Accommodating Religious-Based Absences

Two court decisions this spring put some perspective on the competing issues facing employers in accommodating the religous views held by employees. The first decision, EEOC v. Firestone Fibers, 515 F.3d 307 (4th Cir. 2008), arose in North Carolina in a Firestone tire plant. It is also of interest because the EEOC has brought a number of religious discrimination lawsuits and most employers don't encounter those kind of issues too often.

Employers generally know they must offer a reasonable accommodation to employees who have sincerely held religious views. Tension often arises at the intersection of the employer's need for employees to be at work and sincerely held religious views against working on the sabbath when it is a Saturday.

In the North Carolina case, the EEOC took the position that an employer provides a reasonable accommodation only when it "eliminate[s] the conflict between the religious practice and the work requirement." This would require “an employer, absent undue hardship, to totally accommodate an employee’s religious observances.” In practical terms, the EEOC wanted the employer to let the employee to take more unpaid leave time than permitted by the company’s attendance policy. The court of appeals rejected the EEOC's argument, holding that a reasonable accommodation does not mean a total accommodation with the only check being the undue hardship on the employer or co-workers.

What swayed the court of appeals was that the employer had tried several approaches to accommodating the employee. Among other things, the employer was "flexible" in interpreting the bargaining agreement leave rules and tried to schedule the employee on days other than his sabbath. Ultimately, the paid and unpaid leave ran out and employer refused to adopt what the court concluded would have amounted to a permanant exception to its attendance policy.

On the other side of the issue is a Tennessee case from Athens. The employer, Texas Hydraulics, also had an employee who objected to work on his sabbath. When business picked up, the employer mandated Saturday overtime work. The employer told the employee he would be excused from working on a Saturday if he found someone to work for him. The employee racked up points because he refused to work on Saturdays and was ultimately terminated.

The EEOC sued (EEOC v. Texas Hydraulics, 103 Fair Empl. Prac. Cas. (BNA) 299 (E.D. Tenn. 2008)) only the result here was different than in the North Carolina case because Texas Hydraulics, the court concluded, had not tried to accommodate the religious views. All Texas Hydraulics had done, the judge said, was assume any accommodation would be a hardship without giving an accommodation a chance to work. It was not enough to tell the employee he could find a substitute and be excused. Instead, the court suggested the employer could have (1) avoided liability by establishing a voluntary shift exchange, (2) compiled a list of employees that were qualified to substitute for the employee or (3) post a notice asking if any employee would be willing to substitute for the employee.

These decisions demonstrate some of the efforts employers should make in trying to accommodate the employee's sincerely held religious views. Texas Hydraulics shows the employer must take charge of the situation before jumping to the conclusion that the accommodation is too disruptive. Once the employer takes charge, however, Firestone Fibers shows there are reasonable limits on how far it must go. How much the employer must take charge and when the limits will be exhausted depends, of course, on the facts unique to the workplace in question.