Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Dear Littler: We are a retail store with locations across the country. We are open seven days a week, and our sales staff have rotating shifts to provide coverage throughout the week. A number of employees in several of our stores have requested not to work on various days for religious observances. We have tried to accommodate them, but it’s not always possible. Most recently, Frank, a salesperson in our Philadelphia store, asked to be exempted from work on Sundays for worship and to observe the sabbath as a day of rest. He has already used all 15 of his vacation days. We have allowed him to swap shifts with other salespeople, but he hasn’t always been able to find others willing to swap. He has volunteered to take unpaid leave on Sundays, but with the holiday period approaching we need all hands on deck on Sundays, which is our busiest day. What are our obligations?
—Puzzled in Philly
It’s no wonder you are puzzled! There are conflicts in the law regarding scheduling accommodations for religious practices, depending on the facts of each case. Title VII of the Civil Rights Act of 1964 requires an employer to reasonably accommodate an employee’s religious observance or practice unless it would create an undue hardship for the employer. That’s where the disputes come in. What is a “reasonable accommodation”? And what is “undue hardship”?
In determining the reasonableness of an accommodation there is a question as to the degree to which the accommodation must eliminate the conflict between the employer’s work requirements and the employee’s religious practices. In its Guidance, the Equal Employment Opportunity Commission has stated that an accommodation is not “reasonable” if it reduces rather than eliminates the conflict or if it discriminates against or disadvantages the employee’s terms, conditions, or privileges of employment though, ultimately, it concluded, “reasonableness is a fact-specific question.”
In a recent case involving a USPS employee’s request for Sundays off for religious observance,1 the Third Circuit Court of Appeals, which covers Pennsylvania, New Jersey and Delaware, evaluated the employer’s offer to seek others to cover the employee’s shift. Noting that shift-swapping can be a reasonable accommodation, the court found it was not reasonable in this case because, despite the employer’s efforts, the employee was not able to find someone to swap shifts on 24 Sundays in a 60-week period. “[P]ermitting a Sabbath observer to swap shifts would not be a reasonable accommodation,” the court held, “if other employees are regularly unavailable to cover a Sabbath observer’s shifts.”2 Appellate courts in other jurisdictions have generally agreed with this proposition.3
What about unpaid leave? Could that be a reasonable accommodation, even if it means the employee will lose pay? The U.S. Supreme Court addressed this issue in a case involving a teacher whose religion required him not to work on designated holy days, which caused him to miss approximately six schooldays each year. The Court held that allowing the employee to take unpaid leave for holy day observance was a reasonable accommodation.4 The effect of unpaid leave “is merely a loss of income for the period the employee is not at work; such an exclusion has no direct effect upon either employment opportunities or job status." However, the Court stated, unpaid leave is not a reasonable accommodation “when paid leave is provided for all purposes except religious ones.” (Emphasis in the original.)
Applying these cases, Puzzled, it would seem that you might be obligated to give Frank time off, as he requested. But that is not the end of the inquiry. There is still the question of whether giving Frank Sundays off, even if unpaid, would create an undue hardship for the company.
The starting point in assessing undue hardship in a religious accommodation case is the landmark Supreme Court case, Trans World Airlines, Inc. v. Hardison.5 The employee in Hardison, who was subject to a seniority system in a collective bargaining agreement, worked in a TWA maintenance and overhaul facility that operated 24 hours per day, 365 days per year. The employee’s religion prohibited him from working from sundown on Friday to sundown on Saturday, so when he was asked to work on Saturdays he refused. The employee had insufficient seniority to bid for a shift having Saturdays off and TWA rejected his proposal to work four days per week because he was the only person available on Saturdays who could perform his job duties, which were critical to airline operations. TWA argued that filling the employee's position with a supervisor or employee from another area would have caused other operations to suffer, and employing someone not regularly assigned to work Saturdays would have required the airline to pay premium wages. The Supreme Court examined the facts and concluded that the airline was not required to “carve out a special exception to its seniority system in order to help [the employee] to meet his religious obligations”6 and that none of the other options were required because they would have caused the airline to bear more than a de minimis cost and therefore created an undue hardship for the company.7
The undue hardship standard set forth in Hardison was applied in the Third Circuit case discussed above. While the Third Circuit found the proposed shift-swapping accommodation unreasonable, it concluded that exempting the employee from working on Sundays would create an undue hardship. Citing appellate court cases from other jurisdictions, the court found that increasing the workload for other employees and the resulting impact on employee morale created more than a de minimis cost to the employer. Accordingly, the Third Circuit concluded, declining to grant the employee’s request to be excused from Sunday work did not violate the religious accommodation requirement of Title VII.
The employee in the case filed a petition for review by the U.S. Supreme Court. This petition has been joined by numerous religious organizations, 15 members of Congress, and the states of West Virginia, Louisiana, Alabama, Arkansas, Florida, Kansas, Kentucky, Mississippi, Montana, Nebraska, New Hampshire, Oklahoma, South Carolina, Tennessee, Texas, Utah, and Virginia, all asking the Court to overturn Hardison’s “more than a de minimis” standard and impose a more rigorous standard for establishing undue hardship.
In sum, employers need to tread carefully when considering requests for time off for religious observance—engaging in the interactive process to find an accommodation that balances the legal obligations to the employee without creating an undue hardship to the business, being mindful of the potentially changing standards of undue hardship. Stay tuned as we follow these developments.
1 Groff v. Dejoy, 35 F.4th 162 (3d Cir. 2022).
2 Id. At 171.
3 E.g., Tabura v. Kellogg USA, 880 F.3d 544, 550 (10th Cir. 2018) (“an accommodation will not be reasonable if it only provides Plaintiffs an opportunity to avoid working on some, but not all, [religious observance days].”)
4 Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 6. Ct 0, 70 -71, 107 S. Ct. 367 (1986).
5 432 U.S. 63, 97 S. 2264 (1977). It bears mentioning that some states have their own EEO laws that apply a more rigorous standard to religious accommodation.
6 Id. at 83.
7 Id. at 84.