The United States has long been a haven for people of all faiths seeking the freedom to pursue their religious beliefs and practices openly. The Pilgrims first came to the United States for this very reason. Our nation’s founders valued the ideals of tolerance, freedom of religious practice, and protecting religious diversity. Accordingly, the First Amendment to our Constitution enshrines the principle that government should allow for the “free exercise” of religion.

New York City, in particular, is America’s epicenter of racial, ethnic, and religious diversity. In this great city, people of all faiths play a vital role in our workplaces, our government, and our communities.

Despite New York City’s religious diversity and the essential contributions that people of all religious backgrounds bring to the workplace, the New York City Human Rights Act provides less protection for religious freedom in the workplace than the New York State Human Rights Law.

The New York City Human Rights Law and the New York State Human Rights Law both require employers to grant a “reasonable accommodation” to an employee’s religious practice in the workplace unless the accommodation would cause an “undue hardship.” They significantly differ, however, in how the term “undue hardship” is defined.

New York City, through adoption of a federal constitutional standard first articulated in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S.Ct. 2264, 2277 (1977), defines an “undue hardship” as any accommodation that would impose more than a “de minimis cost upon the employer.” See also, Jaggi v. NYPD, OATH Index No. 1498/03 (Apr. 28, 2004). Thus the New York City Human Rights Law grants employers the ability to refuse to hire, fire, demote, relocate, or otherwise discriminate against any employee whose faith causes the employer more than a “de minimis” or minimal inconvenience or burden in the conduct of its business.

The New York State Human Rights Law, on the other hand, is substantially more welcoming of religious diversity in the workplace. Rather than the New York City Human Rights Law’s definition of “undue hardship” as anything more than a “de minimis cost,” the New York State Human Rights Law defines “undue hardship” to be a “significant difficulty or expense.”

The state law standard of protection is thus significantly more accommodating and welcoming of religious diversity than the current standard employed by the New York City Human Rights Law. The gap in the standards of protection in state law and city law is significant. New York City’s Human Rights Law should be at least as welcoming of religious diversity in the workplace as the state law given our city’s religious diversity.

Indeed, New York City residents have been shut out of jobs in the city not because they can not perform essential job functions, but because the legal climate created by a “de minimis cost or burden” standard empowers employers to reject their requests for accommodation.

For example, two New York Police Department (“NYPD”) officers, followers of the Sikh religion, were dismissed by the Department because their turbans and uncut beards were in violation of the Department’s dress code. While the New York City Human Rights Commission eventually rules in favor of the Sikh officers, the Department required these Sikhs to engage in years of litigation before they could wear their turbans. It is likely that a higher standard of protection would have prevented this litigation in the first place.

Similarly, the Metropolitan Transportation Authority ("MTA") reassigned four Muslim women bus drivers because they refused to remove their religious-mandated hijabs. The MTA's action in reassigning the four Muslim women is currently the subject of federal lawsuits filed by the Muslim women and the United States Department of Justice.

Outside of New York City, Sikh and Muslim employees are not the only victims of religious garb discrimination. In Phoenix, Arizona a seventeen year old Jewish Blockbuster customer service representative was told he would have to remove his yarmulke in order to work. His employer maintained that the employee’s yarmulke was in violation of the dress code, which did not allow for headwear. The employee was forced to work without his yarmulke for approximately two months until his employer received the employee’s EEOC charge.

As the Sikh, Muslim, and Jewish cases illustrate, gaps in the legal standards employed in state law and city law have caused and may in the future cause significant hardship for employees who want to keep their jobs without giving up their faith. The New York City Workplace Religious Freedom Restoration Act is a necessary and essential to close the gap between state law and city law and in order to ensure New York City’s religious pluralism is respected and not an impediment to the full integration of all people of faith into the city’s economy. Accordingly the language of the act shall track the tried and tested state standard for accommodation of religious practices in the workpla

ce to ensure there is no gap between state and city law.

Hence, this bill is proposed to amend section 102(18) of Chapter 1 of title 8, of the administrative code of the city of New York to read as follows:

§8-102(18). 18. The term "reasonable accommodation" means such accommodation that can be made that shall not cause undue hardship in the conduct of the covered entity's business. The term “undue hardship” shall mean an accommodation requiring significant expense or difficulty. The covered entity shall have the burden of proving undue hardship. In making a determination of undue hardship with respect to claims filed under subdivisions one or two of section 8-107 or section 8-107.1 of this chapter, the factors which may be considered include but shall not be limited to:

(a) the nature and cost of the accommodation;
(b) the overall financial resources of the facility or the facilities
involved in the provision of the reasonable accommodation; the number of
persons employed at such facility; the effect on expenses and resources,
or the impact otherwise of such accommodation upon the operation of the
facility;
(c) the overall financial resources of the covered entity; the overall
size of the business of a covered entity with respect to the number of
its employees, the number, type, and location of its facilities; and
(d) the type of operation or operations of the covered entity,
including the composition, structure, and functions of the workforce of
such entity; the geographic separateness, administrative, or fiscal
relationship of the facility or facilities in question to the covered
entity.
§3. This local law shall be effective thirty days after its enactment into law.