Back in 1977, Star Wars premiered, Seattle Slew won the Triple Crown, and the Supreme Court established that employers need not reasonably accommodate religious beliefs under Title VII if inconsistent with a collective bargaining agreement. Plus, Title VII does not require an employer to discriminate against other union employees by depriving them of seniority rights to accommodate an employee’s observance of the Saturday Sabbath.
Now, fast-forward 45 years. The Supreme Court’s 1977 decision is still the law of the land. And it may be another 45 years until the Dallas Cowboys win a Super Bowl.
Suppose a unionized workplace has a collective bargaining agreement, which provides that employees will be guaranteed one (1) weekend off per month. Would giving someone with a bona fide religious belief that he cannot work on Saturdays — like a Seventh-day Adventist — unpaid leave on Saturdays violate the CBA if seniority governs the selection of schedules and time off?
Considering an employer’s duties under federal anti-discrimination law, would accommodating the employee’s religious beliefs under these circumstances create an undue hardship?
Well, it depends.
What if I told you that the employer and union spoke, and the union advised the employer to talk to the employee and try to produce a reasonable accommodation, such as encouraging voluntary shift swaps or allowing the use of vacation or unpaid leave on Saturday?
A federal judge analyzing this situation reasoned that the employer might not be able to claim undue hardship if it fails to take reasonable steps to attempt to secure a waiver of the CBA’s scheduling requirements from the union.
Union or not, getting to an accommodation involves a good-faith interactive process. Communicating costs you nothing. If, after discussing the accommodation with the stakeholder(s), the company can objectively articulate why it would create undue hardship, then it need not provide the accommodation.
But short-circuiting that process can lead to litigation and jury trials.