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New York City Employers Subject to Expanded Religious Accommodation Obligations

  • August 25, 2011

Title VII of the Civil Rights Act, the New York State Human Rights Law, and the New York City Human Rights Law all protect employees from workplace discrimination based on religious beliefs and practices, and impose an obligation on New York employers to provide reasonable accommodations for the religious needs and practices of employees and prospective employees.  Employers’ obligation to provide religious accommodations to their New York City employees, however, will be expanded by legislation passed unanimously by the New York City Council, called “The Workplace Religious Freedom Act.” (The effective date is dependent on whether Mayor Bloomberg signs the legislation or the City Council needs to enact the legislation over the Mayor’s veto.) 

The New York City Human Rights Law (“NYCHRL”) currently does not require an employer to provide a religious accommodation to its New York City employees if doing so would pose an “undue hardship.”  It provides the following non-exhaustive list of factors are relevant to the undue hardship analysis:

a) the nature and cost of the accommodation;

b) the overall financial resources of the facility or the facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

c) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees, the number, type, and location of its facilities; and

d) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

The Workplace Religious Freedom Act amends the NYCHRL by imposing the following strict standard for establishing “undue hardship” while reiterating that it is the employer’s burden to demonstrate “undue hardship”:

 "Undue hardship" as used in this subdivision shall mean an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system).  Factors to be considered in determining whether the accommodation constitutes an undue economic hardship shall include, but not be limited to:

(i) the identifiable cost of the accommodation, including the costs of loss of productivity and of retaining or hiring employees or transferring employees from one facility to another, in relation to the size and operating cost of the employer;

(ii) the number of individuals who will need the particular accommodation to a sincerely held religious observance or practice; and

(iii) for an employer with multiple facilities, the degree to which the geographic separateness or administrative or fiscal relationship of the facilities will make the accommodation more difficult or expensive.

Provided, however, an accommodation shall be considered to constitute an undue hardship, for purposes of this subdivision, if it will result in the inability of an employee who is seeking a religious accommodation to perform the essential functions of the position in which he or she is employed.

Proponents of this amendment claim it is necessary to clarify that “undue hardship” does not mean “inconvenience.”
 
New York City employers who fail to provide religious accommodations are subject to claims under the NYCHRL.  These claims can be filed in court or before the New York City Commission on Human Rights.  Potential remedies for statutory violations include reinstatement, back pay, unlimited compensatory and punitive damages and attorneys’ fees.  Employers who violate the Workplace Religious Freedom Act also are subject to a civil penalty of up to $125,000.

While the coverage of this enactment is limited to employers’ New York City-based employees, all United States employers should recognize their obligations to provide religious accommodations.  This is an expanding area of employee claims as the nation becomes increasingly diverse.  The Equal Employment Opportunity Commission has been inundated with complaints of religious discrimination in recent years, particularly from Muslim workers complaining of discrimination based on appearance or attire, their need for prayer breaks, and hostile work environment harassment based on their religion.  The EEOC received 3,790 complaints of religious discrimination in fiscal year 2010, up from 2,340 such complaints in fiscal year 2005.  Further, companies have recently been found to violate Title VII by (a) failing to hire an individual who wore a hijab (a head covering worn by Muslim women) to an interview; (b) maintaining a restrictive “appearance policy;” and (c) refusing to allow employees to wear religious garb while at work.
 
Employers should ensure that all requests for religious accommodations are analyzed on an individualized basis and that any policies, such as “Personal Appearance” policies, are carefully reviewed.  Jackson Lewis attorneys are available to assist with policy review as well as advice regarding handling individual accommodation requests. 

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