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New religious discrimination legislation expands NJLAD

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,Hiring,Human Resources

Employers, take notice: A new type of accommodation is required in New Jersey. Gov. Jon S. Corzine has signed into law an amendment to the New Jersey Law Against Discrimination (NJLAD) that makes it unlawful to discriminate against an employee because of a sincerely held religious practice or observance. The new law borrows heavily from similar legislation adopted in New York in 2002.

Under the new law, now in effect, employers must reasonably accommodate the “sincerely held religious practices and observances” of applicants and employees unless the accommodation would impose an undue hardship on the business.

The NJLAD has long prohibited discrimination on the basis of religion. The new law expands the NJLAD’s protection by specifically addressing accommodations. It makes it unlawful for an employer to: “impose upon a person as a condition of obtaining or retaining employment … any terms or conditions that would require a person to violate or forgo a sincerely held religious practice or religious observance….”

Time off for observances

The amendment expressly states that time off to observe the Sabbath or other holy days is one accommodation employers may have to make. Employers have the discretion to address the employee’s absence from work in one of two ways:

  1. The employee may make up the time off at another mutually convenient time.
  2. The time may be charged against any paid leave (other than sick leave) to which the employee is entitled.

If the time cannot be made up and the employee has no remaining paid leave, the employer may treat the absence as leave without pay. Note: The federal Fair Labor Standards Act’s overtime requirements will limit an employer’s ability to do this for exempt employees.

Demonstrating undue hardship

The obligation to accommodate religious practices is not limited to time off. Accommodation may include excusing an employee from performing tasks that violate religious tenets—for example, handling certain food products or participating in certain medical procedures. Accommodation also may include allowing an employee to wear religious clothing or symbols at work, provided it does not create an undue hardship on the employer.

The law defines “undue hardship” as an accommodation requiring:

  • Unreasonable expense or difficulty
  • Unreasonable interference with safety or efficiency
  • Violation of a seniority system
  • Violation of any provision of a collective bargaining agreement.

Three factors determine whether an accommodation creates an undue hardship:

1. The identifiable cost of the accommodation, including the cost of lost productivity and of retraining or hiring employees or transferring employees from one facility to another, in relation to the size and operating cost of the employer.

2. The number of individuals who will need the particular accommodation.

3. 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.

In addition, an employer will not be required to make a specific accommodation where it can prove that the accommodation will result in the inability of the employee to perform the essential functions of the position, or that uniform enforcement of employee attendance requirements is needed to prevent undue hardship to the employer.

N.J.’s ‘unreasonable’ burden

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee on the basis of religion, which includes “all aspects of religious observance and practice,” unless the employer demonstrates that it is unable to reasonably accommodate the employee without undue hardship. The U.S. Supreme Court narrowed the scope of this obligation under federal law when it held that an accommodation imposes an undue hardship if it causes the employer “to bear more than a de minimis cost to make the accommodation.” (Trans World Airlines v. Hardison, 432 U.S. 63, 1977)

The amended NJLAD, however, requires more than a de minimis effort by the employer before it may deny the employee’s requested accommodation. The expense or interference resulting from the accommodation must be “unreasonable” in order to reach the level of undue hardship. The only exceptions are for accommodations that would violate a seniority system or a collective bargaining agreement.

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