Reprinted from the February 4, 2008, issue of PERSONNEL LEGAL ALERT, a widely read employment law newsletter that keeps HR executives up-to-date on the latest court cases, legal trends, government regulations, and federal legislation that affect the policies you write and procedures you administer. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

The Great Religious Accommodation Disappearing Act

It’s hard enough having to reject an employee’s religious accommodation
request right off the bat, let alone having to do it after the employee has enjoyed the accommodation for many years. How do you rescind a long-term accommodation without creating the appearance of discrimination? The answer depends on whether or not the accommodation truly creates an undue hardship on your company or just the illusion of one.

NOW YOU SEE IT, NOW YOU DON’T

For more than 10 years, the U.S. Postal Service (USPS) accommodated a letter carrier’s request to avoid working on Saturdays so he could observe his Sabbath. His supervisors simply did not schedule him to work on Saturdays. During that period, staffing levels allowed the employee to have Saturdays off without disrupting the other employees’ rotating day-off schedule.

However, when staffing levels decreased due to budget constraints, the USPS had trouble filling its Saturday staffing needs. To continue accommodating the employee, it scheduled other letter carriers to work additional Saturdays, asked them to volunteer to work Saturdays, and required them to cover parts of the employee’s route after completing their own. When the co-workers balked at the arrangement, the USPS scheduled the employee to work Saturdays. It did, however, allow him to use his vacation time and annual leave, take leave without pay, and exchange days off with co-workers.

The employee sued for religious discrimination, claiming that the elimination of the accommodation constituted an adverse employment action that amounted to discrimination. But neither a district court nor a court of appeals saw it that way, ruling that the removal of the accommodation did not result in a change of title, job status, pay, or job responsibilities and conditions. Said the appeals court: Working on Saturday is simply a requirement of the job for which he was hired, not an adverse change in employment. (Tepper v. Potter, 6th Cir., No. 06-4182, 2007)

TRICKS OF THE TRADE

If your company faces the difficult situation of being unable to continue an employee’s long-term religious accommodation, it doesn’t take magic to avoid charges of discrimination. Here’s the trick to making an employee’s lawsuit disappear.

• Have a legitimate business reason for rescinding the accommodation. Financial reasons affected the postal service’s ability to find staff for Saturdays.

• Show how the employee’s accommodation request would create an undue hardship. An employer is not required to continue to accommodate an employee’s religious beliefs and practices if doing so would impose an undue hardship on the employers’ legitimate business interests. An employer can show undue hardship if accommodating an employee’s religious practices requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work, or if the proposed accommodation conflicts with another law or regulation.

• Attempt to provide other accommodations. When the USPS began scheduling the letter carrier for Saturday shifts, it allowed him to take paid or unpaid time off, or to swap shifts with co-workers. The letter carrier tried to argue that using unpaid leave was a form of discipline because it reduced his annual pay and eventual pension. The appeals court disagreed, holding that the employee simply was not being paid for time he did not work.

Another company must go to trial after taking away an employee’s accommodation after 25 years due to a temporary plant shutdown. A court of appeals ruled that there was some question surrounding the employer’s willingness to reasonably accommodate the employee’s religious needs. Specifically, the company put the burden on the employee and his union to find substitute workers. It did not permit the employee to swap shifts with other employees; its policy was designed only to identify employees willing to work additional shifts. It was unclear to the court whether accommodating the employee would create an undue hardship. (EEOC v. Robert Bosch Corp., 6th Cir., No. 05-1099, 2006)

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