I have made a breakdown of Sabbath observance religious accommodation matters, brought to the cognizance of NYDO during the year and a half period commencing on October 1, 1976, the beginning of the fiscal year 1977 and ending March 30, 1978, the halfway mark of fiscal year 1978 and the following information emerges:

Some 57 charges in this area of Sabbath observance and religious accommodation have come to our attention during the chosen time period.

Of these, 20 have received final EEOC determinations and 27 are presently under investigation or otherwise being processed by the New York State Division of Human Rights or New York City Commission on Human Rights, the major deferral agencies of our District Office.

Seven are either presently being investigated or pend investigation by NYDO and three are in deferral, that is, are in the statutorily required 60 day period during which the State or City HR Agency has the right to investigate and determine the matter while EEOC stays out of the picture.

You might find a further breakdown of the 20 charges, in which determinations have been issued, to be of interest.

Eight of the charging parties were Observant Jews, three were Seventh Day Adventists, two were Pentacostals, and the rest identified themselves as being Born Again Christian, Eastern Rites Catholic, Orthodox Russian, Church of God, Episcopalian and Christians.

Either by means of predetermination settlement or the Commission's new no fault settlement system, nine of these charging parties received benefits of one kind or another, such as reinstatement to a previously held position with full back pay, offers of employment, change of working conditions, including accommodation for religious needs, etc. Three charges were withdrawn, likely with benefits to these charging parties. One charge was found to be ultimately filed and no cause findings were made in the remaining seven matters.

The 57 Sabbath observance religious accommodation charges constituted a bit more than one per cent of the total number of charges filed in the New York District Office during the 18 month period I have been dealing with. It is for this reason that I stated, earlier, my feeling concerning the mild impact upon our overall case load of charges involving these issues.

However, in no way do I wish to denigrate the importance of these types of charges to those who bring them to us or, in fact, to those of us charged with the responsibility of investigating and determining them.

The question may well be asked, in view of the statistic which I have cited, whether or not a problem actually exists in this jurisdiction.

My own feeling is that a dearth of charges does not necessarily imply an answer in the negative. Numerous other reasons might exist for this phenomenon, lack of knowledge, on the parts of those victimized, that agencies of government exist which can assist them, etc.

Title VII of the Civil Rights Act of 1964, as amended, and guidelines promulgated by this Commission, have always imposed upon employers a duty to accommodate to the religious beliefs of their employees, absent certain defined elements.

The U.S. Supreme Court decision rendered last year in TWA versus Hardison may well have created a degree of confusion in the minds of some, but it is clear, as Chair Norton rather vigorously pointed out following that decision, that Hardison was somewhat specific, dealing with a conflict between normal seniority system operation and the weekly religious requirements of an employee.

Thus, the requirement that employers maintain a duty to accommodate to their employee's religious beliefs remains substantially in effect, and this posture guides those of us in NYDO in our dealings on this subject.

In summation, the New York District Office of EEOC handles a comparatively small number of matters involving alleged Sabbath observance and/or religious accommodation violations.

We are successful in satisfactorily resolving a goodly percentage of charges of this type which we get. We do not construe the fact that few of these charges are filed with us as indicative of a problem not necessarily existing.

And finally, we look upon the Title VII provision and the long-term agency guideline concerning prohibition of religious discrimination as being substantially unchanged by the Supreme Court decision in TWA versus Hardison, and therefore process charges concerning the subject issues accordingly.

May I thank you for your time and attention, and I invite any questions which you might wish to ask.

Chair NORTON: Thank you very much. To save time and since you are part of our own district I will promulgate any questions to you through channels.

Mr. Leach, do you have any questions?

Commissioner LEACH: No.

Commissioner WALSH: I have nothing.

Chair NORTON: Thank you very much, Mr. Stern.

I would like to call as our next witness Mr. Menachem Shayovich, Special Assistant to the Governor of the State of New York.

Mr. SHAYOVICH: Thank you, Chairman, and members of the Commission.

I am Menachem Shayovich and I am here as a representative of Governor Carey and of the State of New York as an employer. First, on behalf of the Governor, it is certainly our pleasure to welcome you to the State to conduct these hearings.

We appreciate the opportunity to appear at this hearing and to express our views on the subject of accommodating the religious observance needs of employees.

It has long been the policy of the State of New York as an employer to protect the religious observance rights of its employees. Even before the present Attendance Rules were adopted in 1957 it was the policy of the State to make special arrangements to assure that employees received time off as necessary to meet bona fide religious obligations. In 1957 that policy was incorporated as Rule 21.6 in the revised Attendance Rules for employees in New York State departments and institutions.

These rules have the force and effect of law and apply to all employees in the Classified Service of the Executive Branch of the State Government, approximately 160,000 in number.

The rules have included since their adoption in 1957 a special personal leave provision, Rule 21.6, whereby each employee is credited with five days of such leave at full pay per year which may be used for personal business or religious observance purposes.

Pertinent provisions of Rule 21.6 read as follows:

"personal leave is leave with pay for personal business, including religious observance, without charge against accumulated vacation or overtime credits; and part (c) which reads, "personal leave may be drawn only at a time convenient to and approved in advance by the appointing authority; provided, however, that personal leave allowed for religious observance shall be granted on the days and hours required, insofar as the same may be granted at such time without interference with the proper conduct of government functions."

A complete copy of Rule 21.6 has been submitted with a copy of this statement.

There are negotiated union contract provisions referring to personal leave, including leave for religious observance.

These contract provisions typically provide and I quote, "the State shall not require an employee to give a reason as a condition for approving the use of personal leave credits, provided, however, that prior approval for the requested leave must be obtained; that the resulting absence will not interfere with the proper conduct of govern

mental functions; and that an employee who has exhausted his personal leave credits shall charge approved absences from work necessitated by personal business or religious observance to accumulated vacation or overtime credits."

In addition, the State as an employer is covered by Section 296.10 of the Executive Law which prohibits discrimination by an employer against any applicant or employee because of latter's observance of any particular day or days as a Sabbath or other holy day in accordance with the requirements of his religion.

A copy of that provision of law has also been submitted for your consideration.

Section 50(8) of the New York State Civil Service Law titled "Examination of Candidates Unable to Attend Tests Because of Religious Observance," applies to both State and local governments.

It provides that when a person, because of his religious beliefs, is unable to take a civil service examination on a Saturday or on any day which is a religious holy day observed by him, he shall be permitted to take such examination on some other day designated by the State Department of Civil Service or appropriate municipal civil service commission without any additional fee or penalty.

Practically all of our examinations are given on a Saturday. Our usual practice is to make arrangements for Sabbath observers to take an examination the following day. There is in fact a part of the application which is submitted by the applicant where he can check off if he is a Sabbath observer or not.

An employee's absence for religious purposes is normally charged to personal leave or other leave credits; if the employee has no leave credits, leave without pay may be granted or agencies can, to the extent practicable, adjust work schedules to allow the time to be made up. In a situation where early departure from work is necessary, e.g., a Sabbath observer who must leave early on Friday, the individual appointed authority can make special arrangements.

This includes adjustments in arrival times and in lunch periods and the use of leave credits as required to meet satisfactorily the employees' needs.

We are not aware of any particular problems in this area insofar as public employees in the State are concerned. In summation, the policy of the State Administration is to approach the needs of the Sabbath observer in a most positive and benevolent manner and to assist in making the necessary accommodations for the religious observances of the State's employees.

The State's policy with its flexibility and its provision for alternatives

has worked very well. We have received very few complaints either from employees or from agency management.

I would also like to add a personal note that I, myself, am a Sabbath observer and I am Special Assistant to the Governor.

Basically, we are on 24 hour call and I must say that I have never had any problems in the three and a half years that I've been on the job as a Sabbath observer in leaving early on a holiday.

I thank you for the opportunity to present the policies of the State of New York.

Chair NORTON: Thank you, Mr. Shayovich. I take it then that the Governor does not see any need for strengthening the New York State Legislation?

Mr. SHAYOVICH: As far as the New York State Legislation is concerned, we support public employees. We believe that the Legislation presently seems to be sufficient.

We have recently just passed a new bill in reference to students of the State Universities and the City Universities and the higher education which comes under the jurisdiction of the State.

We have, in effect, made provisions for the students to get catalogs which provide a statement saying that if a student cannot attend a class due to religious observance, that the student is also entitled to have that class made up or provisions made for the student not to be penalized. We have not had any real problems, but there may have been a situation on a local agency level which, when it came to our attention, after discussing it with the supervisor, the accommodation was made. Chair NORTON: Thank you, Commissioner Shayovich.

Commissioner LEACH: I would like to say that you made a rather convincing statement that the business needs of the State can be accommodating to the particular religious needs of its employees.

Do you have any impression that this would be inhibited in the private sector? The example you give is a very common one, I think, in public employment, that Saturday, for example, entry level tests are given. I don't know that that is the case in the private sector.

You stated that the State seemed to have accommodated so well on some of the other issues here. Could you make a judgment about the private sector, whether they might adopt some of these ideas to accommodate?

Mr. SHAYOVICH: I think the State in this respect has provided the example and has shown that, if there is the interest in accommodating the employees, it can be done.

I, therefore, venture to say that it certainly could be done in the