Tag Archives | accommodation

The right way to handle a request for a religious accommodation

By on December 20, 2012 in Our Blog

The Seventh Circuit recently affirmed the dismissal of a case against the Chicago Police Department.  The case provides a nice blueprint of how employers should respond to requests for religious accommodations.

Latice Porter was employed by the Department as a senior data entry specialist.  In 2005 she was assigned to a schedule that required her to work Sunday mornings.  Because Porter attends church on Sundays as part of her observance of her Christian faith, she asked for a schedule change.  The request was immediately granted.  Subsequently, due to operational needs, Porter was again assigned a schedule that called for work on Sunday mornings.  When she asked for a change, her supervisor told her her request would be granted as soon as an opening in the alternate schedule opened up.  She also asked co-workers to switch shifts with Porter (but no one volunteered).  Then, Porter was offered a Sunday evening shift, so as not to interfere with her Sunday morning church activities.  She did not accept the offer and instead stopped showing up on Sundays altogether.  She then sued under Title VII for failure to accommodate.

The lower court dismissed the case (on summary judgment) and the Seventh Circuit affirmed.  According to the court, once an employer offers an accommodation that alleviates the conflict between work and the religious observance, it has met its Title VII duty.  The employee’s preferred accommodation need not be granted.  Thus, the offer of a Sunday night shift satisfied its burden.

The lesson?  Talk to employees who request altered schedules (or anything else, for that matter) due to religious reasons.  Try to come up with a possibility that resolves the conflict, even if it is not the employee’s first choice.

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Employers must reassign disabled workers to vacant positions, per the Seventh Circuit

By on September 10, 2012 in Our Blog

Last week the Seventh Circuit reinstated a case brought by the EEOC against United Airlines.  The case stemmed from a United policy that provided employees who could not longer perform their jobs to a disability could be considered for (but not automatically given) vacant positions for which they were qualified.  The policy further provided for any such employees to be given “preferential treatment” in the selection process.  The EEOC’s challenge was based on its belief that United had to actually place disabled employees in these jobs to comply with the ADA; preferential treatment was not enough.  The Seventh Circuit agreed, holding the only way for an employer to avoid doing so was to establish an “undue burden.”

The Seventh Circuit joins two other Circuits with this holding (the Tenth and D.C. Circuits).  The upshot for employers is, if an employee can no longer perform his or her job due to a disability, see if you have any vacant spots that meet their physical limitations.  If so, the safest bet is to offer those positions.

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When it comes to disabilities, don’t make assumptions

By on March 8, 2012 in Our Blog

Starbucks was recently reminded of this critical rule when it failed to even consider an accommodation for a job applicant.  The applicant wanted a barista job (the latte-makers behind the counter).  She had dwarfism and was thus very short.  She suggested she could do the job using a stool.  The interviewing manager, however, did not take her seriously and moved on to the next applicant.  When the EEOC got involved Starbucks claimed the applicant would pose a danger to customers and employees.  The EEOC proceeded to file an ADA lawsuit.  Starbucks, apparently seeing the error of its ways, quickly settled the suit and agreed to provide training on ADA procedures.

Assumptions about people’s disabilities will always get you into legal trouble.  Not to mention, they are just that – assumptions.  For all Starbucks knew, the applicant could have been the best cappuccino-creator it ever met.  One more point: supervisory employees typically do not know all the intricacies of the ADA.  Don’t expect them to.  Instead, educate them.

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ADA issues creep up in the unlikeliest of places

By on December 12, 2011 in Our Blog

Many employers require applicants to have a high school diploma.  Could this be an ADA issue?  Yes, according to an informal discussion letter posted on the EEOC’s website earlier this month.  If an individual has a learning disability which prevents him or her from earning a high school diploma, a uniform requirement for such a diploma could violate the ADA.  As with all disabilities, according to the EEOC, a qualification standard that screens out certain individuals with disabilities must be “job related and consistent with business necessity.”  This standard can only be met if the diploma requirement accurately measures the applicant’s ability to perform the job in question.  Even if this standard is met, the employer has a second hurdle to jump, namely establishing that the individual could not perform the essential job functions even with an accommodation.  In other words, if an applicant could perform the essential functions of the job with a reasonable accommodation, the employer cannot discard the candidacy based on the lack of a diploma.

While an informal discussion letter does not carry the weight of law or regulation, it is noteworthy insofar as it demonstrates the EEOC’s position on the issue.  Do you have jobs that require a high school diploma?  If so, give them a close look to see if the requirement is really necessary.  If it is, be prepared to consider exceptions and accommodations based on the ADA.

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Sixth Circuit: requested accommodation must enable employee to perform essential job functions

By on January 11, 2011 in Our Blog

Last month, the Sixth Circuit upheld the dismissal of an ADA lawsuit filed by a medical resident with Asperger’s syndrome.  In Jakubowski v. Christ Hospital, the plaintiff struggled with his communication and organizational skills.  Accordingly, he was informed his residency was being terminated.  Shortly thereafter, he was diagnosed with Asperger’s syndrome, and requested the defendant hospital accommodate him by increasing the knowledge and understanding of the doctors and nurses who worked with the plaintiff.  The hospital refused, saying it lacked the resources to do so, but offered to help the plaintiff obtain a residency in a field that did not require patient interaction.  The plaintiff sued under the ADA.

The court noted that the requested accommodation would not have helped the plaintiff perform the essential functions of his job.  Accordingly, he was not “qualified,” as defined by the ADA.  The court also noted it was persuaded by the hospital’s expressed concerns over patient safety with respect to the plaintiff.  

The moral of the story is a good one for employers.  Not all accommodations work, and not all requests need to be granted.  Still, employers must engage in the interactive process.

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Discrimination complaint filed arising out of forced attendance at religious event

By on July 13, 2010 in Our Blog

Late last year, former Washington Times editorial page editor Richard Miniter filed an EEOC charge against the newspaper.  He complained of (among other things) religious discrimination, stating he had been forced to attend a Unification Church religious ceremony that he found “creepy.”  The ceremony allegedly culminated in a mass wedding conducted by the Church’s leader, Reverend Sun Myung Moon.  According to Miniter, newspaper executives told him of other employees whose careers had skyrocketed after converting and becoming followers of the Unification Church.

The allegations in this case raise the question “what were they thinking?”  It should go without saying that a secular employer should never introduce its religious views into the workplace, let alone force employees to attend a religious ceremony.  Some basic, bare-bones anti-discrimination training would have prevented this alleged conduct that, without a doubt, runs afoul of Title VII.

Reverend Moon

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“W” is for Witchcraft (and, most likely, Winning Religious Discrimination Claim)

By on November 2, 2009 in Our Blog

A district sales manager in Hartford, CT is suing retail giant Bath and Body Works for religious discrimination in violation of Title VII.  Her claim is based on the allegation that her manager made derogatory comments about her religion, Wicca, and fired her shortly after she took time off for a religious observance.  

Wicca is a neopagan, nature-based religion that is often colloquially associated with witchcraft.  The New Year of the Wiccan religion is October 31st, Halloween.  According to the complaint, many Wiccans celebrate by traveling to Salem, Massachusetts, home of the witch trials of the late seventeenth century.

The plaintiff in the case, Gina Uberti, claims she scheduled time off for the occasion well in advance.  A new supervisor, however, allegedly badgered her about the need for time off and made comments such as “you will need a new career in your new year” and “I will be damned if I have a devil-worshipper on my team.”  True to her word, the supervisor fired Uberti a few days after her leave.

While this case is just beginning its long jaunt through the court system, it serves as a useful reminder of employers’ obligations under the anti-discrimination laws.  If this supervisor had received good, solid training on the duty to accommodate religious beliefs (no matter how silly she may find them), chances are Bath and Body Works would not be spending a lot of time and money dealing with this entirely preventable lawsuit.

witch

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Religion at Work: Proselytizing v. Freedom of Expression

By on August 3, 2009 in Our Blog

In a June 22, 2009 press release, the EEOC announced an $80,000 settlement with The Vail Corporation, which operates ski resorts in Colorado.  According to the EEOC’s lawsuit, Christian employee Lisa Marie Cornwell was, among other things, denied religious accommodations.  Her supervisor allegedly prohibited her from discussing her Christian beliefs while at work, forbade her from listening to Christian music while on duty (while permitting other types of music, including songs with profanity-laced lyrics), and denied requests for shift changes so that Ms. Cornwell could attend church services.

According to the EEOC, “claims of religious discrimination have increased by more than 80% in the last ten years,” and the agency intends to pursue claims similar to this one.   

One of the ways The Vail Corporation went wrong was by failing to permit Ms. Cornwell to discuss her religion and listen to religious-based music, especially in light of the permitted playing of other, arguably offensive, types of music.  Presumably, the supervisor in question was trying to maintain a religious-free workplace, but in doing so stepped on Ms. Cornwell’s rights.   

Employers need to be careful to draw the right line between proselytizing (which employers can regulate and even prohibit) and expressing religious beliefs (which employers must permit, to a reasonable degree, under Title VII).

In addition to extracting a monetary settlement, the EEOC forced The Vail Corporation to conduct company-wide training on complying with the discrimination laws.  

Best practices advice?  Employers should stay one step ahead of the curve and train supervisors on the need to accommodate religious beliefs.  After all, an ounce of prevention is worth a pound of cure!

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