Posts tagged ‘EEOC’

Important Updates on EEOC guidance and NYS Infectious Disease Standards

Memorial Day may mark the unofficial start of summer but last week added several things to your HR person’s to-do list before she goes on vacation.

First, amendments have been proposed to a recently passed NYS law – the HERO Act – imposing state level infectious disease work place safety standards on all employers and mandating that those with ten or more employees authorize the creation of worksite health committees. The changes will narrow employer obligations but even with the anticipated changes there is still work to be done.

Under the original legislation, the state was going to be responsible for developing infectious disease standards by industry. This chapter amendment clarifies that standards will only vary for the largest industries in the state and those determined by the Commissioner Of Health to have unique requirements. This means that many employers will be able to comply with this law by adopting a general model policy standard to be issued by the state.

You’ll also have more time to prepare for these changes.   Under the existing legislation, parts of the law were going to take effect in less than 30 days. In contrast, you are now required to implement these policies within 30 days after they are published by the Commissioner of Health.

Another area of concern addressed by these changes involves an employer’s scope of liability.  Most importantly, only employees who can demonstrate they are harmed by violations of the new standards will be able to sue employers.  The changes also eliminate liquidated damages and require employers to be given notice of violations before being sued.

Under the law, employers with 10 or more employees will have to give employees the option of creating workplace safety committees. The proposed changes slightly narrows the scope of these committees by clarifying they have no jurisdiction to analyze Workers Compensation policies. In addition, committee meetings can now be limited to two hours per quarter.

                                                                EEOC Issues Vaccination Guidance

On Friday the Equal Employment Opportunity Commission issued important guidance clarifying that employers can require employees to be vaccinated provided they are mindful of the need to reasonably accommodate employees with disabilities and those who hold genuine and sincere religious beliefs that may keep them from wanting to get vaccinated. It also gives a green light to employee vaccination incentives.

Since the roll-out of vaccinations, employers have grappled with how best to get their workplaces vaccinated. The guidance closely tracks advice that many lawyers have already given employers. There are several qualifications to the EEOC’s guidance and you would be well advised to closely read the guidance before making any policy changes.

June 1, 2021 at 9:40 am Leave a comment

Are You Nudging Your Employees To Get Vaccinated?

The HR obstacle course that is the COVID-19 pandemic is entering one of its trickiest phases for employers and employees alike.  In New York, the initial rush to get the vaccine has ebbed and you can now walk in and get a shot without spending hours refreshing your internet browser or scouring your medical history for a qualifying condition.  While this is of course good news, it means that employers must confront the question of whether or not to require their employees to get the vaccine?  Are they going to provide incentives?  Or are they going to simply let the situation play itself out naturally?  Each one of these choices has legal risks and benefits.  And remember, the framework for these considerations could be impacted by the HERO Act, New York State legislation currently pending before the Governor which I talked about in a recent blog.  

First, let’s start with the basics.  Contrary to what your Uncle Al may have told you, you can require your employees to get vaccinated as a condition of employment.  The EEOC has made this abundantly clear, provided you comply with the ADA’s mandate to reasonably accommodate employees who face risks from the shots or who have genuine and sincere religious beliefs.  For example, you may have employees with weakened immune systems for whom taking the vaccine poses clear risks.  For more on this nuanced area of employment law, go to section K5 of this EEOC guidance.  

Let’s assume that your credit union has decided it is better to use a carrot than a stick when it comes to vaccinations.  I was just reading this morning how Orlando Disney is going to make it a wonderful day for its employees who get vaccinated by giving them a bonus. 

But even this simple incentive raises potential legal concerns.  For example, are you violating the ADA if you provide a bonus for which certain employees – such as individuals with weak immune systems – cannot qualify? 

As more and more employees return to the workplace, how are you going to deal with those who have gotten vaccinated and those who have not?  For instance, are you discriminating against employees if you say they can only go on business trips if they have gotten vaccinated?  For an excellent analysis of these issues go to this link.

These questions are not simply the meandering thoughts of a blogger midway through his second cup of coffee.  Yesterday, the EEOC held a hearing in which it asked questions to a wide range of stakeholders urging the EEOC to address precisely these and other issues ASAP.  The good news is that the EEOC has indicated that it plans to do so in the near future. 

In the meantime, take the time to discuss these issues if you haven’t done so already and remember, that even subtle changes could have negative legal consequences if implemented improperly.  Best not to be penny wise and pound foolish; keep your HR attorney in the loop in these discussions. 

April 29, 2021 at 9:59 am Leave a comment

Preparing for the COVID-19 Endemic

“Vaccination drives hold out the promise of curbing Covid-19, but governments and businesses are increasingly accepting what epidemiologists have long warned: The pathogen will circulate for years, or even decades, leaving society to coexist with Covid-19 much as it does with other endemic diseases like flu, measles, and HIV.”

So said the Wall Street Journal earlier this week. This reality several important legal issues for your credit union to manage as it transitions from pandemic to endemic operations. For instance, one of the key questions with which you should all be grappling, if you haven’t done so already, is whether or not to mandate that your employees receive the vaccine. As I explained in this blog, the EEOC has provided guidance for those institutions which choose to make the vaccine mandatory. Keep in mind that this is a very fluid area of the law. For example, one case that will provide some guidance to New York State businesses on the interplay between the Americans With Disabilities Act (ADA) and vaccine requirements is Norman v. NYU Langone Health System. The district court ruled in September that an employee’s allergy did not qualify them for an exemption from a mandatory vaccination under the ADA. But this case is being appealed, giving the court the opportunity to explain its thinking on this important area of the law just as businesses look to determine their new policies. 

Another important source of information is this guidance issued by OSHA within days of the Biden Administration taking over. It suggests that employers should make COVID-19 vaccinations available to eligible employees, as well as to provide information and training on the benefits and safety of vaccinations. Against this backdrop, you should all consider updating your policies to – at the very least – encourage your employees get voluntarily vaccinated. A voluntary policy avoids many of the legal complications involved with a vaccine mandate while still effectively stressing the importance of workplace safety. In the meantime, the Association has stressed to both the Department of Financial Services and the Governor’s office the importance of making frontline financial workers eligible for the vaccine as soon as possible. 

Another issue for your credit union to consider as it learns to live with COVID is to recognize that even after vaccination becomes widespread, many of the new conditions you put in place are here to stay. As the Wall Street Journal pointed out, there are already burgeoning industries based on that assumption. In the future, rapid testing – not only for COVID-19, but for the flu – will probably become par for the course.  What this means is that one should not assume that the conditions you have put in place today like increased social distancing and an emphasis on healthier buildings will disappear with the pandemic. 

On that note, enjoy your long weekend. Yours truly has no idea what he will do with all the free time he has now that the football season has come to an end.

February 12, 2021 at 9:30 am Leave a comment

The Most Informative Blog of the Year

So much for a quiet end to the year. With Congress still rushing to get a COVID relief bill done, NCUA rushing to get some important regulations done, the Russians looking to get some important hacking done and the CDC trying to execute the vaccine roll-out, the past few days have been among the most impactful for the credit union industry this year. Here are the highlights of what you need to know before breaking for your holiday vacation.

NCUA Finalizes Subordinated Debt Regulation

NCUA finalized regulations which will allow complex credit unions to utilize subordinated debt to help meet their risk-based capital requirements when they kick in in 2022. Additionally, for the first time, eligible credit unions can offer subordinated debt to natural persons. Those are just two of the highlights from an extremely important regulation, which creates an updated framework for credit unions that wish to use what used to be called secondary capital. 

One of the big debates going on within the industry has been the extent to which credit unions should be allowed to use secondary capital. On the one hand, former NCUA Board Chairwoman Debbie Matz encouraged eligible credit unions to get their low-income designations in part so that they could utilize secondary capital. In recent years, the pendulum has swung back the other way, with NCUA issuing strict guidance for the approval of secondary capital plans. Individuals who feel that NCUA is too tough on this issue will find little comfort in the final regulations. NCUA now considers subordinated debt to be a security, meaning that credit unions will have to comply with detailed and complicated legal disclosures and oversight provisions. I’ll have more on this in the future, but it’s not too early to start thinking about who in your credit union is going to be designated the in-house security law expert. 

In a typical board meeting, the finalized subordinated debt rule would be more than enough work, but NCUA also took the opportunity to propose several new and important regulations. These include permitting multiple SEG credit unions that participate in shared branching networks to utilize shared branches to satisfy branch location requirements when expanding into new areas. The key is that credit unions will no longer have to own a portion of a shared branching network in order to take advantage of this increased flexibility. The board also extended temporary regulations promulgated in response to COVID-19, which provide regulatory relief to credit unions. Over the strong objections of Board Member Harper, the Board proposed a rule that would give credit unions greater flexibility when it comes to overdraft protections. Specifically, credit unions can now give consumers more than 45 days to either cure the overdraft or enter into a traditional loan. In objecting to the proposal, Board Member Harper argued that the proposal will hurt consumers who he feels need more protection against overdraft programs, not less. 

The NCUA still wasn’t done. It has proposed regulations permitting federal credit unions to purchase servicing rights from other federally insured credit unions. This is an aggressive move by NCUA, which has in the past been hesitant to propose such a change on safety and soundness grounds. 

Show MeThe Money

The NCUA also got some important budget issues out of the way. First and foremost, the normal operating level of the share insurance fund will remain at 1.38% for the time being, and with new Board Member Kyle Hauptman now officially onboard, the NCUA approved next year’s budget. As part of the process, the NCUA made regulatory changes to the overhead transfer rate (OTR)  and the operating fee schedule. The OTR is the formula used to determine how much money NCUA needs to fund its share insurance examination expenses. In recent years it has come under scrutiny since it allows NCUA to assess not only federal credit unions, but state chartered ones as well. The budget was passed over the objection of Board Member Harper, who continues to advocate for greater scrutiny of credit union compliance with consumer protection laws.

EEOC Issues Vaccine Guidance

Many credit unions are considering whether or not they should mandate that their employees get the COVID-19 vaccine. On Wednesday, the EEOC issued this important updated guidance explaining the legal issues that employers should consider if they decide to mandate that their workforce get vaccinated.

From Russia With Love

In a plotline worthy of a John le Carre novel, the size, scope and damage of the recent mass cyberattack, widely believed to be the work of Russia’s intelligence services, continues to grow. It’s hard to believe it won’t end up impacting a large swath of the private sector, and it is certainly something that your IT team should be paying attention to. Here is a blog on the issue published by Microsoft’s President Brad Smith, who has emerged as an authoritative voice on the breach in the absence of a coordinated federal response. 

Believe it or not, there’s much more I could say, but tomorrow is another day. Stay tuned.

December 21, 2020 at 10:01 am Leave a comment

Can You Mandate That Your Employees Get the Vaccine?

That was the question a blog reader recently asked me. 

On the one hand, issues of pandemics and mandatory vaccinations are nothing new. As early as 1905, the Supreme Court rejected a challenge to an ordinance passed in Cambridge, MA mandating that all individuals 21 years of age or older get vaccinated in response to a smallpox outbreak. In addition, healthcare professionals and school districts have long had to balance the concerns of their employees and students against medical protocols. That being said, this time is different. We are dealing with a broader scope of “essential” employees, including credit union staff, and people are being asked to trust a vaccine for which there is, rightly or wrongly, a substantial amount of public skepticism. All of these competing crosswinds raise the stakes for any employer who decides to mandate vaccinations. Plus, it also means that legal principles will be applied to novel situations.

On the federal level, Title VII of the Civil Rights Act provides some protections for employees who refuse to get vaccinations on religious grounds. For instance, in Horvath v. City of Leander, a firefighter refused, on religious grounds, to comply with a new city mandate requiring Tdap vaccinations for its employees. He was fired and subsequently sued the Department for religious discrimination under Title VII. His suit was dismissed, but only because he refused the town’s reasonable accommodation, which included either a transfer to a job for which vaccination was not required, or wearing PPE while on the job.

The EEOC has also commented in passing about the applicability of Title VII to vaccination disputes. This decision is consistent with guidance from the EEOC issued in March 2020, in which it noted that once an employer is on notice that an employee’s “sincerely held religious beliefs” prevent them from taking a vaccine, the employer must provide a reasonable accommodation, unless doing so would pose an undue hardship. These protections are broad enough that they leave plenty of room for costly legal disputes. School districts across the state have long had to decide whether students should be exempt from vaccination requirements on the basis of religious beliefs, and I can tell you that most of them rightly do not question an exemption request on these grounds, provided there is a correlation between the beliefs and the exemption request. 

So for those of you considering a vaccination mandate, be prepared to accommodate these concerns. For several months now, many financial institutions have demonstrated that they can accommodate very unique work circumstances. Don’t take a hard line against any employee, even if that employee is simply not comfortable taking the vaccine. In the context of financial services, the benefits of mandating vaccination are outweighed by the burden you would potentially face in implementing this requirement. 

December 9, 2020 at 9:54 am Leave a comment

Reasonable Accommodation Claims On The Rise During Pandemic   

Good morning folks.

Let’s start the day with some morning trivia.  What is the leading claim employees are making against their employers during the pandemic?  If you said claims alleging violations of the ADA then you are correct!

In a speech last Wednesday, according to a Law360 (subscription required), the EEOC’s New York acting Deputy Director Judy Keenan commented that

“I expect that we will see different cases as businesses reopen, but right now the only case we’re seeing at the EEOC related to COVID are reasonable accommodation cases…”

New York’s Division of Human Rights is witnessing similar trends.

This is hardly surprising.  Under state and federal law as explained in this EEOC guidance, failure to accommodate individuals whose medical conditions makes them more susceptible to contracting the virus may constitute an ADA violation.  What makes it even trickier is that during the pandemic you are allowed to test your employees to see if they have the virus and to keep them out of the workplace if they do.

Faced with all these complexities, you may be tempted to tell your at-risk employees to work from home.  But the same article explains that:

“…employers open themselves up to legal claims if they refuse to recall disabled workers out of concern for their health, said Sapna Raj, the deputy commissioner of the New York City Commission on Human Rights’ law enforcement bureau. An employer can ask a worker if they would like an accommodation. But if the worker refuses, “the inquiry would end there under [New York] City Human Rights Law,”

Although the reference is to New York City right’s law, this is a good rule of thumb for all New York employers to follow.

So what is an employer to do?  When it comes to the ADA, approach employee requests with an open mind and remember that treating employees fairly doesn’t mean treating them exactly the same.  And remember, to the extent that, despite all your efforts, an employee’s request for accommodations really would constitute an undue burden then it doesn’t have to be accommodated.  For instance, there may be positions that must be performed in the office.  Even in circumstances such as these, a willingness to have a discussion can go a long way to demonstrating that you are dealing with your employees in good faith.

June 3, 2020 at 9:22 am Leave a comment

Four Legal Pitfalls to Avoid This Holiday Season

Maybe it’s because I’ve seen so many Christmas commercials already that I wouldn’t be surprised if Macy’s announces it is moving its parade from Thanksgiving Day to Halloween Day. Or maybe it’s because I felt the need to tell my wife that she shouldn’t expect a gift- wrapped Mercedes Benz waiting for her in the driveway Christmas morning but here is one man’s opinion as to how to handle some of the unique issues that arise each holiday season. Remember, these are simply my opinions and not a substitute for consulting with your attorney on these matters should they arise.

  1. Better off being Grinch when it comes to the Board. Many credit unions use this time of year to thank their Supervisory and Board of Directors for all the hard work they do. NCUA has consistently opined that only gifts of nominal value can be provided to board members without providing all that much guidance as to what nominal actually means. According to the trusty Merriam Webster Online Dictionary, nominal is defined as something “trifling or insignificant.” My rule of thumb is that when it comes to holiday gift giving, if the gift is something that would entice someone to be a member of your board, don’t do it.
  2. Festivus for the rest of us. This is always a good time of year to brush up on the rules governing religious discrimination. For example, if you let employees take time off for Christmas Eve, you sure as heck better allow employees who don’t celebrate Christmas to take time off for their religious holidays as well. An exception to this rule applies if the employer would suffer a true hardship by permitting the time off. A misapplication of this rule got Comfort Inn Ocean Front sued by the EEOC for religious discrimination. These protections apply to individuals with sincerely held religious beliefs. As the EEOC explains in this useful Q&A, religion extends far beyond the traditional faith. It includes “religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it.”As a result, we aren’t far from the day when employees make legitimate claims that they want to have Festivus off. You are better off just having a set number of floating days set aside for religious observance. If you find yourself delving into the merits of an employee’s beliefs, you are making a big mistake.
  3. The time of year to trust but verify. Both state and federal regulators emphasize the need to make employees in sensitive positions take continuous time off so that the credit union has the ability and time to identify maleficence. While both NCUA’s examination guide (Section 4-6 Examiners Guide) and New York’s Department of Financial Services strongly suggest two consecutive weeks must be taken off, anecdotally it seems that only state examiners occasionally are sticklers about the two week requirement. Incidentally, I have reason to believe that the state will be issuing guidance on this issue in the near future. In the meantime, make sure your policy in place mandating at least five days off for your key employees. What’s the holiday tie-in? Because with the end of the year right around the corner you should put those employees who haven’t complied with this requirement on notice that they are expected to do so.
  4. The morning after: Handle the office Christmas party with care. Let’s face it, the only thing more boring than going to a dry wedding reception is going to a dry office holiday party. After all, at the office party there are no family members celebrating the joyous event. New York’s Dram Shop Law actually pretty narrowly describes the circumstances when persons serving alcohol can be liable for subsequent accidents. In addition, New York Courts have been hesitant to impose liability on employers for accidents caused by their drunk employees. But obviously this does not mean that it’s party time. For what it’s worth, if I was organizing an office Christmas party I would (1) have it off the building’s premises so as to remove the threat of host liability (2) I would ask for volunteer spotters who agree to stay sober and make sure things don’t get out of control and (3) I would utilize Uber to offer free rides home to anyone who wants one.There is of course the ever-present danger of sexual harassment. There is no Christmas party exception to its prohibition which is why you can find scores of cases detailing office parties gone wild. In addition, keep in mind that New York law has removed any ambiguity with regard to your credit union’s liability for the acts of third-parties such as your favorite vendor during these get-togethers.

November 5, 2018 at 9:35 am Leave a comment

What Happens When You Discover Your Employee Is An Ex-Con?

One of the issues that has been percolating around employment law the last few years is the extent to which businesses can be accused of violating Federal Anti-Discrimination law by refusing to hire individuals with criminal convictions. The issue is even trickier for financial institutions such as credit unions since on the one hand federal law bars employing individuals convicted of crimes “involving dishonesty or breach of trust” 12 USC 1785 (d)(1)  but also permits both employers and the employee to seek waivers from these prohibitions. In addition, states such as New York have a strict framework which basically prohibits employers from categorically refusing to hire someone because of their criminal past.

Which brings us to the very interesting case of Eggers v. Wells Fargo Bank, decided by the Court of Appeals for the 8th Circuit on Monday. Remember this isn’t binding in New York but the issue is unique enough that the decision could be used as precedent should the issue come to a court near you.

In 2005, Wells hired Richard Eggers who was 61 at the time. As part of the application process he was asked if he had ever been convicted of a crime to which he wrongly answered no. In fact, he had been convicted of fraud back in 1963. The bank’s background check at the time didn’t spot this crime but in 2010 Wells adopted a more rigorous screening system and a new background check discovered the fraud. Like the Federal Credit Union Act, banks are prohibited from employing someone guilty of crime involving dishonesty or breach of trust and pursuant to its policy fired Eggers. At the same time it informed him of his right to seek a review of his employment eligibility from the FDCI which in fact decided that the bank could employ him. Wells offered to give him his old job back but he sued them instead, claiming that the bank committed a violation of the Age Discrimination and Employment Act (ADEA), specifically he alleged that the bank acted illegally by refusing to sponsor his waiver request and by failing to provide job applicants and employees with pre-screening notice of the opportunity to obtain waivers. He also alleged that the bank’s practices had a disparate impact on older people.

On Monday the court upheld the dismissal of these creative claims. First it concluded that a policy of firing employees found to have committed a crime which makes them ineligible for working at a bank without first obtaining a waiver was a reasonable business practice unrelated to a person’s age. Furthermore, to the extent that such practices had a disparate impact on older people. It was his job to produce statistical evidence of this disparity. This he failed to do.

This is the type of case that seems silly on its face until you realize just how far some government agencies are willing to bend the law to achieve what they consider sound policy objectives. Most notably, the EEOC has issued guidance explaining the nexus between a person’s criminal history and violations of federal anti-discrimination law.

 

August 15, 2018 at 9:44 am Leave a comment

Can Better Training Reduce Workplace Harassment?

In a previous life,  I was working in the legislature when New York became one of the first states to mandate the schools do more to not only respond to but prevent school yard bullying.  I was skeptical that Government could do anything about bullying.  After all, some kids are just jerks.

A generation later  bullying hasn’t been eliminated but  it’s no longer acceptable for school administrators to sit idly by as students get taunted and teased. Kids are much more sensitive to the fact that other kids are being mistreated and are much more likely to tell a teacher or administrator than they would have been a generation ago.   I was wrong.  New policies and new approaches made a difference.

What’s the tie-in? In June  the chairs of a task force appointed by the EEOC   to investigate work force harassment issued a report with several recommendations.  Bond Shoeneck & King suggested in their blog yesterday that HR people should give it a read:  They have a point.  Although the report is designed to prevent harassment, and as such includes recommendations that go beyond existing legal requirements, it has been my experience that today’s recommendations   become tomorrow’s mandates.  Plus,  while you probably won’t agree with all of its conclusions and recommendations, it does have some ideas worth considering.

This brings me back to my bullying discussion. Anyone who doesn’t know for example that sexual harassment  is illegal is beyond help.  The bigger question is what is the best approach to minimizing it? We’ve all sat through those  sessions on preventing harassment replete with nervous snickers from the back of the room and awkward sideways glances.  While they are good to have from a legal perspective,  I was pleasantly surprised that the report’s authors acknowledged that “much   of the training done over the last 30 years has not worked as a prevention tool – it’s been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum – it must be part of a holistic culture of non-harassment that starts at the top.”

One of their suggested improvements intrigues me: “Workplace civility trainings focus on establishing expectations of civility and respect in the workplace, and on providing management and employees the tools they need to meet such expectations. The training usually includes an exploration of workplace norms, including a discussion of what constitutes appropriate and inappropriate behaviors in the workplace. The training also includes a heavily skills-based component; including interpersonal skills training, conflict resolution training, and training on effective supervisory techniques.”

Would this really make a difference? I don’t know but providing a mechanism for employee’s to understand and discuss workplace norms and expectations is worth a shot. Done properly,  employees would better  understand that a harassment free workplace is not simply based on obeying the law but on proactively treating those around you with a baseline of respect and professionalism, expecting the same in return, and not being afraid to intervene when these norms aren’t being followed.

Am I concerned that we may be seeing the scope of harassment claims expanding ever so slightly? You bet.   But it’s clear that there are workplaces where employees and employers just don’t get the message.  If our kids can foster create school environments where bullying is frowned upon than maybe we should expect more of ourselves to foster harassment free environments in the workplace

August 23, 2016 at 9:37 am Leave a comment

EEOC Provides Guidance On Social Media, Religious Accommodation

As faithful readers of this blog know, I am not an employment law attorney but I still like to highlight emerging issues that may confront you in the workplace.  One of the issues that most intrigues me is the extent to which employers should delve into an applicant’s social media postings as part of the hiring and promotion process. 

 I’ve come to believe that looking into someone’s Facebook postings, as tempting as it might be, does more harm than good.  A good interview will get you all the information you need about an applicant, while checking someone’s Facebook page could potentially set you up for a claim that you discriminated against an applicant because of their race, religion, and, in states like New York, sexual orientation.

A good friend of mine thinks I am nuts.  He points out that you can learn a lot about a person from what they post on Facebook.  Do you really want a camp counselor, for instance, who brags about how much pot they smoked over the weekend?

Yesterday, the Equal Employment Opportunity Commission hosted a meeting/conference discussing the various workplace issues raised by social media and I love the compromise that one of the attorneys, Renee Jackson of Nixon Peabody, suggested as part of the dialogue.  First, make sure that social media is just one of several sources you access when doing an applicant background check.  Second, have a third-party or employee not involved in the hiring decision review publicly available information about the employee from social media cites.  This employee can report just the facts but omit information such as an employee’s race or religion that should not be part of the hiring decision in the first place.

Speaking of religion, the EEOC recently issued guidance on accommodation of an employee or applicant’s religious beliefs in the workplace. Title VII of the Civil Rights Act of 1964 bans employers with 15 or more employees from discriminating against an employee based on, among other things, her religious beliefs. This means that employers must accommodate an employee’s sincerely held religious beliefs unless doing so would constitute an undue hardship for the employer.

The recently issued, wide ranging guidance stresses, among other things, that a customer’s unease with an employer’s religious attire doesn’t allow the employer to reassign the employee.  This means, for example, that you can’t shift a teller who is a practicing Sikh to a back office position because members have complained he wears a turban.  Another theme of the guidance is that employers should not delve too deeply into how strongly an employee actually holds his or her religious beliefs.  For example, an employee might wear a religious symbol for only one month out of the year or be a recent convert to an obscure faith but these facts are irrelevant in determining how best to accommodate the employee.  

One other theme worth noting has to do with dress codes.  Employers should make exceptions to dress codes to accommodate sincerely held religious beliefs.  Doing so doesn’t mean that the dress code can’t be enforced against other employees.  The bottom line with all of this is to be reasonable.

March 13, 2014 at 8:19 am Leave a comment

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Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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