By Matt Crawford
On August 17, 2011, the New York City Council unanimously passed Local Law 54 to amend the New York City Administrative Code to adopt the definition of “undue hardship” with reference to an employer’s duty to accommodate an employee’s religious observances.[i] Signed on August 30, 2011 by New York Mayor Michael Bloomberg, the legislation makes the definition of “undue hardship” under the New York City Human Rights Law consistent with New York state law.[ii] Reasonable accommodation is now defined as “such accommodation to an employee’s or prospective employee’s religious observance or practice as shall not cause undue hardship in the conduct of the employer’s business.”[iii] The legislation, Int. No. 632-A, imposes a civil penalty of up to $125,000 along with possible compensatory damages, back-pay, and injunctive relief against employers.[iv] The bill was sponsored by Democratic City Councilman Mark Weprin who stated that “The bill sends the message that people should not have to choose between serving our city and adhering to their religious beliefs.”[v] Notably, Weprin was recently defeated by Republican Bob Turner in a special election to fill the vacated seat of former U.S. Representative Anthony Weiner in New York’s heavily democratic Ninth District.[vi]
Religious discrimination in the workplace is of grave concern and has been on the rise since the September 11th, 2001 terrorist attacks carried out against the United States.[vii] The Equal Employment Opportunity Commission has seen a 25% increase in the number of religious discrimination claims since the attacks, including a doubling of those claims filed by Muslims.[viii] The recent legislation was proposed, at least in part, as a response to New York Police Department rules which prohibited Sikh police officers from wearing turbans as required by their religion and forced them to shave their beards.[ix] MTA employees had also been asked to brand their turbans with the MTA logo.[x] The new legislation lists several factors to take into account for determining whether undue hardship exists for the employer in accommodating an employee’s religious observances.[xi] These factors include, but are not limited to, the nature and cost of accommodation, the overall financial resources of the facility, the number of persons employed at the facility, the effect on expenses, the impact on the operation of the facility, the type of operation and the composition, structure and functions of the business’s workforce.[xii]
A recent case from the Western District of New York illustrates the issue of reasonable accommodation quite well. In Equal Employment Opportunity Commission v. Dresser Rand Company, decided on August 11, 2011, by Judge Charles Siragusa, an employee refused to work on any “implement of war as prohibited as a result of his being a Jehovah’s Witness.”[xiii] The Dresser Rand Company, for which the plaintiff Harry M. Davis was employed, regularly performed manufacturing jobs for the United States Navy.[xiv] Although the company had on prior occasions reassigned Davis to other work, his request to be given other work on December 9, 2002, was not honored, and he was suspended for insubordination.[xv] On a motion for partial summary judgment, the Court held that the Dresser Rand Company could only prevail if it demonstrated “(1) that other suitable work existed and (2) Davis did not make reasonable efforts to obtain other work.”[xvi]
Federal, state, and local laws protecting the individual’s right to adhere to their religion’s practices and observances are essential to preserving the religious freedom granted under the First Amendment, which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”[xvii] The importance of protecting against religious discrimination is emphasized not only in the First Amendment but also more specifically and recently in Title VII of the Civil Rights Act of 1964 which states that “[i]t shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his … religion.”[xviii] Title VII defines “religion” as including “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”[xix]
The Equal Employment Opportunity Commission recommends that employers develop internal procedures for processing religious accommodation requests and train managers to handle such requests, as well as assess each request individually.[xx] Importantly, employers must avoid any assumptions or stereotypes as to what actually constitutes a sincerely held religious belief or practice.[xxi] Not only must an employer not stereotype religious practices or dress requirements, but policies must be enforced consistently.[xxii] One situation to illustrate the importance of consistency is if employees routinely wear baseball hats at a job when at the same time an employee was terminated for wearing a religious hijab under a “no head coverings” policy.[xxiii]
Of course, businesses do not have to accommodate religious wear and practices in all circumstances, as long as rules are applied consistently among all employees and involve legitimate business issues, such as safety concerns.[xxiv] However, businesses would be wise to listen to all employee requests for religious accommodation and are strongly urged to exercise caution in deciding whether a religious accommodation is a “reasonable” or whether it causes an “undue hardship.”[xxv] Repercussions for discriminating against an employee’s religious practices have long been severe. Now, New York City has adopted similar standards, definitions, and considerations to give the same protection to its own municipal employees as that required by law to be given to employees around the nation.
[i] NYC Adopts State’s Hardship Definition For Accommodation of Religious Belief, Emp’t Discrimination Rep. Online (BNA) No. 37, at 370.
[iii] New York, N.Y., Code § 8-107(3)(b) (2011). See also, Legislation Text: Int. No. 632-A, The New York City Council (August 30, 2011), http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=917951&GUID=41CC6045-21EE-4BE7-A21F-CC905F2D761D
[iv] Adam Klasfeld, NYC Adopts Worker’s Anti-Discrimination Law, Courthouse News Serv. (Aug. 31, 2011), http://www.courthousenews.com/2011/08/31/39439.htm.
[vi] Thomas Kaplan, G.O.P. Gains House Seat Vacated by Weiner. The New York Times (Sept. 13, 2011), http://www.nytimes.com/2011/09/14/nyregion/ny-democrats-try-to-avoid-upset-in-special-election.html.
[vii] “EEOC: Dominguez Lauds Contractors’ Partnership but Urges More Participation in Mediation,” 154 BNA Daily Labor Report B-1 (Aug. 11, 2005)
[xi] See New York, N.Y., Code § 8-107(3)(b) (2011).
[xiii] E.E.O.C. v. Dresser Rand Co., No. 04-CV-6300 CJS, 2011 WL 3555765, at *1 (W.D.N.Y. Aug. 11, 2011).
[xvi] Id. at 7.
[xvii] U.S. Const. amend. I.
[xviii] The Civil Rights Act of 1964 § 2000e-2(a)(1), 42 U.S.C.A. § 2000e-2(a)(1) (West 2011).
[xix] The Civil Rights Act of 1964 § 2000e(j), 42 U.S.C.A. § 2000e(j) (West 2011).
[xx] Best Practices for Eradicating Religious Discrimination in the Workplace, The U.S. Equal Employment Opportunity Commission (July 23, 2008). http://www.eeoc.gov/policy/ docs/best_practices_religion.html.
[xxii] Maureen Minehan, Dress Codes Bring Dressing Down by EEOC, 28 No. 18 Emp. Alert 1 (Sept. 8, 2011).