Marmulszteyn v. Napolitano, No. 08-CV-4094(DLI)(LB) (E.D.N.Y., Aug. 22, 2012, Irizarry J.): The plaintiff brought suit against his employer for religious discrimination under Title VII of the Civil Rights Act. The plaintiff is an Orthodox Jew who is required to abstain from work on the Sabbath between sunset on Friday until one hour after sunset on Saturday. However, the plaintiff’s standard rotational shift required that he work most Saturdays, and he filed a request seeking a religious exemption. In response, the employer denied the request but permitted the plaintiff to swap his assigned Saturday shifts with an equally qualified co-worker, subject to supervisor approval that could “not be unreasonably withheld.” The plaintiff rejected the proposal and instead filed an administrative complaint. The employer then provided the plaintiff with another proposed accommodation that assigned him to a morning shift on Fridays while moving any of his assigned Saturday shifts to 10 p.m. on Saturday night until 6:00 a.m. Sunday morning. The plaintiff also rejected this proposed accommodation and instead brought suit.

In response to the employer’s Rule 12(b)(6) motion to dismiss, the district court held that the plaintiff could not sustain his burden to prove an adverse action because he had not alleged that he was ever disciplined, let alone was he in a position to be disciplined, because the employer permitted him to swap his Saturday shifts. Indeed, the plaintiff had alleged that he had “progressed through the ranks” and received praise for his performance. The court also declined to infer an adverse action arising from the possibility of future discipline or the uncertainty that he faces. Even then, the court concluded that the employer had provided a reasonable accommodation that would eliminate the conflict with his religious observances. Further, the court held that the plaintiff could not sustain a disparate treatment claim because his alleged co-workers who were treated more favorably included other Orthodox Jews who had legacy agreements with the employer and thus were not similarly situated.

This decision shows that religious discrimination claims are likely not viable against employers if they take reasonable steps to accommodate religious observances and do not take any adverse action in response to such requests. To avoid potential liability when faced with a request for a shift change to accommodate religious observances, employers should propose solutions that address the needs of the employee while also ensuring that the request does not negatively affect the employee’s job status.