On August 30, 2011, Mayor Michael Bloomberg of New York City signed into law the Workplace Religious Freedom Act (the Act), amending the New York City Human Rights Law (the NYCHRL) by establishing a strict standard for “undue hardship” that employers in the city must meet in order to deny an applicant’s or an employee’s request that a religious practice or observance be reasonably accommodated. The new standard follows the existing definition in the New York State Human Rights Law (the NYSHRL).

Undue Hardship Under the Old NYCHRL

Previously, the NYCHRL did not define undue hardship. Accordingly, courts sometimes relied on the definition of "undue hardship" found in Title VII of the Civil Rights Act of 1964 (Title VII), the federal law that prohibits religious discrimination in employment. Under Title VII, an undue hardship for the employer is one that imposes more than a "de minimis cost or burden" on the business, which is a much lower standard.

The NYCHRL previously included the following non-exhaustive list of factors to be considered in evaluating whether an accommodation is reasonable:

1. the nature and cost of the accommodation;
2. 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;
3. 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
4. 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.

The New Standard

Under the new Act, "undue hardship" means 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).” Factors to be considered in determining whether the accommodation constitutes an undue economic hardship include but are not limited to:

1. 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;
2. the number of individuals who will need the particular accommodation to a sincerely held religious observance or practice; and
3. 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.

Importantly, the Act states that an accommodation will not be considered reasonable “if it will result in the inability of an employee who is seeking a religious accommodation to perform the essential functions of the position in which he or she is employed.” It is too early to determine how this provision will be interpreted, and whether it will provide much of a defense for employers. The Americans with Disabilities Act (ADA) has a similar provision, and it is construed narrowly, generally in favor of employees. Thus, it should be noted that the time permitted to observe a religious holiday or to pray, even if inconsistent with the time an employee is usually scheduled to work, will likely not be viewed as an undue hardship.

Looking Ahead

Undoubtedly, it will be more difficult for employers to safely deny requests for religious accommodations made by applicants and employees, and to defend claims of religious discrimination. Although the standard was already in effect at the state level under the NYSHRL, given a choice, savvy plaintiffs will prefer to assert claims under the NYCHRL, because there is no cap on the amount of punitive damages that can be awarded.

New York City employers should take this opportunity to review their policies, practices and procedures with respect to responding to requests for accommodations for religious practices and observances to minimize exposure to discrimination claims.

The Arent Fox Labor & Employment Law Group regularly advises clients on compliance with religious discrimination laws and defends them against claims of bias based on religion. If you have any questions about this law or the topic in general, please feel free to contact one of the authors or any other member of the Group.

Michael Stevens
stevens.michael@arentfox.com
202.857.6382

Darrell S. Gay
darrell.gay@arentfox.com
212.457.5465

Temitope K. Yusuf
yusuf.temitope@arentfox.com
212.457.5489