Division, not on the basis of the Hardison decision, but on the provisions of the New York State Human Rights Law.

We are fortunate in this State that we have a separate body of law which may in some cases be subsequently different from the Federal law and the classic example, of course, is pregnancy disability.

The aforementioned section was originally limited to public employees. That was in 1967. The Statute was amended in 1971 to cover all employees.

The statement of Legislative purpose, adopted in 1967 as a preamble to this law states that the statute was enacted to clarify and assure the rights of an employee to observe the Sabbath and holy days of his religion.

The statute, like the Human Rights Law itself, is to be construed liberally.

Under this law, employees are entitled to unpaid time off for religious observance, subject to exceptions for emergencies, indispensible employees, positions dealing with health and safety and positions where the employee's presence is regularly essential.

Another exception would be if an employer can establish that undue economic hardship would result because of accommodation of Sabbath observers.

In State Division of Human Rights versus Carnation Company, the New York Court of Appeals defined undue economic hardship as a palpable increase in costs or risk to industrial peace.

The burden of proof would be on the employer to establish the evidence of this hardship.

However, because of the variability of employment situations reasonable accommodation cannot be as easily defined. A small office or store will have different problems meeting the needs of its employees than a large concern whose terms and conditions of employment are negotiated with one or more labor organizations, and which might operate on around the clock basis.

These complicated factors were explored earlier this year by the Division in a meeting between Teamster Local President Barry Feinstein, the general counsel for District Council 37, and members of the National Jewish Commission on Law and Public Affairs.

At this meeting, the discussion centered on how the accommodation of Sabbath observers comes into conflict with current union contract provisions, specifically regarding premium time and weekend scheduling.

The Division suggested that the formation of a labor oriented coalition that would articulate the concerns of Sabbath observers and also

develop modes of accommodation that would be acceptable to labor and management in future agreements.

Further meetings will be held to discuss this arrangement in more detail to insure that Sabbath observers are protected.

Meanwhile, reasonable accommodation continues to be determined by the Division on a case by case basis.

It should be noted here that not all types of accommodation to religious needs are required by our law. In a 1970 case East Greyhound versus Division of Human Rights 27 NJ 2nd 279, 284, the Court of Appeals upheld a bus company because it would not allow a driver to wear a beard which was required by his religion.

The Court said that the issue was whether an employer must accommodate his general pattern of employment to the special requirement of each individual's religion and concluded that failure to make this kind of accommodation to particularization, which could assume many variations in appearance and in time schedules, is not in itself a violation of the law.

During the five year period from January, 1972 through December, 1976, the State Division of Human Rights received 804 complaints alleging unlawful discrimination on the basis of creed.

Approximately 86 percent of these cases related to employment, five and one half per cent each to the areas of housing and public accommodation and only three per cent concerned education and all other areas of division jurisdiction combined.

The case load of religious discrimination complaints comprised 3.8 per cent of the Division's total case load of 21,600 during that five year period.

The range of this percentage varied only slightly from year to year, from a low of 3.3 per cent in 1972, to a high of 4.1 per cent in 1973 and again in 1976.

For 1977, detailed statistics are available from January through September, during which nine month period the Division received 141 religious discrimination cases.

It is important to note that the actual number of 1977 creed cases projected to a twelve month basis would approximate 190, slightly higher than the 1972, 1976 annual average of 160.

Approximately 56 per cent of the complainants filing religious discrimination charges with the Division in recent years were Jewish, ten per cent were Seventh Day Adventists or Jehovah's Witnesses, 12 per cent belonged to various Protestant Churches, six per cent were Roman Catholic and four per cent were members of the Islamic Sects; the remaining 12 per cent were distributed among a wide variety of religious

groups and also included persons who charged discrimination on the basis of atheism or non-membership in particular religious groups.

The rate of beneficial redress to complainants, which includes cases successfully conciliated, those were the outcome of public hearings favoring the complainant and those cases withdrawn with reported benefits was 21.5 per cent.

Since the Hardison case, two cases involving Sabbath observers have been decided by orders after hearing. They illustrate the types of cases we have handled, the types of relief we have given and the problems in this field.

The first Cartwright versus Turbodyne Corp. et al, was decided October 24, 1977.

The complainant, Keith R. Cartwright, like Hardison, is a member of the Worldwide Church of God, which observes the Sabbath from Friday at sunset to Saturday at sunset. He informed his employer's labor relations manager that he was willing to work any hour or any number of hours, but had to have this specific time for religious observance. The manager testified that all openings in the shop are filled under the terms of a labor agreement with the union, which did not make any provision for Sabbath observers, and that he was governed by the contract.

Cartwright was ultimately discharged, in spite of the fact that two jobs on other shifts were available. In fact, the record is devoid of any act on the part of Turbodyne to accommodate this employee.

In the Division's order, we found (1) there was nothing in the contract between Turbodyne and the union to prevent Turbodyne from excusing Cartwright from working on a day of religious observance; (2) that the employer discriminated against him in terms, conditions and privileges of employment because of his creed, in violation of the New York State Human Rights Law; and (3) that the union did not commit any unlawful discriminatory practice.

The order directed respondent to cease and desist from discriminating against Cartwright or any person, in obtaining or holding employment because of religious observance on any particular day.

In addition, we directed reinstatement with back pay and seniority back to July 10, 1975, the date of his discharge, permitting Cartwright to work on a shift or shifts which would not require him to be present on his Sabbath or other holy days.

Turbodyne has appealed the order to the State Human Rights Appeal Board.

The second case arose from a complaint brought by Sally Rappaport, a Jewish Sabbath observer.

About September 5, 1975, Ms. Rappaport accepted a position as a technician trainee at Genesee Hospital, located in Rochester, New York.

Ms. Rappaport was aware that in addition to her regular five day work week, some Saturday work was required. It was her understanding that such Saturday work was on an occasional basis and involved emergency procedures.

Ms. Rappaport believed that this type of work on her Sabbath was permissible as she understood the requirements of her religion.

In early January, 1976, Ms. Rappaport learned that her department was to remain open on Saturday mornings and that her work schedule would require her, on a rotating basis, to work every other Saturday morning.

She requested the hospital to make an accommodation in her work schedule because as it stood, it did not allow her to observe the Sabbath in accordance with her religious beliefs.

The hospital made no attempt to accommodate Ms. Rappaport, but continued to require her to work every other Saturday morning on a regular basis.

Accordingly, Ms. Rappaport resigned. The Division found discrimination in this case and directed the hospital to cease and desist.

We also directed the hospital to offer reinstatement on a schedule which would permit Sabbath and holy day observance and, in addition, awarded $500.00 compensatory damages.

The hospital has appealed this order to the State Human Rights Appeal Board.

It will be interesting to see whether any of these cases will be taken to court. If so, there may be further clarification of the effect in this State of the Hardison decision.

However, until the court rules otherwise, we will continue to interpret the Human Rights Law liberally in favor of Sabbath observers. As these examples show there is often little or no effort made by some employers at accommodation. It is this attitude of inflexibility rather than actual hardship that is at the source of many of the cases we handle.

We have found that it is easier to accommodate the Sabbath observer than many employers are readily willing to admit or attempt. The accommodation does not entail a financial burden, but merely a review of existing conditions to make a reasonable adjustment.

The protection extended to Sabbath observers is just as germane to our Human Rights Law as that extended to race, sex, disability, age, marital status, or national origin.

We therefore intend to carry out the statutory mandate to protect the interest of individuals who observe a particular day as a requirement of their religion.

I appreciate the opportunity to testify and, of course, I am available for any of your questions.

Chair NORTON: Thank you, Commissioner Kramarsky. I wonder if the increase you project in the complaints in this field, whether you believe that has any connection with Hardison or whether it is simply a part of the general increase for employment that all of us experience.

Mr. KRAMARSKY: As far as we know it is not particularly Hardison related. At this point I'm not sure that even as important a decision as that is, that it has persuaded the work force enough for employers and labor organizations to insist on it in its relationships with employers or with unions.

So consequently I just can't tell you whether we will have an increase on that basis, but as you pointed out there is such a continuing increase in case loads and without the cases in front of me it would be difficult to separate one from the other.

Chair NORTON: Around the time of the high Jewish holidays this fall the Commission received a number of reports from Human Rights organizations and they in turn received reports from employers who were beginning to interpret Hardison to mean that they didn't have to accommodate, even to the high holy day needs of employees.

I wonder if the New York State Division received any of those reports.

Mr. KRAMARSKY: We did and we issued shortly before the Jewish holidays a press release and distributed it as widely as we knew how calling attention again to the Human Rights Law of the State, specifically setting forth that there was nothing in law or decisions that excluded the people from being under an obligation to make those days available to people.

We did not get any formal complaints at that time. There were a number of informal complaints, both in public as well as in private sectors of employment and where we received those complaints most of them were resolved by telephone calls to the particular employer, advising that employer of the release and sending a copy of the Human Rights Law so that in most cases they never even came to the level of cases, which is something all of us strive to prevent.

Chair NORTON: Did the New York State Law expressly cover labor organizations in this respect?

Mr. KRAMARSKY: It did not specifically cover it. We have interpreted it to cover it and what I said was that I would hope that any guidelines