When You Wish Upon a Scheduling Accommodation, Dreams Come True…

22 September 2014 Labor & Employment Law Perspectives Blog

The obligation for an employer to generally make scheduling accommodations to enable an employee to follow the basic tenets of his or her religious faith is a well-established requirement under Title VII’s anti-discrimination provisions. For example, employers are generally required to accommodate a request by a Catholic employee for a schedule change so that he can attend church services on Good Friday. With that said, employers are not required to make such an accommodation if it causes “undue hardship” – meaning causes “more than ordinary” increased administrative costs, diminished efficiency in other jobs, infringement on other employees’ job rights or benefits, impaired workplace safety, or requirement that co-workers carry the accommodated employee’s share of potentially hazardous or burdensome work.

However, the basis for religious accommodations appears to have potentially broadened. A federal appellate court recently concluded that religious scheduling accommodations may extend beyond just the commonly accepted observances – such as observance of Sabbath or attending church or chapel services, etc. Specifically, the court held that employers may be required to make scheduling accommodations to attend purported religious activities or functions, such as church food drives or community feeding ceremonies, so long as the employee sincerely believes his/her attendance is a “serious component” of his/her beliefs. Troubling for employers is that these far more amorphous scheduling accommodation requests, especially based on above, are ripe for abuse.

When confronted with religious scheduling requests, employers often want to first focus on the sincerity of the employee’s belief. Attacking an employee’s beliefs, however, is generally not a wise or effective strategy because courts are reluctant to second-guess the sincerity of an employee’s religious beliefs. Often a more effective strategy is to focus on whether the requested scheduling accommodation causes an undue hardship. Employers then should buttress the undue hardship argument – but not rely primarily upon – facts that call into question the employee’s sincerity of belief.

With legal challenges (including litigation by the Equal Employment Opportunity Commission) regarding religious accommodations on the rise in recent years, and the current presidential administration’s focus on expanding employee protections against discrimination, substantive changes regarding religious accommodations may be on the horizon. With that said, it is not clear whether the appellate court opinion referenced above, which broadens employee religious protections, is the beginning of a trend or an anomalous decision potentially limited to its discrete facts. Accordingly, employers should be thorough, including possibly seeking legal counsel, in making religious accommodation decisions now and in the foreseeable future.

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