This is one of those years when employers, like Pharaoh, don’t want to let their people go. The four Yom Tov days of Passover fall on weekdays – Tuesday and Wednesday and the following Monday and Tuesday. That means that halacha-observing Jews must miss four days of work. So there are difficult and uncomfortable discussions with bosses.
They say, “Why do you have to take off four days? We can’t run a business with employees who absent themselves so frequently.” Or “Isn’t one day off for Passover enough? I remember that two years ago you took off only one day.” Or “Why should I treat you differently from my five other Jewish employees? None of them is asking for four days off.”
Prospective employers often take the easy way out if a job applicant notifies them candidly before beginning a job that he or she will have to be absent on four days because of religious holidays. They simply turn the applicant away with no explanation, or, more flagrantly, withdraw an offer of employment. This year I was consulted by two individuals who received job offers that were explicitly rescinded when the employers were told about prospective Passover absences. I’ve sent protest letters to both employers notifying them that they acted illegally. Neither has yet offered the accommodation the law commands.
Federal and local laws protect your right to an accommodation for your religious observance. I drafted and then assisted in lobbying for a 1973 amendment to Title VII of the federal Civil Rights Act –now 42 U.S.C. 2000e(j) – that requires private and public employers to make reasonable accommodations to employees’ “religious observance and practice.” Under this federal law, it is the employer’s burden to prove that making an accommodation like rearranging shifts or calling in substitutes for absences on religious holidays would create an “undue hardship” on the conduct of the business.
One accommodation that is now mandatory for federal government agencies is “compensatory overtime” for religious observance. A federal-government boss must allow an employee to make up for hours of leave attributable to religious observance by working overtime before or after the religious holiday. This is a law (5 U.S.C. 5550a) I drafted together with the late Congressman Stephen Solarz in 1977, when Orthodox federal postal employees complained to Solarz that they were losing all their authorized annual leave in the observance of Shabbat and Yomim Tovim and could never take extended vacations with their families.
New York State and New York City have their own versions of the federal civil rights provision, and they are even more rigorous. Section 296(10)(d) of New York’s Executive Law declares that it is “an unlawful discriminatory practice” for an employer to impose “as a condition of obtaining or retaining employment” that an employee or prospective employee “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.” Another subsection authorizes employees to be absent for “a reasonable time prior and subsequent” to a Sabbath or other holy day “for travel between his or her place of employment and his or her home.”
In August 2011 Mayor Bloomberg signed New York City’s Workplace Religious Freedom Act which imposes similar legal obligations on employers under the New York City Administrative Code Sections 8-102 and 8-107. Enforcement actions can be brought before government agencies or in civil lawsuits under the federal, state, and city laws and regulations.
Neither of the individuals who contacted me about their rescinded offers of employment is ready to go public at this time. But both were victims of outrageous violations of law. A formal job offer made by a Christian university in Maryland that proudly proclaims its adherence to religious values was formally rescinded after the prospective employee disclosed that he could not report for work on the four days of Yom Tov. The other case involves a New York area hospital. Its Human Resources personnel decided to rescind a job offer because the applicant who would be unavailable on Passover “would not be able to meet” the hospital’s “staffing needs.”
About the Author: Nathan Lewin is a Washington, D.C. lawyer who has argued numerous cases in the U.S. Supreme Court and teaches a seminar in Supreme Court litigation at Columbia Law School.
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