Education Law - SchoolNET

Amendment to New York Human Rights Law Affords More Protection to Employees for Religious Practices and Observances

On September 17, 2002, Governor Pataki signed into law an Amendment to Section 296.10 of the Executive Law (Human Rights Law), effective November 16, 2002, which greatly expands the rights of employees and prospective employees in exercising their sincerely held religious beliefs or practices during working hours without being penalized by their employers. More specifically, the Amendment makes it unlawful for an employer, directly or through an employee or agent, to cause an employee or prospective employee to “violate or forego” a sincerely held practice of his or her religion as a condition of obtaining or retaining employment, including opportunities for promotion, advancement or transfer. These practices include, but are not limited to, the observance of a particular day or portion of a day as a Sabbath or holy day. Although not specifically addressed in the Amendment, the Memorandum accompanying the legislation indicates that it is meant to cover a wide range of sincerely held religious practices including, certain dress, hairstyle, beards and prayer requirements. Under the Amendment, employers must comply with the religious accommodation requests of their employees unless they can demonstrate, through bona fide efforts, that the accommodation would cause “undue hardship.”

The Amendment sets a higher standard for “undue hardship” than found in the prior state law or federal law. It defines “undue hardship” as an accommodation which requires “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.” The Amendment also specifies the factors to be considered in evaluating “undue hardship.” They include the following: (1) the identifiable cost of the accommodation, such as the loss of productivity and of retraining or hiring employees or transferring employees from one facility to another, in relation to the size or operating cost of the employer; (2) the number of individuals requesting the particular accommodation; and (3) the degree of geographic and administrative separateness or fiscal relationship for any employer with multiple facilities making the accommodation more difficult or expensive. However, an accommodation will be deemed an “undue hardship” if it makes the employee unable to perform the essential job functions for which he or she was hired.

The Amendment requires employers to accommodate employees’ requests for time off for religious observances by allowing them to make up an equivalent amount of time and work, whenever practicable, at some other mutually convenient time. Employees who work a different shift solely to accommodate their religious observances are not entitled to premium pay or benefits which may be available on that shift. However, the Amendment does not “alter or abridge the rights granted to an employee concerning the payment of wages or privileges of seniority accruing to that employee.” Employees cannot be denied the use of paid leave, other than sick leave, for religious observances. If time off for religious observances is not made up or charged to paid leave, it will be deemed unpaid leave.

Given the enhanced protection for sincerely held religious beliefs and practices under the new Amendment, employers should review and revise their policies on religious accommodation, dress and grooming. To insure that employees will not be penalized for exercising their rights, employers should also inform their supervisors of the Amendment and train them to recognize and be sensitive to these new legal obligations.