The number of religious discrimination cases has risen steadily over the past decade. This trend may continue, at least in New York City, well into the future. On August 17, 2011, the New York City Council, NYC’s law-making body, passed Local Law Int. No. 632-A, which amended the NYC Human Rights Law – already one of the strongest in the nation – to provide increased protections against religious discrimination.
New York City’s Human Rights Law requires employers to reasonably accommodate their employees’ religious needs (e.g. for time off to pray or to observe a religious holiday, to wear certain religious garb or symbols, or to accommodate certain dietary restrictions). Accommodations that would cause the employer “undue hardship” however, are not considered reasonable. But, at least until now, the NYC Human Rights Law did not define “undue hardship” and courts interpreted “undue hardship” consistent with the federal standard such that employers could deny a religious accommodation request as long as it imposed more than a “de minimus cost or burden” to the employer – a relatively low threshold for denial.
The new law changed that by specifically defining “undue hardship” to mean 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 law identifies factors that should be considered in determining whether an accommodation “constitutes an undue economic hardship,” including:
- 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 to a sincerely held religious observance or practice; 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.
At the same time, the new law confirms that an undue hardship will exist if the employee cannot perform the essential functions of his or her position with the accommodation.
Assuming Mayor Bloomberg signs this new law, NYC employers should think twice before turning down an employee’s religious accommodation request simply because it may inconvenience them. Employers should seriously consider the level of disruption the accommodation would cause, and to the extent the accommodation would not result in a significant expense, or otherwise cause significant difficultly, to the employer, it should take steps to accommodate the employee.