posted on Wednesday, April 26, 2006 10:27 AM
by
Lou Michels
Never on Sunday
I am occasionally asked about the ability of an employer to require employees to work on Sundays (or other religiously mandated "days of rest"). In some states, there are still vestiges of the "blue laws" that require businesses to be closed on Sunday -- when I practiced full time in Virginia, I was aware of the now-infamous "day of rest" rule that required employers to provide a day off per week, normally Sunday, unless the employee specified another day. Fortunately for law firms and other watering holes for workaholics, the statutory exceptions to the Virginia rule swallowed up the protections of the law.
The general rule is that an employer must accommodate a request for a day off based on religious reasons unless it would constitute an "undue hardship." This is not a particularly difficult test for an employer to meet -- demonstrated scheduling problems, seniority issues, or work output issues will usually suffice to show that giving a particular employee the same day off each week is an undue hardship for the employer.
But sometimes not. The Second Circuit in a recent case involving Home Depot denied the employer's motion for summary judgment in a case where an employee required Sunday off with no exceptions. Home Depot tried to accommodate the employee's request by scheduling the employee for a later shift so that he could attend worship services Sunday morning. The court found this was not a reasonable accommodation because it ignored the employee's religious requirement that he abstain from all work on Sundays.
In other words, the court noted that an accommodation that does not address all concerns of the employee is not a reasonable accommodation. This all-encompassing requirement will probably come as a surprise to most practitioners, who view an accommodation as a type of compromise in which neither side gets exactly what it wants. Apparently, Home Depot felt this way. Its factual defense, according to the court, did not include a developed argument regarding undue hardship, although undue hardship was mentioned in Home Depot's brief. The Second Circuit did not consider this defense, but returned the case to the district court for a greater development of the record. This is also surprising-- the Plaintiff in this case was pro se and there was apparently no factual rebuttal of Home Depot's assertions that continuously scheduling one employee for Sunday off would cause morale problems, increased overtime, and decreased productivity.
Perhaps the short answer to the issue posed by the court is for an employer in a religious accommodation case to carefully assess alternatives, and develop a solid factual basis for whatever course of action it decides is appropriate. Otherwise, the employer runs the risk of getting second circuit-guessed on appeal. Baker v. Home Depot, No. 05-1069, Apr. 19, 2006.