Amendment to the New York City Human Rights Law Clarifies Employers’ Duty to Accommodate Employees’ Religious Practices

On August 31, 2011, New York City Mayor Michael Bloomberg signed into law the Workplace Religious Freedom Act (WRFA). The WRFA defines “undue hardship” as that term is used in the New York City Human Rights Law (NYCHRL) in the context of an employer’s duty to provide a reasonable accommodation for the religious practices of an employee or job applicant. The new law, which took effect when the Mayor signed it, clarifies that employers in New York City are more likely to be required to accommodate an employee or job applicant’s religious practices under the NYCHRL than under analogous federal law.

Both Title VII and the NYCHRL prohibit workplace discrimination on the basis of religion. Under both laws, employers are required to provide reasonable accommodations for employees’ religious practices, unless doing so would impose an undue hardship upon the employer. Before passage of the WRFA, the NYCHRL did not define the term “undue hardship” in the context of a claim of religious discrimination, and as a result, courts drew no analytical distinction between the use of that term in the Title VII context and its use as applied to the NYCHRL. In 2005, however, the New York City Council passed the Local Civil Rights Restoration Act (LCRRA), which emphasized that the scope of the civil rights protections afforded to employees under the NYCHRL is more expansive than the protections afforded by federal or state law. The LCRRA states, in part, that “federal and state civil rights laws [are to be viewed] as a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise.”

Passage of the WRFA re-emphasizes the stated purpose of the LCRRA, by making it clear that employees have broader rights to reasonable workplace accommodation of their religious practices under the NYCHRL than under Title VII. Specifically, under Title VII, an employer may demonstrate that a requested religious accommodation would impose an undue hardship (and accordingly, need not be granted by the employer) if the employer would suffer more than a de minimis cost to its business operations by granting the accommodation. By contrast, under the WRFA, an undue hardship is defined as one that imposes a “significant expense or difficulty” upon  the employer (emphasis added). The WRFA directs courts to consider the following nonexhaustive factors in determining whether such an expense or difficulty is significant: 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; and   
• 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.

Notwithstanding these new requirements, the WRFA makes clear that an employer need not grant any religious accommodation to an employee that would have the practical effect of relieving the employee of the duty to perform the essential functions of his or her job.

For New York City employers, the WRFA imposes a heightened duty to engage in an interactive process with an employee or job applicant who requests a reasonable accommodation for religious practices, since it may prove challenging for employers to establish that such requested accommodations would impose an “undue hardship” as defined in the WRFA. It is advisable for employers covered by the NYCHRL to consult counsel before denying an employee’s requested accommodation of a religious practice on the grounds of “undue hardship.”