On August 31, 2011, New York City Mayor Michael Bloomberg
signed into law Local Law Int. No. 632, known as "The Workplace Religious
Freedom Act," that is likely to make it more challenging for New York City
employers to decline to accommodate their employees' and applicants' religious
New York City's Human Rights Law ("NYCHRL") has
long required employers with four or more employees to accommodate the bona
fide religious practices of their employees and applicants, unless doing so
would impose an "undue hardship" on the company. Such accommodations
typically include permitting employees to wear religious attire, granting time
off for religious observance and providing space for prayer. It is important to
note that preexisting New York City law contained no definition of "undue
hardship." Accordingly, employers often relied on the definition of undue
hardship established by the federal courts in Title VII religious
discrimination cases. Under Title VII, a religious accommodation would result
in an undue hardship if it creates more than a "de minimus cost or
burden" to the employer.
The Workplace Religious Freedom Act amends sections 8-102
and 8-107 of the NYCHRL and adopts a stiffer standard for assessing undue
hardship. The law now requires employers to make accommodations for religious
practices, unless such accommodation requires a "significant expense or
difficulty." While the law adopts the "stringent expense or
difficulty" standard already set forth in the New York State Human Rights
Law, the committee report accompanying this amendment stated that the City
Council's intention is "to provide greater protection to workers under the
City Human Rights Law than the federal, and even the State, human rights
provisions provide." Consistent with this legislative intent, the
amendments may create an even higher standard than what currently applies under
Some factors to be considered in determining whether the
accommodation would create a significant expense or difficulty include without
(i) 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;
(ii) the number of individuals who will need the
particular accommodation to a sincerely held religious observance or practice;
(iii) 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
The law clarifies that an accommodation that causes
significant interference with the safe or efficient operation of the workplace
or a violation of a bona fide seniority system law will be deemed to constitute
an undue hardship. A bona fide seniority system is typically one provided in a
collective bargaining agreement or pursuant to an established employer practice
that is consistently and uniformly applied. Similarly, an employer can
demonstrate an undue hardship if an employee is unable to perform with or
without an accommodation to the essential functions of his or her position.
Potential remedies for violating the law include
reinstatement, back pay, compensatory damages, punitive damages and attorneys'
fees. Moreover, employers may be subject to a civil penalty of $125,000.
What This Means for New York Employers
New York City employers should take steps now to ensure
compliance with the new law. They should review their workplace policies
governing equal employment opportunity, discrimination, harassment and reasonable
accommodations to ensure they are consistent with the stringent expense or
difficulty standard. Employers should also closely review their job
descriptions so that they accurately reflect the essential functions of each
position, including any limitations on attendance; availability; and personal
appearance. Finally, employers should provide training to their supervisors and
human resources staff on this new law and the interactive reasonable
For Further Information
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in our Employment,
Labor, Benefits and Immigration Practice Group or the attorney in the firm
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