A recent decision by the U.S. 10th Circuit Court of Appeals— which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming—provides another reminder that religious accommodations come in all shapes and sizes—and that proving “undue hardship” is often a high hurdle for employers.
Although a number of religious discrimination lawsuits in recent years have focused on accommodation requests related to a person’s attire, grooming habits, and need for additional breaks and designated spaces for daily prayers, this most recent case involves work schedules.
Work Schedule and the Sabbath
When “David” and “Sam” were initially hired at Kellogg USA’s food production plant in Clearfield, Utah, they worked a 10-hour shift Monday through Thursday. Years later, they were assigned new shifts that required them to work every other Saturday, and they informed their employer that they would need an accommodation in their work schedules because they are both Seventh Day Adventists who honor the Sabbath by refraining from work from sundown on Friday to sundown on Saturday.
Kellogg responded by allowing them to use paid time off (PTO) and to swap shifts with other employees to avoid the scheduling conflict—options that were available to any employee who needed to take a day off for any reason.
Swapping shifts with other employees proved to be a difficult task for a number of reasons. Not all employees who were available to switch had the proper qualifications to perform their jobs, and many who did weren’t able to swap because doing so would cause them to work more than 13 hours a day in violation of the company’s safety policy.
Based on Kellogg’s disciplinary system for attendance violations, which included assessing points against employees for full or partial absences without adequate notice, David and Sam each accumulated an unacceptable amount of disciplinary points within a 12-month period. The company exhausted progressive discipline with them, but then fired them based on their disciplinary points.
Together, the men then sued Kellogg under Title VII of the Civil Rights Act of 1964, alleging disparate treatment based on their religion, failure to accommodate their religious practices, and retaliation. After the district court in Utah ruled in favor of Kellogg on all claims, the employees appealed.
‘Reasonableness’ of Accommodation
On appeal, the main question was whether Kellogg “reasonably accommodated” the employees’ religious practice of not working on the Sabbath, and if not, whether it could have done so without an “undue hardship” to its business. Once an employee proves entitlement to a religious accommodation, the burden of proof shifts to the employer to show that it either made the accommodation or couldn’t because of an undue hardship.
The 10th Circuit stated that the situation didn’t require a total accommodation to be reasonable—meaning Kellogg wasn’t required to guarantee the employees would never work a Saturday shift. Indeed, the court rejected a rule that would require any accommodation to completely eliminate the conflict between an employee’s religious practice and the work requirements because it wouldn’t be reasonable on a case-by-case basis.
In this case, the court recognized that even though Kellogg allowed David and Sam to use their vacation time and other PTO in addition to shift swapping, it was still insufficient for them to avoid working some scheduled Saturdays.
However, the appeals court decided that a jury, not a judge, must determine whether the company’s accommodation was “reasonable” under the circumstances. It indicated that there was evidence that the pool of qualified employees with whom David and Sam could swap shifts was very limited. There was also evidence that management wasn’t helpful in facilitating their shift swapping.
As for Kellogg’s defense—namely, that it would be an undue hardship to accommodate the employees—the appeals court also held that a jury must decide the issue. An employer only incurs an undue hardship if it must bear more than a minimal cost in order to make the accommodation. Proving an undue hardship isn’t easy. There are several factors the jury must consider, and the employer must provide proof on each factor. Tabura v. Kellogg USA, No. 16-4135 (10th Cir. 2018).
Takeaway for Employers
The main takeaway is a reminder to consider requests for religious accommodations seriously. Although they arise much less often than accommodations of health conditions, they are nevertheless held to similar legal standards.
You should recognize when an employee is making a request based on religious beliefs and engage in an analysis of the request and the workplace to determine what accommodations are reasonable under the circumstances. Don’t assume that any potential accommodation will pose an undue hardship because the courts require extensive evidence and financial analysis on this point.
If you believe you have a possible religious accommodation situation, don’t hesitate to contact an employment attorney to assist you in navigating the process.