2Reasonable 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.
3DisabilityTwo 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that had narrowed application of the ADA’s protections in a way that was contrary to the intentions of Congress when it originally enacted the ADA in 1990.
4AMERICANS 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, ORS/he IS REGARDED by the employer as having an impairment,ANDThe employee is a QUALIFIED INDIVIDUALbecause 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.
5TERMS Disability Substantially limits Major life activity Record or is regardedQualified individualEssential functionsReasonable accommodationsUndue hardship
6To claim discrimination, employee must prove That he or she is disabledThat he or she is otherwise qualifiedThat any accommodation required is reasonableThat he or she suffered an adverse employment decision
7ADA defines disability as a physical or mental impairmentthat substantially limits one of more major life activities of an individual; a record of having such an impairment; being regarded as having such an impairmentMental impairments and contagious diseases may be includedEEOC gives guidelines for “major life activity” and “substantially limits”Including perception of impairment protects disabled employees from prejudice
8Current DisabilityCurrent 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)
92008 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);
102008 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")
112008 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 activeMitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability
122008 AmendmentsAlso 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 .
13See 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.
14Record of a DisabilityRecord 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.
15Perceived 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.
16“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.
17Disabled employee must be otherwise qualified for position Must be able to perform the essential (fundamental) functions of the positionEmployee may require and request reasonable accommodationThe removal of unnecessary restrictions or barriersDoes not place undue hardship on employerDisability harassment is also prohibited under ADA
18Essential 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.
19Essential 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.
20Reasonable Accommodation 1 Examples include:Making facilities accessibleRestructuring jobsDevising part time or modified work schedulesProviding additional time on a testProviding voice recognition softwareProviding qualified readers or interpretersAchieving reasonable accommodation should be a continuing, interactive process between employer and employee.
21Reasonable 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.
22Just the FactsA 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).
23Reasonable 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
24Reasonable 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.
25Religion Defined 1Title 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.
26Religion Defined 2The 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”.
30Employer’s Duty to Reasonably Accommodate Prohibition against religious discrimination is not absoluteIf a reasonable accommodation cannot be made, the employer is not liableReasonable accommodation depends on circumstances
31Elements 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; andThat the employee suffered a loss or limitation of employment opportunity due to adhering to the religious belief or practice.
32Elements 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; orNo reasonable accommodation was available that would not impose an undue hardship on the employer.
33ISSUES 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.)
34Employee’s Duty to Cooperate in Accommodation Employee must be reasonable in considering alternative offeredCourts and EEOC will consider:The employer’s effort to accommodateThe size of the workforceThe type of jobAttitude of other employeesThe cost of the accommodationThe administrative aspects of accommodation
35What Constitutes Undue Hardship? Also varies from case to caseMust be more than a mere inconvenienceCourts tend to be more lenient than EEOCEmployers should look at rulings of courts in their own jurisdiction
36Undue Hardship (from the EEOC) An employer can show undue hardship if accommodating an employee's religious practicesrequires 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, orif the proposed accommodation conflicts with another law or regulation.
37Cloutier v. CostcoFacts: 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.
38Another CaseEmployee 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.)
39Other 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.
40CONDUCT COVERED BY THE LAW Employers must take steps to prevent religious harassment of their employeesIt 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.
41Religion as a BFOQPermitted if reasonably necessary to particular normal business operations, for example, religious organizationsPermitted for educational institutions if they are owned in whole or substantial part by a particular religion or if the curriculum teaches a particular religion
42What 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?