Yesterday, a divided panel of judges from the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on a religious discrimination claim. Crider v. Univ. of Tennessee, Knoxville, No. 11-5511 (6th Cir. July 23, 2012). In that case, the overseas education department required one of the three Programs Abroad Coordinators to always (i.e., 24-7) carry the emergency cell phone in case a student experienced an emergency overseas. This responsibility was rotated among the Coordinators and prevented them from leaving town (and ready access to student records) during their rotation. Four days after being hired as a Coordinator, the plaintiff informed her manager that she was a Seventh Day Adventist and could not carry the emergency phones from sundown Friday to sundown Saturday. The other two Coordinators refused to voluntarily assume permanent responsibility to carry the emergency phone every other weekend because it prevented them from leaving town for pleasure or family reasons. One of them even threatened to resign. The University did not find any of the other proposed accommodations to be reasonable and ultimately terminated the plaintiff’s employment because she refused to perform one of the essential functions of her job. The Court’s majority found that the University was not entitled to respect the “grumblings” of the other Coordinators and should have given preference to the plaintiff’s religious objections over the co-workers’ rights to not share those beliefs. It limited the Supreme Court’s Hardison decision to a collectively bargained seniority system. “Title VII does not exempt accommodation which creates undue hardship on the employees; it requires reasonable accommodation “without undue hardship on the conduct of the employer’s business.” (emphasis in original).”
The plaintiff argued that the University rejected her proposal of a voluntary shift exchange and then failed to suggest its own alternative and frustrated her efforts to obtain her co-worker’s cooperation. The University suggested that she agree to carry the emergency pagers on Saturdays when her co-workers were out of town or if an emergency arose.
“The obligation to accommodate includes efforts to accommodate those employees who refuse to work on particular days of the week because of their religious beliefs.” Id. Reasonable accommodations for religious convictions may include unobjectionable shift exchanges, see id. at 1088, or a transfer to another position which preferably does not adversely affect the employee. . .
Offering [the plaintiff] fewer Saturday shifts is not a reasonable accommodation to religious beliefs which prohibit working on Saturdays.
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Aptly stated by the Third Circuit, a Saturday Sabbatarian’s request for every Saturday off of work due to their religious needs is not per se unreasonable and “[t]o interpret Title VIII in this fashion would effectively remove from the statute’s protection all employees who subscribe to religions with strict prohibitions against Sabbath labor.”
The Court rejected the concept that an employer could prove that a requested accommodation imposed an undue hardship based only on the objections of co-workers to working the unfavorable weekend shift. The district court had relied on Hardison in concluding that the University would incur an undue hardship if it were required to force the plaintiff’s co-workers to resume responsibility of carrying the emergency phone every other weekend. “In reaching this determination, the district court emphasized Hardison’s rejection of the notion that an employer may deprive one employee of their shift choice in order to allow another employee to observe their Sabbath” because Title VII protects the co-workers from discrimination based on the plaintiff’s religious needs. In short, Hardison suggests that “reasonable accommodations are not reasonable when they would result in unequal treatment of employees on the basis of religion.” Nonetheless, the Court felt there was a material issue of disputed fact in this case.
This Court has held that “objections and complaints of fellow employees, in and of themselves, do not constitute undue hardship in the conduct of an employer’s business,” noting that “undue hardship is something greater than hardship, and an employer does not sustain his burden of proof merely by showing that an accommodation would be bothersome to administer or disruptive of the operating routine.”
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Thus, Hardison does not stand for the proposition that employee dissatisfaction or inconvenience alone creates an undue hardship; rather, it is the effect such dissatisfaction has on the employer’s ability to operate its business that may alleviate the duty to accommodate.As interpreted by the majority, the Hardison “Court found that requiring TWA to breach the contractual rights of its employees by abandoning the seniority system established by a collective bargaining agreement, or to replace Hardison with employees who required premium wages, went too far and created an undue hardship on TWA.” Title VII itself provided special treatment for seniority systems and the Hardison Court did not want to deprive Hardison’s co-workers of contractually bargained rights. “Requiring TWA to breach provisions of a collective bargaining agreement and risk the union or other employees filing suit is surely more than a de minimis cost.”
The University, like the Fifth Circuit, argued that the plaintiff’s reliance on Draper v. Unites States Pipe and Foundry Co., 527 F.2d 515, 519-520 (6th Cir. 1975) – which required employers to force co-workers to accept unfavorable shifts in order to accommodate a religious belief -- was outdated in that Hardison was decided later in 1977. The majority, however, found it remained good law because Hardison did not explicitly overrule it.
We stop short of holding that an employee requesting religious accommodation can never be treated differently. The very nature of this type of accommodation requires that, where an employer operates its business on Saturdays, a Saturday Sabbatarian’s accommodation will require another employee to work a Saturday shift. Thus, where an employer is able to reasonably accommodate this religious request, it is essentially treating employees differently on the basis of religion as contemplated by the Act.Moreover, the majority conceded that “[i]t is conceivable that employee morale problems could become so acute that they would constitute undue hardship” and that such discontent can lead to “chaotic personnel problems” which would constitute an undue hardship to accommodate a religious belief. While it observed that the co-worker’s threat to quit could create a “chaotic personnel problem” with only one employee left to carry the emergency phone on Saturdays, it concluded that in this case, the there was insufficient evidence that the employee’s threat was more than mere “grumbling.” (The Court makes no effort to explain what would have been enough proof – such as a written two-week notice of resignation).
Finally, the majority found summary judgment to be inappropriate because the manager had told employees not to do anything differently despite the plaintiff’s request for accommodation.
Even if [the manager] was simply trying to assess the situation before [the co-worker’s] agreed, [the manager’s] words could be construed as instructing [the co-workers] not to accept the shift exchange. Viewing the evidence in the light most favorable to [the plaintiff], we find that she has raised a genuine issue as to whether [the employer] frustrated, inhibited, or impeded her efforts at obtaining such an accommodation.In contrast, the dissenting judge found that:
“the mere possibility of an adverse impact on co-workers . . . is sufficient to constitute an undue hardship.” Virts v. Consol Freightways Corp., 285 F.3d 508, 520-21 (6th Cir. 2002) (applying Hardison). Further, an employer’s neutral decisions, such as shift scheduling, are protected under Title VII. Id. at 82. This is true even if such decisions result in “discriminatory consequences.” Id. at 82.The dissent also found that the majority’s decision forces discrimination upon the co-workers based on their lack of similar religious beliefs. The dissent also rejected the argument that the employer’s preference to maintain the status quo while it considered to the accommodation request had interfered with the plaintiff’s request because the co-workers had never agreed to swap shifts with her and was irrelevant to whether the request was unreasonable.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
