Both federal and New Jersey employment laws prohibit employers from discriminating against employees on the basis of religious affiliation, beliefs, or practices. Employers must accommodate employees’ religious practices to the extent that doing so is not an “undue hardship” on their business. As with many other areas of antidiscrimination law, what exactly constitutes an “undue hardship” is a matter of ongoing dispute. The New Jersey Law Against Discrimination (NJLAD) goes into some detail about certain types of accommodations employers must make for religious observances. Title VII of the Civil Rights of 1964 contains fewer details, but the U.S. Supreme Court has provided interpretation on several important points. Two petitions for certiorari currently pending before the court ask it to reconsider its own precedent regarding employers’ obligation to accommodate religious practices. The 1977 decision Trans World Airlines, Inc. v. Hardison (“TWA”) held that “requir[ing an employer] to bear more than a de minimis cost” to accommodate an employee’s religious practice “is an undue hardship.”
Title VII prohibits discrimination on the basis of religion, while the NJLAD uses the term “creed.” 42 U.S.C. § 2000e-2(a), N.J. Rev. Stat. § 10:5-12(a). The NJLAD does not offer a specific definition of “creed.” Title VII defines “religion” as “all aspects of religious observance and practice,” up to the point that an employer cannot accommodate an employee because of “undue hardship.” 42 U.S.C. § 2000e(j).
The Supreme Court’s ruling in TWA addresses a question specifically mentioned by the NJLAD. State law expressly states that, subject to an “undue hardship” exception, an employer cannot require an employee to stay at work on a day that they “observe as [their] Sabbath or other holy day.” N.J. Rev. Stat. § 10:5-12(q)(2). In this context, an “undue hardship” involves:
– Excessive expense, difficulty, or interference with business operations; or
– Violation of a seniority system or collective bargaining agreement. Id. at § 10:5-12(q)(3).
The question before the Supreme Court in TWA was whether the employer violated Title VII by requiring an employee to work on Saturdays, which he observed as the Sabbath as part of his religious practices. The employer was able to accommodate him while he worked in a position where he had accrued seniority. After the employee requested and received a transfer to a new position, however, he had much lower seniority. The employer’s seniority system, which was part of a collective bargaining agreement, did not allow him to request all Saturdays off from work.
In a 7-2 ruling, the Supreme Court held that the employer made reasonable efforts to accommodate the employee, and that any further efforts at accommodation would have imposed undue hardship. It found that all of the solutions suggested by the Court of Appeals, such as offering incentives for other employees to work Saturdays, would have imposed additional costs on the employer. This led to the court’s statement that anything beyond a “de minimis cost” was an undue hardship.
Two petitions for certiorari are now pending before the Supreme Court, from the Sixth and Eleventh Circuits, that challenge the “de minimis costs” part of TWA. Both cases involve employees whose religious observances prohibit them from working on Saturdays.
If you have a religious discrimination or other dispute with an employer in New Jersey or New York, the Resnick Law Group’s employment attorneys are available to advise you of your right and discuss your options. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation to see how we can help you.