II

106TH CONGRESS

1ST SESSION S. 1668

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

SEPTEMBER 29, 1999

Mr. KERRY (for himself, Mr. BROWNBACK, Mr. LIEBERMAN, Mr. HUTCHINSON, and Ms. MIKULSKI) 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 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 1999’’.

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

2 (2) by inserting ‘‘, after initiating and engaging

3 in an affirmative and bona fide effort,’’ after ‘‘un4 able’’;

5 (3) by striking ‘‘an employee’s’’ and all that fol6 lows through ‘‘religious’’ and insert ‘‘an employee’s

7 religious’’; and

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

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

10 includes a prospective employee.

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

12 hardship’ means an accommodation requiring significant

13 difficulty or expense. For purposes of determining whether

14 an accommodation requires significant difficulty or

15 expense—

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

17 require significant difficulty or expense if the accom18 modation will result in the inability of an employee

19 to perform the essential functions of the employment

20 position of the employee; and

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

22 the determination shall include—

23 ‘‘(i) the identifiable cost of the accommo24 dation, including the costs of loss of produc25 tivity and of retraining or hiring employees or
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1 transferring employees from one facility to an2 other, in relation to the size and operating cost

3 of the employer;

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

5 need the particular accommodation to a reli6 gious observance or practice; and

7 ‘‘(iii) for an employer with multiple facili8 ties, the degree to which the geographic sepa9 rateness or administrative or fiscal relationship

10 of the facilities will make the accommodation

11 more difficult or expensive.’’.

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

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

14 the following:

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

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

17 employee.

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

19 leave provided under the policy or program of an

20 employer, under which—

21 ‘‘(i) an employee may take leave by adjust22 ing or altering the work schedule or assignment

23 of the employee according to criteria deter24 mined by the employer; and
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1 ‘‘(ii) the employee may determine the pur2 pose for which the leave is to be utilized.

3 ‘‘(C) The term ‘undue hardship’ has the mean4 ing given the term in section 701(j)(3).

5 ‘‘(2) For purposes of determining whether an em6 ployer has committed an unlawful employment practice

7 under this title by failing to provide a reasonable accom8 modation to the religious observance or practice of an em9 ployee, an accommodation by the employer shall not be

10 deemed to be reasonable if such accommodation does not

11 remove the conflict between employment requirements and

12 the religious observance or practice of the employee.

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

14 a practice by failing to provide such a reasonable accom15 modation for an employee if the employer refuses to per16 mit the employee to utilize leave of general usage to re17 move such a conflict solely because the leave will be used

18 to accommodate the religious observance or practice of the

19 employee.

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

21 employment practice under this title for failure to provide

22 a reasonable accommodation to a religious observance or

23 practice of an employee that such accommodation would

24 be in violation of a bona fide seniority system if, in order
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1 for the employer to reasonably accommodate such observ2 ance or practice—

3 ‘‘(A) an adjustment would be made in the em4 ployee’s work hours (including an adjustment that

5 requires the employee to work overtime in order to

6 avoid working at a time that abstention from work

7 is necessary to satisfy religious requirements), shift,

8 or job assignment, that would not be available to

9 any employee but for such accommodation; or

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

11 would voluntarily exchange shifts or job assign12 ments, or voluntarily make some other arrangement

13 between the employees.

14 ‘‘(5)(A) An employer shall not be required to pay pre15 mium wages or confer premium benefits for work per16 formed during hours to which such premium wages or pre17 mium benefits would ordinarily be applicable, if work is

18 performed during such hours only to accommodate reli19 gious requirements of an employee.

20 ‘‘(B) As used in this paragraph—

21 ‘‘(i) the term ‘premium benefit’ means an em22 ployment benefit, such as seniority, group life insur23 ance, health insurance, disability insurance, sick

24 leave, annual leave, an educational benefit, or a pen25 sion, that is greater than the employment benefit
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1 due the employee for an equivalent period of work

2 performed during the regular work schedule of the

3 employee; and

4 ‘‘(ii) the term ‘premium wages’ includes over5 time pay and compensatory time off, premium pay

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

7 pay for standby or irregular duty.’’.

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

9 (a) EFFECTIVE DATE.—Except as provided in sub10 section (b), this Act and the amendments made by section

11 2 take effect on the date of enactment of this Act.

12 (b) APPLICATION OF AMENDMENTS.—The amend13 ments made by section 2 do not apply with respect to con14 duct occurring before the date of enactment of this Act.

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