EMPLOYMENT LAW: Accommodating Employees' Religious Observances and Practices

June 7, 2011

John Buckley, Senior Attorney, National Legal Research Group

Title VII makes it unlawful for an employer to "discharge any individual, or otherwise discriminate against any individual with respect to his . . . terms, conditions, or privileges of employment, because of such individual's . . . religion." 42 U.S.C. § 2000e-2(a)(1). "Religion" includes "all aspects of religious observance and practice, . . . unless an employer demonstrates that he is unable to reasonably accommodate . . . an employee's . . . religious observance or practice without undue hardship on the . . . employer's business."  Id. § 2000e(j).  Thus, it is unlawful for an employer not to make reasonable accommodations for an employee's religious practices, unless doing so would impose an undue hardship.  Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 & n.1 (1986).

In Maroko v. Werner Enterprises, Civ. No. 10-63 (RHK/JJG), 2011 WL 1429216, at *1 (D. Minn. Apr. 14, 2011), a former delivery driver brought an action under Title VII and the Minnesota Human Rights Act, the analogous state fair employment practices Act, claiming that he had been denied an accommodation for the observance of his Sabbath.  The Plaintiff, Maroko, was a Seventh-Day Adventist, whose religious beliefs prevented him from working on the Sabbath, from sundown Friday to sundown Saturday.  Although managers for the employer, Werner, assured Maroko at the time of his recruitment and hiring that the accommodation would not be an issue, the accommodation was denied when Maroko actually began work.  According to Maroko's supervisor at that time, the Friday/Saturday period was too busy to allow Maroko to take the time off.

Werner asserted, among other things, that it had offered Maroko a reasonable accommodation by offering to assign him to a "NetOp" route, although no such position was available at the time.  Until a "NetOp" position opened, Werner purportedly gave Maroko a choice:  either to work on the Sabbath or to take a 30-day leave of absence in the hope that a position would open in that time frame.

An "employer's statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship, is clear, but the reach of that obligation has never been spelled out by Congress or by EEOC guidelines." Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 75 (1977).  Accordingly, the "unanimous weight of authority" indicates that the "reasonableness of any given accommodation is a fact-intensive inquiry that depends on the totality of the circumstances." Haliye v. Celestica Corp., 717 F. Supp. 2d 873, 878 (D. Minn. 2010).

Werner supposedly gave Maroko two choices:  to continue working on the Sabbath or to take a 30-day leave of absence until a NetOp position opened.  The court found that the first choice would have done nothing to eliminate the conflict between Maroko's religious beliefs and his Sabbath work requirement, at least until a new position became available. Furthermore, other options, such as a lateral transfer to another department, appeared to have been available.  As for the second choice offered to Maroko, a leave of absence, the court stated that it is not unreasonable to ask an employee to take unpaid leave while attempting to place him in another position.  See Philbrook, 479 U.S. at 70 ("The provision of unpaid leave eliminates the conflict between employment requirements and religious practices by allowing the individual to observe fully religious holy days and requires him only to give up compensation for a day that he did not in fact work.").  In this case, however, Werner could not guarantee that a "NetOp" position would become available during a 30-day leave of absence.

The court concluded that Werner had had alternatives available to it that would have eliminated Maroko's religion/work conflict, but that it had not offered those alternatives to him.  Instead, its proposed accommodation would have either required Maroko's working on the Sabbath or, in the event of a leave of absence, raised the prospect of his termination if a "NetOp" position had not become available quickly.

Finally, the court addressed the issue of whether the accommodation of Maroko's religious observance would have resulted in an undue hardship to Werner.  Under Title VII, even if an employer fails to make an accommodation, it can still prevail by showing that accommodating the religious belief would have resulted in undue hardship.  With respect to religious accommodation, anything more than a de minimis cost will be considered an undue hardship.  See Hardison, 432 U.S. at 84 ("To require [an employer] to bear more than a de minimis cost . . . is an undue hardship.").

The primary basis for Werner's undue-hardship argument was that Maroko had "demanded" to work on the Tomah Account yet had insisted that he not work on the Sabbath. According to Werner, it could not accommodate this request, because Friday nights and Saturdays were the busiest times on the Tomah Account, requiring every driver to work in order to timely complete all of Wal-Mart's deliveries.  If Maroko had not been not working, Werner argued, Werner would have been required to hire an extra driver to cover his absence, imposing more than a de minimis burden (both financially and logistically).

Contrary to Werner's argument, however, the court found that the record indicated a willingness on Maroko's part to accept "any other [position] open to work," including, for example, "an option that maybe [would require him to] to go New York."  2011 WL 1429216, at *7 (alterations in original).  Kriutzfeld, one of Werner's own witnesses, confirmed that Maroko had sought work "[o]n any account with the Sabbath off, not necessarily the Tomah [A]ccount."  Id.

Whether an employer has offered a reasonable accommodation or faced undue hardship ultimately "boils down to . . . whether the employer has acted reasonably."  Beadle v. City of Tampa, 42 F.3d 633, 636 (11th Cir. 1995) (citation omitted).  That question could not be answered as a matter of law in Maroko, and, therefore, the court denied the employer's motion for summary judgment.

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In reviewing employee handbooks and policies, one of the more common deficiencies we come across is the failure to include a provision dealing with accommodating the religious observances of employees.  Because supervisors often use employee handbooks to determine what their obligations are in a particular situation, the omission of such a provision can lead to administrative charges, lawsuits, and liability.

Do your clients have appropriate and effective employment policies?  We will provide a complimentary review and consultation regarding an existing employment policy, or an assessment to determine what policies are needed for your clients.  To take advantage of this offer, contact