By Steven E. Abraham
Most organizations are aware that it is illegal to discriminate against employees and applicants based on certain characteristics. Thus, an organization may not refuse to hire, discharge or make other employment decisions based on a person’s race, color, religion, age, disability, etc.
But when it comes to religion and disability, the law actually requires more. Both federal and New York state law require organizations to make “reasonable accommodations” to an applicant for employment or an employee.
Section 701(j) of Title Seven states, “The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an organization 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 organization’s business.
Section 102(b)(5)(a) of the Americans with Disabilities Act (ADA) states that discrimination includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.”
When it comes to religion, organizations’ duty to accommodate employees usually comes up in two areas: attire and grooming, and working time.
For example, certain religions require persons to dress in a certain way or maintain a certain appearance. Title VII would require an organization to allow employees to appear according to the dictates of their religions, unless the organization can demonstrate undue hardship.
In a case that went all the way to the Supreme Court, an organization refused to hire an applicant because she came to the interview wearing a hijab (religious head scarf), which would have conflicted with the organization’s dress code. The Supreme Court held that by refusing to hire the employee, the organization was guilty of religious discrimination.
Similarly, certain religions require employees to pray at certain times or on certain days, etc. It also would violate Title VII for organizations to deny employees the right to pray at the time is needed or on the days needed.
Title VII requires an organization to accommodate employees’ religious observances and the ADA might require an organization to accommodate employees disabilities
It should be noted, however, that the Supreme Court has held that an organization is not required to offer the employee the exact accommodation the employee requests; rather, all the organization need to do is offer any accommodation that would enable the employee to practice their religion.
In one particular case, an employee exhausted all of her paid religious days off and requested that she be allowed to use her paid personal days off to practice a religion. The employer refused, but instead allowed the employee to take unpaid leave. The Supreme Court held that the organization has satisfied its duty to accommodate the employee even though that accommodation was not as beneficial to the employee.
When it comes to disability, organizations’ responsibility to accommodate employees and applicants covers a much broader range of things. Perhaps most obvious is structural accommodations to the workplace. Thus, organizations might be required to install ramps or handicapped-accessible doors, provide interpreters, offer materials in braille, etc. But the ADA also might require an organization to offer employees modified work schedules in order to accommodate a disability, and the ADA even has been interpreted to require that an employee’s job be restructured or that an employee be assigned to a vacant position. The duty to accommodate disabilities under the ADA is quite broad.
As noted above, however, organizations’ duty to accommodate employees and applicants is limited by the phrase “undue hardship.” In other words, an organization is not required to offer any accommodation if the organization can demonstrate that offering the requested accommodation would be an undue hardship. The organization would have the burden of demonstrating undue hardship, however.
Finally, the cases have established that if an organization can demonstrate that offering an accommodation would conflict with a bona fide seniority system, the organization would not be required to offer the accommodation.
Thus, in one case, the Supreme Court held that an organization was not required to give a Seventh Day Adventist a Saturday off to observe his religion because giving that Saturday off would have conflicted with the organization’s seniority system, and in another case, the court held that an organization was not required to transfer a Seventh Day Adventist to another position, again, because the transfer would have conflicted with the organization’s seniority system.
In sum, organizations should be aware that Title VII might require an organization to accommodate employees’ religious observances and the ADA might require an organization to accommodate employees’ disabilities.
Therefore, organizations should work interactively with employees and applicants in order to determine what accommodations they might need and figure out whether the organization can offer those accommodations without undue hardship.