We previously wrote about the EEOC’s increasingly aggressive position against inflexible leave of absence policies that provide for automatic termination of employment when an employee does not or cannot return to work at the end of a specified maximum leave period, such as when the employee has exhausted available FMLA leave. We have also written about the public hearing held by the EEOC in June 2011, which discussed the use of extended leaves of absence as reasonable accommodation for a disability covered under the expansive Americans with Disabilities Act Amendments Act. A new development suggests that employers may also need to consider the use of extended leaves of absence as accommodation for employees’ religious beliefs.
As background, the ADA and Title VII both require employers to provide reasonable accommodation for, respectively, an employee’s disability or sincerely-held religious belief. Although both the ADA and Title VII allow an employer to refuse to provide a reasonable accommodation if to do so would pose an undue hardship, historically, the employer’s burden to show undue hardship when faced with a request for religious accommodation has been significantly lower than the burden to show undue hardship under the ADA.
On October 13, 2011, the Department of Justice announced that it had settled the first lawsuit brought under a pilot program designed “to ensure vigorous enforcement” of Title VII against governmental employers by increasing cooperation and communication between EEOC and the DOJ, which is tasked with enforcing Title VII against state and local government entities. Specifically, the DOJ announced that it had settled a religious discrimination case against an Illinois school district, after the school district refused to grant a Muslim employee’s request for a nineteen-day leave of absence to perform Hajj, a religious pilgrimage. Previously, most reported lawsuits and settlements had focused on short-term leaves, such as those needed to allow an employee to observe the Sabbath or other religious holidays.
We are not aware of any other case where an employer was required to grant an employee’s request for a lengthy leave of absence to accommodate his or her religious beliefs. We expect to see more.