Preventing Workplace Harassment, Discrimination, and Retaliation

Employers must reasonably accommodate the known religious creed of any applicant or employee. An employer may not simply segregate an employee from customers or the general public as an accommodation unless specifically requested by the employee. An accommodation is not reasonable if it creates an undue hardship. Factors in determining undue hardship include:  The size of the agency or facility, including the number of employees and size of the budget

 The type of operations conducted by the agency or at the facility, including composition and structure of the workforce

 The nature and cost of the accommodation

 Reasonable notice to the employer regarding the need for the accommodation

 Any available reasonable alternatives for accommodation. 15

Case Study on Religious Discrimination

E.E.O.C. v. Abercrombie & Fitch Stores, Inc. 16 Employer had a “Look Policy” that governed its employees’ dress. The Look Policy prohibited “caps” – a term that the Policy did not define – as too informal for its desired image. Elauf was a practicing Muslim who, consistent with her religious beliefs, wore a headscarf. Elauf applied for a position with Employer and was otherwise qualified except that Employer determined her headscarf, which it suspected she wore for religious reasons, violated its Look Policy and did not hire her on those grounds. Employer argued it did not have actual knowledge of Elauf’s religion and therefore did not discriminate against her by failing to accommodate her or refusing to hire her. The Court, however, found that an Employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

C. P HYSICAL D ISABILITY Anti-discrimination laws broadly define what constitutes a physical disability. 17 A physical disability is any physical condition that makes achievement of a major life activity more difficult. The condition includes any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects a major body system. The disability could be related to any body system including: neurological, immunological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. 18

Example: Obesity may be a physical disability if it is caused by a physiological, systemic disorder affecting one or more of the referenced body systems.

In California, to qualify as a physical disability, the physical condition need only limit the employee or applicant’s ability to participate in major life activities. 19 Major life activities

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 10