to commit such

12 a practice by failing to provide such a reasonable accom13 modation for an employee if the employer refuses to per14 mit the employee to utilize leave of general usage to re15 move such a conflict solely because the leave will be used

16 to accommodate the religious observance or practice of the

17 employee.

18 ‘‘(4) It shall not be a defense to a claim of unlawful

19 employment practice under this title for failure to provide

20 a reasonable accommodation to a religious observance or

21 practice of an employee that such accommodation would

22 be in violation of a bona fide seniority system if, in order

23 for the employer to reasonably accommodate such observ24 ance or practice—
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1 ‘‘(A) an adjustment would be made in the em2 ployee’s work hours (including an adjustment that

3 requires the employee to work overtime in order to

4 avoid working at a time that abstention from work

5 is necessary to satisfy religious requirements), shift,

6 or job assignment, that would not be available to

7 any employee but for such accommodation; or

8 ‘‘(B) the employee and any other employee

9 would voluntarily exchange shifts or job assign10 ments, or voluntarily make some other arrangement

11 between the employees.

12 ‘‘(5)(A) An employer shall not be required to pay pre13 mium wages or confer premium benefits for work per14 formed during hours to which such premium wages or pre15 mium benefits would ordinarily be applicable, if work is

16 performed during such hours only to accommodate reli17 gious requirements of an employee.

18 ‘‘(B) As used in this paragraph—

19 ‘‘(i) the term ‘premium benefit’ means an em20 ployment benefit, such as seniority, group life insur21 ance, health insurance, disability insurance, sick

22 leave, annual leave, an educational benefit, or a pen23 sion, that is greater than the employment benefit

24 due the employee for an equivalent period of work
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1 performed during the regular work schedule of the

2 employee; and

3 ‘‘(ii) the term ‘premium wages’ includes over4 time pay and compensatory time off, premium pay

5 for night, weekend, or holiday work, and premium

6 pay for standby or irregular duty.’’.

7 SEC. 3. EFFECTIVE DATE; APPLICATION OF AMENDMENTS.

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

10 2 take effect on the date of enactment of this Act.

11 (b) APPLICATION OF AMENDMENTS.—The amend12 ments made by section 2 do not apply with respect to con13 duct occurring before the date of enactment of this Act.

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