Navigating Through the Changing
World of Accommodations:
From the ADA, to LGBT
Individuals and Beyond
Presented by:
Robert J. Simandl
Stefanie Carton
of Simandl Law Group, S.C.
Agenda
 Religious Accommodations
 Prayer Time
 Considerations in the Applicant Process
 Grooming/Look Policies
 LGBT Discrimination and Emerging
Accommodation Issues
 The ADA and Required Accommodations
 Military Leave “Accommodations”
MRA Employment Law Update
Title VII and Religious Discrimination
 Generally
 Title VII of the Civil Rights Act of 1964 prohibits
discrimination because of a person’s race, color,
sex, religion or national origin
 Applies to hiring, firing and terms and conditions of
employment
 Applies to policies, criteria and hiring practices that
have a disparate impact on minorities or women
 May be lawful where job-related and consistent with
business necessity
MRA Employment Law Update
Title VII and Religious Discrimination
 Employer must refrain from discriminating on the basis of an
individual’s religious beliefs
 Religion Defined:
 Includes traditional, organized religions
 Includes religious beliefs that are new, uncommon, not part of a
formal church or sect, only subscribed to by a small number of
people or that seem illogical or unreasonable to others
 A belief is “religious” for Title VII purposes if it is religious in
the person’s “own scheme of things”
 i.e., it is “a sincere and meaningful belief that occupies in the life of
its possessor a place parallel to that filled by … God”
MRA Employment Law Update
Religious Accommodations –
Undue Hardship Analysis
 An employer does not have to accommodate an
employee's religious beliefs or practices if doing
so would cause undue hardship to the employer
 Undue Hardship = more than a de minimums
burden
 Note that this is a lower standard for an
employer to meet than undue hardship under
the ADA which is defined in that statute as
“significant difficulty or expense”
MRA Employment Law Update
Religious Accommodations –
Undue Hardship Analysis
 Unless it would be an undue hardship on the employer's operation
of its business, an employer must reasonably accommodate an
employee's religious beliefs or practices
 schedule changes or leave for religious observances
 dress or grooming practices
 wearing particular head coverings or other religious dress
(such as a Jewish yarmulke or a Muslim headscarf)
 wearing certain hairstyles or facial hair (such as Rastafarian
dreadlocks or Sikh uncut hair and beard)
 an employee's observance of a religious prohibition against
wearing certain garments (such as pants or miniskirts)
MRA Employment Law Update
Religious Accommodations –
Undue Hardship Analysis
 An accommodation may cause undue
hardship if:
 it is costly;
 compromises workplace safety;
 decreases workplace efficiency;
 infringes on the rights of other employees; or
 requires other employees to do more than
their share of potentially hazardous or
burdensome work
 Engage in the interactive process
MRA Employment Law Update
Prayer Time Accommodation –
Example

A Muslim employee requests time off from work during the day to tend to his
prayer, as his scheduled break time(s) conflict with his prayer times
 When an employer's workplace policies interfere with its employee's
religious practices, the employee can ask for a reasonable accommodation in
the form of a change in a workplace rule or policy (such as break time) to
allow the employee to engage in his religious practice (praying)
 The employer is required to provide the accommodation unless it would
impose an undue hardship on the employer's business
 This means the employer is not required to provide an accommodation that
is too costly or difficult to provide
 One employee’s request vs. 50 employees
 There are many situations in which the accommodation of Islamic religious
practices may impose a monetary or administrative burden on the employer,
such as where an employee works on a production line and break times
must be taken at the same time as other employees
 However, each situation is different and must be analyzed on its own facts
 If the accommodation would impose a burden on the employer that cannot
be resolved, the employer is not required to allow the accommodation
MRA Employment Law Update
Considerations for Accommodations
in the Application Process - Example
 EEOC v. Abercrombie & Fitch Stores, Inc. (SCOTUS,
June 1, 2015)
 Question presented: Whether an employer can be liable
under Title VII for refusing to hire an applicant or
discharging an employee based on a “religious
observance and practice” only if the employer has actual
knowledge that a religious accommodation was required
and the employer’s actual knowledge resulted from
direct, explicit notice from the applicant or employee.”
 Case turned on the belief of the employer as to the employee’s
need for an accommodation based on a perceived religious belief
MRA Employment Law Update
Considerations for Accommodations
in the Application Process – Cont.
 Facts: The applicant’s head scarf would violate
Abercrombie’s “Look Policy”
 The Company never discussed why she wore the head scarf
 Company refused to hire the applicant
 Title VII’s disparate impact treatment provision required the
applicant to show that Abercrombie failed to hire her
because of her religion
 Title VII prohibits motives, not knowledge, as the standard
 SCOTUS determined that actual knowledge of a religious practice or
need for an accommodation was not required if the potential need for
an accommodation was a motivating factor in the employer’s hiring
decision
MRA Employment Law Update
Religious Accommodations
in the Workplace
 Grooming or “Look” Policies – Beware!
 The Abercrombie case is a strong statement from
SCOTUS on Title VII protections for religious
discrimination
 An employer cannot merely claim ignorance of actual
knowledge of the applicant or employee’s religion when the
employer made an employment decision based on the
employer’s belief that the person may need a religious
accommodation
 Employers should take caution when faced with potential
religious accommodation issues and evaluate potential
trouble spots where otherwise neutral policies may conflict
with the religious practices of applicants or employees
MRA Employment Law Update
Religious Accommodations in the
Workplace
 Recommendations:
 Include an accommodation policy in your handbook:
 [Company Name] recognizes and supports its obligation to endeavor to
reasonably accommodate job applicants and employees with sincere
religious beliefs or practices who are able to perform the essential
functions of the position, with or without reasonable accommodation.
[Company Name] will endeavor to provide reasonable accommodation
to otherwise qualified job applicants and employees, unless doing so
would impose an undue hardship on the Company.
 An applicant or employee who believes he or she needs a reasonable
accommodation of a sincere religious belief or practice should discuss
the need for a possible accommodation with his or her direct supervisor
or [_____________________].
 Document requests
 Engage in the interactive process
 Do not make hiring decisions based on your belief as to an
applicant’s need for an accommodation
MRA Employment Law Update
Other Considerations for Grooming
or “Look” Policies
 In general, employers are allowed to regulate their
employees' appearance, as long as they do not end up
discriminating against certain employees
 The rules can be different for men and women workers so
long as the rules don't discriminate on the basis of gender,
race, or religion, and are job related
 Ex: prohibition on long hair for men, facial beards
 Note: EEOC v. Greyhound Lines, Inc., 635 F.2d 188 (3rd Cir.
1980) – prohibition on beards had a discriminatory effect on
black workers who have a higher rate of “pseudo folliculitis
barbae”
 Third Circuit found that the EEOC could not establish that the
enforcement of the policy actually resulted in discrimination in
the workplace (disparate impact)
MRA Employment Law Update
Title VII and LGBT Discrimination
 Generally:
 Title VII provides: It shall be an unlawful
employment practice for an employer –


To fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s
race, color, religion, sex or national origin; or
To limit, segregate, or classify his employees or applicants
for employment in any way which would deprive or tend
to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee,
because of such individual’s race, color, religion, sex, or
national origin.”
MRA Employment Law Update
Title VII and LGBT Discrimination
 Transgender discrimination is unlawful
 Macy v. Holder, EECX Appeal No. 0120120821, 2012 WL 1435995
(EEOC Apr. 20, 2012)
 Male-to-female transition in progress
 Applied to the Bureau of Alcohol, Tobacco, Firearms & Explosives at U.S.
DOJ
 Phone Interview – was told she was most qualified, would get the job
 During the background check Macy informed BATFE she was in
transition
 5 days later, BATFE rejected Macy for employment due to “funding cuts”
 Another officer soon thereafter hired to fill position
 Holding: “Thus, we conclude that intentional discrimination against
a transgender individual because that person is transgender is, by
definition, discrimination ‘based on….sex,’ and such discrimination
therefore violates Title VII”
MRA Employment Law Update
LGBT Accommodations and
Obligations in the Workplace
 Transgender accommodation – How far must an employer go?
 Lusardi v. McHugh, EEOC (April 1, 2015)







Male-to-female transition in progress
Lusardi advised her boss of her transition
Single-use bathroom assigned to Ms. Lusardi for pre-SAS use
Lusardi agreed for a while
Male team leader refused to refer to Lusardi in feminine gender
Lusardi used the female restroom from time to time
Lusardi filed a complaint of sex discrimination and harassment based on her
gender identity
 Holding: Discrimination against a transgender individual because that
person is transgender is, by definition, discrimination ‘based on…sex’
and such discrimination violates Title VII, absent a valid defense.”
 Forcing the employee to use the single-use bathroom constituted
discrimination
 References to Lusardi as “sir” constituted a hostile work environment
MRA Employment Law Update
Recommendations




Refer to the individual as they identify
Sensitivity/harassment training
Bathrooms
Showers?
MRA Employment Law Update
The ADA and Disability Discrimination
 Generally: Under the ADA, employers are legally obligated to
accommodate qualified individuals with disabilities, unless
doing so creates an undue hardship
 Three categories of reasonable accommodations:
 modifications to a job application process
 modifications to the work environment
 modifications that enable a covered entity's employee with a
disability to enjoy equal benefits and privileges of employment as
are enjoyed by its other similarly situated employees without
disabilities
 Accommodation must be reasonable and effective
 Undue hardship = significant difficulty or expense
 Focuses on the resources and circumstances of the particular
employer in relationship to the cost or difficulty of the specific
accommodation
MRA Employment Law Update
Interactive Process
 Interactive Process
 Includes meeting with the employee,
discussing restrictions, abilities and ideas for
accommodation
 May include meeting with employee’s
supervisor to discuss accommodation
 Request of medical information
 Document efforts
MRA Employment Law Update
Specific Accommodations
 Leave
 How much leave does employer have to
provide?
 Employer’s obligations during leave
 Indefinite leave
 Requests for extensions
 Unreliable attendance
MRA Employment Law Update
Specific Accommodations
 Rescinding Employee Discipline
 Employee makes request for reasonable
accommodation at disciplinary meeting
 Employee makes request for reasonable
accommodation at termination meeting
 Modified Work Schedule
 Changing starting times
 Break times
 Part-time schedules
MRA Employment Law Update
The ADA and Conduct Rules
 If disability causes employee to violate conduct
rule, can we terminate or discipline?
 Generally, yes….
 Is conduct rule job-related and consistent
with business necessity?
MRA Employment Law Update
The ADA and Conduct Rules
 Alcohol Use
 Rehabilitation
 Modified work schedules
 A “plea for grace?”
 Workplace Violence
 Will likely always be job-related and
consistent with business necessity
 Make sure you are consistent!
MRA Employment Law Update
The ADA and Conduct Rules
 Lying, Dishonesty, Theft
 Unprofessional Conduct
 “Abnormal” behavior
 Tardiness
 Modified Work Schedule
 Changing starting times
 Break times
 Part-time schedules
MRA Employment Law Update
Thank you!
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