Suits In The WorkPlace

Black Sabbath

    A recent case (EEOC v. Texas Hydraulics Inc., No. 06-cv-161 (E.D. Tenn. April 14, 2008)) out of Tennessee federal court should raise some warning flags for employers dealing with religious accommodation issues.  The case contains some troubling language about burdens of proof under Title VII, in the context of an employee who not only refused to work on a Sabbath, but who also claimed that his religious beliefs precluded him from getting anybody else to work in his stead. 

      The employee/plaintiff worked for the employer for some ten years without significant issues.  His religious beliefs prevented him from working from sundown on Friday to sundown on Saturday.  The company was able to accommodate this belief for the most part, although it shifted the employee from one department to another on one occasion so that he would be able to avoid Saturday work.  However, economic circumstances ultimately required the employee to work on a Saturday, and the trouble began in earnest.

     The key issue here revolves around an employer's duty under Title VII when confronted with a conflict between the employee's religious beliefs and the employer's work requirements.  Specifically, the employer has a burden of showing that it cannot reasonably accommodate an employee without an undue hardship.  The requirement has two elements--what actions the employer took to accommodate the employee's religious beliefs; and whether these proposed accommodations would constitute an undue hardship to the employer.  This case hinged on the first element and the court wrote ominously that "both the reasonableness of an offered accommodation, and the amount of effort that an employer put into determining" whether such an accommodation was possible are factors to be considered. 

     In this case, the employer tried to get the employee to find a replacement.  The court ruled that this was not an attempt at reasonable accommodation because the employee had already indicated that it would be a violation of his religious beliefs for him to make someone else work in his stead on the Sabbath.  The employer also proposed trying to be lenient with the plaintiff's accumulation of absences in the hope/expectation that Saturday work would eventually fade away.  The court rejected this out of hand as a reasonable accommodation, commenting that a "wait-and-see posture is no accommodation at all." 

     The point for practitioners to note is that an employer must deal with the requirement that it offer or at least contemplate accommodations that will pass initial muster as reasonable, before it can get to the undue hardship part of the analysis.  In this case the court said that the employer could have compiled a list of employees qualified to substitute for the plaintiff and asked them if they would be willing to switch shifts or substitute.  The employer could also have posted a notice asking if any employee would be willing to substitute for the plaintiff.  Either one of these things would have constituted a reasonable attempt at accommodation, and would have allowed the employer to get to the much easier part of the analysis regarding undue hardship.  For example, had the employer asked qualified employees if they were willing to switch with plaintiff for his shift and none accepted, then the employer could have readily argued that forcing someone to work in plaintiff's place would have been an undue hardship.  This argument would almost certainly have been sustained by the court.

     Instead, the court found that the employer did not make a good faith effort (or reasonable effort) to accommodate its employee, as required by Title VII.  As a result, this case is headed to trial.  The lesson here:  when someone requests such an accommodation for religious beliefs, do not sit back and propose half-hearted or unworkable solutions.  The employer has an affirmative duty to try to solve the problem with the employee before claiming the solution is simply too difficult.  A failure to do so initially effectively denies the employer a defense down the road.