Accommodation under the Employment Laws

10.10.2016

Much is often written about employers' duty of reasonable accommodation under the federal Americans with Disabilities Act (ADA), and with good reason as ADA litigation continues to be a significant risk for employers.  Lesser known are the accommodation obligations of employers when faced with religion, transgender and caregiver issues.

The difficulty in handling religious discrimination issues is that, for the most part, it is the subjective beliefs of the employee that determine whether something is "religious". Accordingly, many employers make mistakes when the religious belief claimed by the employee is unusual and/or not well known. Moreover, even if the employee has not made a religious belief claim, if the employer suspects that a religious belief is implicated, and does not accommodate it, liability is likely.

Similarly, the wishes of transgender employees to live as the opposite gender of birth generally must be accommodated. Cases have arisen most often regarding bathrooms and dressing, and the crucial conversations often must be with the non-transgender employees explaining the rights transgender employees have.  In the area of employee dress codes, rules that are different for men and women must be reviewed for compliance.

Finally, accommodation in the area of employee caregiving to family requires that employers not follow stereotypes in making caregiving rules.  For larger employees (>50), the federal Family and Medical Leave Act (FMLA) requires that any eligible employee may take up to 12 weeks of unpaid leave to care for close family members with serious health conditions. Employers sometimes get in trouble by granting more generous caregiver leave to non-FMLA eligible women than non-FMLA men, based on the notion that women more often provide family caregiving.

As with all labor and employment questions, a short telephone call or email to us on any of these topics prior to decision is a far better choice than making a mistake and facing a lawsuit.