Most of us know that, in fairly black and white terms, it’s unlawful to discriminate against workers because they are disabled. Similarly, most know that you can’t discriminate against an employee because of their religion. This article is focused entirely on reasonable accommodations for people in those two demographics. Mr. Robertson is a reasonable accommodation lawyer in California.
Keep reading to learn a little about how the law views an employer’s responsibility to provide a reasonable accommodation to these employees, as well as what type of monetary compensation an employee can win in cases in cases where an employer falls short of legal obligations.
California Fair Employment and Housing Act (FEHA) §12490 makes it unlawful, with few exceptions, to fire, or fail to hire, or offer lower pay to an employee based on their religious affiliation or their status as a disabled person. This is pretty clear-cut. But the law goes even further with these two classes in requiring employers to provide reasonable accommodations for these employees. So what does this mean? In order to more clearly understand, it’s necessary to look at reasonable accommodations in light of each protected class. Let’s start with disability.
FEHA § 12940(m)(1) and states that when it comes to disabled employees, it is unlawful “for an employer to fail to make reasonable accommodation for the known physical or mental disability of the applicant or employee.” A common question is what types of accommodation are employers required to offer to disabled workers. FEHA § 12926(n)(1) defines reasonable accommodations as “making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.”
Subsection (n)(2) states that “job restructuring” might also be appropriate. Job restructuring could include,
“part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”
So what does this mean in everyday terms? Specific examples might include:
- Offering an employee in a wheelchair a ground floor office space
- Installing mechanical aids on office doors
- Installing special phones with enhanced volume for hearing impaired employees
- Allowing a disabled person extra time with certain tasks
- Excusing disabled persons from engaging in certain tasks
It’s important to remember that while the law provides strong protections for disabled workers, there is a caveat to the reasonable accommodation for disability section. The law states if the employer can demonstrate that the accommodation will create an undue hardship, then the employer is not required to provide the accommodation. For more information, be sure to review our main page regarding disability discrimination here.
Before getting into what comprises a reasonable accommodation for persons who engage in certain religious practices, let’s take a look at how the law defines religious creed. FEHA § 12926 (q) defines religious creed, religion, religious observance, and religious belief as including,
“all aspects of religious belief, observance and practice, including religious dress and grooming practices.”
The law further states,
“religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed.”
So how might an employer accommodate a religious worker? FEHA § 12940 (l)(1) states that this can include exploring the possibility of “excusing the person from those duties that conflict with his or her religious belief…permitting those duties to be performed at another time or by another person”
A common example involves a worker who is a strict adherent to the Jewish practice prohibiting work on the Sabbath. Whether that person worked at a retail center, a movie theater, or a sales office, the employer is legally obligated to explore the possibility of excusing the worker from shifts on the Sabbath, or having another employee cover the shift. As in the case of religious accommodation for disability however, if the accommodation in question will create an undue hardship on the employer, then they are not required to provide the accommodation.
For more information about religious discrimination and religious accommodations, visit our main religion page.
Real Life Religious Accommodation Cases
In 2015, the New York Times reported on the case of a California woman (an adherent of the Muslim faith) who was denied employment at clothing retailer Abercrombie & Fitch because she wore a head covering known as a hijab. The hijab is a covering worn by some Muslim women as a symbol of modesty.
The woman filed a lawsuit against the company that made its way to the Supreme Court of the United States.
Justices considering the case voted 8 to 1 in favor of allowing the woman’s lawsuit to proceed. In the decision, ultra conservative Justice Antonin Scalia said the company’s decision not to hire the woman was motivated by a desire to avoid accommodating her religious practice.
Another case of religious discrimination involved a Jehovah’s Witness named Lester Young who worked at Gemini Aluminum Corp. in Pomona. Young notified his supervisor that he would need two days off to attend a religious convention —an event he had had attended annually for more than 20 years.
His employer denied the request for time off, but Young attended the convention anyway, missing work as a result. Young was terminated shortly thereafter. He filed suit and the case eventually made its way to the State Supreme Court, which argued in favor of Young. It was the court’s opinion that Gemini Aluminum had failed to initiate reasonable accommodation efforts.
The court further affirmed that Young possessed a sincerely held religious belief, and that his attendance at the convention fell within the scope of the law as a religious observance. A common question asked of employment lawyers at this point is how is it decided if an employer engaged in reasonable accommodation efforts?
Who Decides What’s Reasonable?
If a religious discrimination or disability case makes its way to trial, a jury of your peers will decide the question of what passes as reasonable accommodation. If the case doesn’t go to trial, hopefully your employment attorney has done the footwork that will persuade the company it would be wise to settle.
Hiring an Lawyer, What Do You Stand to Gain?
It should go without saying that if you feel you have been denied reasonable accommodation by an employer, either on religious grounds, or because of disability, you should strongly consider consulting a lawyer. In California, employment attorneys like Mr. Robertson will often take cases on a contingency basis, which means workers who sue their employers don’t pay out of pocket expenses. Rather, they will pay the attorney a percentage of the money recovered.
As for the type of compensation a worker can obtain in a religious or disability lawsuit, there are a number of different possibilities. In some cases the employee will be reinstated at his or her job and granted back pay. In some cases, the court might decide that lost wages are in order. To better understand the concept of lost wages, imagine an employee making an annual salary of $75,000 who is fired as the result of a disability issue. If the court awards lost wages, and that employee has been unable to find work for one year, he or she could potentially recover $75,000 in lost wages.
More importantly, pain and suffering compensation might be awarded to those who experience physical and mental issues stemming from the employment issue. This could include muscle spasms, stress, anxiety, chest pain, high blood pressure, depression, insomnia, as well as other ailments.
Finally, in rare cases, punitive damages are awarded. These types of awards can be very large because they are designed to prevent the company from ever engaging in the discriminatory behavior again. In order to win such an award, the plaintiff must show that the company acted with fraud, malice or oppression.
Whatever your situation, whether a religious issue or a disability issue, it could be well worth the time and effort to speak to a lawyer and learn about the strength of your case. Most employment lawyers offer consultations for free.