Andrew I. Bart in Board Operations on September 24, 2019
A Sikh employed by the Metropolitan Transit Authority claims he was told to either “brand” his turban with an MTA logo or to remove it. He filed a lawsuit. The result is yet another amendment to the New York State Human Rights Law that affects how boards govern New York co-ops and condominiums.
The new legislation recently signed by Governor Andrew Cuomo expressly prohibits an employer from discriminating against an employee for wearing any clothing or facial hair associated with the requirements of the employee’s religion. The law goes into effect on October 8, 2019. How will this new amendment affect your board’s operations? And how do you protect yourself from any claims of discrimination?
First, this amendment applies to all employers in New York State. Whether a co-op or condo employs one superintendent or 90 staff members, it must comply. A board cannot fire, fail to promote, or refuse to hire an individual on the basis of religiously mandated clothing or facial hair. An employer can, however, demonstrate that it is unable to reasonably accommodate the person’s religious practice without undue hardship on the conduct of its business.
Examples of religious attire include, but are not limited to, a turban, burqa, hijab, headscarf, or yarmulke. An example of facial hair would be the requirement that male members of the Sikh religion wear a beard.
Consider the case of a Muslim woman who wears a hijab and wishes to become a doorman. All front-door personnel on your staff are required to wear a cap and a uniform. While she is willing to wear a uniform, the Muslim woman cannot wear a cap because of her hijab. You cannot demand that she remove the hijab in order to get the job or have her affix your co-op or condo logo on her headscarf. Rather, you must accommodate her religion by permitting her to forego wearing a cap. The same situation would apply to a man who wears a turban, as in the case of the Sikh employee of the MTA. Similarly, if an Orthodox Jewish man with a beard and a yarmulke applies for a position, a co-op or condo board cannot refuse to hire him due to his religious appearance.
How can an employer demonstrate that the reasonable accommodation of such religious attire would cause an undue hardship on its business? If a woman wearing a burqa wanted to become your superintendent but, due to her garment, could not fulfill the physical duties of the job without the assistance of additional staff, there’s an argument to be made that the employment of this woman would cause an unreasonable hardship to your co-op or condo. To accommodate her needs, the board would have to hire additional staff or change existing staff schedules – which would place undue hardship on the conduct of its business.
To best protect your co-op or condo from potential harassment claims, you need to review your uniform and appearance policies to ensure they comply with this new amendment. You should also ensure there is a procedure in place for an employee to request a reasonable accommodation in the workplace based upon his or her religion, including attire and facial hair.
And remember: this new rule is merely the latest in a continuing string of accommodations co-op and condo boards must make for their employees. It’s now illegal to discriminate against ethnic hairstyles, and employees must be given time off to vote, to get reproductive and sexual health treatments, even to lactate/express milk for an infant.
Andrew I. Bart is a lawyer at the firm Borah, Goldstein, Altschuler, Nahins & Goidel.
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