Recent headlines splashed across The Washington Post, The New York Times and Time Magazine - "Pharmacists' Rights at Front Of New Debate, Because of Beliefs, Some Refuse To Fill Birth Control Prescriptions," "Frist Set to Use Religious Stage on Judicial Issue," "Lessons of the Schiavo Battle: What the Bitter Fight Over a Woman's Right to Live or Die Tells Us About Politics, Religion, The Courts and Life Itself," - remind us that we are today - more than ever - "one Nation under God."
Sparking a related firestorm of controversy is the issue of religion in the workplace, and more specifically, the extent to which employers must legally accommodate their employees' religious practices and observances. Our nation is increasingly becoming religiously diverse. At the same time, employees are, with greater frequency, expressing their religion, faith, and spirituality in the workplace. These facts are reflected by the United States Equal Employment Opportunity Commission's ("EEOC") figures showing that complaints of religious discrimination have risen sharply over the past decade. The EEOC has reported that religious bias charges racheted up to 2,532 in fiscal year 2003, representing a 75 percent increase from fiscal year 1993. In fiscal year 2004, the EEOC obtained six million dollars from employers arising out of religious-based discrimination charges. Religious-based discrimination cases relating to issues like abortion and gay rights are also emerging in the courts.
As a result of these trends and the potential liability associated with religious discrimination claims, employers need to take a closer look at how their organizations handle religious speech and behavior and requests for religious accommodation. Employers also need to be mindful that, if they or their employees try to impose their religious beliefs on others in the workplace, they may expose themselves to potential liability for "creating a hostile work environment" for others who do not share their religious viewpoints.
Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), which covers employers with fifteen or more employees, prohibits discrimination in employment against an employee or prospective employee because of religion. Title VII defines "religion" to include: "all aspects of religious observance and practice, as well as belief." An employer may not treat an employee or prospective employee more or less favorably because of his or her religious beliefs or practices. For example, an employer may not refuse to hire individuals of a certain religion or impose greater work requirements on an employee because of that employee's religious beliefs or practices. Additionally, employers may not require their employees to participate - or not participate - in a religious activity as a condition of employment. The employee's belief need not be a traditional religion as long as it is a bona fide "sincerely held belief." Atheists, too, are protected by Title VII.
Title VII's Religious Accommodation Requirement
Title VII requires employers to reasonably accommodate an employee's "sincerely held" religious beliefs, practice or observance unless doing so would result in an "undue hardship" on the conduct of the business. A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his or her religion.
Typically, an employee has a duty to notify his or her employer of a conflict between his or her religious practices and an employment requirement. The employer must then engage in an interactive process with the employee to determine a reasonable accommodation. An employer need not offer the accommodation preferred by the employee; any reasonable accommodation that permits an employee to practice his or her religion will do. However, an employer that does not engage in an interactive process may be unsuccessful in defending against a claim of failure to accommodate. Types of accommodations for an employee's religious beliefs might include flexible scheduling, voluntary substitutions or swaps, job reassignments, lateral transfers and modifying workplace practices, policies and/or procedures, and/or adjusting or altering certain workplace policies, including scheduling, dress code and grooming policies.
Undue Hardship Defense
An employer may refuse to provide a religious accommodation if doing so would result in an "undue hardship," defined as any accommodation request that would cause more than a "de minimus" cost to the employer or an imposition on co-workers. Such costs include: Tangible costs, such as paying another worker overtime to cover a scheduling request, interference with a bona fide seniority system, and intangible costs, such as loss of efficiency, burdening other workers with more than their fair share of weekend shifts, impairing workplace safety, or conflicts with another law or regulation. The employer bears the burden of proving such hardship.
New York State Law
New York State's Human Rights Law ("NYSHRL") - covering employers with four or more employees - also prohibits employment discrimination based on a job applicant's or employee's creed and requires employers to reasonably accommodate an employee's religious practice or observance unless doing so would result in an "undue hardship." More specifically, New York Executive Law § 296(10) prohibits an employer, employee or agent from requiring an applicant or employee to "violate or forego a sincerely held practice of his or her religion (including the observance of any particular day or days or any portion thereof as a holy day or Sabbath)...unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee's or prospective employee's sincerely held religious observance or practice without undue hardship on the conduct of the employer's business." (emphasis added).
The State law requires an employer to reasonably accommodate employees' religious practices and beliefs, presumably, to include religious requirements relating to dress, hairstyle, facial hair, time off for prayer, recognizing practices concerning dress and personal grooming habits, following certain dietary requirements, the practice of not working during a mourning period for a deceased relative, the religious prohibition against medical examinations, and the religious prohibition against membership in labor and other organizations.
With respect to Sabbath observers, the law requires an employer to permit an employee to leave work during any day or days or portion thereof that s/he observes as his or her sabbath or other holy day, including a reasonable time before and after for travel between the workplace and home. An employer also cannot refuse to permit an employee to use leave because it will be used to accommodate a sincerely held religious observance or practice, or to charge absences for observances against paid leave time (other than sick leave), such as personal days and vacation days. Where paid leave has been exhausted, leave for a religious observance may be treated by the employer as unpaid leave. Unpaid leave may be required to be made up, however, by scheduling an equivalent amount of work time at some other mutually convenient time.
New York's "Undue Hardship" Defense
Since its amendment in 2002, the NYSHRL has imposed a greater burden on employers than that imposed under Title VII or even under New York City's Human Rights Law, which does not define "undue hardship" in the religious accommodation context but appears to track Title VII in its application. The NYSHRL's "undue hardship" standard requires a showing by an employer that the requested accommodation would be a significant expense or difficulty (including a significant interference with the safe and efficient operation of the workplace or of a bona fide seniority system), or that it would result in the inability of an employee to perform the essential functions of the position.
Factors to consider in determining whether a hardship is "undue," include: 1) the identifiable cost of accommodation - including costs of lost productivity, retaining, hiring, transferring employees - in relation to size and operating costs of employer; 2) the number of employees needing the accommodation; and 3) the expense or difficulty faced by an employer with multiple facilities. In sum, New York employers' obligations to accommodate the religious beliefs and practices of their employees have expanded under the NYSHRL. To date, however, there are no reported cases interpreting the statute's broader definition of "undue hardship." Consequently, New York employers should consult with their legal counsel when dealing with religious accommodation requests.
Employers rightly concerned about their potential exposure to liability arising out of a claim of religious discrimination, harassment or failure to accommodate religious observances, beliefs or practices should consider the following:
Employers should review their existing policies and procedures affecting religion, religious harassment and accommodation to ensure those policies and procedures comply with federal, state and local laws. They also should endeavor to engage in interactive processes with employees requesting reasonable accommodations. Those that strive to accommodate their employees' sincerely held religious beliefs and respect the religious diversity of their workforce may minimize the potential for litigation. Such efforts also may go a long way towards cultivating a harmonious and diverse workforce.
Lisa M. Brauner is Senior Counsel at Grotta, Glassman & Hoffman, P.C., where she and the firm represent management exclusively in labor, employment, employee benefits and corporate immigration law and related litigation. She may be reached at (212) 261-2167.