Papa Does Preach – Employers In Trouble Deep

The duty to reasonably accommodate the religious beliefs of employees has long been one of the more bedeviling obligations placed on employers by Title VII of the Civil Rights Act of 1964. A pair of recent decisions by federal courts against employers demonstrate just how challenging this obligation can be.

A manufacturing company was recently faced with a claim of religious discrimination by an employee who requested Sundays off to fulfill his calling as a part-time pastor and comply with his religious belief against working on Sundays. The company had provided him with a blanket exemption from Sunday work for a number of years, but announced in September 2005 that its growing business demand required it to schedule employees for mandatory weekend overtime, including employees who had previously been allowed to take Sundays off. A year later, the employee was terminated after he failed to show for his scheduled Sunday shifts and accumulated sufficient points under the company's attendance policy to warrant termination.

For those that think the company should have "turned the other cheek" and showed more leniency to the employee, the court noted in its order that the company had offered him eight different accommodations to resolve the situation, including using vacation to cover Sunday shifts, transferring him to another department with less Sunday work and allowing him to swap Sunday shifts with co-workers who were willing to trade after his vacation was exhausted. This latter offer was similar to "voluntary swap" policies that had been approved by numerous federal courts as acceptable accommodations in the past.

The court held that the accommodations offered by the manufacturer were not "reasonable accommodations" because they did not eliminate entirely the possibility that the employee may be required to work a Sunday shift on occasion. Accordingly, the court denied the company's motion for summary judgment and ordered that a trial was necessary to determine whether granting the employee "a permanent guarantee of Sundays off" would create an "undue hardship" to the company, which would be an affirmative defense under Title VII.

A federal court in Pennsylvania reached a similar decision in March 2008 against a retailer. The employer in that case required its cashiers to work every seventh or eighth Sunday as part of its shift-rotation system, but also had a voluntary swap policy that allowed them to trade shifts with others who were willing to work Sundays. The employee, however, claimed that her religious beliefs prohibited her not only from working on Sundays herself but also from asking others to work in her stead. Like the court in the case against the manufacturing company, the Pennsylvania federal court held the employer's voluntary swap policy was not a "reasonable accommodation" under Title VII – in that case, because it did not adequately address the employee's religious belief that it was "a sin to work on the Sabbath or to 'support' another person working on Sundays."

It is uncertain at this stage whether these two cases are an aberration or represent the beginning of a trend away from accepting "voluntary swap" systems as reasonable accommodations under Title VII. What is certain is that federal courts are distrustful of "one size fits all" policies when it comes to religious accommodation and that decisions concerning how to reasonably accommodate the religious beliefs of employees are among the most fact-sensitive decisions employers have to make.

Please call any member of Ice Miller's Labor and Employment Practice Group if you are faced with a religious accommodation issue and need guidance on how to comply with your obligations under Title VII.

Michael Tooley is chair of Ice Miller's Labor and Employment Practice Group. His primary area of practice is to act as general employment counselor and advocate for employers regarding their workforces inside and outside Indiana, including daily employee issues, collective bargaining, arbitration, administrative proceedings before the NLRB, EEOC and other federal and state agencies, and employment litigation in state and federal courts.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.