Over the past year many workers, employers, attorneys and workers’ rights advocates have been closely monitoring the Equal Employment Opportunity Commission‘s move to crackdown on businesses for rigid leave-of-absence policies that automatically terminate employees when a person does not (or simply cannot) return to work immediately following a stipulated leave period. These situations arise, for instance, when an employee exhausts available FMLA leave. Most recently, the EEOC has targeted businesses including UPS, JP Morgan Chase, Sears Roebuck, and United Airlines for violating workers’ rights in their leave of absence practice and policy. When the EEOC set its sights on Jewel-Osco in January 2011, the company was eventually required to pay 110 individuals a total of $3,200,000 in damages.
This past June the EEOC also began holding public hearings on the use of extended leaves of absence as reasonable accommodation for disabilities covered under the expansive “Americans with Disabilities Act Amendments Act.” Now in a recent turn of events, it seems increasingly likely that employers will also need to consider the use of extended leaves of absence as accommodation for employees’ religious beliefs.
This most recent development is partly an outgrowth of the fact that both the ADA and Title VII mandate that employers give reasonable accommodation for their workers’ disabilities or religious beliefs, respectively. However, while both the ADA and Title VII leave room for businesses to refuse accommodation if doing so would create an undue hardship for the employer, in practice it has been significantly less difficult for an employer to demonstrate undue hardship in accommodating religious leave than to show hardship in accomodating requests under the ADA. As a result, there have historically been far more leave of absence disputes and claims under ADA than Title VII.
However, this dynamic may soon undergo significant change.
On October 13, 2011, the Department of Justice settled its first lawsuit under a new program created “to ensure vigorous enforcement” of Title VII against government employers. The program does this by enhancing collaboration between the EEOC and the Justice Department (which enforces Title VII within state and local government agencies and entities). The case in question arose when the Department of Justice announced that is was bringing a religious discrimination case against an Illinois school district that has refused to give a Muslim employee extended leave for a 90-day religious pilgrimage known as a Hajj. The DOJ later released a statement to announce that the case had been resolved with a settlement from the School District. Prior to this case, the vast majority of lawsuits and settlements had involved short-term leaves, such as those involving observation of the Sabbath or other distinct religious holidays.
Given the outcome in Illinois, we can likely expect to see more cases in which employers are required to grant worker requests for extended leaves of absence to accommodate religious beliefs.
If you have faced discrimination in the workplace, contact a Washington employment attorney at Emery Reddy today to learn how we can protect your rights.