Amicus Curiae Brief — Joseph A. Kennedy, Petitioner v. Bremerton School District
Supreme Court briefApr 1, 2022
Ask Donna
What actually matters in this document.
Text
No. 21-418
IN THE
Supreme Court of the United States
____________________
JOSEPH A. KENNEDY,
Petitioner,
v.
BREMERTON SCHOOL DISTRICT,
Respondent.
____________________
On Writ of Certiorari To The
United States Court of Appeals
For The Ninth Circuit
____________________
BRIEF OF CITY, COUNTY, AND LOCAL
PUBLIC EMPLOYER ORGANIZATIONS
AS AMICI CURIAE IN SUPPORT OF RESPONDENT
____________________
Lisa E. Soronen
Executive Director
STATE & LOCAL LEGAL CENTER
444 N. Capitol St., N.W.
Suite 515
Washington, D.C. 20001
(703) 622 0037
Michael R. Dreeben
Counsel of Record
Ephraim McDowell
Jenya Godina
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
(202) 383-5300
mdreeben@omm.com
Attorneys for Amici Curiae
i
QUESTIONS PRESENTED
The First Amendment’s free-speech guarantee
does not protect employee speech made pursuant to
official duties. And even when speech falls outside of
those duties, governments have independent constitutional obligations to avoid endorsement of religion
or coercion of others that would violate the Establishment Clause. Amici will address those principles
as applied to the specific factual context of this case:
1. Whether petitioner, a high-school football
coach, spoke pursuant to his official duties by audibly praying at midfield after games, where he had
engaged in a consistent years-long practice of delivering inspirational religious speeches to players at
the same time and location.
2. Whether, assuming that the coach’s expression
was private, the school district acted permissibly to
avoid an Establishment Clause violation, where the
coach’s expression would implicate both endorsement and coercion concerns if the district allowed
the coach’s expression to continue.
ii
TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE .............................. 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ........................................................ 3
ARGUMENT ............................................................. 6
I. PETITIONER’S RELIGIOUS
EXPRESSION LACKS FIRST
AMENDMENT PROTECTION BECAUSE
IT OCCURRED IN THE COURSE OF HIS
OFFICIAL DUTIES AS COACH ................... 6
A. Expression In the Course Of A Public
Employee’s Official Duties Is
Unprotected ............................................... 7
B. Petitioner Prayed At Midfield In The
Course Of His Official Duties As
Coach ....................................................... 13
II. THE DISTRICT PERMISSIBLY LIMITED
PETITIONER’S RELIGIOUS
EXPRESSION IN ORDER TO AVOID AN
ESTABLISHMENT CLAUSE
VIOLATION ................................................. 21
A. Public Employers Acting In Their
Managerial Roles Have Flexibility To
Restrict Religious Expression. ................ 21
B. The District’s Actions Satisfy Strict
Scrutiny ................................................... 24
CONCLUSION ........................................................ 31
iii
TABLE OF CONTENTS
(continued)
Page
APPENDIX A:
New York State Employee
Religious Accommodation Policy ....................... 1a
APPENDIX B:
City of Portland, Oregon Employment
Accommodations Policy ................................... 27a
APPENDIX C:
City of Pittsburgh, Pennsylvania Religious
Accommodation Policy ..................................... 45a
APPENDIX D:
City of Portland, Maine Religious
Accommodation Policy ..................................... 49a
APPENDIX E:
District of Columbia Fire & Emergency
Medical Services Department Religious
Accommodation Policy ..................................... 52a
iv
TABLE OF AUTHORITIES
Page(s)
CASES
Bd. Of Cnty. Comm’rs v. Umbehr,
518 U.S. 668 (1996) ............................................ 22
Bd. of Educ. of Westside Cmty. Sch. v.
Mergens ex rel. Mergens,
496 U.S. 226 (1990) ............................................ 29
Bell v. Eagle Mtn. Saginaw Indep. Sch.
Dist.,
27 F.4th 313 (5th Cir. 2022) .............................. 16
Borough of Duryea v. Guarnieri,
564 U.S. 379 (2011) ...................................7, 23, 24
Church of the Lukumi Babalu Aye v.
City of Hialeah,
508 U.S. 520 (1993) ............................................ 24
Connick v. Myers,
461 U.S. 138 (1983) ............................................ 22
Edwards v. Aguillard,
482 U.S. 578 (1987) ............................................ 25
Evans-Marshall v. Bd. Of Educ. of Tipp
City Exempted Vill. Sch. Dist.,
624 F.3d 332 (6th Cir. 2010).............................. 12
Foley v. Town of Randolph,
598 F.3d 1 (1st Cir. 2010) .................................. 10
Garcetti v. Ceballos,
547 U.S. 410 (2006) ..................................... passim
Good News Club v. Milford Cent. Sch.,
533 U.S. 98 (2001) .............................................. 25
Green v. Bd. of Cnty. Comm’rs,
472 F.3d 794 (10th Cir. 2007)........................ 9, 10
Kennedy v. Bremerton Sch. Dist.,
139 S. Ct. 634 (2019).......................................... 16
v
TABLE OF AUTHORITIES
(continued)
Page(s)
Lane v. Franks,
573 U.S. 228 (2014) .......................................... 7, 8
Lee v. Weisman,
505 U.S. 577 (1992) ............................................ 25
Mayer v. Monroe Cnty. Cmty. Sch.
Corp.,
474 F.3d 477 (7th Cir. 2007).............................. 12
Nixon v. City of Houston,
511 F.3d 494 (5th Cir. 2007)............................ 8, 9
Phillips v. City of Dawsonville,
499 F.3d 1239 (11th Cir. 2007).......................... 10
Pickering v. Bd. of Educ.,
391 U.S. 563 (1968) .......................................21, 22
Rankin v. McPherson,
483 U.S. 378 (1987) ............................................ 23
Renken v. Gregory,
541 F.3d 769 (7th Cir. 2008).............................. 10
Rosenberger v. Rector & Visitors of the
Univ. of Va.,
515 U.S. 819 (1995) ............................................ 12
Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290 (2000) ...........................25, 26, 27, 28
Waters v. Churchill,
511 U.S. 661 (1994) .............................................. 7
Weintraub v. Bd. of Educ.,
593 F.3d 196 (2d Cir. 2010) ............................... 10
Widmar v. Vincent,
454 U.S. 263 (1981) ............................................ 25
vi
TABLE OF AUTHORITIES
(continued)
Page(s)
OTHER AUTHORITIES
White House Off. of Commc’ns,
Guidelines on Religious Expression
in the Workplace, 1997 WL 475412
(Aug. 21, 1997) ................................................... 30
INTEREST OF AMICI CURIAE
Amici are organizations that represent the interests of city, county, and local public employers.1 As
public employers, the entities represented by amici
have a substantial interest in the outcome of this
case, which implicates the ability of public employers
to ensure the efficient and effective functioning of
their workplaces while respecting free-speech and
free-exercise rights of public employees.
Amici organizations are:
The National League of Cities (“NLC”) is dedicated to helping city leaders build better communities.
NLC is a resource and advocate for 19,000 cities,
towns, and villages, representing more than 218 million Americans.
The U.S. Conference of Mayors (“USCM”) is the
official nonpartisan organization of the more than
1,400 United States cities with a population of more
than 30,000 people. Each city is represented in the
USCM by its chief elected official, the mayor.
The International City/County Management Association (“ICMA”) is a nonprofit professional and
educational organization of more than 9,000 appointed chief executives and assistants serving cities, counties, towns, and regional entities. ICMA’s
Letters from both parties providing blanket consent for
the filing of amicus briefs in this case are on file with the
Clerk’s office. Pursuant to this Court’s Rule 37.6, amici state
that this brief was not authored in whole or in part by counsel
for any party, and that no person or entity other than amici,
their members, or their counsel made a monetary contribution
intended to fund the preparation or submission of this brief.
1
2
mission is to create excellence in local governance by
advocating and developing the professional management of local governments throughout the world.
The International Municipal Lawyers Association
(“IMLA”) has been an advocate and resource for local
government attorneys since 1935. Owned solely by
its more than 2,500 members, IMLA serves as an international clearinghouse for legal information and
cooperation on municipal legal matters.
The National Public Employer Labor Relations
Association (“NPELRA”) is a national organization
for public sector labor relations and human resources professionals. NPELRA is a network of state
and regional affiliations, with more than 2,300
members, that represents agencies employing more
than four million federal, state, and local government workers in a wide range of areas. NPELRA
strives to provide its members with high quality,
progressive labor relations advice that balances the
needs of management and the public interest, and to
promote the interests of public sector management
in the judicial and legislative areas.
The International Public Management Association for Human Resources (“IPMA-HR”) represents
human resource professionals and human resource
departments at the federal, state, and local levels of
government. IPMA-HR was founded in 1906 and
currently has more than 6,000 members. IPMA-HR
promotes public sector human resource management
excellence through research, publications, professional development and conferences, certification,
assessment, and advocacy.
3
INTRODUCTION AND
SUMMARY OF ARGUMENT
City, county, and local governments deeply respect public employees’ interest in personal expression, including religious expression. At the same
time, these governments have duties to their constituents to carry out their institutional missions
and to maintain neutrality on matters of religion.
The public expects governments to carry out their
responsibilities by implementing the policy choices of
democratically elected officials—not the personal
choices of individual employees who have varied
agendas and policy preferences. As a result, governments need a degree of flexibility in determining
how to manage employees in order to run efficient
and effective workplaces. The respondent school district’s actions accorded with the Constitution on both
the free-speech and free-exercise issues in this case,
and the court of appeals’ judgment should be affirmed.
I. Balancing governments’ managerial interests
and employees’ expressive interests entails sensitive
judgments. This Court has articulated the principles
that governments must use to strike that balance.
When employees act as employees, their personal
beliefs and expression cannot take precedence over
their official duties. And the metes and bounds of an
employee’s official duties cannot be reduced to a
script of specific tasks: employees perform many
tasks during the workday that form part of their
unwritten duties. Nowhere is that more true than
with teachers and coaches, who are role models,
mentors, and leaders, and whose conduct has great
capacity to influence impressionable students.
4
This case illustrates the complex judgments that
public employers must make to honor personal beliefs while carrying out public duties. Amici do not
question petitioner’s sincere religious beliefs or his
desire to express them. But petitioner’s conduct in
this case crossed the line from private to official and
inextricably intertwined his personal beliefs with his
public role as coach. For years, petitioner delivered
motivational prayer-speeches to players on the field,
immediately after games, while players were still in
his charge. Although he later stated that he wished
only to say a prayer at midfield following games, his
players would not have divorced his conduct from his
prior student-facing practice of delivering religious
speeches at the same time and location. Rather, the
players would have viewed petitioner’s prayers as a
continuation of his coaching and mentoring duties,
even if he subjectively intended them not to be.
A public employer cannot ignore the full context,
including past conduct, in assessing whether an employee’s behavior in the workplace while on duty is
official conduct. No categorical rules can answer this
question. An employee’s conduct, viewed in isolation, may seem personal. But where it bears a sufficiently integral relationship to official duties, it is
properly viewed as being pursuant to those official
duties. That is the case here. Petitioner’s prayers of
course reflect personal belief. And the school district, like amici’s members, sought to accommodate
those beliefs. But his choice to pray in the course of
his duties as coach implicated his public-employee
responsibilities. And governments have the authority and responsibility to prevent employees from using their official position to pursue personal tasks
5
that interfere with their duties. Because petitioner
used his official position to pursue a private agenda
in the course of his duties as a coach, the school district’s suspension of petitioner did not infringe his
free-speech or free-exercise rights.
II. Even assuming that petitioner prayed outside
of his official duties and that the school district’s actions are subject to strict scrutiny, its actions would
still be justified because they were narrowly tailored
to achieving the district’s compelling interest in
avoiding an Establishment Clause violation. Governments have a responsibility to refrain from giving
official approval to their employees’ religious expression, in order to avoid the appearance of favoring
some religions over others (or religion over nonreligion) and to avoid placing coercive pressure on
others to participate. Those concerns are especially
acute for supervisors’ and leaders’ religious practices
while on duty and in the workplace. The applicable
Establishment Clause test turns on a reasonable observer’s objective understanding—not on government employees’ subjective intent.
In many circumstances—e.g., a teacher briefly
bowing his head in prayer before meals—a reasonable observer would understand that the conduct is
personal and not attributable to the public employer.
But the conduct here is different. In the specific factual context of this case, if the school district had allowed petitioner’s public, postgame, midfield prayers
to continue, it would have triggered the endorsement
and coercion concerns that underpin the Establishment Clause. That is why the school district made
every effort to resolve the issue through accommodation. Having exhausted efforts to resolve endorse-
6
ment and coercion concerns through reasonable accommodations of petitioner’s beliefs, the school district’s suspension of petitioner was a permissible
measure to prevent a constitutional violation.
ARGUMENT
I.
PETITIONER’S RELIGIOUS EXPRESSION LACKS
FIRST AMENDMENT PROTECTION BECAUSE IT
OCCURRED IN THE COURSE OF HIS OFFICIAL
DUTIES AS COACH
This Court’s cases hold that when a public employee speaks pursuant to his official duties, that
speech lacks First Amendment protection. The official-duties test is met if the employee speaks while
on duty in a context aligning with the employee’s
written or unwritten responsibilities and objective
factors do not make it evident that the employee is
speaking in his private capacity. That is true even
when the employer disagrees with or disapproves of
the employee’s speech, and even when the employee
subjectively intends his speech to further private
aims.
Here, while petitioner’s midfield, postgame prayers reflected his personal convictions, they occurred
pursuant to his official duties. He prayed on duty
while players were still in his charge, and contextual
factors show that players would have reasonably
viewed petitioner’s prayers as a continuation of his
earlier practice of delivering motivational religious
speeches at the same time and location. And employees who take action integrally related to their
duties, even if motivated by personal reasons, remain subject to managerial supervision. The First
Amendment does not require public employers to
7
treat speech as private when objectively it is part
and parcel of employees’ official duties.
A. Expression In the Course Of A Public Employee’s
Official Duties Is Unprotected
1. In Garcetti v. Ceballos, 547 U.S. 410 (2006),
this Court held that when government employees
speak “pursuant to their official duties,” they are
“not speaking as citizens for First Amendment purposes.” Id. at 421. “When someone who is paid a
salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain
her.” Waters v. Churchill, 511 U.S. 661, 675 (1994)
(plurality opinion). These “[r]estraints are justified
by the consensual nature of the employment relationship and by the unique nature of the government’s interest.” Borough of Duryea v. Guarnieri,
564 U.S. 379, 386-87 (2011).
a. Garcetti and Lane v. Franks, 573 U.S. 228
(2014), set forth a general standard for determining
when a public employee speaks “pursuant to his official duties” and thus outside the First Amendment’s
ambit. “The critical question under Garcetti is
whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it
merely concerns those duties.” Lane, 573 U.S. at
240.
While Garcetti and Lane do not establish a “comprehensive framework for defining the scope of an
employee’s duties,” 547 U.S. at 424, the broad outlines of the inquiry are clear. A court must, first,
discern the relevant employee’s duties, and second,
8
determine whether the speech at issue is ordinarily
within the scope of those duties. On the one hand,
“[f]ormal job descriptions” are often narrower than
“the duties an employee actually is expected to perform.” Id. But on the other hand, a public employer
may not define official duties so broadly that they
embrace all expression or conduct during the workday. Id. Ultimately, the Garcetti inquiry is a “practical one” requiring a context-specific examination of
the particular employee’s role and responsibilities,
with written duties being neither “necessary nor sufficient” to resolve the issue. Id. at 424-25.
b. The facts of Garcetti and Lane allowed for a
straightforward application of this framework. In
Garcetti, the speech at issue—writing a “memo that
addressed the proper disposition of a pending criminal case”—fell within the plaintiff prosecutor’s express duties. Id. at 422. And in Lane, the speech at
issue—testimony at a trial—fell “outside the scope of
[the] ordinary job duties” of the plaintiff youthprogramming director. 573 U.S. at 238.
Lower courts applying Garcetti, however, have
encountered more nuanced fact patterns, where the
relevant employee speech occurs on the job in a context generally aligned with—though “not necessarily
required by”—the employee’s job duties. Nixon v.
City of Houston, 511 F.3d 494, 498 (5th Cir. 2007)
(internal quotation marks omitted). In these cases,
the employee’s speech is often “unauthorized by [his
employer],” “in contravention of the wishes of his superiors,” and designed to pursue personal expressive
aims. Id. at 499. And courts have held that this
type of speech is “pursuant to [an employee’s] official
duties.” Id. at 498.
9
In Nixon, for instance, a police department disciplined a police officer for critical statements he made
about the department “during media interviews” at
the “scene of [an] accident.” Id. at 496. The officer
had not been asked to be present at the scene of the
accident, “was not designated as [a department]
spokesperson[,] and was not authorized to make
statements to the media at the scene.” Id. at 496-97.
Nonetheless, the court held that the officer made his
statements “pursuant to his official duties” because
he did so “while on duty, in uniform, and while working at the scene of the accident.” Id. at 498. Even
when the officer later made further statements to
“radio talk shows and television news programs”
when “off-duty,” the court reasoned that “these
statements are seemingly controlled by Garcetti” because they “constitute[d] a continuation of [the officer’s] accident-scene statements the previous day.”
Id. at 499 (emphasis added).
Similarly, in Green v. Board of County Commissioners, 472 F.3d 794 (10th Cir. 2007), a drug-lab
technician disagreed with her employer’s rules for
confirming test results, obtained a confirmation test
for a client outside of official channels, and then told
her employer that the test had revealed a false positive. Id. at 799. The court held that the employee
acted “as a public employee” because “even if not explicitly required as part of her day-to-day job responsibilities, her activities stemmed from and were the
type of activities that she was paid to do.” Id. at 799,
800-01. According to the court, the employee’s “disagreement with her supervisors’ evaluation of the
need for a formal testing policy, and her unauthorized obtaining of the confirmation test to prove her
10
point, inescapably invoke Garcetti’s admonishment
that government employees’ First Amendment rights
do ‘not invest them with a right to perform their jobs
however they see fit.’” Id. (quoting 547 U.S. at 422).
Numerous other courts of appeals have reached
the same conclusion. In a variety of contexts, they
have held that “speech can be ‘pursuant to’ a public
employee’s official job duties even though it is not
required by, or included in, the employee’s job description, or in response to a request by the employer,” as long as the speech is “in furtherance of” job
duties or “undertaken in the course of performing
one’s job.”2
These applications of Garcetti accord with amici’s
experience in carrying out public-employer duties.
And they establish the following basic principle: an
employee speaks pursuant to his official duties if he
speaks while on duty in a context aligning with his
written or unwritten responsibilities, and objective
2 Weintraub v. Bd. of Educ., 593 F.3d 196, 202-03 (2d Cir.
2010) (citing cases) (internal quotation marks omitted); see,
e.g., Foley v. Town of Randolph, 598 F.3d 1, 7 (1st Cir. 2010)
(fire-department chief spoke pursuant to his official duties at a
“press conference” at “the scene of a fatal fire,” even though he
“was not required to speak to the press as part of his job” and
his employer disagreed with his comments); Renken v. Gregory,
541 F.3d 769, 773 (7th Cir. 2008) (professor spoke pursuant to
his official duties when complaining to university officials
about difficulties he experienced administering a grant, even
though grant administration was not a formal job requirement); Phillips v. City of Dawsonville, 499 F.3d 1239, 1242
(11th Cir. 2007) (city clerk spoke pursuant to her official duties
when reporting “misconduct by the Mayor,” even though doing
so was not part of “her enumerated duties”).
11
factors do not make it evident that he is speaking in
his private capacity. The employee’s subjective intent that his speech further private aims is not controlling. Nor is the fact that the employee’s speech
expresses private beliefs that contradict the employer’s desired message.
These principles are consistent with Garcetti’s rationale. Just as “a public employer [may not] leverage the employment relationship to restrict … the
liberties employees enjoy in their capacities as private citizens,” Garcetti, 547 U.S. at 419, a public employee may not leverage his official speech to promote his own personal agenda in contravention of
his employer’s “important public functions,” id. at
420. And the First Amendment does not “invest
[public employees] with a right to perform their jobs
however they see fit.” Id. at 422.
2. The Court’s interpretation of Garcetti will apply across the widely varied range of government
jobs—from law-enforcement officers, to city-hall administrative staff, to public-hospital nurses. But
Garcetti’s recognition that employee speech can implicate important managerial responsibilities of public employers has particular salience in the primary
and secondary-school setting. In that context, the
main responsibility of teachers and coaches is communication, and they speak to captive and impressionable audiences.
When a teacher teaches or a coach coaches, “the
school system does not ‘regulate’ [that] speech as
much as it hires that speech. Expression is a teacher’s [or coach’s] stock in trade, the commodity she
sells to her employer in exchange for a salary.” May-
12
er v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477,
479 (7th Cir. 2007) (Easterbrook, J.). So when a
school district hires a teacher or coach to speak, “it
can surely regulate the content of what is or is not
expressed.” Evans-Marshall v. Bd. Of Educ. of Tipp
City Exempted Vill. Sch. Dist., 624 F.3d 332, 340
(6th Cir. 2010) (Sutton, J.) (quoting Rosenberger v.
Rector & Visitors of the Univ. of Va., 515 U.S. 819,
833 (1995)).
Petitioner does not contend otherwise; rather, he
expressly recognizes that teachers and coaches do
not have freedom to carry out their duties through
expression of their choosing. Pet. Br. 26. And the
courts of appeals have unanimously held “that the
curricular and pedagogical choices of primary and
secondary school teachers exceed the reach of the
First Amendment.” Evans, 624 F.3d at 342 (citing
cases). As Judge Easterbrook has put the point, “[a]
teacher hired to lead a social-studies class can’t use
it as a platform for a revisionist perspective that
Benedict Arnold wasn’t really a traitor.” Mayer, 474
F.3d at 479-80.
3. At the same time, as government employers,
amici recognize that public employees “remain people even on school grounds” and bring their religious
beliefs with them to work. Pet. Br. 30. And amici of
course do not seek to “rid the [workplace] of any private religious speech.” Id. at 2. While at work, public employees may bow their heads in prayer before
meals; wear yarmulkes, crosses, or other symbols of
faith; and engage in worship activities that are distinct from their official duties. Government employers should and do negotiate appropriate accommodations with their employees to ensure that their reli-
13
gious beliefs are honored. Many written policies of
public employers reaffirm their commitment to accommodate religious beliefs and practices. See App.
A-E, infra, 1a-55a (collecting policies). These accommodations—such as providing free space and
time for worship when the employee is not in the
midst of working—provide means for employees’ religious expression to occur outside the employees’ official duties, and thus avoid constitutional disputes.
B. Petitioner Prayed At Midfield In The Course Of
His Official Duties As Coach
This case illustrates the principles outlined
above. Amici readily acknowledge that much speech
by government employees at the workplace warrants
First Amendment protection, and amici respect government employees’ rights to pray and speak as they
see fit outside of their official duties. By the same
token, governments have a mission to serve the public interest. And when carrying out that mission “in
its role as employer,” the government must sometimes restrict speech that may detrimentally “affect
the entity’s operations.” Garcetti, 547 U.S. at 418.
Here, petitioner’s sincerely held religious beliefs
led him to pray at the 50-yard line after football
games, but that practice cannot be divorced from his
prior conduct. For years, these prayers took the
form of motivational religious speeches directed toward the players who surrounded him. Petitioner
unquestionably delivered these motivational prayerspeeches to players in the course of performing his
official duties, and petitioner no longer contends otherwise. See Pet. Br. 27 (“While [petitioner] used
prayer or religious content in … post-game speeches
… that is not what this case is about”).
14
Petitioner maintains that after the school district’s September 17 letter objecting to this practice,
see JA40-45, he no longer intended to give motivational prayer-speeches to players at midfield, Pet.
Br. 9, 31. Instead, he says he intended only to engage in private, personal prayer there. Id. at 8, 31;
JA62. Yet this Court’s assessment of his conduct
cannot isolate with freeze-frame precision only one
moment while overlooking the overall history and
context of petitioner’s actions.
Petitioner concedes that he was on duty as a
coach during his prayers. Pet. App. 150 n.3. He
does not deny that he had privileged access to the
field only because of his status as coach—no member
of the public would be permitted there to pray or engage in any other expressive activity. See id. at 151152. And he had a history of delivering motivational
religious speeches at midfield while fulfilling his duties as a leader, role model, and mentor to his players. Given petitioner’s prior practice of delivering
these speeches, the track record of players (and opposing teams) joining him, and his disavowal of any
intent to keep them from doing so, he could not realistically step outside of his role as coach when praying at midfield after games. Unlike a private phone
call, the single act of bowing one’s head before a
meal, or a coach’s proposal to his significant other on
the field, Pet. Br. 33, petitioner’s midfield prayers
were inherently communicative to his team of an established postgame religious ritual.
Recognizing the inextricable link between petitioner’s midfield, postgame prayer practice and his
coaching responsibilities, the school district sought
to accommodate petitioner’s sincerely held religious
15
beliefs by offering him ways to privately pray immediately after games. But petitioner rejected the district’s efforts and offered no alternative accommodations of his own. Under these particular facts and
circumstances, petitioner’s expressive conduct—
although animated by his personal religious beliefs—falls within the scope of his official responsibilities and thus lacks First Amendment protection.
1. The Garcetti inquiry begins with a “practical”
examination of the employee’s written and unwritten
duties. 547 U.S. at 424. Petitioner was an assistant
varsity football coach and head junior-varsity football coach. In addition to providing football instruction, petitioner’s position “required him to act as a
‘mentor and role model for the student athletes, …
exhibit sportsmanlike conduct at all times, … [and
strive to] create good athletes and good human beings.’” Pet. App. 133. “In [petitioner’s] own estimation, a coach’s role extends far beyond merely teaching a sport and often involves a large amount of influence over student athletes.” Id.
Petitioner’s
postgame
religious
expression
evolved over the course of his tenure at Bremerton
High School. When petitioner began his postgame
prayer ritual in 2008, he “pray[ed] alone.” Id. at 134.
At that point, petitioner’s prayers appear to have
been “private communications with God” that only
happened to sometimes take place in the presence of
his players. Id. Because nothing in the record suggests that these communications involved instructing or influencing students, they would not have
fallen within the scope of petitioner’s coaching responsibilities. Rather, they were akin to a teacher
“folding [his] hands or bowing [his] head[] in prayer”
16
before lunch in the cafeteria. Kennedy v. Bremerton
Sch. Dist., 139 S. Ct. 634, 636 (2019) (mem.) (Alito,
J., concurring in the denial of certiorari).
But petitioner’s speech later evolved in ways that
directly implicated his duties as coach. As the district court found and petitioner now concedes (Pet.
Br. 5), petitioner “began delivering inspirational
speeches with religious references after games.” Pet.
App. 134. “Although the number of participating
players varied from game to game, [petitioner] recalls that a majority of the team eventually took
part.” Id. Some players joined in despite being atheists and would not “have done so if [petitioner] were
not a coach.” Id. at 152. In September 2015, “a
coach from an opposing team informed [Bremerton’s
principal] that [petitioner] had asked his team to
join him in prayer on the field.” Id. at 134-35.
Once petitioner moved from engaging in private
prayer that only happened to occur in the presence of
players to “delivering inspirational speeches with religious references,” id. at 134, his expression became
part of his official responsibilities because he was on
duty and communicating directly with his players.
Contrary to petitioner’s suggestion that football
coaches’ official duties exclusively involve “talk[ing]
gridiron strategy” or “calling plays,” Pet. Br. 2, 26,
delivering inspirational speeches to players is in fact
a key aspect of coaching. Indeed, “[j]ust as famous
as some great upsets in sports history are the motivational speeches [by coaches] that inspired them.”
Bell v. Eagle Mtn. Saginaw Indep. Sch. Dist., 27
F.4th 313, 318 (5th Cir. 2022) (citing Knute Rockne
“ask[ing] his Notre Dame players at halftime to ‘win
one for the Gipper,’” and “Herb Brooks convinc[ing] a
17
group of American college players that for one night
they could be ‘the greatest hockey team in the
world’”). And the school district here fully encouraged petitioner’s postgame inspirational speeches
except for their religious content. Pet. App. 15-16;
JA44, 94. If postgame motivational speeches fell
outside of petitioner’s job duties altogether, then the
district would not have encouraged them at all.
Correspondingly, once petitioner began “delivering inspirational speeches with religious references,”
Pet. App. 134, he was no longer speaking as a private citizen. It is true that he was expressing his
personal and sincere religious convictions. But in so
doing, he used his platform and stature as a coach in
a manner that his players would reasonably view as
an attempt to instruct or influence them. Petitioner
gave his inspirational prayer-speeches immediately
following games, at the 50-yard line, in close proximity to players—a prominent place to which he had
privileged access only because of his official role as
coach. No private citizen had similar access to the
impressionable and captive minds of high schoolers.
And the evidence shows that petitioner’s speeches
significantly affected the team: some players felt
compelled to join the prayers, contrary to their own
religious beliefs. Id. at 157. Were petitioner speaking as a private citizen, it is doubtful that the players would have experienced such compulsion.
2. The district objected to Kennedy’s prayerspeeches in a September 17, 2015 letter, while also
explaining that he could freely engage in religious
expression “so long as it does not interfere with job
responsibilities,” id. at 135, and offering him guidelines to avoid implicating student activity or the
18
“perception of [school] endorsement,” id. at 136.
“Some students and parents expressed thanks for
the District’s directive that [petitioner] cease praying
after games, with some noting that their children
had participated in the prayers to avoid being separated from the rest of the team or ensure playing
time.” Id. In response to the district’s letter, petitioner did not ask to continue his religious speeches
to players. But he did, through a letter from his
lawyers, inform the district that he intended to “continue his practice of saying a private, post-game
prayer at the 50-yard line,” and he asked the district
to “rescind the directive” in its September 17 letter.
JA62, 71-72; Pet. App. 137.
Given petitioner’s pattern of prior conduct, however, saying a “post-game prayer on the 50-yard line”
could not in fact be “private”—even if petitioner subjectively intended it to be. Contra Pet. Br. 27. No
objective observer—especially not petitioner’s players—would have viewed his prayers that way. His
prayers would still be “verbal” and “audibl[e].” JA6364.3 And players and coaches would still surround
him during the prayers. Petitioner anticipated this
type of response: according to the district’s superintendent, petitioner “had specifically expressed his
intention to pray with students on the field.” JA354.
The context of this case—specifically, petitioner’s
longstanding practice of delivering postgame, mid3 Petitioner states that his prayers were “quiet,” Pet. Br. 1,
and some of his amici even claim they were “silent,” Amicus Br.
of Coach Tommy Bowden 4. But in petitioner’s own letter to
the district, he admitted that he “audibly spoke” the prayers.
JA63.
19
field prayer-speeches to students—distinguishes it
from situations where a public employee prays during the workday but outside of his job duties.4 Reasonable observers (including students) are fully capable of understanding when a government employee’s expression is genuinely private. But here, given
petitioner’s prior conduct and influence as a coach on
the field in the game’s immediate aftermath, petitioner could not abandon his coaching role through
his mere subjective intent to momentarily shed it.
See Pet. App. 150-51 (district court finding that because of “contextual cues,” students would “feel implicated” by petitioner’s prayers even if he did not
“intend to direct [his] actions at the students”); see
id. at 157 (finding petitioner’s prayers would have
been viewed as “continuing [the] tradition” of his “religious inspirational talks after games”); id. at 158
(“[Petitioner] may have tried to deliver his prayers in
late 2015 while players were distracted, but this
does not mean the athletes were unaware of [petitioner’s] actions or could not have joined him.”).
Recognizing this fact does not require applying an
“excessively broad job description,” Pet. Br. 29; it
simply requires viewing the whole context with a
modicum of common sense.
4 Petitioner’s past practice also distinguishes this case from
the hypothetical offered by petitioner’s amici concerning a
coach “tak[ing] a knee to protest racism during the National
Anthem.” Amici Br. of Kirk Cousins, et al. 26. In that hypothetical, reasonable observers would view the coach’s expressive conduct as private—unless the coach had, for instance,
previously given pregame motivational speeches to his players
about racial injustice.
20
3. As will almost always be the case, reasonable
accommodations existed that would have allowed petitioner to exercise his religion, while ensuring that
his religious exercise did not interfere with his official responsibilities. And the school district “follow[ed] the best of our traditions” by “affirmatively”
seeking to “accommodate[]” petitioner’s “religious
exercise” here. Pet. Br. 25 (internal quotation marks
omitted). After the October 16 homecoming game,
for instance, the district sent petitioner a letter stating that the “[d]evelopment of accommodations is an
interactive process” and suggesting alternative options for petitioner’s prayer, “such as a private location at the field.” Pet. App. 139. The district also
invited petitioner to propose alternative accommodations of his own. Id. at 10. But petitioner “did not
take the District up on its offer to keep discussing
religious accommodations.” Id. at 139. “Instead,
[he] continued his practice of praying at the 50-yard
line in the next two games.” Id. Only at this point
did the district “place[] [petitioner] on paid administrative leave.” Id. at 140. And still then, the district
“renewed [its] invitation to discuss alternative accommodations,” but petitioner “did not respond.” Id.
The First Amendment does not guarantee a public employee the right to engage in conduct that interferes with his official duties under the guise of
personal expression when objective circumstances
paint a different picture. Tellingly, after the season
ended, the head football coach “gave [petitioner] low
marks for putting his own interests over those of the
team.” Id. at 141. The “drama that had played out”
led the head coach to resign after eleven years on the
job. Id. And petitioner “was one of four assistant
21
coaches who did not reapply for their jobs.” Id.
These events underscore the adverse consequences
that government employers experience when a public employee uses his official position to further a
private expressive mission that contravenes the policy choices of accountable leaders.
II. THE DISTRICT PERMISSIBLY LIMITED PETITIONER’S RELIGIOUS EXPRESSION IN ORDER TO
AVOID AN ESTABLISHMENT CLAUSE VIOLATION
Even if this Court were to accept petitioner’s position that his prayers occurred outside his official
duties, but see Part I, supra, the district’s actions
were nonetheless permissible. Whether analyzed
under the deferential framework of Pickering v.
Board of Education, 391 U.S. 563 (1968), or under
strict scrutiny, the outcome is the same. The district’s conduct was justified by the need to avoid an
Establishment Clause violation—a paradigmatic
compelling interest.
A. Public Employers Acting In Their Managerial
Roles Have Flexibility To Restrict Religious Expression
1. In Pickering, this Court established a balancing test for evaluating First Amendment claims of
public employees who express themselves in their
capacity as citizens, as opposed to their capacity as
employees. Pickering recognized that “the State has
interests as an employer in regulating the speech of
its employees that differ significantly from those it
possesses in connection with regulation of the speech
of the citizenry in general.” 391 U.S. at 568. Accordingly, in the public-employment context, the Court
called for “a balanc[ing] between the interests of the
[employee], as a citizen, in commenting upon mat-
22
ters of public concern and the interest of the State,
as an employer, in promoting the efficiency of the
public services it performs through its employees.”
Id. Under this balancing test, if the employer has an
“adequate justification for treating the employee differently from any other member of the general public,” the restriction is valid. Garcetti v. Ceballos, 547
U.S. 410, 418 (2006). Pickering thus affords “substantial deference” to the public employer’s decisions. Bd. Of Cnty. Comm’rs v. Umbehr, 518 U.S.
668, 678 (1996).
Here, the outcome under Pickering would be
clear.5 The district’s stated interest in avoiding an
Establishment Clause violation, rooted in its concerns about a perceived school endorsement of religion and coercive pressure on students, is a compelling managerial interest. See infra at 24-29. And
the district also had a host of efficiency-based considerations on which it could have relied, since petitioner’s actions adversely affected school operations
in various ways. Petitioner’s insistence on praying
at midfield after the October 16 homecoming game
inspired spectators to rush the field to join him,
trampling band members and forcing the school to
engage security. Pet. App. 138. The intense contro5 Amici recognize that religious expression does not natu-
rally fit with Pickering’s threshold requirement—that the employee spoke as a citizen on a “matter[] of public concern.” 391
U.S. at 568; see Connick v. Myers, 461 U.S. 138, 147 (1983).
Much private religious expression is not easily characterized as
a “matter of public concern.” But it is still a protected form of
speech. To the extent that the Court applies Pickering in cases
like this one, the threshold question should be whether the employee engaged in religious expression as a citizen.
23
versy generated by petitioner’s prayers caused the
head coach to become concerned for his and his players’ safety—particularly after an adult approached
him at a game and “cursed [him] in a vile manner.”
Id. at 11. And as noted, essentially the entire coaching staff left the team after the season. Id. at 141; cf.
Rankin v. McPherson, 483 U.S. 378, 388 (1987) (government has interest under Pickering in restricting
employee speech that has “a detrimental impact on
close working relationships”). Under Pickering, the
district had substantial leeway to prevent these consequences by limiting the time, place, and manner of
petitioner’s religious expression.
2. The courts below applied a different analysis
in this case because of their determination that the
school district expressly relied upon the religious nature of petitioner’s expression to justify its actions.
See Pet. App. 23, 140. In general, neutral and generally applicable managerial concerns and the rationale underlying Pickering remain applicable in
the Free Exercise Clause context. Cf. Borough of
Duryea v. Guarnieri, 564 U.S. 379, 390 (2011) (holding that the Pickering framework applies equally to
public employees’ First Amendment Petition Clause
claims). Religious expression by public employees—
just like secular expression—can sometimes “interfere with the efficient and effective operation of government.” Id. at 389. And the government’s interest
in maintaining efficient and effective operation “requires proper restraints on the invocation of rights
by employees when the workplace or the government
employer’s responsibilities may be affected.” Id. at
392-93. Thus, “[t]he substantial government interests that justify a cautious and restrained approach
24
to the protection of speech by public employees are
just as relevant” when public employees proceed under the Free Exercise Clause. Id. at 389.
If this case were viewed as implicating a neutral,
generally applicable managerial interest, the Pickering framework would apply here. The lower courts
took a different approach, however. Based on their
determination that the school district ultimately cited “the risk of constitutional liability associated with
[petitioner’s] religious conduct []as the ‘sole reason’”
for its actions, both lower courts applied strict scrutiny.6 Pet. App. 12, 23, 140, 160. But even on the
view that strict scrutiny applies here, for the reasons
stated below, the school district’s actions satisfied
that standard.
B. The District’s Actions Satisfy Strict Scrutiny
1. Governmental action satisfies strict scrutiny
when it is “narrowly tailored to advanc[ing]” a compelling interest. Church of the Lukumi Babalu Aye
v. City of Hialeah, 508 U.S. 520, 531-32 (1993).
One of the district’s pre-suspension letters to petitioner
stated that petitioner’s “duties as an assistant coach did not
cease immediately after games” and that petitioner’s “current
practices drew him away from [his] work.” Pet. App. 139 (quoting October 23 letter); JA90-95 (complete letter); see also Resp.
Br. 43 n.4 (arguing that “the record shows reasons beyond the
Establishment Clause that also fully justified the District’s actions”). But in granting summary judgment to respondent, the
district court stated that “the risk of constitutional liability associated with [petitioner’s] religious conduct was the ‘sole reason’ the District ultimately suspended him,” Pet. App. 140, and
the court of appeals accepted that holding as a predicate for its
application of strict scrutiny, id. at 12, 32. Amici therefore analyze the case on the basis that the lower courts decided it.
6
25
Where a reasonable observer would conclude that
governmental inaction in the face of employees’ religious acts reflects an endorsement of religion or coercion of others to practice religion, in violation of
the Establishment Clause, the government may take
narrowly tailored measures to avoid those harms.
See Widmar v. Vincent, 454 U.S. 263, 271 (1981)
(school’s interest “in complying with its constitutional obligations may be characterized as compelling”).
Nowhere is that more true than “in elementary and
secondary schools”—where “[t]he Court has been
particularly vigilant in monitoring compliance with
the Establishment Clause.” Edwards v. Aguillard,
482 U.S. 578, 583-84 (1987); see Lee v. Weisman, 505
U.S. 577, 592 (1992) (same).
An Establishment Clause analysis “not only can,
but must, include an examination of the circumstances surrounding” the relevant conduct. Santa Fe
Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000).
Under this context-specific inquiry, much religious
expression on school grounds will not violate the Establishment Clause. For instance, where a school
permits nongovernmental actors to use generally
available school property for religious expression,
there is little risk that observers would attribute
that expression to the government. See, e.g., Good
News Club v. Milford Cent. Sch., 533 U.S. 98, 113
(2001). And so too where a school employee engages
in genuinely private religious expression on school
grounds—such as a teacher praying alone in her
classroom during a free period, or a coach crossing
himself before kickoff. But where a teacher or coach
engages in more public religious expression at school
that reasonable observers would view as “stamped
26
with [the] school’s seal of approval,” Santa Fe, 530
U.S. at 308, that expression violates the Establishment Clause—even if the teacher or coach is speaking outside of his official duties and subjectively intends the expression to be private. See id. (finding
Establishment Clause violation based on “pregame
message” by students “delivered with the approval of
the school administration”).
Petitioner contends that Santa Fe does not apply
because the Court there deemed the pregame prayers at issue to be “government, not private speech.”
Pet. Br. 43. But in Santa Fe, high-school students—
not public employees—delivered the pregame prayers. 530 U.S. at 298 (student body “selected a student to deliver the prayer at varsity football games”
(internal quotation marks omitted)). And the Court
held that the school’s policy of allowing these prayers
violated the Establishment Clause because “an objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as
stamped with her school’s seal of approval.” Id. at
308.
2. The Ninth Circuit employed this same logic
here. It assumed arguendo that petitioner was
speaking outside of his official duties as a public employee, Pet. App. 17, just as the students in Santa Fe
were speaking outside of any official governmental
capacity. And then it cataloged the various reasons
why an objective observer would still view petitioner’s prayers as being “stamped with [the] school’s
seal of approval,” id. at 19 (quoting Santa Fe, 530
U.S. at 308), just as the Court did in Santa Fe. The
Ninth Circuit’s decision thus rests on a legal principle grounded in this Court’s precedent: even if a
27
coach’s midfield, postgame prayer occurred outside
his official duties, a school’s approval of that prayer—as determined from the perspective of a reasonable observer—would produce the endorsement and
coercion concerns animating the Establishment
Clause.
On the facts found by the district court, reasonable observers would have believed that the district
approved of petitioner’s public prayers had it allowed
them to persist. As explained above, petitioner for
years delivered prayer-speeches to players at midfield following games. See supra at 13-14, 16-17.
After the district objected, petitioner insisted that he
must continue praying at midfield following games
in a highly visible fashion. See supra at 18. At the
October 16 homecoming game, individuals stampeded onto the field to join petitioner in a conspicuous
prayer circle. See supra at 22. If the district had
permitted petitioner’s prayers to continue at the 50yard line of the school’s stadium after every game, it
is likely that his prayers would have drawn in students, the opposing team, and other coaches—just as
they had before. See Pet. App. 158-59. In turn, reasonable observers would have thought that petitioner was leading these prayers “with the approval of
the school administration,” Santa Fe, 530 U.S. at
308, especially since security concerns prevented the
district from allowing anyone else onto the field for
prayer or other private expression, Pet. App. 138.
Petitioner alone would have the privilege of praying
on the field because of his status as a government
employee, and the years-long pattern of petitioner’s
midfield prayers would reinforce the impression that
he did so with the district’s endorsement. According-
28
ly, as the district court found, “[a]nyone familiar
with [the] history [of petitioner’s conduct] would
view [petitioner’s] prayer at the 50-yard line as continuing [his] tradition of injecting religious undertones into BHS football events.” Id. at 157.
The district’s approval of a government employee’s religious expression at high-school football
games would not only have raised significant endorsement concerns, but it would have also had “the
improper effect of coercing those present to participate in an act of religious worship.” Santa Fe, 530
U.S. at 312. High-school students face “immense social pressure” in the context of “the extracurricular
event that is American high school football.” Id. at
311. Allowing a high-school football coach—an influential leader of impressionable students—to engage in highly visible on-field prayer after years of
delivering motivational prayer-speeches to his team
would place coercive pressure on players to join in.
Indeed, some of petitioner’s players “reported feeling
compelled to join [petitioner] in prayer to stay connected with the team or ensure playing time, and
there is no evidence of athletes praying in [petitioner’s] absence.” Pet. App. 157. Although petitioner
claims that these concerns related only to “team
prayers in the locker room,” Pet. Br. 44-45, neither
the district court’s decision nor the record supports
that limitation, see Pet. App. 157; JA233-34, 356.
And that limitation would also be irrelevant because
petitioner’s locker-room prayers were part of the
same course of conduct, and players would not distinguish between petitioner’s prayers based on their
precise location. This history of coercive pressure on
players supports the reasonable inference that fur-
29
ther coercion was inevitable if the district had allowed petitioner’s prayers to persist.
Petitioner argues that the district could have
simply disclaimed petitioner’s religious expression
by labeling it private speech of which the district did
not approve. Pet. Br. 33-34, 39. But governments
cannot cure Establishment Clause problems through
artificial disclaimers that are belied by the realworld context. Even assuming that petitioner’s
prayers fell outside his official duties, the fact remains that he prayed while on duty as a coach, in a
place he had access to only because of his status as a
coach, and under circumstances that communicated—to the public, players, and opposing teams—that
he was extending a prior postgame ritual of delivering prayer-speeches to players. Disclaiming official
approval in this setting would have contradicted the
facts on the ground and persuaded no one.
While students surely understand that a school
district does not approve everything it does not condemn, see Pet. Br. 2, 22, 38; see also Bd. of Educ. of
Westside Cmty. Sch. v. Mergens ex rel. Mergens, 496
U.S. 226, 250 (1990) (plurality opinion), they also
understand that actions can speak louder than
words. And if the district had dropped its concerns,
stepped aside, and allowed petitioner to use his special status as coach to engage in on-field religious
expression, in a context that had previously drawn
team participation and would likely do so again, students would have reasonably believed that the school
endorsed petitioner’s expression—and some would
have felt pressured to participate. These effects
would violate the Establishment Clause, as both
30
courts below correctly perceived.
Pet. App. 160.
Pet. App. 22-23;
3. Finally, the district’s actions were narrowly
tailored to achieving its compelling interest in avoiding an Establishment Clause violation. As explained
above, the district tried in good faith to work with
petitioner to accommodate his sincere religious beliefs. See supra at 14-15, 20. By offering petitioner
private areas in which to pray after games, the district adhered to government-employer best practices
designed to strike the appropriate balance between
allowing freedom of religion and avoiding Establishment Clause harms. See, e.g., White House Off.
of Commc’ns, Guidelines on Religious Expression in
the Workplace, 1997 WL 475412, at *2 (Aug. 21,
1997) (“Employees should be permitted to engage in
private religious expression in personal work areas
not regularly open to the public to the same extent
that they may engage in nonreligious private expression,” but government employers need not “permit
employees to use work time to pursue religious or
ideological agendas”).
Offers of accommodation, in amici’s experience,
generally resolve the issues raised in this case. For
all that appears, the school district and petitioner
came to impasse only because of petitioner’s intransigence and inflexibility. Respect for religious expression in the workplace, however, does not mandate governmental acquiescence. Only after petitioner rejected the district’s offers and refused to
suggest any accommodations of his own did the district place him on administrative leave. Amici believe that petitioner left the district with little choice
if it wished to avoid an Establishment Clause viola-
31
tion. Accordingly, the district’s narrowly tailored actions satisfy strict scrutiny.
CONCLUSION
For the foregoing reasons, the judgment of the
court of appeals should be affirmed.
Respectfully submitted,
Lisa E. Soronen
Executive Director
STATE & LOCAL LEGAL CENTER
444 N. Capitol St., N.W.
Suite 515
Washington, D.C. 20001
(703) 622 0037
April 1, 2022
Michael R. Dreeben
Counsel of Record
Ephraim McDowell
Jenya Godina
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
(202) 383-5300
mdreeben@omm.com
APPENDIX
1a
APPENDIX A
Procedures for Implementing Reasonable
Accommodation of Religious Observance or
Practices for Applicants and Employees
***
INTRODUCTION
New York State has long been committed to the
proposition that every individual in the State has an
equal opportunity to enjoy a full and productive life.
This commitment to equal opportunity extends to the
workplace. Under New York State law, employees are
protected from acts of bias, harassment, prejudice or
discrimination. This protection extends to those
individuals who observe sabbath or holy days, or who
observe a particular manner of dress, hairstyle,
beard, or other religious practice, in accordance with
their religious beliefs. To enable qualified employees
and applicants who engage in such observances or
practices to contribute to the State’s workforce, the
State has a uniform policy to ensure the provision of
reasonable accommodation to such individuals.
SECTION 1: UNIFORM STATE POLICY
A. Policy Statement
Each agency, department, office and facility shall
follow the Statewide Reasonable Accommodation
Policy and Procedures, as set forth below, and
communicate its commitment to provide reasonable
2a
accommodation to employees and applicants who
engage in religious observances or practices.
The State of New York is committed to
assuring equal employment opportunity for
persons who engage in religious observances
or practices. To this end, it is the State’s
policy to provide reasonable accommodation
for religious observances or practices. This
policy is based on the New York State
Human Rights Law, the federal Civil Rights
Act of 1964, Title VII, and all applicable
Executive Orders and Memoranda. The
policy applies to all employment practices
and actions. It includes, but is not limited to,
recruitment, the job application process,
examination and testing, hiring, training,
disciplinary actions, rates of pay or other
compensation, advancement, classification,
transfer and reassignment, promotions, and
other terms, condition or privileges of
employment.
By providing reasonable accommodations of religious
observances or practices, the State and agency, as the
employer, can:
•
•
avoid requiring its employees to forego the
observance of sabbath or holy days, in
accordance with the requirements of their
religious beliefs;
avoid requiring its employees to unnecessarily
compromise their observance of particular
manners of dress, hairstyle, beard, or other
religious practices, in accordance with the
requirements of their religious beliefs; and
3a
•
enhance the retention and upward mobility of
qualified employees without regard for their
religious observances or practices.
Reasonable accommodation must be considered in all
employment decisions. The employer may not deny
any employment opportunity to a qualified employee
or applicant who is religiously observant, thus
attempting to avoid the need to make a reasonable
accommodation, unless the accommodation would
impose an undue hardship. This protects the
individual’s right to equal job opportunity regardless
of creed.
B. Employee Access to Information
Reasonable Accommodation
on
Every agency must periodically inform its employees
of the Reasonable Accommodation Policy and
Procedures. Acceptable means of communicating this
information include distributing a copy of the policy
and procedures to all employees annually via email;
referring to the policy on an annual basis in the
agency’s newsletter and advising employees of where
the policy is available both in hardcopy and electronic
format; and having division or program directors
remind staff of the policy and procedures on an
annual basis.
Information on reasonable accommodation is included
in New York State’s Employee Handbook, titled,
“Equal Employment Opportunity in New York State,
Rights and Responsibilities” (“Employee Handbook”).
Information on the agency’s internal discrimination
complaint procedure, along with information on an
employee’s right to file a complaint under the Human
Rights Law or the federal Civil Rights Act of 1964,
4a
Title VII, for alleged discriminatory acts is also
included in the Employee Handbook.
The Reasonable Accommodation Policy should be
made available at interviews.
The names and office phone numbers of key personnel
involved in providing accommodation, including the
agency’s Designee for Reasonable Accommodation
(DRA) shall be posted and the listing maintained by
the agency’s DRA. This listing shall also be provided
to and made available from personnel offices and EAP
coordinators.
SECTION II: NEW YORK STATE
HUMAN RIGHTS LAW PROVISIONS
Section 296 of the New York State Human Rights
Law contains the following provisions regarding the
accommodation of religious observances and
practices.
10. (a) It shall be an unlawful discriminatory practice
for any employer, or an employee or agent thereof, to
impose upon a person as a condition of obtaining or
retaining employment, including opportunities for
promotion, advancement or transfers, any terms or
conditions that would require such person to violate
or forego a sincerely held practice of his or her
religion, including but not limited to the observance
of any particular day or days or any portion thereof as
a sabbath or other holy day in accordance with the
requirements of his or her religion, unless, after
engaging in a bona fide effort, the employer
demonstrates that it is unable to reasonably
accommodate the employee’s or prospective
employee’s sincerely held religious observance or
practice without undue hardship on the conduct of the
5a
employer’s business. Notwithstanding any other
provision of law to the contrary, an employee shall not
be entitled to premium wages or premium benefits for
work performed during hours to which such premium
wages or premium benefits would ordinarily be
applicable, if the employee is working during such
hours only as an accommodation to his or her
sincerely held religious requirements. Nothing in this
paragraph or paragraph (b) of this subdivision shall
alter or abridge the rights granted to an employee
concerning the payment of wages or privileges of
seniority accruing to that employee.
(b) Except where it would cause an employer to
incur an undue hardship, no person shall be required
to remain at his or her place of employment during
any day or days or portion thereof that, as a
requirement of his or her religion, he or she observes
as his or her sabbath or other holy day, including a
reasonable time prior and subsequent thereto for
travel between his or her place of employment and his
or her home, provided however, that any such absence
from work shall, wherever practicable in the
reasonable judgment of the employer, be made up by
an equivalent amount of time and work at some other
mutually convenient time, or shall be charged against
any leave with pay ordinarily granted, other than sick
leave, provided further, however, that any such
absence not so made up or charged, may be treated by
the employer of such person as leave taken without
pay.
(c) It shall be an unlawful discriminatory practice
for an employer to refuse to permit an employee to
utilize leave, as provided in paragraph (b) of this
subdivision, solely because the leave will be used for
6a
absence from work to accommodate the employee’s
sincerely held religious observance or practice.
(d) As used in this subdivision:
(1) “undue
hardship”
shall
mean
an
accommodation requiring significant expense
or
difficulty
(including
a
significant
interference with the safe or efficient operation
of the workplace or a violation of a bona fide
seniority system). Factors to be considered in
determining whether the accommodation
constitutes an undue economic hardship shall
include, but not be limited to:
(i)
the
identifiable
cost
of
the
accommodation, including the costs of loss
of productivity and of retaining or hiring
employees or transferring employees from
one facility to another, in relation to the size
and operating cost of the employer;
(ii)
the number of individuals who will
need the particular accommodation to a
sincerely held religious observance or
practice; and
(iii) for an employer with multiple
facilities, the degree to which the
geographic separateness or administrative
or fiscal relationship of the facilities will
make the accommodation more difficult or
expensive.
Provided, however, an accommodation shall be
considered to constitute an undue hardship if it will
result in the inability of an employee to perform the
essential functions of the position in which he or she
is employed.
7a
(2) “premium wages” shall include overtime pay and
compensatory time off, and additional remuneration
for night, weekend or holiday work, or for standby or
irregular duty.
(3) “premium benefit” shall mean an employment
benefit, such as seniority, group life insurance, health
insurance, disability insurance, sick leave, annual
leave, or an educational or pension benefit that is
greater than the employment benefit due the
employee for an equivalent period of work performed
during the regular work schedule of the employee.
In the case of any employer other than the state, any
of its political subdivisions or any school district, this
subdivision shall not apply where the uniform
application of terms and conditions of attendance to
employees is essential to prevent undue economic
hardship to the employer. In any proceeding in which
the applicability of this subdivision is in issue, the
burden of proof shall be upon the employer. If any
question shall arise whether a particular position or
class of positions is excepted from this subdivision by
this paragraph, such question may be referred in
writing by any party claimed to be aggrieved, in the
case of any position of employment by the state or any
of its political subdivisions, except by any school
district, to the civil service commission, in the case of
any position of employment by any school district, to
the commissioner of education, who shall determine
such question and in the case of any other employer,
a party claiming to be aggrieved may file a complaint
with the division pursuant to this article. Any such
determination by the civil service commission shall be
reviewable in the manner provided by article seventyeight of the civil practice law and rules and any such
8a
determination by the commissioner of education shall
be reviewable in the manner and to the same extent
as other determinations of the commissioner under
section three hundred ten of the education law.
SECTION III: DEFINITIONS AND
PROCEDURES FOR HANDLING REQUESTS
FOR REASONABLE ACCOMMODATION OF
RELIGIOUS OBSERVANCES OR PRACTICES
IN NEW YORK STATE AGENCIES
A. Definitions and Legal Standards
1. Creed
“Creed” encompasses belief in a supreme being or
membership in an organized religion or congregation.
A person is also protected from discrimination
because of having no religion or creed, or being an
atheist or agnostic.
2. Religion
“Religion” means an individual’s self-identification
with a particular creed or religious tradition.
3. Sabbath or Holy Day Observance
“Sabbath or holy day observance” means refraining
from normal employment, and/or attending religious
services, in accordance with the requirements of the
individual’s religion.
An employee is entitled to time off for religious
observance of a sabbath or holy day or days, in
accordance with the requirements of his or her
religion, provided it does not impose an undue
hardship to his or her employer, as explained below.1
Time off shall also be granted to provide a reasonable
1 Human Rights Law § 296.10(a).
9a
amount of time for travel before and after the
observance.
The Human Rights Law provides that any such
absence from work shall, wherever practicable in the
reasonable judgment of the employer, be made up by
an equivalent amount of time and work at a mutually
convenient time, or shall be charged against any
available personal, vacation or other paid leave; or
provided however that any such absence not so made
up or charged may be treated by the Employer as
leave without pay.2
Leave that would ordinarily be granted for other nonmedical personal reasons shall not be denied because
the leave will be used for religious observance.3 Under
no circumstances may time off for religious
observance be charged as sick leave.4
The employee is not entitled to premium wages or
benefits for work performed during hours to which
such premium wages or benefits would ordinarily be
applicable, if the employee is working during such
hours only to make up time taken for religious
observance. Human Rights Law § 296.10(a).
“Premium wages” include “overtime pay and
compensatory time off, and additional remuneration
for night, weekend or holiday work, or for standby or
irregular duty.” § 296.10(d)(2). “Premium benefit”
means “an employment benefit, such as seniority,
group life insurance, health insurance, disability
insurance, sick leave, annual leave, or an educational
or pension benefit that is greater than the
employment benefit due to the employee for an
2 Human Rights Law § 296.10(b).
3 Human Rights Law § 296.10(c).
4 Human Rights Law § 296.10(b).
10a
equivalent period of work performed during the
regular work schedule of the employee.” §
296.10(d)(3).
Civil Service Law § 50(9) provides that candidates
who are unable to attend a civil service examination
because of religious observance can request an
alternate test date from the Department of Civil
Service without additional fee or penalty.
4. Religious Observance or Practice
“Religious observance or practice” includes sabbath or
holy day observance, and the observance of a
particular manner of dress, hairstyle, beard, or other
religious practice, which is a sincerely held practice of
the individual’s religion.
An employee who, in accordance with his or her
religious beliefs, observes a particular manner of
dress, hairstyle, beard, or other religious practice,
should not be unreasonably required to compromise
his or her practice in the workplace. The employer is
required by law to make a bona fide effort to
accommodate an employee’s or prospective employee’s
sincerely held religious observance or practice.5
5. Reasonable Accommodation
Observance or Practice
of
Religious
“Reasonable accommodation of religious observance
or practice” means refraining from imposing upon a
person as a condition of obtaining or retaining
employment, including opportunities for promotion,
advancement or transfers, any terms or conditions
that would require such person to violate or forego a
sincerely held practice of his or her religion, unless,
5 Human Rights Law § 296.10(a).
11a
after engaging in a bona fide effort, the employer
demonstrates that it is unable to reasonably
accommodate the employee’s or prospective
employee’s sincerely held religious observance or
practice without undue hardship on the conduct of the
employer’s business.
6. Undue Hardship
“Undue hardship” means an accommodation
requiring significant expense or difficulty. Significant
difficulty includes significant interference with the
safe or efficient operation of the workplace or a
violation of a bona fide seniority system.
Factors to be considered in determining whether the
accommodation constitutes an undue economic
hardship shall include, but not be limited to:
(i) the identifiable cost of the accommodation,
including the costs of loss of productivity and of
retaining or hiring employees or transferring
employees from one facility to another, in relation
to the size and operating cost of the employer;
(ii) the number of individuals who will need the
particular accommodation to a sincerely held
religious observance or practice; and
(iii) for an employer with multiple facilities, the
degree to which the geographic separateness or
administrative or fiscal relationship of the
facilities will make the accommodation more
difficult or expensive.6
An accommodation also constitutes an undue
hardship if it will result in the inability of an
employee to perform the essential functions of the
6 Human Rights Law § 296.10(d)(1).
12a
position in which he or she is employed. In positions
that require coverage around the clock or during
particular hours, being available even on sabbath or
holy days may be an essential function of the job. Also,
certain uniform appearance standards may be
essential to some jobs.
B.
Uniform
Procedures
for
Processing
Reasonable Accommodation Requests
This section describes the procedures for handling
reasonable accommodation requests with respect to
religious observance from applicants and State
employees. It also articulates the role of the agency’s
DRA - the individual identified by the agency head to
coordinate agency compliance obligations arising
from the New York State Human Rights Law, and the
federal Civil Rights Act of 1964, Title VII. This section
identifies the options that are available to employees
when an accommodation has been denied.
Many religious accommodations may occur without
any formal request, or any discussion. For example,
the wearing of religious headgear should be
permitted, without discussion, in nearly all
circumstances, unless it creates a specific concern,
such as a safety concern or a conflict with an essential
appearance standard. Likewise, time off for religious
observance should be granted, where reasonable,
through the normal process for requesting time off.
Frequently, the religious nature of a request for
occasional time off will require no discussion, unless
the time off requires special consideration due to
agency staffing needs.
Whenever a difficulty arises regarding an
accommodation, the employee should clearly state the
religious nature of the request. The supervisor should
13a
always consult with the agency’s DRA before denying
a request for reasonable accommodation of religious
observance or practice.
Where a religious accommodation request cannot be
resolved informally between the employee, the
supervisor, and the agency’s DRA (or where the
request is of a type that should always be documented
as noted below), a written request for accommodation
should be submitted to the agency’s DRA, to assure
that the issue is reviewed, documented, and resolved
in accordance with agency policy and the governing
statutes.
Written requests for accommodation should be made
using the “Request for Reasonable Accommodation of
Religious Observance or Practice” form (see
Appendix). These forms are provided by the agency
and will be available from the DRA, as well as
available online. Applicants, employees and other
personnel are encouraged to make copies of the
completed form for their records. At the end of the
process, the original form is filed by the agency’s DRA.
Certain types of requests for religious
accommodation should always be documented
using the formal “Request for Reasonable
Accommodation of Religious Observance or
Practice” form. This applies even if the request is
easily granted. Documentation is important to assure
fairness and uniformity in the responses to such
requests. These include:
•
•
long term, seasonal or permanent schedule
changes, to provide time off for sabbath or
other religious observance;
specific scheduled work breaks for prayer or
other religious observances;
14a
•
•
use of state facilities (e.g. a private office or
conference room) for prayer or other religious
purpose; or
any informal request that has been denied
should be documented by the DRA.
The agency’s DRA is responsible for maintaining
records regarding the number of accommodations
that involved a written request, and the outcome of
those requests.
To request an accommodation, an individual need not
mention the Human Rights Law, the Civil Rights Act,
or use the phrase “reasonable accommodation”.
Rather, the individual need only let the employer
know that s/he needs a change or adjustment related
to a religious observance or practice.
The accommodation process should not be
adversarial in nature.
1. Who
May
Request
a
Reasonable
Accommodation of Religious Observance or
Practice?
Employees or applicants who wish to engage in a
sincerely held practice of the individual’s religion,
may request a reasonable accommodation, regardless
of title, salary grade, bargaining unit, employment
status (permanent, contingent, temporary or
provisional) or jurisdictional classification (exempt,
non-competitive, competitive or labor class). An
employee may request a religious accommodation at
any time, regardless of prior non-observance.
a. Applicants
The
agency
must
provide
a
reasonable
accommodation of religious observance during the
15a
application process to applicants who request such
accommodation. For example, an interview date may
fall on a holy day that is observed by the applicant,
requiring that an alternate date be arranged.
Reasonable accommodation requests may be received
by agency personnel and/or the agency’s DRA.
b. Current Employees
Current employees may request a religious
accommodation through either their first-line
supervisor or the agency’s DRA. If an employee makes
his or her request through the supervisor, the
supervisor may handle and approve the request, with
consultation with the agency’s DRA as needed.
However, when the request cannot be granted, the
supervisor shall forward the request to the DRA, to
assure that the request is reviewed, documented, and
resolved in accordance with agency policy and the
governing statutes. (See further, information above
on certain types of requests that must be documented
in writing.)
2. Processing a
Accommodation
Request
for
Reasonable
Many religious accommodations require no discussion
or formal approval, as noted above with regard to, for
example, the wearing of religious headgear. Many
other requests for religious accommodation can be
approved without a formal written accommodation
request, particularly those of a minor or routine
nature, such as occasional time off for religious
holidays. Others may require a more extensive review
and discussion, and certain requests, as noted above,
should always be formally documented. The various
steps to be followed in handling a formal Request for
Reasonable Accommodation of Religious Observance
16a
or Practice are set forth in detail, below. We
recommend that you refer to the Appendix, which
contains the Sample Forms referred to below, as you
review the following information.
a. Request for Reasonable Accommodation of
Religious Observance or Practice
This section serves as an initial application form, and
asks for basic information needed to consider and act
upon the request, such as the name of the
applicant/employee; title information; office or unit;
work location (for current State employees); and
contact information, along with a description of the
reasonable accommodation being requested and the
reason for the accommodation.
If the individual is unable to complete, sign and date
the application, the DRA, an employee’s supervisor,
or whoever is assisting the individual to complete the
form can provide assistance.
b. Acknowledgement of Request for Reasonable
Accommodation of Religious Observance or
Practice
This section, once completed, either provides
confirmation to the individual that the requested
accommodation has been approved, or advises the
individual that the request is undergoing further
review. It must be signed and dated by the agency’s
DRA and a copy provided to the employee, with the
original retained for record keeping purposes.
The following steps should be followed:
•
If the application has been submitted directly
to the agency’s DRA, he or she must consult
with the employee’s supervisor before granting
17a
an accommodation, to ensure that it is
operationally feasible.
•
In all cases of formal request for reasonable
accommodation of religious observance or
practice, the DRA must consult with the
agency’s Counsel, whether granting or denying
such request.
•
In all cases of formal request for reasonable
accommodation of religious observance or
practice, the DRA must consult with the
agency’s labor relations representative prior to
granting or denying the accommodation to
determine whether the request implicates an
agency’s collective bargaining agreements, and
if so, to resolve any conflicts with collectively
bargained rights of other employees. While the
employer is not obliged to initiate adversarial
proceedings against a union when the seniority
provisions of a collective bargaining agreement
limit its ability to accommodate any employee’s
religious observance or practice, the employer
is required to take reasonable steps short of
labor litigation to demonstrate that it has made
a good faith attempt at accommodating the
employee. For example, the employer may
satisfy its duty by seeking volunteers willing to
waive their seniority rights in order to
accommodate their colleague’s religious
observance or practice. This waiver must be
sought from the union that represents the
employees covered by such agreement and not
from the individual employees. An employer
cannot simply rely upon the seniority
provisions of a collective bargaining agreement
18a
to deny an accommodation request. The union
must be engaged.
•
If the reasonable accommodation proposed to
be provided may require more than a de
minimis expenditure or utilization of agency
resources, the DRA must confer with the
agency’s administration and/or fiscal office(s)
c. Status Update/Notification of Need for
Additional Information
This section is used to provide an update to the
applicant/employee or to request additional
information/supporting documentation, which is
necessary before a decision regarding a reasonable
accommodation can be made. No later than two weeks
after providing a completed Section B to the
employee, the DRA must provide this form to the
individual who has requested the reasonable
accommodation of Religious Observance or Practice,
specifying
the
additional
information
or
documentation that is required to continue with the
review and assessment process. Such additional
information must truly be necessary to complete the
process, and includes, but is not limited to, the exact
nature and extent of the religious requirement, and/or
information regarding specific type or types of
accommodations that might be effective in meeting
the religious requirements.
The agency’s DRA signs and dates the form, and the
employee is provided with a copy of Section C, with
the original filed for recordkeeping purposes.
d. Notification of Agency Determination
A final review process takes place once adequate
information/documentation has been provided.
19a
During the final review, the agency’s DRA, in
consultation with agency Counsel, must determine
whether or not the accommodation should be granted,
denied, or if there is an alternate accommodation that
should be offered. Accommodation of a sincerely held
practice of the individual’s religion must be granted
unless the accommodation would constitute an undue
hardship, as explained above in section A.
If the agency will provide the employee with the
reasonable accommodation that the employee
requested, the DRA will so note in Section D. Before
the employee is notified of the approval of the
accommodation, the DRA should first notify the
employee’s supervisor.
If the agency determines that it will offer an
accommodation different from the one requested,
then the supervisor should be consulted about the
proposed accommodation before the employee is
advised of the offer. Section D of the Application shall
be completed and sent to the employee, to inform the
employee of the agency’s determination. If the
employee does not accept the offered accommodation,
Section D of the Application should be returned to the
DRA, with the employee’s signature, denoting that
s/he rejects the accommodation that has been offered.
If the agency denies the request for reasonable
accommodation, the DRA will so note in the latter
portion of Section D. A reason for the denial must be
given to the employee. The employee is also given
information on additional alternatives which include
the filing of a discrimination complaint if the
employee feels that the agency’s denial of the
accommodation was unlawful. At this point, the
employee may elect to accept the agency’s decision
20a
and end the process; to file an internal discrimination
complaint under the State’s Equal Employment
Opportunity Policy, as set forth in the Handbook of
Rights and Responsibilities for New York State
agency employees; or to pursue various other
remedies, as set forth in Section D. If pursuing an
outside complaint, the employee should consult with
the appropriate antidiscrimination agency regarding
the time limitations for initiating an action. Although
these time limitations vary, the time for filing a
complaint pursuant to all the alternatives begins to
run at the time of the agency’s first denial of the
accommodation request.
C. Maintenance of Records and Data Collection
To the extent that any applicable laws, Executive
Orders or Memoranda, rules, regulations, or policies
require the maintenance of records regarding
requests for reasonable accommodation of religious
observance or practice, it shall be the DRA’s
responsibility to maintain such records.
21a
Appendix: Sample Forms,
Sections A through D
Application to Request Reasonable
Accommodation of Religious Observance or
Practice
Application for reasonable accommodation may be
made to the supervisor or the [Agency’s Designee for
Reasonable Accommodation (DRA)]. If the request is
made to the supervisor, the supervisor will forward
the request to the DRA.
Section A
(To be completed by employee and returned to
supervisor or DRA)
Name
Civil Service Title
Office/Unit
Work Location
address:
Preferred method of
communication:
Job Title (if different)
Telephone Numbers (s)
I am requesting the following reasonable accommodation(s)
of my religious observance or practice:
It is necessary for me to have this accommodation for the
following reason(s):
Employee Signature
Date
The employee should retain a copy of this form. The original is
filed by the DRA.
22a
Application to Request Reasonable Accommodation
of Religious Observance or Practice
Section B
Initial Response to Request for an
Accommodation of Religious Observance or
Practice
(To be completed by DRA)
Name of Employee:
We have reviewed your application for an accommodation.
□
Your request has been approved
Comments:
□ No decision as been made at this time. We will continue to
assess your request. The (Agency’s designated responsible
person] will contact you within the next two weeks.
Comments:
Agency’s DRA’s Signature
Date
DRA’s name:
The employee should retain a copy of this form. The original is
filed by the DRA.
23a
Application to Request Reasonable Accommodation
of Religious Observance or Practice
Section C
Notification of Need for Additional
Information
(To be completed by the DRA and returned to
the employee)
Name of Employee:
We are continuing to assess your request for accommodation of
religious observance or practice. To make a determination, we
need the following information:
Explain:
The [Agency]’s review process will include an evaluation of all
relevant information. This may include an interview with you
and/or your supervisor. After completion of the review, you will
be informed in writing by the [Head of Agency or designee]
regarding the [Agency]’s decision.
We anticipate that the decision will be made by (date):
.
If you have any questions, please call [DRA].
Signature of DRA
Date
The employee should retain a copy of this form. The original is
filed by the [Agency’s designee].
24a
Application to Request Reasonable Accommodation
of Religious Observance or Practice
Section D
Notification of Agency Determination:
(To be completed by the DRA and returned to
the employee.)
Name of Employee:
Based on the information you provided, the [Agency] is able to
provide you with a reasonable accommodation, as follows:
□ The accommodation of religious observance or practice is
granted as you requested in your application.
□ The accommodation granted differs from the accommodation
you requested, as follows:
Please discuss this with your supervisor. A letter from the [Head
of Agency or DRA] confirming this decision will be sent to you
within the next week once you accept the accommodation. If you
have any questions, please call [DRA]. The employee should
retain a copy of this form, and return the original with his or her
signature to be filed by the [Agency’s DRA].
I accept ___/reject ___ the above reasonable
accommodation.
Employee Signature
Date
-or-
25a
Based on the information you provided, the [Agency] is unable to
provide you with a reasonable accommodation, as you requested
on
We are denying your request for accommodation of religious
observance or practice for the following reason(s):
Signature of [DRA]
Date
If you have any questions, please call the [Agency’s designee].
The employee should retain a copy of this form. The original will
be filed by the [Agency’s designee].
Remedies relating to Dissatisfaction with Agency’s
Reasonable Accommodation Determination
A letter from the [Head of Agency or DRA] confirming the
decision will be sent to you within the next week after you
receive the Notification of Agency Determination. If you are
dissatisfied with the determination, you now have several
options:
1. You may choose to accept this decision and end the process; or
2. You may choose to file an internal discrimination complaint
at this time if you feel that the [Agency]’s determination is
unlawful.
3. In addition to the options stated above, other alternatives may
also be available. These include, but are not limited to:
filing a complaint with the New York State Division of
Human Rights;
filing a complaint with the Equal Employment
Opportunity Commission or any appropriate federal
oversight agency under the Civil Rights Act of 1964, Title
VII; and
filing a private right of action to challenge the alleged
discriminatory act, under the New York State Human
Rights Law, or any applicable statute.
26a
You may initiate these alternatives after the first denial by the
[Agency] of your request for an accommodation. Although these
time limitations vary, the time for filing a complaint pursuant to
all the alternatives begins to run when the [Agency] first denies
your request for an accommodation. However, you should
consult with the appropriate anti-discrimination agency as to
the time limitations for initiating such an action.
27a
APPENDIX B
CITY OF PORTLAND
HUMAN RESOURCES
ADMINISTRATIVE RULES
EQUAL
EMPLOYMENT
2.06 REASONABLE EMPLOYMENT
ACCOMMODATIONS
Purpose
The City of Portland is dedicated to providing an
equitable employment environment for all job
applicants, job candidates, employees, interns, and
elected officials (collectively, “Workers”). As part of
this commitment, the City provides reasonable
accommodations for qualifying people with
disabilities, people who are pregnant or have related
conditions, and people who have religious customs
and/or beliefs (a “Protected Status”) to enhance
workplace productivity and facilitate equal
employment opportunities. The goal of this Rule is to
ensure all Workers can readily and efficiently request
and receive reasonable accommodations necessary to
help them perform their essential job functions.
This Rule facilitates the City’s compliance with Title
I of the Americans with Disabilities Act (ADA) of 1990
as amended and Title VII of the Civil Rights Act of
1964 as amended. The Rule also facilities compliance
with Oregon state law, namely ORS 659A.112 and
ORS 659A.033.
It is the City’s policy that reasonable accommodation
requests are processed without regard to the
requestor’s race, color, ethnicity, religion, gender,
marital status, familial status, national origin, age,
28a
disability status, sexual orientation, gender identity,
source of income, veteran status, or other protected
status.
Definition of Disability
As defined by the ADA, “disability” means a physical
or mental condition that substantially limits one or
more major life activities, or there’s a record of such a
substantially limiting condition.
Major life activities include, but are not limited to,
caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, interacting
with others, and working.
A major life activity also includes the operation of a
major bodily function, including but not limited to,
functions of the immune system, special sense organs
and
skin,
normal
cell
growth,
digestive,
genitourinary, bowel, bladder, neurological, brain,
respiratory, circulatory, cardiovascular, endocrine,
hemic, lymphatic, musculoskeletal, and reproductive
functions.
Definition of Religion
As defined by the Civil Rights Act, “religion” includes
all aspects of religious observance and practice, as
well as beliefs. The Equal Employment Opportunity
Commission (EEOC) further defines “religious
beliefs” to include theistic beliefs (i.e. those that
include a belief in God) as well as non-theistic moral
or ethical beliefs about right and wrong that are
sincerely held with the strength of traditional
29a
religious views. Social, political, and/or economic
philosophies and personal preferences are not
considered religious beliefs.
Definition of Pregnancy
As described by Oregon state law and for the purposes
of this Rule, “pregnancy” means pregnancy,
childbirth, or a related medical condition, including
but not limited to lactation.
Note: For nursing City employees who have a need to
express milk for a child 18 months of age or younger,
Oregon state law (ORS 653.077) provides such
employees a reasonable rest period to express milk
each time the employee has a need to express milk
and requires the City to make reasonable efforts to
provide a private location for nursing other than a
public restroom or toilet stall. For more information,
please speak with a Human Resources Business
Partner.
Definition of Reasonable Accommodation
A reasonable accommodation is a change in the work
environment or in the way job duties are typically
performed that provides an equal employment
opportunity. It is provided when:
•
A qualifying applicant or candidate with a
Protected Status needs an accommodation to
have an equal opportunity to apply for a job
with the City of Portland.
•
A qualifying City of Portland elected official or
employee with a Protected Status needs an
accommodation to perform the essential
30a
functions of their job or to gain access to the
workplace.
•
A qualifying elected official or employee at the
City of Portland who has a Protected Status
needs an accommodation to enjoy equal access
to benefits and other privileges of employment
(e.g. trainings).
The City is not required to provide accommodations
that would pose an undue hardship (e.g. too costly or
disruptive to City operations), that fundamentally
change the essential functions of a job, that violates
an applicable collective bargaining or other
agreement, or that might threaten the health and
safety of the employee who made the request or the
health and safety of other employees. However, in
these cases, the City of Portland may discuss whether
some other form of workplace modification may be
effective.
Responsibilities
It is the responsibility of the Worker to request a
reasonable accommodation. Read the “Initiating a
Reasonable Accommodation” section for more
information on requesting an accommodation.
Recruiters, hiring managers, supervisors, and other
City staff must notify the Bureau’s assigned Human
Resources Business Partner of any reasonable
accommodation request they receive from a Worker.
Managers and supervisors normally participate in the
interactive process with both the Business Partner
and the Worker to fulfill an accommodations request.
The Bureau’s assigned Human Resources Business
Partner is responsible for initiating the interactive
31a
process with the person who requests an
accommodation and to involve any person who the
Business Partner deems necessary to ensure an
effective and timely accommodation is provided. The
Business Partner must ensure the Worker is
informed of the outcome of the accommodations
request. Business Partners are also responsible for
tracking
data
related
to
their
Bureaus’
accommodations requests.
The Bureau of Human Resources (BHR) is
responsible for coordinating and monitoring the
reasonable accommodations system at a Citywide
level. This includes providing technical assistance
and appropriate training to all Business Partners,
managing the appeals process for reasonable
accommodations, and Citywide recordkeeping on
reasonable accommodations.
Role of Business Partners
Each City of Portland Bureau or Office has a
designated Human Resources Business Partner to
oversee the reasonable accommodation process. All
reasonable accommodation requests are handled by
or in conjunction with the Business Partner. When a
determination of reasonable accommodation is made,
the Business Partner will work with managers and/or
recruiters to ensure the accommodation provided is
appropriate to meet the Worker’s needs and enables
the person to perform the essential functions of their
position. Business Partners may work with Operating
Bureau Personnel Administrators (OBPAs) or other
administrative staff to facilitate implementation of
reasonable accommodations as needed.
32a
Confidentiality
The City will ensure the confidentiality of all medical
information obtained regarding a request for
reasonable accommodation as well as the
confidentiality of all associated communications
during the interactive process. Both Bureaus and
Business Partners must keep all medical
documentation they receive in a file separate from an
individual’s personnel file. Non-medical information
obtained during this process is shared on an asneeded basis with those involved in providing a
reasonable accommodation.
Initiating
Process
a
Reasonable
Accommodation
The reasonable accommodations process begins when
the City of Portland becomes aware that a Worker
may need an adjustment or change concerning some
aspect of the application process, the job, or a benefit
of employment for a reason related to a Protected
Status. This may occur when:
•
•
•
•
A
Worker
requests
a
reasonable
accommodation;
A Worker discloses a Protected Status;
A recruiter, manager or Business Partner
recognizes an obvious challenge of a Worker
due to a Protected Status; or
A Worker returns to work after a leave of
absence with a Protected Status.
Important Note: At times, the City of Portland may
provide work modifications regardless of whether a
Protected Status exists when permitted under the
33a
law. For example, the City of Portland has an
ergonomic program available to all employees who
may seek special equipment to address or prevent
various injuries and conditions. Under the ergonomic
program, an employee with carpal tunnel syndrome
may request an ergonomic chair, stand/sit desk, or
wrist pad. Requests under the ergonomic program, or
other employee wellness programs may not require
medical documentation. For more information on the
ergonomic program, please contact the City of
Portland’s Risk Management division by calling (503)
823-5101. Additional contact information is available
at the Risk Management website.
Requesting a Reasonable Accommodation
A request is any communication in which a Worker
asks or states that they need an accommodation
because of a Protected Status.
A request may be made directly to a Business
Partner, manager, supervisor, or (if applicable) a
recruiter. A request does not have to include any
special words, such as “religious accommodation,”
“pregnancy
accommodation,”
“reasonable
accommodation,” “disability,” or “ADA.”
A recruiter, manager, or the Business Partner may
ask for clarification if they are unsure if the Worker
is requesting a reasonable accommodation.
Upon being notified of an accommodation request, the
Business Partner will provide the Worker with the
appropriate Accommodation Request intake form.
If a Worker discloses a Protected Status, returns to
work with a Protected Status (usually an ongoing
disability); or if a recruiter, manager, or Business
34a
Partner recognizes an obvious challenge of a Worker
due to a Protected Status, then the recruiter,
manager, or Business Partner may proactively
inquire if a reasonable accommodation would be
helpful. If the Worker states they do not need an
accommodation, the offer will be documented in
writing by the Business Partner and no further action
will be taken. If the Worker states that they do need
an accommodation, the Business Partner will provide
an Accommodation Request intake form.
Important Note for Workers with Disabilities:
While a Worker does not have to disclose their
disability until they feel they need an accommodation,
it is recommended that Workers not wait until their
performance appraisal meeting or during a
disciplinary proceeding to disclose a disability and
request an accommodation. The City of Portland does
not have to rescind disciplinary actions administered
prior to a request for an ADA accommodation. Any
prospective discipline after disclosure will be
administered
as
appropriate
under
the
circumstances.
Interactive Process
The interactive process is a collaborative effort
between the Worker, the manager, and the Business
Partner to discuss the need for an accommodation as
well as identify effective accommodation solutions.
It is expected that in the case of accommodations for
applicants, the timing of the interactive process would
be a priority so the applicant does not lose out on the
opportunity to compete for a job.
35a
Generally, an interactive process will be initiated as
soon as feasible but no later than three (3) business
days of the original accommodation request being
made.
If an accommodation request is made to a recruiter,
manager, supervisor, or other City staff person, the
Business Partner must be notified within one (1)
business day. Upon notification of an accommodation
request, the Business Partner has two (2) business
days to initiate the interactive process with the
Worker.
An interactive process includes, but is not limited to:
•
Understanding the job-related challenge that
is generating the request;
•
Learning more about the Worker’s a Protected
Status is prompting the need for an
accommodation, including the Worker’s ability
to perform essential functions of the job and
what options are available to accommodate the
Worker; and
•
Determining the reasonable accommodation
solution(s) that may be effective in meeting the
Worker’s needs.
Depending on the type of accommodation requested,
an interactive process may require input from City
Attorneys, the Disability Resources and Employment
Specialist, other Human Resources staff members, or
other relevant Bureaus. A third-party vendor or
community partner may also be consulted depending
on the type of request sought.
A Worker’s failure to cooperate with or participate in
the interactive process could result in delayed
36a
consideration of a request or in its denial. If this
occurs, the Worker may initiate a new accommodation
request and interactive process at any time.
Medical Documentation
Disabilities
for
Workers
with
If the disability or need for accommodation is obvious
or adequate medical documentation has already been
provided for other reasons (e.g. a Family Medical
Leave file or a Workers Compensation record may
suffice), medical documentation may not be required.
When the disability or need for accommodation is not
obvious, or further information is required as part of
the interactive process, a Worker may be asked to sign
a release form authorizing the Business Partner to
secure additional job-relevant information from the
Worker’s health care provider as to the nature of the
Worker’s medical condition and/or whether the
requested accommodation is necessary. The Business
Partner may also give the Worker a list of questions
to give to the health care provider or other
appropriate professional to answer.
The Worker’s cooperation in this process is necessary.
A failure to cooperate with this process could result in
delayed consideration of a request or in its denial.
Important Note: Medical information will be disclosed
only on a need-to- know basis. Accommodations may
be provided without informing the Worker’s manager
of the Worker’s diagnosis or disability type.
37a
Determination
When all necessary information is received from the
Worker (including medical documentation, if needed)
and the manager or supervisor, the Business Partner
will assess the accommodation request and determine
whether to approve or deny the request.
The Business Partner may consult with key advisors
on a need-to-know basis (e.g. City Attorneys, the
Bureau of Technology Services, Facilities staff, the
Disability Resources and Employment Specialist) for
input on the proposed accommodation, including
whether
an
alternative
modification
or
accommodation may be available.
When a decision has been made, the Business Partner
will communicate the decision to the Worker and
discuss the Worker’s questions or concerns, if any,
about that decision. The decision will also be
communicated to the Worker’s manager or
supervisor, as well as any relevant stakeholders.
When the City of Portland grants an accommodation,
the Business Partner will provide an Approval of
Accommodation letter to the Worker. The letter will
include next steps for implementation, as well as any
training that may be needed.
A decision to provide an accommodation other than
the one specifically requested will still be regarded as
a decision to grant an accommodation. If an
alternative accommodation is offered but declined by
the Worker, the Business Partner will note the
Worker’s rejection of the alternative accommodation
on the Approval letter.
38a
If the City of Portland denies a request for
accommodation, the Business Partner will provide a
Denial of Accommodation letter to the Worker and
discuss the reason for the denial. The letter will
explain both the reasons for the denial of the
accommodation request and the process for appealing
this decision. If appropriate, the Worker will be
informed of alternatives that could be explored.
When there are multiple accommodation options
available to allow the performance of essential job
functions, the City retains its right to select which one
to implement.
Important Note: A Worker’s receipt or denial of an
accommodation does not prevent them from making
another request if they believe an additional or
different accommodation is needed due to changing
workplaces or job expectations (e.g. an employee is
assigned new duties or works in a new building
location). City of Portland managers and Business
Partners cannot refuse to process a request for a
reasonable accommodation, and a reasonable
accommodation request may not be denied based on a
belief that the accommodation should have been
requested earlier (e.g. during the application process
or before the Worker returned from a leave of
absence).
Time Frame for Processing Requests
The City of Portland will process requests and, where
appropriate, provide accommodations in as short a
period as reasonably possible. While the City will
facilitate providing reasonable accommodations to the
best of its ability, individual cases may be more time
39a
consuming or challenging than others. Accordingly,
all timelines specified in this Rule are aspirational.
The time frame for processing a request for job
applicants and candidates (including providing
accommodation, if approved) is as soon as possible but
generally no later than 15 business days from the date
the Business Partner received the initial
accommodation request. This 15-day period includes
the two (2) -day period in which the Business Partner
must contact the applicant or candidate after being
notified of a request for a reasonable accommodation.
The time frame for processing a request for
employees, interns, and elected officials (including
providing accommodation, if approved) is as soon as
possible but generally no later than 30 business days
from the date that the Business Partner received the
initial accommodation request. This 30-day period
includes the 2-day period in which the Business
Partner must contact an employee, intern, or elected
official after being notified of a request for a
reasonable accommodation.
For disability-related accommodation requests,
if the Business Partner must request medical
documentation from the Worker’s health care
provider, the time frame will stop on the day the
Business Partner makes a request to the Worker to
obtain medical information or sends out a request for
documentation and resumes on the day the Business
Partner receives all needed documentation. It is
therefore recommended that the Worker work closely
with their health care provider to expedite their
response to the City of Portland’s inquiry, ideally
within 1-2 weeks.
40a
An extension of the time frame for providing an
accommodation
will
be
considered
when
circumstances come up that could not have been
anticipated or avoided in advance of the request for
accommodation or are beyond the City of Portland’s
ability to control. This may include times when the
purchase, testing, and installation of software or
hardware for approved accommodations requires
additional time. When these circumstances are
present, the time for processing a request for
reasonable accommodation will be extended as
reasonably needed by the Business Partner, in
consultation with appropriate stakeholders. In these
cases, the Worker, manager, and other need-to-know
individuals will be notified as to the revised timeline,
the reason for the additional time, and when the
solution is expected to be ready.
Expedited Processing
In certain circumstances, a request for reasonable
accommodation may require an expedited review and
decision. This includes times when a reasonable
accommodation is needed:
•
•
•
•
To enable an applicant to apply for a job.
To enable an applicant to participate in an
interview or selection process.
To enable an employee to attend a last-minute
meeting or training.
To address a safety-related concern in the
workplace.
If the modification is approved, all reasonable efforts
will be made to provide the modification in as short a
timeframe as possible.
41a
Temporary or Trial Accommodations
Many accommodations are implemented long-term,
while some accommodations last for only a temporary
period. Every situation is unique and requires caseby-case analysis of the Worker’s limitations,
restrictions, specific accommodation needs, and the
impact accommodation will have on job performance
and City operations.
Implementing a temporary change offers an
opportunity to evaluate an accommodation for
effectiveness before making the decision to implement
the change long-term. Situations that can warrant
provision of a temporary or trial accommodation may
include, but are not limited to:
•
When time is needed to research a permanent
accommodation solution, to acquire equipment,
or to arrange a service;
•
When it is necessary to test an accommodation
to determine if it is effective and/or compatible
with existing City technology;
•
When the medical condition is temporary but
sufficiently severe enough to entitle the Worker
to accommodation;
•
When it is necessary to avoid temporary
adverse conditions in the work environment; or
•
When an accommodation can currently be
provided but may eventually pose an undue
hardship if provided long-term.
If a trial accommodation is found to be ineffective,
then the Business Partner will contact the Worker to
42a
restart the interactive process.
Reassignment
If a Worker with a Protected Status cannot be
accommodated in the Worker’s current class or
assignment in the current Bureau, the Bureau will
refer the employee to the Business Partner and the
Bureau of Human Resources for consideration of a
permanent
or
temporary
reassignment
as
appropriate and if possible.
Monitoring an Accommodation
It is the responsibility of the Worker to monitor the
effectiveness of the accommodation. If an
accommodation is no longer effective, then the
Worker should notify the Business Partner or
manager and the interactive process should be
revisited.
Appeals
To
appeal
an
ADA
accommodation
determination: A Worker who disagrees with the
outcome of an ADA accommodation request may send
an appeal request to the Bureau of Human Resources
by email to ADATitleI@portlandoregon.gov where it
will be reviewed by the Disability Resources &
Employment Specialist. The appeal must be
requested by email within 10 business days from the
date of the Denial of Accommodation form. This
deadline is strictly enforced.
To
appeal
a
religious
or
pregnancy
accommodation determination: A Worker who
43a
disagrees with the outcome of a religious or pregnancy
accommodation request may send an appeal request
to the Bureau of Human Resources by emailing the
Employee and Labor Relations Team Manager. The
appeal must be requested by email within 10 business
days from the date of the Denial of Accommodation
form. This deadline is strictly enforced.
Complaints
A Worker with a Protected Status who believes they
have been discriminated against in an employment
action or reasonable accommodation request
(including any form of retaliation) may file a
complaint with the Bureau of Human Resources. For
more guidance on the complaint process, read HRAR
2.02 Prohibition Against Workplace Harassment,
Discrimination and Retaliation.
Tracking
Purposes
and
Record
Keeping
for
Audit
To ensure compliance with this Rule, as well as
relevant U.S. federal and Oregon state laws, the
Human Resources Business Partners are responsible
for tracking and recording all accommodation
requests that occur within their assigned Bureau(s).
Inquiries
Any employee wanting further information
concerning these procedures may contact their
Human Resources Business Partner.
44a
References
Title I of the Americans with Disabilities Act (ADA)
of 1990, as amended
Title VII of the Civil Rights Act of 1964, as amended
ORS 659A.112
ORS 659A.033
Administrative Rule History
Adopted February 13, 2019
Revised January 1, 2020
45a
APPENDIX C
RELIGIOUS ACCOMMODATION POLICY
EFFECTIVE DATE: September 1, 2021
Objective
The City of Pittsburgh respects the religious beliefs
and practices of all employees and will make, on
request, an accommodation for such observances
when a reasonable accommodation is available that
does not create an undue hardship on the City’s
business.
Scope
This Policy applies to employees, which shall include
full-time and part-time employees, temporary
employees,
probationary
employees,
seasonal
employees, contractual employees, and applicants.
Definitions
Religion: Religion is defined by Title VII of the Civil
Rights Act of 1964. Religion includes traditional,
organized religions as well as religious beliefs that are
new, uncommon, not part of a church sect, or only held
by a small number of people. Religion typically
concerns “ultimate ideas” about “life, purpose, and
death”. Social, political, or economic philosophies, as
well as personal preferences, are not considered
“religion”.
Undue Hardship: Significant difficulty and expense
based on the City’s resources and circumstances in
relationship to the cost or difficulty of providing a
specific accommodation. Undue hardship may refer to
financial difficulty in providing an accommodation or
accommodations that are unduly expensive,
substantial,
or
disruptive,
or
that
would
46a
fundamentally alter the nature or operation of the
City’s business or the essential functions of a job. The
determination of what constitutes an undue hardship
is made on a case-by-case basis, but a few common
examples include: jeopardizing health or security,
causing a lack of necessary staffing, violating a
seniority system, costing the employer more than a
minimal amount, infringing on the rights of other
employees, requiring other employees to do more than
their share of potentially hazardous or burdensome
work, decreasing workplace efficiency, and violating a
collective bargaining agreement.
Requesting a Religious Accommodation
1. An employee whose religious beliefs or
practices conflict with his or her job, work
schedule, or with other aspects of employment,
and who seeks a religious accommodation
should submit a written request via the City of
Pittsburgh Religious Accommodation
Request form for the accommodation to his or
her department director or supervisor.
2. The written request will include the type of
religious conflict that exists and the employee’s
suggested accommodation.
3. If an oral request is made, the department
director or supervisor should direct the
employee to submit a written Religious
Accommodation form. Any oral request should
be treated as a formal request, and the
department director or supervisor should
follow the same procedures set forth in this
policy for written requests.
47a
Providing Religious Accommodation
1. The Department Director or Bureau Chief will
contact the Director of Human Resources and
Civil Service (HRSC), who will evaluate the
request considering whether a work conflict
exists due to a sincerely held religious belief or
practice and whether an accommodation is
available that is reasonable and that would not
create an undue hardship on The City of
Pittsburgh’s business.
2. An accommodation may be a change in job,
using paid leave or leave without pay, allowing
an exception to the dress and appearance code
that does not affect safety requirements, or
allowing an exception or alternative for other
aspects of employment. Depending on the type
of conflict and suggested accommodation, the
HRSC Director may confer with the Law
Department and with the Department Director
or Bureau Chief, and review any applicable
collective bargaining agreements.
3. In some cases, as permitted by applicable law,
the employee may be asked to provide
additional
supporting
information,
documentation, or other authority about the
employee’s religious belief, practice, or
requirement to establish whether the belief or
practice is protected by law and/or to determine
whether/what types of accommodations would
be effective.
4. The Department Director or Bureau Chief and
employee will meet to discuss the request and
decision on an accommodation. After
discussion, HRCS will provide the employee
with a written response setting out how the
48a
accommodation request has been resolved. If
the employee accepts the proposed religious
accommodation, the Department Director or
Bureau Chief will implement the decision.
Retaliation is Prohibited
The City prohibits retaliation against an employee for
requesting a religious accommodation, participating
in an approved accommodation, or otherwise
engaging in protected conduct under this policy. Any
person who violates this anti-retaliation provision
may be subject to disciplinary and/or corrective
action.
Questions about this policy may be directed to the
HRSC Director. This Policy is subject to change.
49a
APPENDIX D
City of Portland
Religious Accommodation Policy
Overview:
The City of Portland will make reasonable
accommodations on the basis of a sincerely held
religious belief or practice for qualified employees, so
long as the reasonable accommodation does not
impose an undue hardship on the City.
Applicability:
This policy applies to all qualified employees who
require a reasonable accommodation for a sincerely
held religious belief or practice.
Policy:
Qualified employees who are hindered in the
practice of their religion by workplace policies may
request reasonable accommodations of their religious
beliefs or practices. Some examples of potentially
reasonable accommodations may include:
•
•
•
Modifying work schedules, for example to allow
for required prayers,
Allowing voluntary shift swaps, for example to
allow for attendance at religious services,
Modifying dress code, such as to allow special
head coverings, facial hair, etc.
The City will engage in the interactive process
with employees to determine if there is a reasonable
50a
accommodation available that will not impose an
undue burden on the City, but is not obligated to
grant all requests for accommodation. Employees who
are granted a reasonable religious accommodation
must be able to perform all essential functions of their
position.
Request Process:
An
employee
who
requires
a
reasonable
accommodation should complete the City of
Portland’s Request for Religious Accommodation
Form and discuss the request with their department’s
HR Liaison or the City of Portland’s Human
Resources Department. It is the employee’s
responsibility to disclose the existence of the religious
belief or practice to be accommodated.
If an employee is dissatisfied with the decision
regarding
their
request
for
a
religious
accommodation, the employee may request that the
Human Resources Director or their designee review
the decision.
The City does not discriminate or retaliate against an
employee for requesting or utilizing a reasonable
accommodation. An employee who believes that they
have been discriminated or retaliated against should
report to Human Resources. An employee may also
file a complaint with the Equal Employment
Opportunity Commission (“EEOC”) or the Maine
Human Rights Commission by contacting:
EEOC
John F. Kennedy Federal Building
475 Government Center
Boston, MA 02203
1-800-669-4000
51a
Fax 617-565-3196
TTY 800-669-6820
or
Maine Human Rights Commission
51 State House Station
Augusta, Maine 04333
207-624-6050,
TTY 207-624-6064
http://www.state.me.us/
Signed by Jon P. Jennings
Jon P. Jennings, City Manager
52a
APPENDIX E
DISTRICT OF COLUMBIA
FIRE AND EMERGENCY MEDICAL SERVICES
DEPARTMENT
BULLETIN NO. 28
May 2013
RELIGIOUS ACCOMMODATION POLICY
The D.C. Fire and Emergency Medical Services
Department (“Department”) respects the religious
beliefs and practices of all employees and may make,
upon request, an accommodation for such
observances when a reasonable accommodation is
available that does not create an undue hardship on
the Department’s business.
An employee whose religious beliefs or practices
conflict with his/her job, work schedule, or with the
Department’s policy or practice on dress and
appearance, or with other aspects of employment, and
who seeks a religious accommodation, must submit a
Special Report entitled “Request for Religious
Accommodation”
along
with
the
Religious
Accommodation Request Form to the Department’s
EEO & Diversity Manager. The written request will
identify the type of religious conflict that exists and
the employee’s requested accommodation.
The EEO & Diversity Manager and the respective
Assistant Fire Chief will evaluate the request to (1)
consider whether a work conflict exists due to a
sincerely held religious belief or practice, and (2)
whether a reasonable accommodation is available
provided it will not create an undue hardship on the
Department’s business. If granted by the
Department, an accommodation may involve a
53a
change in job functions, require the use of paid leave
or leave without pay, allow an exception to the dress
and appearance code provided it does not impact
safety or uniform requirements, or modify some other
aspects of employment.
The EEO & Diversity Manager and the employee may
meet to discuss the request as well as the
Department’s decision regarding whether to grant or
deny the accommodation. If the employee accepts the
proposed religious accommodation, the Department
will implement the decision. If the employee is not
satisfied with the Department’s final decision, he/she
may file a complaint with the D.C. Office of Human
Rights or the U.S. Equal Employment Opportunity
Commission.
RELIGIOUS ACCOMMODATION
REQUEST FORM
In accordance with federal and D.C. laws, the
Department prohibits discrimination on the basis of
religion. The Department provides reasonable
accommodations for sincerely held religious beliefs or
practices unless doing so would impose an undue
hardship on the Department. A reasonable religious
accommodation is any adjustment to the work
environment that will allow the individual to practice
his/her religion. “Undue hardship” is a practice,
procedure, or financial cost that unreasonably
interferes with business operations.
This form is to be filled out by the person requesting
a reasonable religious accommodation and submitted
along with a Special Report to the EEO & Diversity
Manager. This information will be maintained
confidentially to the extent practicable under
the circumstances.
54a
Name:
Title:
Assignment:
Phone:
1. Please identify the religious belief or practice you have for
which you are requesting an accommodation.
2. What workplace accommodation do you request?
3. How often do you need the accommodation?
4. Identify your religious practice or belief and state how this
accommodation enables you to participate in your religious
belief or practice without impacting your ability to meet the
required functions of your position.
5. If you have requested this religious accommodation before,
please state approximately when the request was made, the
name of the individual who responded to the request, and
the outcome of the request.
IF NECESSARY, PLEASE USE ADDITIONAL SHEETS
FOR ANY OF THE INFORMATION REQUESTED ABOVE
55a
Religion Tenet(s) Documentation
Please provide documentation or other authority to
support the need for an accommodation based on your
religious belief or practice.
Please Note: In some cases, the Department will need
to obtain documentation or other authority regarding
your religious belief or practice. The Department may
need to discuss the nature of your religious belief(s),
practice(s) and accommodation with your religion’s
spiritual leader (if applicable) or religious scholars to
address your request for an accommodation.
I verify that the above information is complete and
accurate to the best of my knowledge and I
understand that any intentional misrepresentation
contained in this request may result in disciplinary
action.
Signature:
Date:
Summary of Next Steps
This request will be reviewed by the EEO &
Diversity Manager.
The EEO & Diversity Manager will discuss your
request with the appropriate Assistant Fire
Chief.
You will be notified of the outcome of the
determination
and/or
proposed
accommodation.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.