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10th Circuit weighs in on work schedule conflicts in a religious accommodation

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of a sincere religious belief. Part of this employment discrimination protection requires employers to extend a reasonable accommodation to an employee’s sincere religious belief or practice. Whether an accommodation is “reasonable” within the boundaries of Title VII’s anti-religious discrimination prohibition remains not completely answered in the statute’s fifty-four year history. In Tabura v. Kellogg USA, No. 16-4135 (10th Cir. 2018) the Tenth Circuit weighed in on a case regarding a reasonable accommodation and schedule swapping as a reasonable accommodation.

Facts of Tabura v. Kellogg religious discrimination suit

In this case an employer’s non-discriminatory schedule change placed workers in a situation in which they became occasionally scheduled to work on their Sabbath and the accommodation offered by the employer did not avoid work on their religious holy day. Here are the factual allegations as summarized by the Tenth Circuit.

The plaintiffs in Tabura are employees at a Kellogg plant in Utah where in 2011 the employer restructured work schedules into twelve hour shifts on two or three days and then off for the same period, resulting in a rotating schedule each week. The plaintiffs are Seventh Day Adventists who have a sincere belief against working on the Sabbath, which begins Friday at sundown through Satuday at the same time. Due to the rotating schedule they would inevitably be scheduled through the Sabbath. Upon requesting an accommodation, Kellogg allowed them to use a combination of vacation time, sick time and schedule swapping to avoid work during the Sabbath.

Kellogg allows employees to swap shifts so long as it approves the shift and the shift conforms to their scheduling rules. These rules require the swapped employee to be qualified to perform the duties of the swapping employee. Additionally no employee may work more than thirteen straight hours so no employee working the prior shift could accept a swap. (Those employees worked during the Friday night part of the Sabbath.) As a result, the plaintiffs could not always find approved swaps. After months of absenteeism related to missed Sabbath shifts the plaintiffs were fired. They then filed a charge of discrimination on the basis of religious discrimination, failure to accommodate and retaliation.

Whether Kellogg provided a reasonable accommodation to the shift scheduling problem

The Tenth Circuit weighed in on the issue of reasonableness of the accommodation extended by Kellogg. The trial court granted summary judgment to Kellogg and the plaintiffs appealed only on the failure to accommodate. The Tenth Circuit reversed, noting that Kellogg conceded the plaintiffs made out a prima facie case for failure to accommodate and there was now a factual dispute whether, “Kellogg reasonably accommodated plaintiffs’ Sabbath observance and, alternatively, that Kellogg would incur an undue hardship if it further accommodated their religious practice.”

The panel mostly fell in favor of the plaintiffs’ arguments. It explained, “an accommodation will not be reasonable if it only provides plaintiff an opportunity to avoid working on some, but not all, Saturdays,” or merely to “delay their eventual termination.”  The panel did not go so far as to fully accept plaintiffs’ position that the employer must eliminate all burden to the employee or ensure the plaintiffs’ never received a Saturday shift–only that a reasonable accommodation exist when a shift is scheduled.

It also declined to accept plaintiffs’ position (supported by the EEOC) that a reasonable accommodation cannot be affected by a neutral policy made available to other employees–shift swapping. Had the plaintiffs’ successfully swapped all their Saturday shifts then they would have likely had little argument that the employer failed to accommodate. The panel, however, clarifies that it is not enough for an employer to extend a neutral policy to absolve its duty under Title VII to accommodate religious practices.

The panel went on to discuss the problems plaintiffs faced swapping schedules as raising fact questions precluding summary judgment. Generally the employees could only swap with a handful of employees who were free to decline the request and some had their own religious practices precluding them from swapping. The reversal notes that a jury could find that the difficulties dissolved the reasonableness of the accommodation and requires Kellogg to take a more active role in securing swaps. Lastly, the panel reversed summary judgment on the employer’s undue burden defense insisting the plaintiffs’ proposed alternatives were too costly because the employer failed to present evidence to their assertions or to even move for summary judgment on the issue.

(This case is also discussed by other employment law blogs such as here and here.)

What Tabura v. Kellogg may mean for Colorado employers and employees

This lawsuit is a good reminder that religious accommodation requests must be taken seriously and an employer’s assertion that an accommodation poses an undue burden requires a meaningful look at the facts rather than the superficial inconvenience.

Although we do not yet know what a jury will conclude about the reasonableness of the accommodation, we can take away the panel’s conclusion that a neutral employment policy is likely not a reasonable accommodation if the employees are unable to consistently use the policy to resolve the need for an accommodation. Many employers rely upon similar PTO and shift swapping schemes as a religious accommodation but should be sensitive to complaints by employees needing accommodations that the available PTO and swapping opportunities are not working and the employer may need to step in and actively manage the situation.

Colorado employees who require schedule modifications as a religious accommodation should also be aware of how the Tenth Circuit’s reversal here may affect their accommodation request. If an employee finds himself or herself unable to take approved leave or swap schedules then the employee should notify the Colorado employer through appropriate channels of the deficiency before the employer begins taking action due to absenteeism. That way the employer cannot claim to have lacked the opportunity to institute a reasonable accommodation. As always, if faced with the situation an employee should talk to a Denver employment lawyer early in the process.



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