Tag Archives: reasonable accommodation

How Must an Employee Request a Religious Accommodation?

goatsTitle VII gives employees the right to reasonable workplace accommodations to allow them to practice their religious beliefs. Unless accommodating an employee’s religion would pose an undue hardship, an employer must allow an employee to attend religious rites or ceremonies, honor a Sabbath, wear religious garb, or otherwise follow the tenets of his or her faith. This might require changes to work schedules, uniform rules, or procedures for requesting for time off, but Congress has determined that religious practice is sufficiently important to impose these minor burdens on employers. (For more information — and answers to commonly asked questions — about religious discrimination and accommodation, check out our Religious Discrimination page.)

So far, so good. But an employer can grant an accommodation only if it knows about the employee’s need for one. That’s why the burden of requesting an accommodation in the first place — and providing enough information so the employer knows the request is religious in nature — falls on the employee. As is true of most employment laws that require employee notice, no “magic words” are required. An employee need not say explicitly, “I am requesting a religious accommodation pursuant to Title VII.” On the other hand, the employee has to provide enough information to let the employer know that (1) the employee needs an exception or change to the usual rules, and (2) that need arises from a religious belief.

An interesting case from the federal Court of Appeals for the Seventh Circuit shows how tricky this can get when the employee’s religious beliefs are not mainstream or known to the employer. An employee, Sikuru Adeyeye, asked for five weeks of unpaid leave to attend his father’s funeral ceremony in Nigeria. His employer, Heartland Sweeteners, said no. Adeyeye then asked for three weeks of unpaid leave along with a week of vacation he had already earned. He left to attend the funeral, and was fired upon his return for violating the company’s attendance policy.

Adeyeye sued, claiming that the company failed to grant him a religious accommodation. The company argued that it didn’t know his request for time off had a religious basis. The Appeals Court found in Adeyeye’s favor on the notice issue, finding that the language he used in his written requests for time off was enough to clue the company in. Here’s what the first note said:

I hereby request for five weeks leave in order to attend funeral ceremony of my father. This is very important for me to be there in order to participate in the funeral rite according to our custom and tradition. The ceremony usually cover from three to four weeks and is two weeks after the burial, there is certain rite[s] that all of the children must participate. And after the third week, my mother will not come out until after one month when I have to be there to encourage her, and I have to [k]ill five goats, then she can now come out. This is done compulsory for the children so that the death will not come or take away any of the children’s life. I will appreciate if this request is approved.

Adeyeye said his request was based on “custom and tradition,” not religion. Weighing heavily on the other side of the balance: ritual slaughter of goats! The Court found that the goats, possibility of spiritual death if the ritual was not followed, and mention of rites and ceremonies was sufficient to put the company on notice.

Hat tip: Triggering the Duty of Religious Accommodation, over on Workplace Prof blog, which compares this case to yet another controversy over Abercrombie & Fitch’s “Look Policy,” this time involving an applicant who was denied a job after she showed up for an interview wearing a headscarf.

 

Religious Discrimination and Accommodation

cadleLast week, the Equal Employment Opportunity Commission (EEOC) announced that it had filed a lawsuit against United Cellular, Inc., of Alabama. The lawsuit claims that United Cellular discriminated against Charles Embry, a Seventh-Day Adventist, by scheduling him to work on his Sabbath day and then firing him when he didn’t show up for work. During his initial job interview, Embry told United Cellular that his religious beliefs prohibited him from working from sundown on Friday through sundown on Saturday.

Religion is unique among the characteristics protected by Title VII, in that it is not only a trait but also a system of beliefs that may require believers to engage in certain practices at work. Employers are required to provide reasonable accommodations to allow employees to practice their faiths, unless doing so would create an undue hardship. Common accommodations include schedule changes, exceptions to grooming or dress codes, and breaks or time off for prayer and religious observances.

Religious discrimination can be a tricky issue for employers, who are required both to disregard religion as a trait in making employment decisions and to take religion into account as a practice in providing accommodations. Especially difficult is figuring out whether and how to accommodate an employee whose religion requires public profession of faith or proselytizing, especially if other employees or customers would prefer not to be the audience.

Recognizing this, the EEOC in 2008 issued policy guidance and a question and answer series on “how to balance the needs of individuals in a diverse religious climate.” Apparently, however some questions remain: The number of charges filed with the EEOC alleging religious discrimination has more than doubled in the past 15 years, while total charges filed have increased by only 25% in the same timeframe.

In response to frequent questions and search interest in this topic, we’ve put together a Religious Discrimination page, with basic information and answers to common questions about discrimination and workplace accommodations.

 

Depressing Statistics on Employment of People With Disabilities

An Associated Press story yesterday included some lousy news for those with disabilities (and their advocates): The percentage of people with disabilities who are in the work force has declined in the last four years, and hasn’t changed appreciably since the Americans with Disabilities Act (ADA) was passed 23 years ago. According to the story (here is the Washington Post’s version), only 18% of working age Americans with disabilities are, in fact, working, compared to 63% for those without disabilities. Not reported in the article, but just as depressing, is the disability wage gap: Full-time employees with disabilities earn $6,100 less per year, on average, than full-time employees who don’t have disabilities. (You can find this figure, along with piles of other disability statistics, in the Disability Status Report.)

Conjectures about what’s still holding back employees with disabilities range from employer prejudice and outdated attitudes to compliance costs. Here’s the thing, though: Studies show that compliance with the ADA — at least in the form of providing reasonable accommodations to allow those with disabilities to perform their jobs — is not that expensive after all. In 2009, the Equal Employment Opportunity Commission pulled together various statistics and studies on the cost of reasonable accommodations, as part of the process of drafting regulations to implement the Americans with Disabilities Act Amendments Act (ADAAA). Those studies show significant variations in the reported mean cost of an accommodation, ranging from $462 up to more than $1,400. Where the studies agree, however, is that many accommodations — the majority, in some studies — are free.

In response to reader questions and search popularity, we recently added a Reasonable Accommodations page, with articles on the right to accommodation and specific accommodations for a variety of disabilities. For detailed information on accommodations for dozens of disabilities, along with compliance assistance, check out the website of the Job Accommodation Network.

Pregnancy Leave in California

California has what are probably the most generous pregnancy and parental leave laws in the country. Employees are entitled to take a “reasonable period” of leave — up to four months — during the time when they are disabled by pregnancy, childbirth, or related conditions. This time off might run concurrently with an employee’s 12 weeks of allowed leave under the federal Family and Medical Leave Act (FMLA). However, it does not run concurrently with an employee’s right to take parental leave under the California Family Rights Act (CFRA). Leave for pregnancy-related disability is not covered by CFRA. Although this might at first glance sound ungenerous, the effect is the opposite: An employee who uses all four months of pregnancy disability leave is still entitled to 12 weeks of CFRA leave for parenting after the child is born.

And, California is one of only a handful of states that pay employees for this time off. California’s temporary disability insurance program, which covers pregnancy-related disability, pays employees up to 55% of their usual wages while they are unable to work due to pregnancy and childbirth. Once the employee has her child and recovers from giving birth, California’s paid family leave  (part of the temporary disability insurance program) kicks in, to pay benefits for six weeks of parental leave.

Last week, the California Court of Appeal for the Second District issued an opinion that might stretch these rights even further. The Court found that an employee who has used up her four months of pregnancy disability leave may be entitled to yet more time off, as a reasonable accommodation for a disability related to pregnancy. In this case (Sanchez v. Swissport), the employee had a very high risk pregnancy. She was put on bed rest almost eight months before her due date. Therefore, when she used up her four months of pregnancy disability leave, she was still months away from giving birth and finally getting out of bed. Her employer fired her after she exhausted her pregnancy disability leave and used up all of her accrued time off.

Sanchez sued, claiming that her employer fired her because of her pregnancy and should have given her additional time off as a reasonable accommodation for her disability. Although the trial court threw her case out, the Court of Appeal reinstated it. Even though the employer gave Sanchez the full four months of pregnancy disability leave required by law, the Court found that this fact didn’t conclusively defeat her claims. The right to pregnancy disability leave and the right to a reasonable accommodation are distinct: Fulfilling one doesn’t necessarily satisfy the other. As the Court pointed out, California’s Fair Employment and Housing Commission recently amended its pregnancy discrimination regulations to address this issue. (The regulation states that an employee who has used up her four months of pregnancy disability leave may yet be entitled to leave as a reasonable accommodation for a disability, whether or not that disability is related to her pregnancy.)

The Court of Appeal didn’t determine that Sanchez was entitled to additional leave: It decided only that she might be, and that she should have the opportunity to present facts supporting her claims. Her employer will also have this opportunity: It can argue, for example, that allowing Sanchez to take additional time off would pose an undue hardship, or that such an accommodation wouldn’t be “reasonable” under the circumstances. However, at least in the Second District of California (which includes Los Angeles), employers can no longer assume that a pregnant employee’s time off can be capped at four months of pregnancy disability leave plus three months of CFRA leave following childbirth for parenting.