Chapter 10 Reasonably AccommodatingDisability & Religion

Reasonable Accommodation

• An employer’s obligation to reasonably accommodate is unique to the protected classes of disability and religion.

• However, the legal basis and nature of these obligations differ.• An employer’s obligation to reasonably

accommodate disabled persons is more extensive than the requirement to accommodate religion.

• It is more difficult for employees to establish entitlement in the case of disabilities than in the case of religious beliefs.

Disability

• Two similar laws govern the employer’s obligations to accommodate disability:• For private employers and state and local governments,

the Americans with Disabilities Act of 1990.• For public employers, the Rehabilitation Act of 1973.

• The ADA has been amended by the Americans with Disabilities Amendments Act of 2008, which was designed specifically to overturn several Supreme Court decisions that had narrowed application of the ADA’s protections in a way that was contrary to the intentions of Congress when it originally enacted the ADA in 1990.

AMERICANS WITH DISABILITIES ACT

• In order to be covered by the employment provisions of the Americans with Disabilities Act, both of the following must be true of the employee:

• The employee has a DISABILITY because one of the following is true:

• S/he has an impairment that SUBSTANTIALLY LIMITS a MAJOR LIFE ACTIVITY,

• S/he has a RECORD of having such an impairment, OR

• S/he IS REGARDED by the employer as having an impairment,AND

The employee is a QUALIFIED INDIVIDUAL because the following are true:

• S/he can perform the ESSENTIAL FUNCTIONS of the job either:

• With or without REASONABLE ACCOMMODATIONS that do not impose an UNDUE HARDSHIP.

TERMS

• Disability• Substantially limits• Major life activity• Record or is regarded• Qualified individual• Essential functions• Reasonable accommodations• Undue hardship

• To claim discrimination, employee must prove

• That he or she is disabled• That he or she is otherwise qualified• That any accommodation required is

reasonable• That he or she suffered an adverse

employment decision

• ADA defines disability as • a physical or mental impairment • that substantially limits one of more major life

activities of an individual; a record of having such an impairment; being regarded as having such an impairment

• Mental impairments and contagious diseases may be included

• EEOC gives guidelines for “major life activity” and “substantially limits”

• Including perception of impairment protects disabled employees from prejudice

Current Disability

• Current Disability (first prong)• The ADA does not contain a list of covered disabilities.

• The assessment of disability under the ADA is based on an individualized assessment of the effects of disorders on functioning, rather than on diagnostic labels.

• Both physical and mental impairments are covered, although some are expressly excluded (transsexualism, pedophilia, pyromania, others)

2008 Amendments

• Major Life Activities• The first list includes many activities that

the EEOC has recognized (e.g., walking caring for ones self, performing normal activities, seeing, hearing, speaking, breathing, learning, working, and reproduction) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);

2008 Amendments

• Major Life Activities• The second list includes major bodily

functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions")

2008 Amendments

• Major Life Activities• An impairment that is episodic or in

remission is a disability if it would substantially limit a major life activity when active

• Mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability

2008 Amendments

• Also overruled Sutton v. United AirLines, 527 U.S. 471 (1999); Murphy v. United Parcel Post, 527 U.S. 516 (1999); and Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999).

• The ameliorative effect of mitigating measures may no long be considered in determining whether the employee has a disability .

• See Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S 184, 122 S. Ct. 681, 151 L.Ed.2d 615 (2002) 2008 amendments overrule this.

Record of a Disability

• Record of a disability (second prong)• People with a record of a disability are protected

under the ADA.• Employees are sometimes discriminated

against on the basis of a past disability, perhaps because of the stigma attached to certain conditions (mental illness) or a fear that it will reoccur (cancer).

• Sometimes people are misclassified, but the diagnosis remains on their records.

Perceived Disability

• Perceived Disability (third prong)• Those who are mistakenly perceived as disabled

are also protected under the ADA.• Under the ADA amendments, this prong is

satisfied by showing that the plaintiff was subjected to discrimination “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”

• Transitory impairments (lasting less than 6 months) would not meet the definition.

“Qualified” Individual

• To be protected by the ADA, a person must be not only disabled, but also qualified, having the necessary skills, education and experience.• Exception: One who is disabled and qualified, but who

poses a “direct threat” to the health and safety of herself of others (which cannot be eliminated by reasonable accommodation) is not qualified.• The direct threat must be based on medical

evidence showing that the employee currently poses a specific risk of significant harm to herself or others.

• In most workplaces, people who are HIV positive do not pose a direct threat to themselves or others.

• Disabled employee must be otherwise qualified for position• Must be able to perform the essential

(fundamental) functions of the position• Employee may require and request

reasonable accommodation• The removal of unnecessary restrictions or

barriers• Does not place undue hardship on employer

• Disability harassment is also prohibited under ADA

Essential Functions of the Job 1

• Most jobs consist of essential and non-essential tasks.

• Example: Word processing, filing, and answering phones are essential functions for many clerical jobs, but getting coffee for others, or lifting boxes of copier paper are probably marginal functions.

• Rule: Under the ADA, a disabled person’s ability to perform a job must be judged only in relation to the essential functions of the job in question.

Essential Functions of the Job 2

• Employers must determine the essential functions of a job according to these criteria:• The position exists to perform this function.• Few other employees are available to perform this

function.• The function is highly specialized.

• Evidence of “essential functions” includes the employer’s judgment, written job descriptions, and similar analyses.

• Focus on what needs to be accomplished rather than on how it is to be accomplished.

Reasonable Accommodation 1

• Examples include:

• Making facilities accessible

• Restructuring jobs

• Devising part time or modified work schedules

• Providing additional time on a test

• Providing voice recognition software

• Providing qualified readers or interpreters• Achieving reasonable accommodation should be a continuing,

interactive process between employer and employee.

Reasonable Accommodation 2

• Under the ADA, employers are required to make reasonable accommodation unless doing so would impose an undue hardship on the business.

• Undue hardship is established if the action would involve significant difficulty or expense, in relation to the size of the firm and its resources.

• The EEOC provides guidance for employers.

Just the Facts• A woman with severe, chronic back problems that resulted in multiple

surgeries returned to her job as an inspector at a candy factory. Her physician cleared her for light work that required no bending, stooping, or lifting of more than 20 pounds. The factory had three lines on which inspectors worked. On two of them, inspectors could remain seated while performing their tasks. On the third (“line 7”), inspectors had to stand and repeatedly bend and twist to sort different sized candies moving down the conveyor. Initially upon her return, the woman was assigned only to one of the less physically demanding lines. However, the company subsequently decided, due to the high incidence of repetitive stress injuries at the plant, to implement a job-rotation system. Under this system, the woman would have to sometimes work on line 7. The woman requested an exemption from the job rotation system, but this was denied. Is rotating between all three lines an essential function of the inspector’s job? Has this employer violated the ADA?

• Turner v. Hershey Chocolate USA, 440 F.3d 604 (3d Cir. 2006).

Reasonable accommodations: interactive process

• 4 steps: • 1.The employer analyzes the job to determine its

purpose and essential functions. • 2. The employer and employee work together to

identify what barriers exist to the employee’s performance of a particular job function.

• 3. The employer, working with the employee, should identify a range of possible accommodations.

• 4. The employer should assess the effectiveness of each accommodation and the preference of the employee, and then determine if any of the accommodations would impose an undue hardship

Reasonable Accommodation of Religion

• Under Title VII, employers are required to reasonably accommodate religion, unless doing so would impose undue hardship on the business.

• This burden of undue hardship is not the same as the burden required to show undue hardship in a case of disability.

• Employers need incur no more than minimal expense or operational problems in accommodating religion.

Religion Defined 1

• Title VII defines religion to encompass:

“[A]ll aspects of religious observance and practice, as well as belief…”

• Religion is not only something that a person is, but also something that is expressed through words and deeds. • It is the behavioral aspect of religion that

sometimes requires accommodation.

Religion Defined 2

• The EEOC treats as religious:

• “…moral and ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views”.

• Belief in a particular God or deity is not required.

• Atheism and agnosticism are forms of religious belief.• The espoused religion does not have to be popular, well

known, or even organized.• A religious belief must be “sincerely held”.

World Religions

Group Adherents % of World Pop.

Major World Religions

Christianity 2 billion 33.0%

Islam 1.3 billion 22.0

Hinduism 900 million 15.0

Buddhism 360 million 6.9

© 2007 The McGraw-Hill Companies, Inc. All rights reserved.

World Religions

GroupGroup AdherentsAdherents % of World Pop.% of World Pop.

Other Broad Religious GroupsOther Broad Religious Groups

Chinese folk religionsChinese folk religions 225 million225 million 4.0%4.0%

African traditional and diasporic African traditional and diasporic religionsreligions

95 million95 million 3.03.0

UnaffiliatedUnaffiliated

Secular/Nonreligious/Agnostic/AtheistSecular/Nonreligious/Agnostic/Atheist 850 million850 million 16.9%16.9%

© 2007 The McGraw-Hill Companies, Inc. All rights reserved.

Major Religions in the U.S., 2001

Top Organized Religions

Christianity 76.5%

Judaism 1.3

Islam 0.5

Buddhism 0.5

Hinduism 0.4

Unitarian Universalist 0.3

Wiccan/Pagan/Druid 0.1

© 2007 The McGraw-Hill Companies, Inc. All rights reserved.

Employer’s Duty to Reasonably Accommodate

• Prohibition against religious discrimination is not absolute

• If a reasonable accommodation cannot be made, the employer is not liable

• Reasonable accommodation depends on circumstances

Elements of a Claim- Failure to Reasonably Accommodate Religion 1

• Plaintiff must establish a prima facie case:

• The existence of a sincere religious belief or practice that conflicts with an employment requirement;

• That the employer was informed of the conflicting belief or practice; and

• That the employee suffered a loss or limitation of employment opportunity due to adhering to the religious belief or practice.

Elements of a Claim- Failure to Reasonably Accommodate Religion 2

• Defense: If a prima facie case is established, the employer must show that:

• A reasonable accommodation was offered, but not accepted; or

• No reasonable accommodation was available that would not impose an undue hardship on the employer.

ISSUES IN CASES

• Does the religious request impose an undue hardship?

• Is the conduct required by the religion?• Is there contact with the public? (If not,

appearance guidelines may be less of an issue.)

Employee’s Duty to Cooperate in Accommodation

• Employee must be reasonable in considering alternative offered

• Courts and EEOC will consider:• The employer’s effort to accommodate• The size of the workforce• The type of job• Attitude of other employees• The cost of the accommodation• The administrative aspects of

accommodation

What Constitutes Undue Hardship?

• Also varies from case to case• Must be more than a mere inconvenience• Courts tend to be more lenient than EEOC• Employers should look at rulings of courts

in their own jurisdiction

Undue Hardship (from the EEOC)• An employer can show undue hardship if

accommodating an employee's religious practices • requires more than ordinary administrative costs, • diminishes efficiency in other jobs, • infringes on other employees' job rights or

benefits, • impairs workplace safety, • causes co-workers to carry the accommodated

employee's share of potentially hazardous or burdensome work, or

• if the proposed accommodation conflicts with another law or regulation.

Cloutier v. Costco

• Facts: Cloutier advised her employer Costco that its “no facial jewelry” policy conflicted with her religious practice as a member of the Church of Body Modifcation and sued, contending that Costco had not offered a reasonable accommodation.

• Issue: Whether Costco had a duty to offer a reasonable accommodation, as it could not do so without undue hardship.

• Held: No. An accommodation constitutes an “undue hardship” if it would impose more than a de minimis cost on the employer, and includes economic and non-economic costs. Here, if it was required to allow facial jewelry, Costco would lose control over its public image.

• Employee was terminated for not working on Saturday. His reason was that it was against his religion to work on the Sabbath. It was company policy that all employees should be available for work 7 days a week 24 hours a day because the company was a public utility. (Williams v. Southern Union Gas Co.)

Another Case

Other Issues:Religious Advocacy and Religious Harassment

• Employees sometimes convey their religious beliefs to others in the workplace. Such proselytizing puts employers in a difficult position.• On the one hand, it is part of the proselytizing

employee’s religious beliefs, potentially requiring accommodation.

• At the same time, employers are obligated to protect their other employees from religious harassment.

• The religious advocacy of one employee can be the hostile environment – based on unwelcome, pervasive religious communications – of others.

CONDUCT COVERED BY THE LAW

• Employers must take steps to prevent religious harassment of their employees

• It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on religion or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.

Religion as a BFOQ

• Permitted if reasonably necessary to particular normal business operations, for example, religious organizations

• Permitted for educational institutions if they are owned in whole or substantial part by a particular religion or if the curriculum teaches a particular religion

What Would You Do?

• You own a small chocolate shop in the suburbs of San Francisco, and business has been good, despite the downturn in the economy. One of your sales people who works behind the counter just returned from a religious retreat, and by her own account, has been “transformed.” She now so vehemently opposes gays and gay marriage that she refuses to serve gay or lesbian clients. She refuses to serve anyone she thinks “looks gay.” As a business owner, your practice has been to serve every customer, unless the customer is unruly. What would you do?