New York City ‘Workplace Religious Freedom Act’ Clarifies Religious Accommodation Requirements for Employers

On August 30, 2011, New York City Mayor Michael Bloomberg signed the “Workplace Religious Freedom Act”  (Int. 632-A) into law clarifying what requirements employers are required to meet to demonstrate that they have done all that is necessary to make a reasonable attempt to accommodate the bona fide religious needs of employees.

Under pre-existing law, employers were required to provide accommodation so long as it did not cause an “undue hardship” for the employer. However, since “undue hardship” was not clearly defined, it was generally viewed as a requirement that the “de minimis cost or burden” standard be applied.

The new City law amends sections 8-102 and 8-107 of the New York City Human Rights Law (“NYCHRL”) to defines what “undue hardship” means:

“Undue hardship” shall mean “an accommodation requiring 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).” Factors to be considered in determining whether the accommodation constitutes an undue economic hardship shall include, but not be limited to:

• The identifiable cost of the accommodation, including the costs of loss of productivity and the cost of retaining or hiring of employees or transferring of employees from one facility to another, in relation to the size and operating cost of the employer.
• The number of individuals who will need the particular accommodation to a sincerely held religious observance or practice, and
• 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.

The Act also provides that employers in New York City can establish that a religious accommodation will result in an “undue hardship” by showing that it will result in the employee’s inability to perform the essential functions of his or her position.

Potential remedies for violating the law include reinstatement, back pay, compensatory damages, attorney’s fees, and employers could be subject to a civil penalty of $125,000.

From a practical standpoint, employers should consult with human resources experts to ensure compliance by making sure that anti-discrimination policies are up to date, and job descriptions should be tailored to accurately describe portions of the job duties that involve attendance, availability, and dress / grooming requirements.

This law is of particular significance to Muslims and Sikhs who have faced an increase in discrimination since the events of 9/11, and will apply to both public and private sector employers.

###

 

Workplace Religious Freedom Bill Finds Revived Interest (Religion News Service)

EXCERPT:

May 5, 2010 – WASHINGTON (RNS) — More than a decade after it was first introduced, an on-again off-again bill to protect employees’ religious expression in the workplace is attracting renewed attention that could lead to action on Capitol Hill in coming weeks.
. . .

“The bill will be introduced to Congress soon in a fashion that will eliminate the concerns some folks had since its inception,” said Richard Foltin, the director of national and legislative affairs for the American Jewish Committee.

Touted in certain circles as the “WRFA god,” Foltin co-chairs an unusually broad coalition of almost 40 religious groups, from Sikhs to Seventh-Day Adventists to Southern Baptists, who support the bill’s religious freedom expansions.

If passed, the now narrowly tailored legislation would require employers to make reasonable accommodation in the three areas where the vast majority of religious accommodation claims fall: religious clothing, grooming, and scheduling of religious holidays.

READ THE FULL ARTICLE: http://www.crosswalk.com/news/religiontoday/11631159/

ReligiousLiberty.TV will continue to track developments of this legislation which is similar to the Workplace Religious Freedom Act passed in Oregon last year.

Related stories:

Oregon Governor Ted Kulongoski signs the Workplace Religious Freedom Act

Breaking News:  We have received word that Oregon Governor Ted Kulongoski has signed the Oregon Workplace Religious Freedom Act (SB 786). SB 786 requires employers to make credible attempts to accommodate religious holy day observance and religious dress. Prior to SB 786, employers in Oregon could make only the bare minimum …

Talking Points SB 786 – Oregon Workplace Religious Freedom Act

GENERAL Talking Points   Federal Religious Accommodation Law   Defining terms: “Undue hardship.” Title VII of the U.S. Civil Rights Act of 1964 as amended in 1972, requires employers to “reasonably” accommodate the religious practices of their employees unless, by so doing, the employer would incur an “undue hardship on the conduct of the …

Workplace Discrimination Claims On the Rise (BeliefNet – RNS)

The Workplace Religious Freedom Act (WRFA) is again being proposed in the United States Congress and a similar bill is being heard at the state legislature in Oregon.    This bill is important to religious people who are currently being forced to choose between their faith and their jobs.  Thanks …

Maryland State Legislature considers a Workplace Religious Freedom Act (HB 381)

ANNAPOLIS – The Maryland State Legislature is presently considering a state-level Workplace Religious Freedom Act” (HB 381).  The bill, currently working its way through the House where it was heard on February 10, 2010, addresses employee requests for observance of holy days.

In his testimony on February 10, 2010, Alejandro J. Beutel, Government Liaison Muslim Public Affairs Council in Washington, D.C., wrote, “this bill will move the balance between proper workplace accommodation and the legitimate concerns of businesses in the right direction. It seeks to better fulfill Maryland’s strong commitment to religious liberty without jeopardizing our communities’  economic prosperity – a laudable and achievable goal.”

This bill which focuses on holy day observance  is significantly different from the identically named  federal Workplace Religious Freedom Act that has been proposed throughout the decade and the recently passed Oregon Workplace Religious Freedom Act which addressed both holy day observance and religious dress.  The Maryland bill also indicates that labor union contracts would trump the individual requests of employees for accommodation if there is a conflict.  Also, the bill would provide specific economic relief for the employee in the event that he or she is compelled to work on a holy day in violation of his or her beliefs.

Click here to read the Bill Text in PDF format.

Northwest Religious Liberty Association Honors Oregon Speaker Dave Hunt

Representative Dave Hunt, speaker of the Oregon House of Representatives, was awarded by the Northwest Religious Liberty Association (NRLA) at the Oregon Conference Campmeeting in Gladstone on July 17, 2009 for his legislative sponsorship of the Oregon Workplace Religious Freedom Act, Senate Bill 786 (SB 786) which was signed into law by Governor Ted Kulongoski.  There were 2,056 people in attendance.

Oregon Governor Ted Kulongoski signs the Workplace Religious Freedom Act

Breaking News:  We have received word that Oregon Governor Ted Kulongoski has signed the Oregon Workplace Religious Freedom Act (SB 786).

SB 786 requires employers to make credible attempts to accommodate religious holy day observance and religious dress. Prior to SB 786, employers in Oregon could make only the bare minimum effort to meet accommodation requirements. This bill will be a step forward in clarifying the responsibility of employers to their religious employees.

The bill had been under fire this week from some religious organizations who promoted the idea that WRFA was designed to prohibit teachers from wearing religious dress. In reality the bill had left an 80+ year prohibition on religious dress by teachers in the public schools in place after a 2007 version of WRFA had failed because it had eliminated the requirement.

House Speaker Dave Hunt who championed WRFA has pledged to work to remove the educational restriction next term, and RLTV will be very supportive of those efforts. Currently Oregon and Pennsylvania are the only states that have prohibitions on any religious dress by teachers.

The Federal WRFA bills, brought over the course of more than a decade would provide a much broader range of religious practices than simply dress or religious garb, however the ACLU and other groups have expressed concerns that overly broad requirements provide no real guidance to employers and could potentially create hostile work environments. Although this was not necessarily a realistic assessment of the effects of WRFA, the federal bill which gained bipartisan support from key legislators such as Hilary Clinton, John Kerry, John McCain, and Elizabeth Dole still faced stiff opposition.

While the Oregon bill may not be all inclusive, it will provide religious employees who face the most common problems of holy days and garb an opportunity to keep their jobs and their faith. Other issues will be addressed through existing channels under the pre-SB 786 standard and may provide opportunity for clean-up legislation later.

For more information on the bill, visit http://www.religiousliberty.tv/tag/sb-786

Oregon Senate Passes Workplace Religious Freedom Act

WORKPLACE RELIGIOUS FREEDOM PASSES OREGON STATE SENATE!

Tuesday,  May 5, 2009 at the Oregon Legislature, with the leadership of Senator David Nelson (R-Pendleton District) and the bipartisan support of Republicans and Democrats, we finally realized the fruits of our labor in the Senate passage of our Oregon Workplace Religious Freedom Act, SB 786-A (see attached). The vote was 19-11. It is a bill that we, the Northwest Religious Liberty Association (NRLA), launched during the 2007 legislative session under the sponsorship of House Majority Leader Dave Hunt.

In 2009, Representative Hunt (D-Gladstone District) was elected by his Democratic Party Caucus peers to serve as Speaker of the House of Representatives, which then placed our bill in an even more favorable position for passage. We have worked with Representative Hunt since the 2003 legislative session on other critical religious freedom legislation. So we have had a positive working relationship with him and his entire office staff—particularly Trevor Sleeman, his chief legislative aide—for some time now. Needless to say, it has paid off in a huge way, including our working relationship with a bipartisan group of Republican and Democratic Senators and Representatives going back to the 1999 session. In reality, yesterday represented the fruits of years of seemingly futile, but ultimately valuable, labor. It has taken many failures, as well as substantive lessons learned, and the Lord’s guidance, to get this far.

What this bill does is clarify the responsibility of employers to accommodate the scheduling of leave time for the observation of religious holy days, or for the wearing of religious apparel in the workplace unless it poses a “significant difficulty or expense” to their business(es). More specifically, it restores the original federal Title VII legal standard involving religious discrimination which obligated employers to demonstrate that they reasonably attempted to accommodate the sincerely held religious beliefs and practices of their employees before claiming that such beliefs and practices posed a “significant difficulty” and “expense” for their business(es). This bill, once law, will help thousands of people of faith in the workplace who many times are forced to choose between their faith and putting food on the table for their family.

Our bill now goes to the Oregon House of Representatives where a hearing will be scheduled fairly soon, probably in the Public Affairs or Judiciary Committee. Having already passed the Senate Judiciary Committee by a vote of 4-1, and now the full Senate, it should be a little easier securing favorable passage of our bill in the committee and floor vote stages on the House side.

 Securing Governor Ted Kulongoski’s signature will be the final stage of the process, and we remain encouraged that he will sign the bill. With the enthusiastic support of both the Speaker of the House, Representative Dave Hunt, and the State Director of the Bureau of Labor and Industries (BOLI), former Senator Brad Avakian (and Senate sponsor of our bill in 2007), these positive influences cannot hurt our chances.

 Please keep this important matter in your prayers and thanks again for your ongoing and faithful support.

 

Greg W. Hamilton
President,
Northwest Religious Liberty Association

Oregon Senate Judiciary Committee hears testimony on the Oregon Workplace Religious Freedom Act

SALEM, OREGON -  On April 9, 2009, the Oregon Senate Judiciary Committee heard testimony on the Oregon Workplace Religious Freedom Act (SB 786).  House Speaker Dave Hunt, Bureau of Labor and Industry director Brad Avakian, and Senator David Nelson led the testimony in favor of the bill followed by Northwest Religious Liberty Association president Gregory Hamilton, attorney Michael D. Peabody, and two employees who would benefit from SB 786, David Miller and Shani Balverio.  Willamette College of Law professor Steven Green, former general counsel for Americans United for Separation of Church and State, also testified on behalf of SB 786.

SB 786 would clarify the definition of the term “undue hardship” and provide a series of factors that employers can apply in determining whether or not they can honor an employee’s request for religious accommodation in the areas of holy day observance and religious dress requirements. 

This is an effort that has been spearheaded for the past few years by the Northwest Religious Liberty Association president Gregory Hamilton.

 

 

ONLINE RESOURCES:

1.  Testimony of Northwest Religious Liberty Association president Gregory Hamilton in support of SB 786

2.  Testimony of Attorney Michael D. Peabody in support of SB 786

3.  Talking Points on SB 786

4.  Full Text of SB 786

California Supreme Court to Decide A Case Where Medical Rights v. Workplace Religious Freedom

Soon after issuing its opinion that gay marriage cannot be prohibited under the Constitution, the California Supreme Court is about to issue a ruling in a case where a physician declined to provide fertilization services on a lesbian (unmarried) couple, but referred them to another clinic that did provide the service on the basis that performing the service would violate her Christian faith.

The physician, Christine Brody, has said she denied service because the couple was not married. Under the law at the time, they could not be married.  Guadalupe Benitez claims that this is unlawful discrimination based on her sexual orientation.

Can a physician decide not to perform a procedure if it violates his or her faith?  Does it include all procedures or only non-emergency procedures? 

This is the decision that the court will have to make. 

Read more about this clash between rights at The Washington Post:

http://www.washingtonpost.com/wp-dyn/content/article/2008/06/18/AR2008061802913.html

 

Testimony of Gregory Hamilton in support of the Oregon Workplace Religious Freedom Act (SB 786)

April 9, 2009

 

Senator Floyd Prozanski, Chair
Senate Judiciary Committee
Oregon State Legislature
900 Court Street NE S-417
Salem, Oregon 97301

RE: SB 786 – Oregon Workplace Religious Freedom Act

Mr. Chairman and Committee Members:

The Northwest Religious Liberty Association (NRLA) represents the constitutional and workplace discrimination concerns of all people of faith in the states of Alaska, Idaho, Montana, Oregon and Washington.

We are pleased that House Speaker Dave Hunt is sponsoring the Oregon Workplace Religious Freedom Act, and that the same bill passed the House by a 68% percent margin during the 2007 legislative session (see HB 3539-A). This was a tremendous moment for our organization and for all people of faith, including religious minorities, in the state of Oregon. But this, of course, was not enough for this vital piece of religious liberty legislation to become law. We need the Oregon Senate to comprehend its supreme value in helping ordinary Oregon citizens to get a fair shake in the workplace.

This bill narrowly and reasonably bolsters the requirements of employers to accommodate the scheduling of leave time for the observation of religious holy days, or for the wearing of religious apparel in the workplace. More specifically, it restores the federal Title VII legal standard involving religious discrimination which originally obligated employers to demonstrate that they reasonably attempted to accommodate the sincerely held religious beliefs and practices of their employees before claiming that such beliefs and practices posed a “significant difficulty” and “expense” for their business(es).

In January 2008, the U.S. Equal Employment Opportunity Commission (EEOC) encouraged employers, in an official Title VII religious discrimination guideline, to document how and why a religious accommodation posed an “undue” business “hardship.” But this guideline is just that, only a guideline, and thus unenforceable. While the guideline is a helpful encouragement to employers, it essentially leaves employers unaccountable, leaving them free to wave the claim of “undue hardship” like a magic wand without having to define, explain, or demonstrate what that “undue hardship” is to the employee or how it really adversely affects their business in administrative terms or in dollars and cents. As a result, this significantly places people of faith at a disadvantage in the workplace, including potential and unnecessary unemployment hardships of their own. That is why we believe “undue hardship” must be defined as a “significant difficulty” and “expense” and why it will also help relieve employers of so many discrimination claims against them.

From 2005 to 2009, the Northwest Religious Liberty Association has mediated 297 workplace accommodation situations in the state of Oregon alone, and a total of 634 in the states of Alaska, Idaho, Montana, Oregon and Washington combined. The number of cases that we have mediated helps to shed light on why the number of claims that Oregon’s Bureau of Labor and Industries (BOLI), and the U.S. Equal Employment Opportunity Commission (EEOC) has received and processed has risen during this time period. On the national level, nearly 1,000 mediation claims involved Seventh-day Adventist Christians in 2006, which does not include the thousands of cases involving many other people of faith in this country, including religious minorities, on an annual basis.

The types of cases we mediate typically involve religious minorities who seek an accommodation to worship on their holy days or Sabbaths. This is usually a one-day-a-week commitment backed by a sincerely held religious belief and/or spiritual requirement to observe the Sabbath according to their Scriptures (i.e., Holy Bible, Torah, Quran, Bhagavad-Gita, etc.).

However, it is important to understand that this is not an unconstitutional “affirmative action” bill for religious minorities, even though religious minorities are benefited. [See Estate of Thornton v. Caldor, Inc. (472 U.S. 703) 1985.] Religious minorities, in the truest sense, involve devout Sunday Sabbath-keeping Christians, as well as respectful Muslim citizens who keep Fridays, and Orthodox Jews and Seventh-day Adventist Christians who keep Sabbath from Friday sundown to Saturday sundown. Understandably, this list also includes, Hindus, Sikhs, Jehovah’s Witnesses, and Latter-Day Saints.

It has been demonstrated in a couple of recent religious surveys – one conducted by the Pew Forum on Religion and Public Life, and the other by Baylor University – that religious minorities not only make up the fastest growing population segment among faith adherents, but also the largest percentage of faith groups that take their faith seriously.

This partly explains why religious minorities are the ones who often struggle to balance their sincerely held religious beliefs in the workplace with their employers’ or supervisor’s demands—to work on their Sabbath (whether that be Friday,Saturday, or Sunday), or to disregard the religious belief or custom they are required to follow. This is a characteristic that most of our clients share in common.

But they typically take their jobs seriously as well. Please understand, these people do not go out of their way to be difficult employees. Just the opposite is usually the case. They seek to be the best employees, the most competent and skillful, and the most productive. And they often are.

Approximately 75% of reported accommodation cases involve weekly Sabbath days, periodic religious holidays, religious garb (e.g. turbans) and religious grooming (e.g. beards):[1]

 

·         An employer refuses to make an adjustment to a shift schedule that would allow a Seventh-day Adventist to avoid working on his Sabbath.

·         An employer refuses to allow a Muslim woman to say prayers during designated times, or to wear the modest garb required by her faith simply because this is not the standard uniform worn by employees, or refuses to allow an observant Jewish man to wear his yarmulke for the same reason.

·         An employer refuses to allow a devout Catholic woman Christmas Day off, even though one of her fellow employees was willing to substitute for her on that day. (See below for an example of a typical workplace situation.)

 

There are obvious situations and reasons where an employer would find it to be an undue safety hazard to grant accommodations. (This bill does not seek to weaken Title VII protections for employers.)

 

Experts agree that one of the contributing factors to the dramatic rise in claims is the weakness of the accommodation provisions as currently written. Since the U.S. Supreme Court’s decision in 1977, a case known as TWA v. Hardison (432 U.S. 63), a de minimis (i.e., minimal) standard has been applied. This de minimis standard reinterpreted the federal Title VII provision of the Civil Rights Act of 1964, and as amended in 1972, to conclude that employers were not required to demonstrate that they did all they could to accommodate an employee’s religious request(s) before claiming an “undue hardship” on their business. This has allowed for policy-based corporate discrimination to thrive in some quarters of the business world (e.g., John Stumph EEOC case with Horizon Airlines.) We believe this reasoning should be legally amended in Oregon. We believe sincere people of faith—particularly those who prove to be hard and productive workers, are honest and ethical, and devoted to the business mission of their employers—should not continually be forced to choose between their place of employment and their faith.

What about sham claims? The principle objection to providing protection for people of faith in the workplace is that people of faith will increase litigation, and particularly litigation involving sham religious claims.

There are significant financial disincentives to bringing religious accommodation cases and these will not change after Oregon’s Workplace Religious Freedom Act is enacted. Damages in accommodation cases tend to consist of lost wages, which are frequently modest because the workers involved are typically on the low end of the wage scale. As a result, finding attorneys willing to bring these cases can be difficult, and it is highly unlikely an attorney would be willing to invest the time and effort to bring a case involving a sham claim.

In addition, while courts do not examine the validity of religious beliefs themselves, they do examine the sincerity of the individual’s claim. Although there have been thousands of reported cases under the accommodation provisions of Title VII of the U.S. Civil Rights Act and state collieries over the last three decades, until this point, opponents of the Workplace Religious Freedom Act have not identified a single case in which a sham religious claim prevailed.

Oregon’s Workplace Religious Freedom Act provides an incentive to both employers and employees to work out an accommodation if it is possible. This bill does not give employees a “blank check” to demand any accommodation in the name of religion and receive it. Rather, it restores the standard that an employer should reasonably accommodate an employee’s religious needs so long as that accommodation does not impose a “significant difficulty” or “expense” upon the employer. In short, this bill would happily balance the business interests of employers—both small and large business owners—with the sincerely held religious beliefs and practices of employees. It is a great bill—a bill that truly represents the best of America’s traditions, religious freedom.

As George Washington once wrote: “In this Land of equal liberty it is our boast, that a man’s religious tenets will not forfeit the protection of the Laws … of the United States.” With this testament from our country’s greatest Founder in mind, and in the spirit of attempting to truly guarantee the Title VII religious freedom rights of all people of faith in the workplace, including religious minorities, the Northwest Religious Liberty Association respectfully urges you to pass this bill in Committee and send it to the Oregon Senate for a vote.

Thank you very much,

Gregory W. Hamilton, President
Northwest Religious Liberty Association (NRLA)

Testimony of Michael Peabody in favor of the Oregon Workplace Religious Freedom Act (SB 786)

April 9, 2009

Senate Judiciary Committee

Oregon State Legislature

Salem, Oregon

 

 

RE:          SB 786 – Oregon Workplace Religious Freedom Act (SUPPORT)

 

Mr. Chairman and Members,

Thank you for the opportunity to testify before the Senate Judiciary Committee on the Workplace Religious Freedom Act.

 As an attorney I have had the privilege of representing employees in several states who have sought religious accommodation under Title VII of the Civil Rights Act of 1964. Although many of these cases are resolved amicably without the need for judicial intervention, I have also represented employees both in traditional litigation and administrative courts as well as through alternative dispute resolution including mediation and arbitration.  I am currently working as an employment defense attorney representing employers and insurance companies in Southern California.

 

1.       SB 786 provides defensible factors that will aid employers in determining whether to provide or deny religious accommodation.

 

Title VII provides that when the employee or has a sincerely held religious belief, the employer must reasonably accommodate that belief, unless such accommodation would cause “undue hardship” to the company.  Oregon courts construe Oregon’s statutory counterpart, Or.Rev.Stat.  § 659A.030, as identical to Title VII.[1]   

Unfortunately, the term “undue hardship” does not provide consistent guidance to employers or employees. The Merriam-Webster Dictionary of Law vaguely defines “undue” as “exceeding or violating propriety or fitness,” and in 1977 the United States Supreme Court wrestled with the definition and stated that “undue hardship” would be anything that would incur more than a “de minimis” cost.[2]

Following this decision, many employers believed that the Court’s decision relieved them of any affirmative duty to accommodate employees’ religious needs.[3]

The EEOC held hearings on this issue in 1978, and the Commission concluded that the widespread confusion over the extent of accommodation required under the Hardison decision led to fewer accommodations of religious practices, including:

·         The observance of a Sabbath or religious holidays;
·         The need for a prayer break during working hours; and
·         The practice of not working during a mourning period for a deceased relative.[4]

In addition, fewer employers were willing to accommodate the religious dress or grooming requirements of particular employees and effectively denied them the opportunity to compete in the open labor market.

SB 786 is important because in defining “undue hardship”, Oregon can provide clear guidance both to employers and employees in this state.   SB 786, in pertinent part, provides that, in reference to grooming and holy day observance:

An accommodation imposes an undue hardship on the operation of the business of the employer for the purposes of this section if the accommodation requires significant difficulty or expense.

SB 786 then lists which factors should be considered in determining whether a request for accommodation would incur a significant difficulty or expense.  These factors include consideration of the nature or cost of the accommodation, the availability of the resources of the facility or facilities involved in the accommodation, the financial resources of the employer, the type of business operations, and safety and health requirements.

 

Thus, rather than trying to make a vague determination of whether an accommodation requires an “undue hardship,” employers are now given a series of reasonable factors to consider when deciding whether to accommodate or deny a request. If questions about the propriety of the decision arise later, employers will be able to provide defensible evidence of why they made a particular decision.

2.       The term “significant difficulty or expense” provides a reasonable approach that meets a variety of business situations.

The term “de minimis” is a judicial interpretation of the amount of employer-level inconvenience that is required to meet Title VII’s “undue hardship” standard in order to avoid a particular accommodation.  The term “de minimis” should not be confused with “undue hardship.” 

In drafting legislation of this nature, the key is to find language that is specific enough to avoid ambiguity that would permit employers to completely avoid attempt at accommodation as some currently do, yet broad enough to fairly address Oregon’s diverse business situations.  The term “significant difficulty and expense” with SB 786 meets this goal. 

It would be difficult to become more specific without inserting a particular percentage or dollar figure that would unfairly affect smaller businesses.  Determining whether an accommodation requires “significant difficulty or expense” does require some form of judgment call, but when analyzed through the factors in SB 786, it provides clarity lacking in the current “undue hardship” language.

This is beneficial on a practical level.  What does “undue” mean?  Many human resources professionals would not be able to give a clear answer.  But “difficulty” or “expense”?  They can picture that.  

SB 786 provides a simple two-part analysis for employers who simply have to ask whether it is too hard to accommodate a request, or whether it is too costly. 

 In contrast, the current term “de minimis” places the bare minimum floor of responsibility on every employer, thus a multi-billion dollar corporation could apply the same standard as a local specialty manufacturer.  Many employers interpret “de minimis” as meaning they don’t have to do anything or even pretend to make an attempt.  SB 786 fixes this problem.

3.        SB 786 will encourage employers and employees to amicably resolve accommodation disputes while discouraging litigation. 

There are few attorneys who specialize in litigation religious accommodation claims, and those who do often are employed by non-profit or governmental organizations that fund the litigation process as a matter of preserving the integrity of the accommodation provisions of anti-discrimination laws.

Private firms rarely specialize in religious accommodation law because the fees are typically limited to a percentage of lost income.  Such litigation is costly to both sides.  Although employers have the legal burden of demonstrating that such accommodation is not possible, in practice, employers’ current reliance on the de minimis standard leads them to provide very little justification for the decision to deny accommodation. The plaintiff then must conduct extensive discovery through multiple depositions, interrogatories, requests for production of documents, forensic accounting, and other methods to determine what possibilities for accommodation actually existed. It is not unusual for the costs of  promulgating or defending such discovery to eclipse the potential recovery.

Employers who have followed the SB 786 analysis will be able to defend their decisions and to present more compelling arguments for denial or accommodation than simply claim that they refused accommodation because it would present an “undue hardship.”  Employers who analyze a request under SB 786 may also find that they are indeed able to accommodate an employee and will be able to defend the decision to accommodate.

Plaintiff attorneys will also be able to assess the potential value of cases based on the credibility of an SB 786 analysis in deciding whether or not to undertake legal representation.

In those cases that do go forward to the trial level, judges and juries will be able to reach more consistent results as the facts are analyzed through the framework of SB 786.  It will also encourage early settlement as factors are evaluated.

Ultimately, SB 786 will encourage employees and employers to develop and participate in reasonable approaches to accommodation.

Conclusion

In clarifying the obligations of employers to reasonably accommodate their employees’ religious practices, and providing reasonable expectations to employers, the Oregon Workplace Religious Freedom Act will act to bring employees and employers to the table. The true mark of this bill’s success, when it becomes law, will be if there is less, not more, litigation over accommodation of religious practice.