Tips from the Trenches

Religious Accommodations: Do I Have to Grant a REALLY Inconvenient Schedule Change?

Oct 10, 2019, 10:21:24 AM / by Nicole M. Diaz, Esq.

The law vigorously protects our First Amendment right to freely exercise our religion (or lack thereof), and these protections extend into the employment context. Title VII of the Civil Rights Act of 1964 requires employers to accommodate employees whose sincerely held religious beliefs conflict with an employment requirement, unless accommodation poses an undue hardship on the employer. An employer may establish undue hardship by demonstrating that an accommodation would require more than a de minimis cost or would deny another employee his job shift preference in conflict with a bona fide seniority system, such as those outlined in a valid collective bargaining agreement. See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977); see also 29 C.F.R. § 1605.2(e).

Consider the case of Melania U., a supervisor of Distribution Operations at the U.S. Postal Service, who was often scheduled to work on weekends, including Sundays. After working at USPS for years, Melania emailed her supervisor to request that her schedule be changed to be off on Sundays. Melania informed her supervisor that as a Christian, Sunday was her day of worship and her Sabbath. Melania’s supervisor advised Melania that he could not change her days off to Sundays because of the “needs of the service,” and during a subsequent meeting, told Melania that two other supervisors already had Sundays off, based on seniority.

When confronted with these facts, the EEOC reversed an Agency’s Final Decision finding no discrimination. See Melania U. v. Brennan, U.S. Postal Service, EEOC Appeal No. 0120180092 (May 15, 2019). The Commission held that the Agency did not show that it made a good faith effort to accommodate Melania’s religious practices, despite the Agency’s contention that it could not manage operations with three out of four supervisors off on Sundays, which could lead to "too many vacancies and holes.”

The Commission noted that it appeared Melania’s supervisors had not asked whether other supervisors would be willing to voluntarily change their work schedules, and had failed to explore any other type of accommodation for Melania. The Commission also found that “the general statements by [the Agency] that [it] had too many ‘holes,’ and could not manage operations with only one supervisor on Sundays [did] not adequately demonstrate an undue hardship because it [was] mere speculation.”

The EEOC’s decision in Melania U. confirms that the Commission will not credit an employer’s defense of undue hardship if it is based on mere speculation, and will also distinguish between accommodations that cause a mere inconvenience and those that rise to an undue hardship. Therefore, although an employee is not entitled to their accommodation of choice, an employer would be well-served to consider whether it can provide an accommodation that will effectively address the conflict between the employee’s sincerely held religious beliefs and his work duties before denying an accommodation.

Topics: federal hr & eeo law training, religious accommodations

Nicole M. Diaz, Esq.

Written by Nicole M. Diaz, Esq.

Nicole M. Diaz, Esq. is a Senior Attorney with Gilbert Employment Law, P.C. and is a co-chair of the firm’s Federal Sector EEOC Practice Group. Ms. Diaz has experience representing federal employees, agencies, and plaintiffs before administrative bodies, including the Equal Employment Opportunity Commission and the Merit Systems Protection Board, and in federal courts in claims arising under Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Rehabilitation Act, the Equal Pay Act, and the Fair Labor Standards Act. Ms. Diaz has also represented federal agencies at arbitration, including propounding and responding to requests for information and engaging in motions practice before an arbitrator. She also has experience negotiating collective bargaining agreements between labor Unions and federal contractors.

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