Jackson Lewis notes the New York City Human Rights Law (NYCHRL) currently does not require an employer to provide a religious accommodation to its New York City employees if doing so would pose an “undue hardship.” The Workplace Religious Freedom Act amends the NYCHRL by imposing a stricter standard for establishing “undue hardship” while reiterating that it is the employer’s burden to demonstrate “undue hardship.”
According to the legislation, “undue hardship” shall 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). Factors to be considered in determining whether the accommodation constitutes an undue economic hardship shall include, but not be limited to:
- 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;
- 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.
In addition, the legislation said a accommodation shall be considered to constitute an undue hardship 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.
Jackson Lewis said proponents of this amendment claim it is necessary to clarify that “undue hardship” does not mean “inconvenience.”
The firm warns New York City employers who fail to provide religious accommodations are subject to claims under the NYCHRL. These claims can be filed in court or before the New York City Commission on Human Rights. Potential remedies for statutory violations include reinstatement, back pay, unlimited compensatory and punitive damages, and attorneys’ fees. Employers who violate the Workplace Religious Freedom Act also are subject to a civil penalty of up to $125,000.
Jackson Lewis advises employers to ensure all requests for religious accommodations are analyzed on an individualized basis and that any policies, such as “personal appearance” policies, are carefully reviewed.
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