We previously wrote
about the EEOC's increasingly aggressive position against inflexible leave of
absence policies that provide for automatic termination of employment when an
employee does not or cannot return to work at the end of a specified maximum
leave period, such as when the employee has exhausted available FMLA
leave. We have also written
about the public hearing held by the EEOC in June 2011, which discussed the use
of extended leaves of absence as reasonable accommodation for a disability
covered under the expansive Americans with Disabilities Act Amendments Act.
A new development suggests that employers may also need to consider the
use of extended leaves of absence as accommodation for employees' religious
As background, the ADA and Title VII both require
employers to provide reasonable accommodation for, respectively, an employee's
disability or sincerely-held religious belief. Although both the ADA and
Title VII allow an employer to refuse to provide a reasonable accommodation if
to do so would pose an undue hardship, historically, the employer's burden to
show undue hardship when faced with a request for religious accommodation has
lower than the burden to show undue hardship under the ADA.
On October 13, 2011, the Department of Justice announced
that it had settled the first lawsuit brought under a pilot program designed
"to ensure vigorous enforcement" of Title VII against governmental employers by
increasing cooperation and communication between EEOC and the DOJ, which is
tasked with enforcing Title VII against state and local government
entities. Specifically, the DOJ announced that it had settled a religious
discrimination case against an Illinois school district, after the school
district refused to grant a Muslim employee's request for a nineteen-day leave
of absence to perform Hajj, a religious pilgrimage. Previously,
most reported lawsuits and settlements had focused on short-term leaves, such
as those needed to allow an employee to observe the Sabbath or other religious
We are not aware of any other case where an employer was
required to grant an employee's request for a lengthy leave of absence to
accommodate his or her religious beliefs. We expect to see more.
Visit Employment Matters
for additional insights from Martha J. Zackin of Mintz Levin's Boston office.
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