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

SEPTEMBER 10, 1997

Committee discharged; referred to the Committee on Labor and Human

Resources

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’’.
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1 SEC. 2. 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) by inserting ‘‘, after initiating and engaging

6 in an affirmative and bona fide effort,’’ after ‘‘un7 able’’;

8 (3) by striking ‘‘an employee’s’’ and all that fol9 lows through ‘‘religious’’ and insert ‘‘an employee’s

10 religious’’; and

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

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

13 includes a prospective employee.

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

15 hardship’ means an accommodation requiring significant

16 difficulty or expense. For purposes of determining whether

17 an accommodation requires significant difficulty or ex18 pense—

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

20 require significant difficulty or expense if the accom21 modation will result in the inability of an employee

22 to perform the essential functions of the employment

23 position of the employee; and

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

25 the determination shall include—
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1 ‘‘(i) the identifiable cost of the accommo2 dation, including the costs of loss of productiv3 ity and of retraining or hiring employees or

4 transferring employees from one facility to an5 other, in relation to the size and operating cost

6 of the employer;

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

8 need the particular accommodation to a reli9 gious observance or practice; and

10 ‘‘(iii) for an employer with multiple facili11 ties, the degree to which the geographic sepa12 rateness or administrative or fiscal relationship

13 of the facilities will make the accommodation

14 more difficult or expensive.’’.

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

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

17 the following:

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

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

20 employee.

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

22 leave provided under the policy or program of an

23 employer, under which—

24 ‘‘(i) an employee may take leave by adjust25 ing or altering the work schedule or assignment
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1 of the employee according to criteria deter2 mined by the employer; and

3 ‘‘(ii) the employee may determine the pur4 pose for which the leave is to be utilized.

5 ‘‘(C) The term ‘undue hardship’ has the mean6 ing given the term in section 701(j)(3).

7 ‘‘(2) For purposes of determining whether an em8 ployer has committed an unlawful employment practice

9 under this title by failing to provide a reasonable accom10 modation to the religious observance or practice of an em11 ployee, an accommodation by the employer shall not be

12 deemed to be reasonable if such accommodation does not

13 remove the conflict between employment requirements and

14 the religious observance or practice of the employee.

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

16 a practice by failing to provide such a reasonable accom17 modation for an employee if the employer refuses to per18 mit the employee to utilize leave of general usage to re19 move such a conflict solely because the leave will be used

20 to accommodate the religious observance or practice of the

21 employee.

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

23 employment practice under this title for failure to provide

24 a reasonable accommodation to a religious observance or

25 practice of an employee that such accommodation would
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1 be in violation of a bona fide seniority system if, in order

2 for the employer to reasonably accommodate such observ3 ance or practice—

4 ‘‘(A) an adjustment would be made in the em5 ployee’s work hours (including an adjustment that

6 requires the employee to work overtime in order to

7 avoid working at a time that abstention from work

8 is necessary to satisfy religious requirements), shift,

9 or job assignment, that would not be available to

10 any employee but for such accommodation; or

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

12 would voluntarily exchange shifts or job assign13 ments, or voluntarily make some other arrangement

14 between the employees.

15 ‘‘(5)(A) An employer shall not be required to pay pre16 mium wages or confer premium benefits for work per17 formed during hours to which such premium wages or pre18 mium benefits would ordinarily be applicable, if work is

19 performed during such hours only to accommodate reli20 gious requirements of an employee.

21 ‘‘(B) As used in this paragraph—

22 ‘‘(i) the term ‘premium benefit’ means an em23 ployment benefit, such as seniority, group life insur24 ance, health insurance, disability insurance, sick

25 leave, annual leave, an educational benefit, or a pen-
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1 sion, that is greater than the employment benefit

2 due the employee for an equivalent period of work

3 performed during the regular work schedule of the

4 employee; and

5 ‘‘(ii) the term ‘premium wages’ includes over6 time pay and compensatory time off, premium pay

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

8 pay for standby or irregular duty.’’.

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

10 (a) EFFECTIVE DATE.—Except as provided in sub11 section (b), this Act and the amendments made by section

12 2 take effect on the date of enactment of this Act.

13 (b) APPLICATION OF AMENDMENTS.—The amend14 ments made by section 2 do not apply with respect to con15 duct occurring before the date of enactment of this Act.

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