Job Demotion Because of Absenteeism (5/10)

We have an employee who, since she was promoted to a supervisory position, seems to be constantly absent – she has missed 20 days so far this year and has used up all of her sick leave and vacation time.  We have warned her about her absenteeism, but her attendance has not improved.  Now, we would like to demote her to her original, lower-paying position so that she is not a supervisor any longer.  Would that action be okay?

As a general rule, unless there is a collective bargaining agreement or other contract limiting your ability to demote an employee and cut her pay, an employer has discretion to take these actions as long as you are being consistent under your disciplinary policies and procedures.  So, for example, if it is appropriate under your normal policies to demote employees for excessive absenteeism and cut pay because the new job pays less, you may be able to do so in this case.        However, and this could be a big “however,” you also should consider any potential protections the employee may have, particularly if she has been absent because she has been ill and has used up all of her sick pay.  Absenteeism related to a medical condition may indicate that she is protected by the Family and Medical Leave Act (FMLA) or even the Americans with Disabilities Act (ADA).  The FMLA, which applies to employers with 50 or more employees, allows eligible employees to take up to 12 weeks of job-protected leave in any 12-month period for various family and medical reasons, including if the employee has a serious health condition that causes her to need leave.  Accordingly, if the employee is eligible for FMLA leave and her absences are related to a medical condition that is a protected serious health condition, you should not take disciplinary action based on these absences.      The ADA, which applies to employers with 15 or more employees, also may come into play if the employee has a medical condition that is considered a protected disability.  The ADA is not a leave law, but it does require employers to accommodate employees with disabilities to allow them to perform the essential functions of their jobs.  Extended unpaid time off beyond what your paid leave policies provide could be a form of accommodation.        So, before taking any demotion or disciplinary action against this employee, you should determine whether she is protected under either the FMLA or the ADA.  If she is protected by either law, you should provide her with information about her rights and obligations under these laws and make sure her absences are treated properly.

Consider Religious Accommodations to Improve Employee Relations (4/10)

Do you know how to respond to an employee’s request for a religious accommodation?  Surprisingly, your legal duty to accommodate religious beliefs is relatively easy to satisfy.  But, you should consider going beyond the minimum requirements to build stronger employee relations.

     As we head into April, Easter and Passover are two major religious holidays celebrated that may raise questions for employees whose religious beliefs require them to take time off from work.  Somewhat surprisingly, however, your actual legal duty to accommodate religious requests is more limited than you may expect.  This situation holds true whether you are dealing with requests for time off, dress code exceptions, or work schedule changes.      However, many smart employers are now responding proactively to the growing ethnic and cultural diversity of the workforce and are going beyond the strict letter of the law to accommodate religious requests.  The payoff is much more than reduced legal exposure.  This outreach is good business and can foster a measurably more positive and productive work environment.   What Religious Beliefs Are Protected      Your duty to accommodate employee religious practices is based in Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits workplace discrimination based on religion.  Title VII, in 42 U.S.C. §2000e(j), defines “religion” as “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”        The Equal Employment Opportunity Commission (EEOC) provides additional guidance on religious discrimination and accommodation requirements in its Compliance Manual, which was updated in 2008.  (The Compliance Manual is used by EEOC personnel to investigate and resolve employment discrimination claims.)  Section 12 of the Compliance Manual indicates that religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also 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.”  Title VII’s religious discrimination protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.      Interestingly, religious beliefs also include theistic beliefs (i.e. those that include a belief in God) as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”  Unfortunately, the EEOC guidances do not provide any examples of what types of non-theistic beliefs would be covered.  But they do indicate that strongly-held social, political, and economic philosophies are not considered religious beliefs protected by Title VII. Undue Hardship and the “De Minimis” Standard  Title VII requires employers to make reasonable accommodation for employee and applicant religious practices as long as that accommodation does not result in “undue hardship” for the organization.  The meaning of “undue hardship” is murky.  Neither Title VII nor the EEOC enforcement guidelines provide a specific definition for the term.        Fortunately for employers, the Supreme Court has defined “undue hardship” as any costs greater than “de minimis” (i.e., a nominal cost) in Trans World Airlines v. Hardison, 432 U.S. 63 (1977).  Examples of costs that courts have found to exceed the de minimis standard include accommodations that would require the employer to pay overtime to replacement workers, that create staffing shortages, or that circumvent the seniority system.        In other words, in most cases, the courts take a relatively relaxed view of employer obligations regarding religious accommodations.  For example, in Virts v. Consol. Freightways Corp., 285 F.3d 508 (6th Cir. 2002), the Sixth Circuit decided that the employer was not required to violate the seniority provisions of a collective bargaining agreement in order to accommodate a male truck driver’s refusal on religious grounds to make sleeper runs with female drivers.  The court found such an accommodation would impose an undue hardship on the employer and was not required by Title VII.      Similarly, in Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004), the Ninth Circuit determined that the employer did not have to accommodate an employee’s religious views by (1) allowing him to post anti-gay scriptural passages in his work cubicle or (2) removing workplace diversity posters.  The court said granting his demands, to let him either post messages intended to demean and harass coworkers or to infringe on its right to promote diversity, tolerance, and good will among its workforce, represented an undue hardship not required by Title VII.       In addition, courts also have determined that employers do not have to provide the specific accommodation the employee prefers, but only one that is reasonable.  So, for example, in Cloutier v. Costco Wholesale, 390 F.3d 126 (1st Cir. 2004), cert. denied, 545 U.S. 1131 (2005), an employer whose dress code forbade wearing facial jewelry did not violate the religious freedom of an employee it fired for refusing to cover what she claimed was a religiously motivated eyebrow piercing.  The court said that the employer’s offer to let the employee wear a Band-Aid over, or a retainer in place of, the jewelry was a reasonable accommodation that respected her expressed religious beliefs while protecting the employer’s legitimate interest in presenting a reasonably professional looking workforce to its customers.  Similarly, in Cosme v. Henderson, 287 F.3d 152 (2d. Cir. 2002), when a letter carrier informed the postal service that his religious beliefs prevented him from working on Saturdays, his employer offered him a choice of four other positions that would not require Saturday work.  The Second Circuit found that even though the employee preferred a position other than those offered him, the proposals represented a reasonable accommodation under Title VII.      As a practical point of comparison, the de minimis “undue hardship” test for relief from religious accommodation under Title VII is much less stringent than the “undue hardship” test for accommodating disabilities under the Americans with Disabilities Act (ADA).  In contrast to the de minimis standard, the ADA defines “undue hardship” to mean a significant difficulty or expense for the employer arising from accommodating the disability.      Note, however, that you still need to be able   to support any argument that an accommodation request is an undue hardship.  For example, in Baker v. Home Depot, 445 F.3d 541 (2d Cir. 2006), the Second Circuit found that an employer’s offer to schedule an employee to work in the afternoon or evenings on Sundays, rather than the mornings, was not a “reasonable” accommodation under Title VII since the employee’s religious views required not only attending Sunday church services but also refraining from work on Sundays.  According to the court, the employer did not offer sufficient evidence to show that offering Sunday off would cause an undue hardship. Flexible Policies Help Employees       Meet Religious Obligations As the discussion above shows, the de minimis standard gives you broad latitude to refuse many requests for religious accommodation.  However, the adoption of flexible policies toward employee religious needs and beliefs often makes more sense than simply adhering to the minimum legal requirements.  While complying with the basic letter of the law may provide some insurance in any later court battle, it does not communicate respect or tolerance and does little to encourage employee loyalty and productivity.      The development and administration of effective religious accommodations can be challenging, however.  Employers often are unfamiliar with the tenets of the various religions and may suspect that some employees will use religious accommodation requests as a front to avoid distasteful duties or work hours.  Yet, most employee requests are based on genuine religious beliefs that can be accommodated with no meaningful disruption.  The following suggestions are designed to help you become more flexible in your approach:  1.   Communicate your commitment to prevent religious discrimination.  For example, you should develop and enforce policies that specifically address religious discrimination and harassment and be prepared to accommodate reasonable requests. 2.   Become better educated about the different religions of the world.  When you are approached by an employee for an accommodation, it helps to know at least a little about the religious practices in question.  Two resources are listed below in the “For More Information” box and provide details about different religions and their beliefs.  Also, don’t be afraid to ask employees to explain their religion and need for accommodation.  If treated respectfully, employees should appreciate your interest and may be able to help create effective solutions. 3.   Anticipate employee religious needs.  Most accommodation requests involve diet, clothing, and prayer.  Simple exceptions to your normal dress, attendance, and break policies can go a long way to accommodate most of your requests.  For example, consider the following suggestions: —      Allow flexible work schedules during special periods of religious observance such as Ramadan, Yom Kippur, and Lent.   —     Offer a quiet place for people of any faith to pray, and allow breaks to be taken for this purpose.   —     Structure personal leave days so that they can be used for religious observances.    —      Consider changes to your dress code that allow employees to wear religious garb. —     Expand food choices, when appropriate, in your cafeteria or snack areas to accommodate religious dietary requirements.  By taking these proactive steps, you may actually be able to minimize the number of individual requests for accommodation.  4.   Educate managers and staff and include religion as a component in diversity training.  Explain the legal requirements for religious accommodations as well as your philosophy on flexible standards.  Provide examples of appropriate accommodations such as flextime, job reassignment, and dress code exceptions so that managers are aware of the full range of possibilities.  Educate supervisors about the key tenets of the faiths in your workplace, particularly as they apply to diet, clothing, and prayer requirements.   Be Creative When You Can The majority of workers who request a religious accommodation do so because they want to express sincerely held beliefs.  So, you should not fall into the trap of setting policy to weed out a few abusers at the expense of your conscientious workers.  You can protect against frivolous requests by asking probing questions.  If you consider each accommodation request on a case-by-case basis, you can learn to spot those that are less than sincere.  This way you can deal directly with potential abusers while maintaining the flexibility to be creative in working with today’s more diverse workforce.  Your willingness to recognize legitimate individual needs can be an important distinction that makes you stand out as an employer of choice.