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
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.
This Act may be cited as
Workplace Religious Freedom Act of
Congress finds the following:
In enacting title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) (referred to in this Act as title VII), Congress—
recognized the widespread incidence of and harm caused by religious discrimination in employment;
expressly intended to establish that religion is a class protected from discrimination in employment, as race, color, sex, and national origin are protected classes; and
recognized that, absent undue hardship, a covered employer’s failure to reasonably accommodate an employee’s religious practice is discrimination within the meaning of that title.
Eradicating religious discrimination in employment is essential to reach the goal of full equal employment opportunity in the United States.
In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), the Supreme Court held that an employer could deny an employee’s request for religious accommodation based on any burden greater than a de minimis burden on the employer, and thus narrowed the scope of protection of title VII against religious discrimination in employment, contrary to the intent of Congress.
As a consequence of the Hardison decision and resulting appellate and trial court decisions, discrimination against employees on the basis of religion in employment continues to be an unfortunate and unacceptable reality.
Federal, State, and local government, and private employers have a history and have established a continuing pattern of discrimination in unreasonably denying religious accommodations in employment, including in the areas of garb, grooming, and scheduling.
Although this Act addresses requests for accommodation with respect to garb, grooming, and scheduling due to employees' religious practices, enactment of this Act does not represent a determination that other religious accommodation requests do not deserve similar attention or future resolution by Congress.
The Supreme Court has held in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) that Congress has clearly authorized Federal courts to award monetary damages in favor of a private individual against a State government found in violation of title VII, and this holding is supported by Quern v. Jordan, 440 U.S. 332 (1979).
The purposes of this Act are—
to address the history and widespread pattern of discrimination by private sector employers and Federal, State, and local government employers in unreasonably denying religious accommodations in employment, specifically in the areas of garb, grooming, and scheduling;
to provide a comprehensive Federal prohibition of employment discrimination on the basis of religion, including that denial of accommodations, specifically in the areas of garb, grooming, and scheduling;
to confirm Congress’ clear and continuing intention to abrogate States’ 11th amendment immunity from claims made under title VII; and
to invoke congressional powers to prohibit employment discrimination, including the powers to enforce the 14th amendment, and to regulate interstate commerce pursuant to section 8 of article I of the Constitution, in order to prohibit discrimination on the basis of religion, including unreasonable denial of religious accommodations, specifically in the areas of garb, grooming, and scheduling.
Section 701(j) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(j)) is amended—
in paragraph (1),
as so designated, by striking
he is unable and inserting
the employer is unable, after initiating and engaging in an affirmative
and bona fide effort,; and
by adding at the end the following:
For purposes of paragraph (1), with respect to the practice of wearing religious clothing or a religious hairstyle, or of taking time off for a religious reason, an accommodation of such a religious practice—
shall not be considered to be a reasonable accommodation unless the accommodation removes the conflict between employment requirements and the religious practice of the employee;
shall be considered to impose an undue hardship on the conduct of the employer's business only if the accommodation imposes a significant difficulty or expense on the conduct of the employer's business when considered in light of relevant factors set forth in section 101(10)(B) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111(10)(B)) (including accompanying regulations); and
shall not be considered to be a reasonable accommodation if the accommodation requires segregation of an employee from customers or the general public.
In this subsection:
The term taking time off for a religious reason means taking time off for a holy day or to participate in a religious observance.
The term wearing religious clothing or a religious hairstyle means—
wearing religious apparel the wearing of which is part of the observance of the religious faith practiced by the individual;
wearing jewelry or another ornament the wearing of which is part of the observance of the religious faith practiced by the individual;
carrying an object the carrying of which is part of the observance of the religious faith practiced by the individual; or
adopting the presence, absence, or style of a person's hair or beard the adoption of which is part of the observance of the religious faith practiced by the individual.
Effective date; application of amendments; severability
Except as provided in subsection (b), this Act and the amendments made by section 4 take effect on the date of enactment of this Act.
Application of Amendments
This Act and the amendments made by section 4 do not apply with respect to conduct occurring before the date of enactment of this Act.
No diminution of rights
With respect to religious practices not described in section 701(j)(2) of the Civil Rights Act of 1964, as amended by section 4(a)(3), nothing in this Act or an amendment made by this Act shall be construed to diminish any right that may exist, or remedy that may be available, on the day before the date of enactment of this Act, for discrimination in employment because of religion by reason of failure to provide a reasonable accommodation of a religious practice, pursuant to title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.).
If any provision of an amendment made by this Act, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of the amendments made by this Act and the application of the provision to any other person or circumstance shall not be affected.
Definition of religion
If, in the course of determining a claim brought under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), a court holds that the application of the provision described in paragraph (1) to a person or circumstance is unconstitutional, the court shall determine the claim with respect to that person or circumstance by applying the definition of the term religion specified in section 701 of that Act (42 U.S.C. 2000e), as in effect on the day before the date of enactment of this Act.