Dear Littler: We are a store with locations all over the country. We are open seven days a week and our sales associates have varying shifts to provide coverage throughout the week. A number of employees in several of our stores have requested that they not work on different days for religious celebrations. We have tried to accommodate them, but it is not always possible. Most recently, Frank, a salesperson at our store in Philadelphia, asked to be released from work on Sundays for worship and to observe the Sabbath as a day of rest. He has used up all his 15 vacation days. We’ve allowed him to trade services with other sellers, but he hasn’t always been able to find others willing to trade. He has volunteered to take unpaid leave on Sunday, but with the holiday season approaching, we need all hands on deck on Sunday, our busiest day. What are our obligations?
—Puzzled in Philadelphia
No wonder you are puzzled! There are conflicts in the law regarding planning accommodations for religious practices, depending on the facts of each case. Title VII of the Civil Rights Act of 1964 requires an employer to reasonably consider an employee’s religious observance or practice unless doing so would cause undue hardship to the employer. That’s where the disputes come in. What is a “reasonable adjustment”? And what is “unnecessary hardship”?
When determining the reasonableness of an accommodation, the question is to what extent the accommodation should remove the conflict between the employer’s work demands and the employee’s religious customs. In its Guidance, the Equal Employment Opportunity Commission stated that an accommodation is not “reasonable” if it reduces rather than eliminates conflict or if it discriminates against or prejudices the employee’s terms, conditions, or employment privileges, although it ultimately concluded that, “reasonableness is a fact-specific question.”
In a recent case involving a USPS employee’s request for Sundays off for religious observance, the Third Circuit Court of Appeals, which covers Pennsylvania, New Jersey and Delaware, assessed the employer’s offer to seek others to join the service. of the employee. The court found that shift swapping may be a reasonable accommodation and found it unreasonable in this case because, despite the employer’s best efforts, the employee was unable to find someone to switch shifts on 24 Sundays in a 60-week period. “[P]allowing a Sabbath Observer to switch shifts would not be a reasonable accommodation,” the court ruled, “if other employees are regularly unavailable to cover the services of a Sabbath Observer.”
What about unpaid leave? Could that be a reasonable adjustment, even if it means the employee loses pay? The U.S. Supreme Court addressed this issue in a case involving a teacher whose religion required him not to work on certain holy days, causing him to miss about six school days a year. The Court ruled that allowing unpaid leave for public holidays was a reasonable adjustment.4 The effect of unpaid leave “is only a loss of income for the period when the employee is off work; such exclusion has no direct effect effect on either employment or employment status.” However, the Court stated that unpaid leave is not a reasonable accommodation “when paid leave is provided for all purposes, except for religious purposes.” (Emphasis in the original.)
Applying these cases, Surprised, it looks like you might be obligated to release Frank, as he requested. But that’s not the end of the investigation. There is still the question of whether giving Frank Sundays, even if unpaid, would cause an unnecessary hardship for the company.
The starting point in assessing undue hardship in a religious accommodation case is the landmark Supreme Court case, Trans World Airlines, Inc. v. Hardison.5 The Hardison employee, who was subject to a seniority system in a collective bargaining agreement, worked in a TWA maintenance and overhaul facility that operates 24 hours a day, 365 days a year. The employee’s religion forbade him to work from sunset Friday to sunset Saturday, so when asked to work Saturdays, he refused. The employee was not senior enough to bid for a Saturday off shift, and TWA rejected his proposal to work four days a week because he was the only person available on Saturdays to perform his duties, which were critical to the airline’s operations. TWA argued that filling the employee’s position with a supervisor or an employee from another area would have worsened other operations, and employing someone who doesn’t regularly work on Saturdays would have led the airline to pay premium wages. Pay. The Supreme Court examined the facts and concluded that the airline was not required to “make a special exception to its seniority system to help [the employee] to fulfill its religious obligations”6 and that none of the other options were necessary because they would have caused the airline to bear more than minimal costs and therefore create unnecessary difficulties for the company.7
The standard of unnecessary hardship set forth in Hardison was applied in the third circuit case discussed above. While the Third Circuit found the proposed shift work unreasonable, it concluded that exempting the employee from working Sundays would create an unnecessary hardship. Citing appeals from other jurisdictions, the court ruled that increasing the workload for other employees and the resulting impact on employee morale involved more than a minimal cost to the employer. Accordingly, the Third Circuit concluded that refusing to grant the employee’s request to be excused from Sunday work did not violate Title VII’s religious housing requirement.
The employee in the case filed a petition for review by the U.S. Supreme Court. Numerous religious organizations, 15 congressmen, and the states of West Virginia, Louisiana, Alabama, Arkansas, Florida, Kansas, Kentucky, Mississippi, Montana, Nebraska, New Hampshire, Oklahoma, South Carolina, Tennessee, have joined this petition. Texas, Utah and Virginia, all of which asked the Court to nullify Hardison’s “more than a de minimis” standard and impose a stricter standard for setting unnecessary hardships.
In short, employers should exercise caution when considering requests for time off for religious observance – by participating in the interactive process of finding an accommodation that balances legal obligations to the employee without burdening the company unnecessarily taking into account the potentially changing standards of unnecessary hardship. Stay tuned as we follow these developments.
1. Groff v. Dejoy, 35 F.4th 162 (3d Cir. 2022).
2. ID. at 171.
3. E.g. Tabura v. Kellogg USA, 880 F.3d 544, 550 (10th Cir. 2018) (“An adjustment is not reasonable if it merely affords plaintiffs the opportunity to avoid working on some, but not all, [religious observance
4. Ansonia Bd. from Educ. v. Philbrook, 479 US 6. Ct 0.70-71, 107 S. Ct. 367 (1986).
5. 432 US 63, 97 S. 2264 (1977). It’s worth noting that some states have their own EEO laws that have a more rigorous
6. ID. at 83.
7. ID. at 84.
The contents of this article are intended to provide general guidance on the subject. Specialist advice should be sought regarding your specific circumstances.