Existing Shift Rotation and Swap Policy for Title VII Religious Accommodation May Be Insufficient

Lynn Outwater and Denise Brossman
June 18, 2008 — 2,559 views  
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An employer's existing shift-rotation system and voluntary shift-swap policy alone may not constitute a reasonable accommodation for employees asserting they are unable to work on certain days due to their religious beliefs, the U.S. District Court for the Western District of Pennsylvania has found in denying summary judgment for the employer under the federal Civil Rights Act of 1964.  EEOC v. Aldi, Inc., No. 06-01210 (W.D. Pa. Mar. 28, 2008). 

A former grocery store cashier brought a Title VII religious discrimination and retaliation lawsuit against her employer. The employer required that each of its cashiers work every seventh or eighth Sunday as part of a neutral shift-rotation system. The employee's religious beliefs allegedly prevented her not only from working on Sundays, but also from asking other individuals to work in her place. After the employee failed to work on a scheduled Sunday shift and the employer concluded that there had not been a proper call-off, the employee was terminated for failure to perform an essential job function. 

Despite the fact that the employer had a voluntary shift-swap policy whereby the employee could have traded shifts with another employee, the court found that the employer could not merely rely on its system or policy as a reasonable accommodation per se. Instead, the employer had a duty to respond to the employee with a good faith effort to affirmatively address the employee's need for a religious accommodation. 

Specifically, the court noted that the employer's duty to accommodate is identified in the Equal Employment Opportunity Commission guidelines as arising after the employee notifies the employer of a need for a religious accommodation.  “The word ‘after’ implies a temporal component to an employer's duty to accommodate . . . as opposed to merely relying on a system or policy.”  Although the employer offered to allow the employee to take time off on Sunday mornings to attend church, the court found that the offered accommodation was not reasonable in that it failed to address the full extent of the employee's religious beliefs, including her need to refrain from working at all on Sundays or asking others to do so in her place.

The employer argued that the employee's religious beliefs were not sincere because before the store began to open on Sundays, the employee had requested not to work Saturdays so that she could spend time with her family. The employee also admitted that she did not attend church on Sundays. On this basis, the employer further argued that her beliefs did not constitute a religious belief as contemplated by Title VII. The court rejected both of these arguments, noting that the sincerity of her beliefs was a credibility determination and that her decision not to attend church on the Sabbath was immaterial as to whether her beliefs qualified as religious for purposes of Title VII.

This case cautions employers to think carefully in evaluating the actual needs of an employee and the genuineness of his or her beliefs when the employee expresses a desire for a religious accommodation. The employer must ensure that the offered accommodation actually fits the employee's need. 

Employers must also be aware that the mere existence of a neutral rotation or shift-trading policy may not relieve them of their duty to engage in an interactive process with an employee who requests a religious accommodation related to scheduling under Title VII or analogous state law. In Aldi, for example, the court noted that the employer did not publicize or promote its shift-swap policy or engage in a specific discussion with the employee as to the existing rotation system.  In the cases cited favorably by the court, examples of other action taken by employers in furtherance of establishing an accommodation were provided, including: a discussion back and forth between employee and employer where the employer urged the employee to “reconsider and try to work it out within the rules and regulations of the department”; an employer's suggestion that the employee apply for personal leave; and an employer's offer to provide the employee with assistance in reaching other employees for shift-trading purposes. 

As demonstrated by Aldi, the steps required in responding to a request for a religious accommodation is unique in each case. Demonstrating flexibility is key. Employers should seek guidance from legal counsel before terminating employees based on conduct arguably associated with an expression of their religious beliefs.

© 2007 Jackson Lewis LLP.  Reprinted with permission.  Originally published at www.jacksonlewis.com.  Jackson Lewis LLP is a national workplace law firm with offices nationwide

Lynn Outwater and Denise Brossman