[Congressional Record Volume 156, Number 168 (Friday, December 17, 2010)]
[Senate]
[Pages S10517-S10518]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KERRY:
  S. 4046. 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; to the Committee on Health, 
Education, Labor, and Pensions.
  Mr. KERRY. Mr. President, America was founded on the principle of 
religious freedom. Many of us are descended not just from the Pilgrims, 
but from so many others Catholics, Jews, and many more who fled 
persecution in search of a land where they could practice their 
religion and simply be who they are. Our very Constitution exists to 
secure the blessings of that freedom to ourselves and to our children.
  Even so, charges of religious discrimination in the workplace have 
been on the rise for more than a decade. Between 1992 and 2007, the 
latest period for which we have data, claims of religious 
discrimination filed with the Equal Employment Opportunity Commission 
have more than doubled, from 1,388 to 2,880. There is no way to tell 
how many people simply quit their job rather than complain.
  But in a Nation founded on freedom of religion, no American should 
ever have to choose between keeping a job and keeping faith with their 
cherished religious beliefs and traditions. I have been deeply involved 
in this issue since 1996 and once again I am introducing the Workplace 
Religious Freedom Act.
  The Workplace Religious Freedom Act is designed to protect people who 
encounter on-the-job discrimination because of their religious beliefs 
and practices. It protects, within reason, time off for religious 
observances. It protects the wearing of yarmulkes, hijabs, turbans and 
Mormon garments--all the distinctive marks of religious practices, all 
the things that people of faith should never be forced to hide.
  Writing religious freedom into law is not easy. I have been trying to 
make the Workplace Religious Freedom Act law for 15 years. I have 
worked with a range of partners from Senator Santorum and Senator 
Brownback to Senator Lieberman, and most recently Senator Hatch and I 
have been working together behind the scenes to move this issue 
forward. In doing so, it has been a difficult challenge to balance so 
many interests and legitimate concerns and to keep up with changing 
times.
  This bill represents years of discussion about religious tolerance 
and equal treatment and is a compromise between many different views. I 
hope it serves as the beginning of a new discussion as to how we can 
move forward in the next Congress and beyond because addressing this 
issue is long overdue.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.

[[Page S10518]]

  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 4046

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Workplace Religious Freedom 
     Act of 2010''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) 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--
       (A) recognized the widespread incidence of and harm caused 
     by religious discrimination in employment;
       (B) 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
       (C) 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.
       (2) Eradicating religious discrimination in employment is 
     essential to reach the goal of full equal employment 
     opportunity in the United States.
       (3) 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 minimus 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.
       (4) 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.
       (5) 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.
       (6) 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.
       (7) 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).

     SEC. 3. PURPOSES.

       The purposes of this Act are--
       (1) 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;
       (2) 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;
       (3) to confirm Congress' clear and continuing intention to 
     abrogate States' 11th amendment immunity from claims made 
     under title VII; and
       (4) 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.

     SEC. 4. AMENDMENTS.

       (a) Definitions.--Section 701(j) of the Civil Rights Act of 
     1964 (42 U.S.C. 2000e(j)) is amended--
       (1) by inserting ``(1)'' after ``(j)'';
       (2) 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
       (3) by adding at the end the following:
       ``(2) 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--
       ``(A) 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;
       ``(B) 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
       ``(C) shall not be considered to be a reasonable 
     accommodation if the accommodation requires segregation of an 
     employee from customers or the general public.
       ``(3) In this subsection:
       ``(A) The term `taking time off for a religious reason' 
     means taking time off for a holy day or to participate in a 
     religious observance.
       ``(B) The term `wearing religious clothing or a religious 
     hairstyle' means--
       ``(i) wearing religious apparel the wearing of which is 
     part of the observance of the religious faith practiced by 
     the individual;
       ``(ii) wearing jewelry or another ornament the wearing of 
     which is part of the observance of the religious faith 
     practiced by the individual;
       ``(iii) carrying an object the carrying of which is part of 
     the observance of the religious faith practiced by the 
     individual; or
       ``(iv) 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.''.

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

       (a) Effective Date.--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.
       (b) 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.
       (c) 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.).
       (d) Severability.--
       (1) In general.--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.
       (2) 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.
                                 ______