BOOKMARK THIS: A blueprint to providing an employee with a religious accommodation

I started the week presenting to HR audiences in DC and NJ about accommodations under the Americans with Disabilities Act. Today, I want to pivot into religious accommodations by highlighting a recent federal court decision, which can teach employers a thing or two about how to engage in a good-faith interactive dialogue.

Before I do that, I’d like to give one more shout out, this time to Kathy Gurchiek (@SHRMwriter) for her article on SHRM.org, “ADA Accommodations Are Kind of Like Dating: Communication Is Key.” It’s another nice recap of my ADA presentation at SHRM’s Legislative Conference. Thank you!

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Our plaintiff today was a customer care representative who is a Seventh Day Adventist. As a Seventh Day Adventist, the plaintiff’s religious
beliefs prohibit him from working during his Sabbath, which occurs from sundown on Friday to sundown on Saturday. The plaintiff communicated as much to the defendant-employer, which initially accommodated his request.

Over time, however, the plaintiff received a promotion into a position that often required him to work on Saturday. Still, the defendant did what it could to accommodate the plaintiff’s religious beliefs. For example, the plaintiff’s supervisor agreed to schedule regular training classes between Sunday and Thursday. Additionally, on those occasions when business needs required emergency Saturday training, the plaintiff’s supervisor allowed him to swap shifts with other employees.

However, there were times when, despite the employer’s best efforts to accommodate the plaintiff, the defendant needed the plaintiff to come in on Saturday. However, the plaintiff refused. That resulted in progressive discipline.

Stubbornness is a bad look for the plaintiff.

In 2011, there arose another Saturday training emergency. The plaintiff’s supervisor told him that, if he couldn’t come in, he would have to find coverage. Although the plaintiff admitted that there were others available to fill in for him, he did not contact them. Consequently, the training got delayed.

The following week, the plaintiff met with HR and his supervisor. HR suggested that the plaintiff may want to return to his prior position or look for another job within the organization. In response, the plaintiff inquired if the defendant would guarantee that he would not have to work during his Sabbath. The defendant could not.

Because of his refusal to ever work on his Sabbath and his refusal to look for another position that would make it more likely that his unavailability could be accommodated, the defendant suspended and then terminated the plaintiff a couple of days later. The defendant concluded that it could not rely on the plaintiff if an urgent business need arose that required emergency training on a Friday night or a Saturday.

So, the plaintiff sued and alleged that the defendant failed to accommodate his sincerely-held religious beliefs.

And he lost. Let’s go to the opinion (I tightened up the language for readability):

To comply with Title VII, an employer is not required to offer a choice of several accommodations or to prove that the employee’s proposed accommodation would pose an undue hardship; instead, the employer must show only that the employee was offered a reasonable accommodation, regardless of whether that accommodation is one which the employee suggested….The other side of the equation is that the employee has a duty to make a good faith attempt to accommodate his religious needs through means offered by the employer.

…

The undisputed facts show that [the defendant] offered [the plaintiff] reasonable accommodations that he either failed to take advantage of or refused to consider, and that the accommodation he insisted on would have posed an undue hardship to [the defendant]. [The defendant] shifted the regular training schedule to Sunday through Thursday for [the plaintiff]. That minimized conflicts. For unusual training sessions that were conducted on his Sabbath, [the defendant] allowed [the plaintiff] to find other employees to cover his shifts, and he did so on several occasions. [The plaintiff] conceded that his supervisor had never refused one of his requests to swap a Sabbath shift with a willing employee.

Summary judgment for the defendant.

Employer takeaways.

1. Unlike ADA accommodations, where the undue burden bar is set very high, it doesn’t take much for an employer to demonstrate that a religious accommodation will create an undue hardship, which is anything more than a minimal cost.
2. Notwithstanding that undue hardship is relatively easy to establish, any employer should engage in a good-faith, interactive dialogue to see what, if anything, the company can do to accommodate an employee’s sincerely-held religious beliefs.
3. That said, the employee needs to meet the employer halfway (at least). Often, whichever side adopts the “my way or the highway” approach ends up the loser in litigation.