Regional Highlights - New York
NYC Workplace Religious Freedom Act Clarifies
When Employers Must Make Religious Accommodations
On August 30, 2011, Mayor Michael Bloomberg signed legislation,
called "The Workplace Religious Freedom Act" (the "Act"),
clarifying the standard that almost all New York City employers
must apply when evaluating an employee's request for a religious
accommodation. The Act amends the New York City Human Rights Law,
N.Y.C. Admin. Code §§ 8-102 and 8-107, and is effective
immediately. Notably, the intent of the City law is to be more
protective of employee rights for religious accommodation than
presently exists under either Title VII of the Civil Rights Act of
1964 ("Title VII") or the New York State Human Rights Law.
The Act clarifies the standard that most employers in the City
already have been required to apply when evaluating a request for a
religious accommodation and, in most instances, will not change how
employers evaluate those requests. City law already prohibits
employers (and their employees and/or agents) 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 the accommodation does not cause an "undue hardship in the
conduct of the [employer's] business."
The absence of a definition for undue hardship in the City law
has, at times, resulted in employers and courts applying the "de
minimus cost or burden" standard found in Title VII when
interpreting the meaning of undue hardship under the City law. The
Workplace Religious Freedom Act clarifies that the City law
provides greater protections against religious discrimination than
Title VII. With the passage of the Act, the City law now adopts the
definition of "undue hardship" found in N.Y. Executive Law §
296(10)(d), stating that, with respect to religious accommodations,
undue hardship "means 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)." Like N.Y. Executive Law §
296(10)(d), the Act identifies a nonexhaustive list of factors that
must be evaluated when determining whether an accommodation
constitutes an "undue economic hardship." The factors include, but
are not 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 with a sincerely held religious
observance or practice who will need the particular accommodation;
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.
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
employer has the burden of establishing the undue hardship.
Significantly, the text limits application of the "essential
functions" language as it applies to attendance. Section 8 107(3)
states:
Without in any way limiting the foregoing, no person shall be
required to remain at his or her place of employment during any day
or days or portion thereof that, as a requirement of such person's
religion, he or she observes as a Sabbath or other holy day,
including a reasonable time prior and subsequent thereto for travel
between his or her place of employment and his or her home;
provided, however, that any such absence from work shall, wherever
practicable in the judgment of the employer, be made up by an
equivalent amount of time at some other mutually convenient
time.
The remedies and penalties for engaging in unlawful religious
discrimination are unchanged by the Act. The remedies for statutory
violations may include reinstatement, back pay, compensatory and
punitive damages and attorneys' fees. An employer violating the Act
also may be subject to a civil penalty of $125,000 or, where the
unlawful discrimination results from the employer's "willful,
wanton or malicious act," up to $250,000.
Steps Employers Can Take To Help Ensure
Compliance
Employers covered by the Workplace Religious Freedom Act should
consider the following action steps:
- 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;
- Review the need to provide religious accommodations with Human
Resources professionals and supervisors to ensure they know to
engage in an individualized 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. It may be best that supervisors refer such
employee requests to a Human Resources professional who is familiar
with the legal nuances involving reasonable accommodations;
- Be aware that a request for a religious accommodation, which
might possibly have been denied in the past, may need to be
revisited to ensure compliance with the City law.
Where uncertainty exists as to whether a religious accommodation
poses an "undue hardship," seeking legal guidance is a good idea
given the fact the burden remains with the employer and in light of
the potential penalties under the law.
