The New York City Council passed a law known as the Workplace Religious Freedom Act (the “Act”), which places a greater burden on employers to accommodate an employee who requests a religious accommodation. The bill was approved by the New York City council on August 17, 2011 and is currently on the Mayor’s desk for his signature. The Mayor is expected to sign the bill into law shortly.
The Act came about because New York City Police Department rules prohibit Sikh police officers from wearing turbans, which is required by their religion. Specifically, men are forced to take off their turbans and shave their beards. Also, employees of the Metropolitan Transit Authority (“MTA”) are asked to brand their turbans with the MTA logo.
Although the current City law is broad and pro-employee, it nevertheless excuses employers from providing a religious accommodation if the accommodation imposes a de minimis difficulty or expense upon the employer. However, pursuant to the Act, “reasonable accommodation” is now defined to mean such accommodation to an employee’s or prospective employee’s religious observance or practice that shall not cause undue hardship in the conduct of the employer’s business. The term “undue hardship” is defined 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). Thus, the Act now requires employers to provide an accommodation unless it imposes a significant difficulty or expense upon the employer.
In determining whether an accommodation imposes a significant difficulty or expense upon the employer, factors that will be considered include the following: the nature and cost of the accommodation, the overall financial resources of the facility or the facilities involved in the provision of the reasonable accommodation, the number of persons employed at such 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 respect to the number of its employees, the number, type, and location of its facilities and the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity, the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. It is the employer’s burden to prove undue hardship. In other words, the analysis for religious accommodation requests will now be remarkably similar to the analysis for disability accommodation requests.
As a result of the Act, employers will have a more difficult time denying their employees, or prospective employees, religious accommodations. The Act provides greater protection to employees, and employers who are found to have violated it may be liable for a civil penalty, in addition to compensatory damages, back pay and reinstatement. In light of the Act, employers are urged to take great caution when determining whether or not a religious accommodation is a “reasonable” one or whether it causes an “undue hardship.” If a request for a religious accommodation does not create any serious difficulties or high expense for the employer, it may be best to provide the accommodation to the employee. Moreover, if there is any concern about the ability to provide an accommodation, employers would be advised to check with counsel before simply denying the requested accommodation.