Religious Discrimination and Accomodations, Quirky Question # 57

Quirky Question # 57:

Our retail firm used to operate six days a week.  We recently decided however, that we needed to remain open on Sundays to ensure that we can compete effectively with other similar retailers, many of whom have been operating 7 days/week for some time.  When we made the decision to keep our stores open on Sundays, we advised our employees that we would establish a rotating shift system to spread the Sunday burden among all of our employees.

When we announced this new approach, we received objections from several of our employees who advised us that they consider Sundays to be “family time” and who stated that they did not want to work on Sundays.  We informed these employees that we could not accommodate their concerns without causing resentment among the other employees who then would be compelled to work additional Sunday shifts to cover for them.

Soon thereafter, two of these employees came to us and told us that they could not work on Sundays due to their religious beliefs.  Frankly, I do not even know what their religious beliefs are.  They certainly have not seemed very devout in the past.

Does our company have to accommodate their demands to avoid Sunday work?  I suspect it will create considerable animosity among the other employees, especially those who also expressed frustration with a Sunday work schedule.  Moreover, it is going to be difficult (and costly) for us to find alternative employees to work on Sundays.

It seems to me as though there are a lot of “religious discrimination” cases in the news these days.  Do we have to honor these employees’ requests?  If we don’t, would we be liable for religious discrimination?

Dorsey’s Analysis:

You are correct that there are a lot more religious discrimination cases in the news these days.  This undoubtedly reflects the fact that the U.S. workforce is increasingly diverse, and includes employees of varied religious faiths and perspectives.  Moreover, the EEOC has made religious discrimination cases a higher priority than it has in the past, with a resulting increase in litigation where the EEOC is the plaintiff, either pursuing claims on behalf of an individual or pursuing some type of systemic relief.

One of the battlegrounds in the religious discrimination cases is employees’ work schedules.  This may relate to employees’ desire to take time during the workday to pray or participate in other religious practices, to take time off (sometimes quite a bit) to observe various religious holidays, or, as in the fact pattern you describe, not to work during the Sabbath.  Of course, depending on the religion, these days of worship may be different.

Under Title VII, employers with 15 or more employees may not discriminate against employees on the basis of religion (as well as various other protected categories).  One of the obligations imposed upon employers under Title VII is to make an effort to accommodate employees’ religious beliefs when there is a conflict between an employee’s religious beliefs and some work rule or requirement.  Here, you point out that there is a conflict between your firm’s need to staff your Sunday shifts and a few of your employees’ desire to avoid working on Sunday.  This is the type of issue that requires an employer to explore whether an accommodation of the employee is possible.

There are several key points, however, to keep in mind with respect to religious accommodation issues.  First, not all requests for an accommodation must be honored.  The employer only need accommodate those beliefs that are religious and “sincerely held.”  If an employer has a bona fide (or legitimate) concern about whether the religious beliefs are sincerely held, it may engage in limited inquiries to gain a better understanding of this issue.  Here, for example, you point out that the employees first raised an issue with you about working your Sunday shifts because of the impact these shifts would have upon their “family time.”  The fact that your employees’ initial objection had nothing to do with a religious-based concern may cast doubt on the legitimacy of the subsequent request for a religious accommodation.  Note, however, that there appears to be a relatively low bar for determining whether an employee’s religious beliefs are “sincerely held,” so it’s difficult for an employer to prevail upon this issue.

Second, the standard for religious accommodation is quite different than the standard for an accommodation of a disabled employee.  Although both statutory schemes refer to the concept of “undue hardship,” the burden on the employer to show undue hardship is far less significant for religious accommodation issues than it is for disability accommodation.

Third, as the courts have explained, an accommodation would pose an undue hardship if it would cause more than a de minimis cost on the operation of the employer’s business.  As the EEOC has pointed out, factors to consider when making this assessment include: the type of workplace, the nature of the employee’s duties, the cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will need an accommodation (a variable that affects several of the other factors just listed).  Moreover, like other aspects of discrimination law, these cases are highly individualized and assessed on a “totality of the circumstances” analysis.

Fourth, monetary costs are not the only measure of assessing an undue hardship.  Other factors to consider include the impact of the accommodation on other aspects of the employer’s business.  Would the accommodation decrease efficiency?  Would the accommodation affect workplace safety?  Would the accommodation increase the burden on other employees, especially with respect to potentially hazardous or difficult work?  These are but a few illustrations of the ways in which an employer could legitimately demonstrate that the accommodation would constitute an undue hardship.  If an undue hardship is established, an employer is justified in rejecting the requested accommodation.

Fifth, an employer does not have to grant an accommodation if it would adversely affect another employee’s rights pursuant to a collective bargaining agreement, or a bona fide seniority system.  For example, if your company allowed employees to select their shifts based on the length of their tenure with your firm, and the employees who were seeking to avoid working on Sunday were junior employees who would not have the requisite seniority to select non-Sunday shifts, your company would not be obligated to accommodate them if that meant bumping a more senior employee into the undesirable Sunday shift.  Of course, another employee could elect to swap shifts with the employee hoping to avoid Sunday work due to his or her religious beliefs.

In sum, there are a number of issues you should explore when trying to assess whether your company must accommodate an employee’s request for a religious accommodation.  Is the religious belief sincerely held?  Will accommodating the employee’s request result in more than a de minimis hardship for your company, whether measured by costs or other legitimate considerations?  Would granting the accommodation conflict in some way with other rights guaranteed to your other employees?

Once these questions are considered, you will be better positioned to evaluate whether you can grant your employees’ requests to avoid the Sunday shift assignments.  Keep in mind that even if you do determine that you can accommodate the requests by your employees, you should think creatively about how you approach this issue.  It may be that other employees are willing to swap shifts on a voluntary basis.  Hypothetically, you might even find that you could accommodate individuals of different religions by flexible scheduling.  For example, some employees may ask not to work from sundown on Friday to sundown on Saturday.  Other employees may have no reservations about working shifts that conflict with this timeframe but are desirous of avoiding Sunday work.

If, however, you conclude that you cannot accommodate your employees’ requests, you may have a defensible position.  Engage in an interactive process with the affected employees, consider any ideas or solutions they may propose, and document your communications with your employees.  Treat these kinds of situations individually, carefully examining the particular needs and beliefs of each employee.  Finally, consider thoughtfully the types of issues described above and document your analysis.  By engaging in a thoughtful and deliberative assessment of these issues, you will reduce your potential exposure if you are subsequently sued for religious discrimination.

Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

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