Religious accommodations in the workplace can be challenging for employees and employers to navigate. In our increasingly diverse and religiously pluralistic society, an employee’s religious practices may conflict with practices in the workplace. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against any individual with respect to the terms of employment because of his or her religion. So when an employee’s weekly observance of the Sabbath prevents him or her from working on a certain day, what is an employer to do? It depends. 
Proving religious discrimination
To establish an initial claim of religious discrimination, an individual must show that (1) a bona fide religious practice conflicts with an employment requirement, (2) he or she brought the practice to the employer’s attention, and (3) the religious practice was the basis for an adverse employment decision. If the individual can make that showing, the employer may escape liability if it establishes that (1) it offered the employee a reasonable accommodation or (2) a reasonable accommodation would be an undue burden.
Reasonable accommodation
Many employees have successfully shown their employer has failed to reasonably accommodate their religious practices related to observing the Sabbath when the employer never made an effort to find an accommodation. For example, an employer could be liable for a failure to accommodate if the employee told his supervisor that he was unable to work on the Sabbath and the supervisor told the employee that he would “take care of it” but in fact took no action to accommodate the employee’s request.
In cases involving an inability to work on the Sabbath, courts have generally concluded that allowing employees to seek voluntary swaps within a neutral rotating shift system constitutes a reasonable accommodation. In one case, an employer was found to have reasonably accommodated a Seventh-Day Adventist by, among other things, agreeing to permit any shift exchanges the employee could arrange on his own. In other cases, employers were considered to have provided “all that Title VII reasonably requires the employer to do” when they imposed little to no restriction on the employee’s ability to attempt to arrange voluntary schedule swaps with other employees. Offering a lower-paying position that does not conflict with the employee’s Sabbath may also be a sufficiently reasonable accommodation.
When considering provisions under a collective bargaining agreement (CBA), one court concluded that a CBA that provided a means by which employees could bid on work schedules, work areas, vacation time, and personal leave and allowed them to modify their schedule by trading specific days off with other employees, when viewed together, provided an employee with a reasonable accommodation.
One issue courts have recently grappled with is whether it is a reasonable accommodation for an employer to require an employee to use his or her vacation or personal leave to observe the Sabbath. Courts have reached different conclusions on this question. In some cases, courts have found that an employer may not have provided a sufficient reasonable accommodation to an employee if the only accommodation offered was to allow use of vacation days to observe the Sabbath.
Conversely, another court held that even though the employer denied an employee’s request to change his work schedule so that he wouldn’t have to use any paid or unpaid leave, allowing him to use paid vacation and unpaid personal days to miss work on his Sabbath was a reasonable accommodation. The court noted that Title VII does not require an employer to grant the employee the particular accommodation he or she requests.
Undue burden
An undue burden exists when an employer is required to bear more than a de minimis, or trivial, cost when accommodating an employee’s religion. Costs include both direct monetary costs and the burden on the employer’s operations.
While considerations of undue burden may not be based on mere speculation or conjecture, an employer is generally not required to wait until it feels the effects of the proposed accommodation before determining its reasonableness. Courts have typically concluded that employers must be given leeway to rely on an accommodation’s predictable consequences to plan their business operations.
In one case, a police department was found not to have violated Title VII by refusing to grant shift exceptions within its 16-week recruit training program because it would have resulted in more than a de minimis cost. The police department’s training program implemented a rotating shift schedule, randomly assigned recruits to shifts, and exposed its recruits to a variety of training officers. To accommodate the potential recruit’s Sabbath observance, the department would have been forced to assign him to another squad, and the trainee would have been able to complete only three out of the four total training phases.
Other courts have found that an employer can demonstrate it would suffer an undue hardship if granting the employee’s shift swaps would cause substantial unfairness to or a burden on other employees. This scenario might occur in a workplace where the number of weekends a small group of coworkers would be forced to cover would increase dramatically. The situation may lead to serious workplace issues stemming from feelings of unequal treatment or significantly less flexibility to miss work because of an emergency. An employer could also show an undue burden when the employee’s observance of the Sabbath conflicts with a mandated “24/7” availability requirement of a higher-level manager.
Bottom line
Whether an accommodation is required, is reasonable, or causes an undue hardship depends on many factors. While trial courts agree that employees have a duty to cooperate with their employer in considering and trying to secure accommodation for their religious needs, the parameters are still ill-defined. Prudent employers would be wise to analyze each accommodation request on a case-by-case basis.
Gregory L. Silverman is an attorney with Sulloway & Hollis, P.L.L.C., practicing in the firm’s Concord, New Hampshire, office. He may be contacted at gsilverman@sulloway.com.