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Labor & Employment Law: Strategic HR Lawyer
New York City Workplace Religious Freedom Act Subjects Employers to Expanded Religious Accommodation Obligations
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. They also impose an obligation on New York employers to provide reasonable accommodation for the religious needs and practices of employees and prospective employees.
On August 30, 2011, New York City's Mayor Michael Bloomberg signed legislation called 'The Workplace Religious Freedom Act' which clarifies the standard that almost all New York employers must adhere to when evaluating an employee's request for a religious accommodation. The City law already prohibits employers from imposing any terms or conditions that would require an individual to violate or forego a practice of his or her religion as a condition of obtaining or retaining employment, and requires employers to reasonably accommodate the religious needs of the individual, provided that the accommodation does not cause an 'undue hardship' in the conduct of the business.
The New York City Human Rights Law 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 to be considered when evaluating the presence of an 'undue hardship':
- The nature and cost of the accommodation;
- The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of person employed at the facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
- The overall financial resources of the covered entity; the overall size of the business of a covered entity with regard to the number of employees, the number, type and location of its facilities; and
- The type of operation(s) of the covered entity, including composition, structure, and functions of the workforce of such entity; and the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.
The absence of a definition for 'undue hardship' in the City law has, at times, resulted in employers and courts applying the 'de minimis cost or burden' standard found in Title VII when interpreting the meaning. The Workplace Religious Freedom Act imposes the following strict standard for establishing 'undue hardship' while reiterating that it is the employer's burden to demonstrate 'undue hardship':
'Undue hardship' 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:
- The identifiable cost of the accommodation, including the costs of loss of productivity and the cost of retaining or hiring of employees or transferring of employees from one facility to another, in relation to the size and operating cost of the employer.
- The number of individuals who will need the particular accommodation to a sincerely held religious observance or practice, and
- 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.
The Act also provides that employers in New York City can establish that a religious accommodation will result in an 'undue hardship' by showing that it will result in the employee's inability to perform the essential functions of his or her position.
The remedies and penalties for engaging in unlawful religious discrimination are unchanged by this Act. The remedies for statutory violations may include reinstatement, back pay, compensatory and punitive damages and attorney's fees. An employer violating the Act also is also subject to a civil penalty of $125,000.
Employers should take caution when determining whether or not a religious accommodation is a 'reasonable' one or whether it causes an 'undue hardship'. Employers covered by the Workplace Religious Freedom Act should consider taking the following actions:
- Review their procedures and policies, particularly those that prohibit religious discrimination, govern requests for religious accommodation, and/or set requirements with respect to personal appearance, to ensure they are up-to-date and consistent with the standard under the new City law;
- Review job descriptions to ensure that the essential functions of each position are described accurately; and
- Review the need to provide religious accommodations with Human Resources professionals and supervisors to ensure they know to engage in an individualize interactive process with employees who request religious accommodations and consider relevant factors, including those listed in the amended City law, before granting or denying a request.
- Be aware that a request for a religious accommodation, which might have been denied in the past, may need to be revisited to ensure compliance with the City law.
Employers should ensure that all requests for religious accommodation are analyzed on an individual basis and ensure that all applicable policies are carefully reviewed.
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