OCALA, FL LAWYERS FOR EMPLOYEE

RIGHTS & DISCRIMINATION VICTIMS

Having fought for the religious freedoms of employees for more than two decades, our Marion County, Florida employment discrimination lawyers know that employers often punish employees when their religious beliefs conflict with employment requirements. In many cases, an employer’s punishment constitutes religious discrimination because the employment discrimination laws require employers to reasonably accommodate employees’ religious beliefs when they clash with employment requirements. The purpose of the reasonable accommodation requirement is to compel employers to make good faith efforts to resolve a conflict between an employee’s religious belief and an employment requirement. Thus, the employment discrimination laws not only impose an obligation on employers not to discriminate against employees on the basis of religion, they also impose an obligation on employers to reasonably accommodate employees’ religious beliefs. Based in Ocala, Florida and representing employees throughout Central Florida, our Marion County, Florida employment discrimination lawyers are dedicated to protecting and vindicating the religious freedoms of employees.

Laws Forbidding Religious Discrimination

Title VII of the Civil Rights Act of 1964 (Title VII), which is federal law, and the Florida Civil Rights Act (FCRA), which is federal laws, prohibit employers from discriminating against employees on the basis of religion. Title VII and the FCRA also require employers to reasonably accommodate the religious beliefs of employees when they conflict with employment requirements, short of incurring “undue hardship.” When an employer fails to accommodate an employee’s religious belief that conflicts with an employment requirement and then punishes the employee for failing to comply with the employment requirement, the employer has unlawfully discriminated against the employee on the basis of religion, unless the employer shows that accommodating the employee’s religious beliefs would have imposed an undue hardship.

Definition Of Religion Under Title VII

Title VII, as originally enacted in 1964, only prohibited discrimination against employees on the basis of religion. Although courts agreed that Title VII’s prohibition against religious discrimination covered discrimination on the basis of employee’s religious beliefs, courts were split as to whether Title VII’s prohibition against religious discrimination also covered discrimination on the basis of employees’ religious practices. Because Title VII could be interpreted to exclude all religious practices from protection against discrimination on the basis of religion, Congress amended Title VII in 1972 and added a definition of religion. Under Title VII, the term “religion” is now defined to “include[ ] all aspects of religious observance and practice, as well as belief.” Thus, in mandating that employers accommodate an employee’s religion, Title VII requires employers to accommodate an employee’s religious belief, observance, or practice.

Accommodation Of Employee’s Religious Beliefs

When Congress amended Title VII and added the definition of religion, Congress also added a “reasonable accommodation” requirement to Title VII to resolve conflicts that arise in the workplace between employees’ religious beliefs and employment requirements. Title VII’s reasonable accommodation requirement mandates that an employer accommodate an employee’s religious beliefs or practices, unless “an employer demonstrates that [it] is unable to reasonably accommodate an employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” As observed by the U.S. Supreme Court in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), the “intent and effect of this definition was to make it an unlawful employment practice under [Title VII] for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of [its] employees and prospective employees.” Thus, when an employee’s religious belief conflicts with an employment requirement, Title VII requires an employer to accommodate the employee’s religious belief, unless an accommodation would result in undue hardship.

When Need For Religious Accommodation Arises

An employee’s need for a religious accommodation arises when the employee’s religious belief or practice conflicts with an employment requirement, such as an employer’s attendance policy or personal appearance policy. Consequently, religious accommodation lawsuits involve employee religious practices, such as observing the Sabbath, observing religious holidays, or wearing religious clothing, that clash with an employment requirement. For example, an employee asks for unpaid time off from work to observe a religious holiday or attend a religious ceremony. Likewise, an employee seeks permission to wear an item of clothing because of the employee’s religious beliefs.

When there is a conflict between an employee’s religious belief or practice and an employment requirement, an employer’s duty to accommodate the employee’s religious belief or practice is triggered. If the employer fails to resolve the conflict by accommodating the employee’s religious belief or practice and uses the employee’s religious belief or practice as the basis for an adverse employment action, the employee has been discriminated against on the basis of religion, unless the employer can establish that accommodating the employee’s religious needs would have imposed an undue hardship on the operation of its business.

Proving Religious Accommodation Claim

To prove a Title VII claim for failure to accommodate religion, an employee must first establish a prima facie case of discrimination. As determined by the U.S. Seventh Circuit Court of Appeals in EEOC v. United Parcel Service, 94 F.3d 314 (7th Cir. 1996), an employee may establish a prima facie religious accommodation claim by showing that: (1) he or she had a bona fide religious belief that conflicted with an employment requirement; (2) he or she brought the religious belief to the employer’s attention; and (3) the religious belief was the basis for an adverse employment action. An employee demonstrates that his or her religious belief was the basis for an adverse employment action by showing that the adverse employment action was taken for failure to comply with the conflicting employment requirement. Importantly, as the U.S. Ninth Circuit Court of Appeals ruled in Proctor v. Consolidated Freightways Corp., 795 F.2d 1472 (9th Cir. 1986), the prima facie case does not include a showing that the employee made any efforts to compromise his or her religious beliefs or practices before seeking an accommodation from the employer.

For purposes of Title VII discrimination claims, as determined by the U.S. Third Circuit Court of Appeals in Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997), an “adverse employment action” are those actions that are “serious and tangible enough” to alter the employee’s “compensation, terms, conditions, or privileges of employment,” “deprive” the employee of employment opportunities, or “adversely affect” the employee’s “status as an employee.” In applying this principle, courts have consistently ruled that an “adverse employment action” for purposes of Title VII discrimination claims includes: discharge; demotion; failure to promote; transfer accompanied by decreased wages or salary; reduction in pay or hours; loss of benefits or salary; and undeserved negative job evaluations.

If the employee establishes a prima facie case of religious discrimination, the burden then shifts to the employer to show that it could not accommodate the employee’s religious needs without undue hardship. To satisfy its burden, the employer must demonstrate either (1) that it provided (or offered to provide) the employee with a reasonable accommodation for his or her religious belief or practice, or (2) that such accommodation was not provided because it would have caused undue hardship. The employer bears the burden of proof on these issues. The reasonableness of an employer’s attempt to accommodate is determined on a case-by-case basis.

Discharge Instead Of Religious Accommodation

The decision by the U.S. District Court for Arizona in EEOC v. Alamo-Rent-A-Car, LLC, 432 F.Supp.2d 1066 (D. Ariz. 2006) is illustrative of how Title VII’s reasonable accommodation requirement protects religious freedom in the workplace when an employer refuses to accommodate an employee’s religious belief or practice and then uses the employee’s religious belief or practice as a basis for terminating the employee.

In that Title VII case, an employee requested permission to wear a head covering at work during the Muslim holiday of Ramadan. The employee’s job duties involved renting cars to customers and thus required interactions with customers. The employer told her that she would be allowed to wear a head covering while in the back office, but that she would need to remove the head covering while at the rental counter. After the employee was observed wearing a head covering at the rental counter, the employer fired her for violation of its uniform policy.

The employer argued that it accommodated the employee’s religious beliefs by allowing her to wear a head covering when she was in the back office. In rejecting this argument, the court explained that the accommodation offered by the employer “required her to remove her head covering during Ramadan when she served clients but [the employer] still required her to serve clients, making it impossible for [the employee] to avoid removing her head covering at work.” In other words, the court reasoned, the proposed accommodation merely lessened but did not eliminate the conflict between the employee’s religious practice and the employment requirement. Having failed to accommodate the employee’s religious needs, the court explained that the employer was required to establish that allowing the employee “to wear a head covering during Ramadan while dealing with clients would impose an undue hardship.”

The employer claimed that accommodating the employee’s religious beliefs imposed an undue hardship since allowing her “to wear a head covering at the rental counter would have imposed a cost on [the employer] because it would have opened the floodgates to others violating the uniform policy.” In other words, the employer claimed an accommodation created an undue burden because if it “allowed one person to deviate from the company policy, then [it] would need to allow everybody to deviate from the policy.” In rejecting this argument, the court found that the employer’s claim of undue burden “was based on a faulty understanding of Title VII’s protections against discrimination based on religious beliefs.” To accept the employer’s argument that accommodating the employee’s religious beliefs would have required it to “forego enforcement of the uniform policy against any employee,” the court explained, would mean that “virtually no accommodation could overcome the undue hardship test.”

Because the employer failed to reasonably accommodate the employee’s religious beliefs and the employer’s failure culminated in the employee’s termination when she was fired for failure to comply with the conflicting uniform policy, the trial court ruled that the employer unlawfully terminated the employee because of her religion in violation of Title VII.

Religious Accommodation For Job Applicants

Under Title VII and the FCRA, it is an unlawful employment practice for an employer to fail or refuse to hire any individual on the basis of religion. In some cases, employers fail or refuse to hire a job applicant because he or she is a member of a particular religion. For example, an employer fails or refuses to hire a job applicant because he or she is Christian, Muslim, or Jewish. Under such circumstances, the job applicant is not hired because of his or her religious status and the failure to hire the job applicant constitutes unlawful discrimination on the basis of religion.

In other cases, employers fail or refuse to hire a job applicant because the job applicant’s religious beliefs or practices conflict with an employment requirement. Under Title VII and the FCRA, an employer’s obligation not to discriminate against job applicants on the basis of religion also includes an obligation to make reasonable accommodations to a job applicant’s religious beliefs and practices. When an employer fails to accommodate a job applicant’s religious belief or practice that conflicts with an employment requirement and then uses the job applicant’s religious belief or practice as the basis for the failure or refusal to hire the job applicant, the employer has unlawfully discriminated against the job applicant on the basis of religion, unless the employer shows that accommodating the job applicant’s religious belief or practice would have imposed undue hardship.

Bona Fide Religious Belief

The requirement that an employee or job applicant have a “bona fide religious belief” is an essential element of a religious accommodation claim. In United States v. Seeger, 380 U.S. 163 (1965), the U.S. Supreme Court determined that a “bona fide religious belief” is one that: (1) is religious within the individual’s own scheme of things; and (2) is sincerely held.

The protections of Title VII are not limited to familiar or mainstream religious beliefs or practices because, as explained by the U.S. Fifth Circuit Court of Appeals in Cooper v. General Dynamics, 533 F.2d 163 (5th Cir. 1976), Title VII protects conduct that is “religiously motivated” and includes “all forms and aspects of religion, however, eccentric.” Indeed, the U.S. Supreme Court in Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707 (1981) ruled that religious beliefs protected by Title VII need not be “acceptable, logical, consistent, or comprehensible to others.” As long as an employee’s beliefs are religiously based, as explained by the U.S. Supreme Court in Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136 (1987), it is not for the courts to inquire whether those beliefs “derived from revelation, study, upbringing, gradual evolution, or some other source that appears incomprehensible.”

The regulations promulgated by the U.S. Equal Employment Opportunity Commission, which is the federal agency responsible for interpreting and enforcing Title VII, provide that “religious practices” include “moral or ethical beliefs as to what is right or wrong, which are sincerely held with the strength of traditional religious views.” Under Title VII’s broad definition of “religion” therefore, such beliefs and practices are protected from discrimination. Thus, as the U.S. Seventh Circuit Court of Appeals in Vinning-El v. Evans, 657 F.3d 5911 (7th Cir. 2011) observed, “a personal religious faith is entitled to as much protection as one espoused by an organized group.” Title VII, however, as noted by the U.S. Eighth Circuit Court of Appeals in Vetter v. Farmland Indus., Inc., 120 F.3d 749 (8th Cir. 1997), does not require an employer to accommodate what amounts to a “purely personal preference.”

Religiously Based Belief

In determining whether an employee has a “bona fide religious belief” that conflicts with an employment requirement, an issue which inherently arises is the extent to which courts are allowed to inquire into the relationship between an employee’s religious belief and the employee’s religion. In other words, are courts allowed to inquire into whether an employee’s religious belief is a tenet of the religion or a matter of religious law? In answering this question, employers customarily argue that Title VII only protects those religious beliefs that are mandated or prohibited by a tenet of an employee’s religion.

However, courts have determined that their inquiry into the content of an employee’s religious beliefs is severely limited. Under well-established law, as observed by the U.S. District Court for the Northern District of Iowa in Mial v. Foxhoven, 305 F.Supp.3d 994 (N.D. Iowa 2018), “a court may neither determine what the tenets of a particular religion are, nor determine whether a particular practice is or is not required by the tenets of the religion.” In other words, Title VII’s broad definition of “religion” does not require an employee’s religious belief or practice to have a textual basis. Thus, employers are not permitted to limit accommodations to religious beliefs or practices that are mandated or prohibited by a tenet of an employee’s religion.

To restrict Title VII’s protection to those “practices which are mandated or prohibited by a tenet of the religion,” as pointed out by the U.S. Seventh Circuit Court of Appeals in Redmond v. GAF Corporation, 574 F.2d 897 (7th Cir. 1978), “would involve the court in determining not only what are the tenets of a particular religion . . . , but would frequently require the courts to decide whether a particular practice is or is not required by the tenets of the religion.” As the U.S. Supreme Court explained in Fowler v. Rhode Island, 345 U.S. 67 (1953), “it is no business of a court to say . . . what is a religious practice or activity.” To allow courts to probe into the prevalence of the religious belief or practice among adherents to an individual’s religion would turn courts into an arbiter of orthodoxy. In Thomas v. Review Bd. of Ind. Employment Security Div., 450 U.S. 707 (1981), the U.S. Supreme Court declared that “[c]ourts are not arbiters of scriptural interpretation.”

Sincerely Held Religious Belief

“While the ‘truth’ of a belief is not open to question,” as observed by the U.S. Supreme Court in United States v. Seeger, 380 U.S. 163 (1965), “there remains the significant question of whether it is truly held.” Thus, as the U.S. Second Circuit Court of Appeals in Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476 (2d Cir. 1985) explained, “it is entirely appropriate, indeed necessary, for a court to engage in analysis of the sincerity—as opposed, of course, to the verity—of someone’s religious beliefs . . . in the Title VII context.” “The element of sincerity is fundamental” to a religious accommodation, claim, as the U.S. First Circuit Court of Appeals observed in EEOC v. Union Ind. De La Autoridad De Acueductos Y Alcantraillados De P.R., 279 F.3d 40 (1st Cir. 2002), “since if the religious beliefs that apparently prompted the request [for an accommodation] are not sincerely held, there has been no showing of a religious observance or practice that conflicts with an employment requirement.”

The purpose of the sincerity inquiry, according to the Second Circuit in Int’l Soc. for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430 (2d Cir. 1981), is to determine whether the belief is held as a matter of conscience or, instead, animated by motives of deception and fraud. Courts have determined that evidence tending to show that an employee acted in a manner inconsistent with his or her professed religious belief is relevant to whether the belief is sincerely held. However, as the U.S. Seventh Circuit Court of Appeals ruled in Grayson v. Schuler, 666 F.3d 450 (7th Cir. 2012), “a sincere religious believer doesn’t forfeit his religious rights merely because he is not scrupulous in his observance; for where would religion be without its backsliders, penitents, and prodigal sons?” Thus, as the Seventh Circuit explained in Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444 (7th Cir. 2013), “Title VII and courts do not require perfect consistency in observance, practice, and interpretation when determining . . . whether a person’s belief is sincere.”

The decision by the U.S. District Court for the Eastern District of Michigan in Shpargel v. Stage & Co., 914 F.Supp. 1468 (E.D. Mich. 1996) is illustrative of these principles. In that Title VII case, an employee requested time off from work to attend services for Yom Kippur. The employer argued that the employee could not demonstrate a sincere belief in Judaism because he did not recognize all of the Jewish holidays and had previously worked on Yom Kippur. In rejecting the employer’s argument, the court explained that it would not “closely scrutinize the extent to which [the employee] celebrated other Jewish holidays or his knowledge about Judaism in general.” “In order for [the employee] to succeed on his claim,” the court pointed out, “it is not necessary that this court find [him] to be devout in observance of all aspects of Judaism.” Instead, the court determined that “it is enough that [the employee] has attended Yom Kippur services in the past and wanted to attend the services” on the occasion in question.

Notice Of Need For Religious Accommodation

In order to trigger an employer’s duty to accommodate an employee’s religious belief or practice, employees must notify the employer of a conflict between their religious needs and an employment requirement. In defending against religious accommodation claims, employers frequently argue that the employee’s claim fails because he or she did not explicitly ask for an accommodation for a religious belief or practice. Thus, employers maintain that if an employee does not use the magic words of “accommodation” or “reasonable accommodation,” the employee never provided them with sufficient notice and the duty to accommodate was never triggered. Courts have consistently rejected such arguments.

As the U.S. Seventh Circuit Court of Appeals explained in Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444 (7th Cir. 2013), “Title VII has not been interpreted to require adherence to a rigid script to satisfy the notice requirement.” Instead, as the Adeyeye court observed, “Title VII is a remedial statute that [courts] construe liberally in favor of employee protection.” Thus, as determined by the U.S. Eighth Circuit Court of Appeals in Brown v. Polk County, Iowa, 61 F.3d 650 (8th Cir. 1995), the notice requirement is not particularly stringent because “[a]n employer need have only enough information about an employee’s religious needs to permit the employer to understand the existence of a conflict between the employee’s religious practices and the employee’s job requirements.”

The decision by the U.S. Ninth Circuit Court of Appeals in Heller v. EBB Auto Co., 8 F.3d 1433 (9th Cir. 1993) is illustrative of the notice standard under Title VII. In that case, a car salesperson claimed that his employer violated Title VII by failing to accommodate his religious practice of attending the ceremony in which his wife and children were converting to Judaism. The salesperson received permission from his supervisor to miss a morning sales meeting to attend the conversion ceremony. Ultimately, the employer revoked the leave of absence and told the salesperson that he was required to attend the meeting and that, if he failed to do so, he would be fired. When the salesperson insisted on attending the ceremony, the employer fired him.

The employer argued that the salesperson did not give notice of his need for an accommodation for his religious practice because he never explained the nature of the ceremony. The appellate court disagreed and found that the salesperson’s notice “was satisfactory” because when he requested time off, he informed his supervisor why he needed to miss work. “Any greater notice requirement,” the court of appeals explained, “would permit an employer to delve into whether the religious practices of an employee in order to determine whether the religion mandates the employee’s adherence.” “If courts may not make such an inquiry,” the Ninth Circuit reasoned, “then neither should employers.”

Employer Must Take Steps To Accommodate

In Trans World Airlines v. Hardison, 432 U.S. 63 (1977), the U.S. Supreme Court explained that although Congress did not define the degree of accommodation which is required of an employer under Title VII, the legislative history is at least clear that “Congress intended to require some form of accommodation” and to change prior case law which had condoned an employer “who had not made any effort whatsoever to accommodate the employee’s religious needs.” In applying Hardison, courts, such as the Ninth Circuit Court of Appeals in American Postal Workers Union v. Postmaster General, 781 F.2d 772 (9th Cir. 1986), have determined that “it is incumbent upon the employer to undertake some initial step to reach a reasonable accommodation of the particular religious belief at issue” by suggesting a possible accommodation. This requires, as the Ninth Circuit explained in EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989), that, “at a minimum, the employer . . . negotiate with the employee in an effort to accommodate the employee’s religious beliefs.”

If the employer does not make any effort to accommodate the employee’s religious beliefs or the accommodation proposed by the employer does not eliminate the employee’s religious conflict, then the employer must demonstrate that it was unable to reasonably accommodate the employee’s religious needs without undue hardship. Moreover, as determined by the Ninth Circuit in American Postal, “[i]f the accommodation proposed by the employer fails to eliminate the employee’s religious conflict, the employer must implement an alternative accommodation proposed by the employee, unless implementation of that accommodation would cause ‘undue hardship’ to the employer.”

The decision by the Ninth Circuit in Hacienda Hotel is illustrative of circumstances where an employer made no effort to accommodate an employee’s religious needs. In that Title VII case, two employees informed their supervisor of their religious beliefs and requested that their schedules be adjusted such that they would have a day off on their Sabbath. Their supervisor denied their requests, threatening them with discharge if they did not work on their Sabbath. One of the employees was actually fired for refusing to work on her Sabbath.

In affirming the trial court’s entry of a verdict in favor of the employees, the Ninth Circuit found that the employer “made no effort whatsoever to accommodate the religious beliefs of both these women.” The court of appeals explained that the supervisor never asked any other employees to volunteer to work instead of the two employees nor did she make any effort to rearrange the schedule of other employees according to the religious needs of the two employees. The appellate court also pointed out that there was at least one voluntary substitute, the sister of the discharged employee, who was willing to work for her. Having done “nothing to solve the problem,” the Ninth Circuit concluded, the employer “failed to accommodate the religious practices” of the two employees.

Employee’s Duty To Cooperate

Courts have determined that Title VII’s duty to search for a reasonable accommodation goes both ways. Although an employer is required under Title VII to accommodate employees’ religious beliefs, employees also have a duty to cooperate with the employer’s good faith efforts to accommodate. In Chrysler Corp. v. Mann, 561 F.2d 1282 (8th Cir. 1977), U.S. Eighth Circuit Court of Appeals stated that when an employee does not “cooperate” with the employer in an effort to find a reasonable accommodation for the employee’s religious beliefs, the employee “may forgo the right to have his beliefs accommodated.” As observed by the U.S. Ninth Circuit Court of Appeals in EEOC v. AutoNation USA Corp., 52 Fed. Appx. 327 (9th Cir. 2002), “an employee’s correlative duty to make a good faith attempt to satisfy his needs through means offered by the employer arises after the employer takes the initial step towards accommodating the employee’s conflicting religious practice by suggesting possible accommodations.” Thus, if an employer makes no effort to accommodate the employee’s religious beliefs, then the employee’s duty to cooperate is never triggered.

Definition Of Reasonable Religious Accommodation

In EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015), the U.S. Supreme Court defined an “accommodation” of an employee’s religious practice as allowing the employee “to engage in her religious practice despite the employer’s normal rules to the contrary.” To constitute a reasonable accommodation of an employee’s religious practice under Title VII, as determined by the U.S. Supreme Court in Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986), the accommodation must “eliminate[ ] the conflict between employment requirements and religious practices.”

In harmony with U.S. Supreme Court precedent, the regulations promulgated by the U.S. Equal Employment Opportunity Commission in enforcing Title VII provide that an accommodation is not “reasonable” if it merely lessens rather than eliminates the conflict between religion and work. As observed by the U.S. District Court for the Central District of Illinois in EEOC v. IBP, Inc., 824 F.Supp. 147 (C.D. Ill. 1993), “[i]f the employer’s efforts fail to eliminate the employee’s religious conflict, the burden remains on the employer to establish that it was unable to reasonably accommodate the employee’s religious beliefs without undue hardship.”

The decision by the U.S. Seventh Circuit Court of Appeals in EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1996) is illustrative of the principle that to be reasonable, an accommodation must eliminate the conflict between the employee’s religious practice and the employer’s work requirement. In that Title VII case, two employees requested to take the day off without pay in order to observe Yom Kippur. The employer refused their requests and when neither employee appeared for work on Yom Kippur, terminated their employment. The only attempt at accommodation made by the employer was to offer the employees a day off from work other than Yom Kippur. The Seventh Circuit held that offering the employees another day off, instead of allowing them to take off Yom Kippur, was not a reasonable accommodation “because it does not eliminate the conflict between the employment requirement and the religious practice.”

Employer Chooses Religious Accommodation

In Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986), the U.S. Supreme Court determined that once an employer provides an employee with a reasonable accommodation for his or her religious beliefs, regardless of whether the accommodation is one which the employee requested, the employer has satisfied its obligation under Title VII and the Title VII “inquiry is at an end.” Thus, as observed by the U.S. Fifth Circuit Court of Appeals in EEOC v. Universal Mfg. Corp., 914 F.2d 71 (5th Cir. 1990), “absolute accommodation is not required.” In other words, as explained by the U.S. District Court for Massachusetts in Clutier v. Costco Wholesale, 311 F.Supp.2d 190 (D. Mass. 2004), “the accommodation offered by the employer does not have to be the best accommodation possible, and the employer does not have to demonstrate that alternative accommodations would be worse or impose an undue hardship.

The Supreme Court’s decision in Ansonia illustrates that employers have the right to choose the reasonable accommodation. In that case, a high school teacher claimed that the school board violated Title VII by failing to accommodate his religious practices. The tenets of the teacher’s religion required members to refrain from working during designated holy days, a practice that caused him to miss approximately six school days a year. The school board permitted the teacher to take unpaid leave as an accommodation for his religious practices. However, the teacher insisted upon paid leave. The court of appeals ruled that although the school board had offered a reasonable accommodation, Title VII’s accommodation obligation included a duty on an employer to accept the accommodation the employee prefers, unless the accommodation causes undue hardship.

The Supreme Court disagreed. In finding that the school board satisfied its accommodation obligation under Title VII, the Court concluded that employers are not required to offer employees a choice between alternative reasonable accommodations or to accept the accommodation preferred by employees. The Court reasoned that requiring an employer to allow an employee to choose between reasonable accommodation would give an employee “every incentive to hold out for the most beneficial accommodation despite the fact that an employer offers a reasonable resolution of the conflict.” Instead, the Court determined that once an employer provides an employee with a reasonable accommodation, the employer has met “its accommodation obligation.” In reaching this conclusion, however, the Court did not leave the employer to free to choose an unreasonable form of accommodation over a reasonable one. Rather, the Court simply relegated the choice between alternative forms of reasonable accommodation to the employer, not the employee.

Undue Hardship On Employer

The term “undue hardship” is not defined within the language of Title VII. Thus, as the U.S. Eleventh Circuit Court of Appeals observed in Beadle v. Hillsborough Sheriff’s Dep’t, 29 F.3d 589 (11th Cir. 1994), “the precise reach of an employer’s obligation to its employees is unclear under the statute and must be determined on a case-by-case basis.” The U.S. Supreme Court in Trans World Airlines v. Hardison, 432 U.S. 63 (1977) described “undue hardship” as any act requiring an employer to bear more than a “de minimis cost” in accommodating an employee’s religious beliefs. The Hardison Court also recognized that the phrase “de minimus cost” entails not only monetary concerns, but also the employer’s burden in conducting its business. Under Supreme Court precedent therefore, an accommodation which results in more than a “de minimus cost” is an undue hardship to the employer and the employer is not required by Title VII to provide an accommodation.

Courts have consistently required employers to prove more than hypothetical hardship. As the U.S. Eighth Circuit Court of Appeals explained in Brown v. Polk County, Iowa, 61 F.3d 650 (8th Cir. 1995), “any hardship asserted [ ] must be real, rather than speculative, merely conceivable, or hypothetical.” In Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515 (6th Cir. 1975), the U.S. Sixth Circuit Court of Appeals stated that “[w]e are somewhat skeptical of hypothetical hardships that an employer thinks might be caused by an accommodation that has never been put into practice.” “The employer is on stronger ground,” the Draper court concluded, “when [it] has attempted various methods of accommodation and can point to hardships that actually resulted.” Thus, as the U.S. Ninth Circuit Court of Appeals determined in EEOC v. Townley Engineering & Mfg. Co., 859 F.2d 610 (9th Cir. 1998), “[a] claim of undue hardship cannot be supported by merely conceivable or hypothetical hardships; instead, it must be supported by proof of actual imposition on co-workers or disruption of work routine.” However, as the Ninth Circuit held in Anderson v. General Dynamics Convair Aerospace Div., 589 F.2d 397 (9th Cir. 1978), “even proof that employees would grumble about a particular accommodation is not enough to establish undue hardship.”

Seizing on the language by the U.S. Supreme Court in Hardison that a religious accommodation requiring anything more than a “de minimis cost” imposes undue hardship, employers invariably argue that any cost, inconvenience, or disruption constitutes an “undue burden” and means they do not have to provide an accommodation. This argument was squarely rejected by the U.S. Seventh Circuit Court of Appeals in Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444 (7th Cir. 2013).

In that Title VII religious accommodation case, an employee requested several weeks of unpaid leave so he could travel to Nigeria to lead his father’s burial rites for religious reasons. The employer denied his request, but he traveled to Nigeria for the ceremonies anyway. He was fired when he returned and reported to work. The employer argued that it was not required to accommodate the employee’s religious beliefs because permitting him to take three weeks of unpaid leave would have created undue hardship. Relying on the language in Hardison, the employer declared that “any inconvenience or disruption, no matter how small, excuses its failure to accommodate.”

In rejecting the employer’s argument and concluding that a jury could find the requested accommodation did not impose an undue hardship, the Seventh Circuit determined that the employer “has read too much” into the “de minimis cost” phrase in Hardison. The appellate court observed that the U.S. Equal Employment Opportunity Commission, which is the federal agency responsible for interpreting and enforcing Title VII, has interpreted the “de minimis cost” language in Hardison “as meaning that regular payment of premium wages (such as overtime or holiday wage rates) for substitutes would impose an undue hardship, while administrative costs such as those incurred in rearranging and recording substitutes for payroll purposes would not amount to an undue hardship.” The Seventh Circuit also noted that the employer’s interpretation of the “de minimis cost” phrase in Hardison was inconsistent with courts’ “strong endorsement of unpaid leave as a reasonable accommodation for employees’ religious schedules,” and the actual language used in Title VII of “undue” and “hardship.”

Protection Against Retaliation

Title VII and the FCRA contain anti-retaliation provisions which protect employees from retaliation for opposing an employer’s discriminatory employment practices. Under Title VII and the FCRA, employees are protected from retaliation when they complain about being denied an accommodation for their religious beliefs or practices. To be protected against retaliation, employees do not have to prove that they were unlawfully denied an accommodation for their religious beliefs or practices. Rather, employees only have to show they had a good faith, reasonable belief that the employer unlawfully failed or refused to reasonably accommodate their religious beliefs or practices. In other words, employees are protected from retaliation even if they are wrong about whether an employer’s failure to accommodate their religious beliefs or practices constituted an actual violation of Title VII or the FCRA.

Religious Discrimination In Employment Law Blog

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