Anyone who works frequently with employment counsel has heard the words “it depends” – it (the answer to a question) depends on the specific facts and circumstances at issue, which should be analyzed and discussed before a course of action is determined.
Two recent cases illustrate this point. Both cases arose out of similar, but not identical, situations.
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.
The number of religious discrimination cases has risen steadily over the past decade. This trend may continue, at least in New York City, well into the future. On August 17, 2011, the New York City Council, NYC’s law-making body, passed Local Law Int. No. 632-A, which amended the NYC Human Rights Law – already one of the strongest in the nation – to provide increased protections against religious discrimination.
Written by Joel Nolan.
A federal court in Oklahoma recently found an Abercrombie Kids store (a brand of Abercrombie & Fitch Stores, Inc.) liable for religious discrimination because the store did not hire a Muslim applicant who wore a headscarf during a job interview. Interestingly, the court found for the EEOC on summary judgment meaning that, as a matter of law, there was no possible way a jury could have found that Abercrombie had not discriminated against the applicant. A jury will be empanelled to determine damages.
