On August 30, 2011, New York City Mayor Michael Bloomberg signed the Workplace Religious Freedom Act (the “Act”) clarifying and expanding employers’ obligation to accommodate their employees’ religious observances. Under the New York City Human Rights Law (“NYCHRL”), an employer must provide a reasonable accommodation for an employee's religious observance (such as permitting employees to wear religious attire and take time off for religious observance) unless such accommodation would result in an “undue hardship” on the employer’s business. The Act amends the NYCHRL to define the term “undue hardship” as “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).”
In addition, the Act sets forth the following non-exclusive list of factors to consider when evaluating whether an accommodation constitutes an undue economic hardship:
· 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;
· the number of individuals who will need the particular accommodation; 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.
Notwithstanding these definitions, the Act makes it clear that an employee seeking the religious accommodation must be able to perform the essential functions of his or her position.
Notably, members of the Sikh community initially introduced this New York City legislation in response to restrictions on wearing turbans placed by certain city agencies. Although this legislation applies to all public and private employers with operations or employees working in New York City, it follows a nationwide trend guarding against religious discrimination. All employers should take every religious accommodation request seriously, engage in an interactive process with employees, and consult with counsel when in doubt of their legal obligations.
* Special thanks to Douglas Florence who contributed to this posting.