Quirky Question # 181:

Our company operates seven days a week. Periodically, employees advise us that working on Saturdays or Sundays interferes with their religious beliefs. When possible, we let employees juggle their schedules to accommodate the belief systems of their co-workers. And, sometimes, we require our employees to adjust their schedules to accommodate their co-workers.

Every now and then, however, accommodations are hard to reach. This is particularly true when the employees who otherwise might be available to adjust their schedules have greater seniority than the employees who are requesting the accommodation. They point out that their collective bargaining agreement gives them the right to reject our company’s request for the accommodation.

How should we reconcile the conflict between the religious beliefs of certain employees and the seniority rights of other employees? Do we have to accommodate the religious beliefs or risk a Title VII violation?

Roy’s Analysis of Quirky Question # 181:

There are a number of parts to your inquiry, some of which are slightly confusing to me.  As you clearly are aware, you have an obligation to accommodate bona fide religious beliefs of your employees.  Your accommodation obligation, however, is not without limits, a fact that I will address further below.

As you observed, your company operates seven days a week.  Your company’s success, however, means that your firm is open for business both Saturday and Sunday.  This seven-day-week schedule means that some of your employees have religious conflicts with working on either Saturday or Sunday.

This is where your question confuses me slightly.  You state that “when possible, we let employees juggle their schedules to accommodate the belief systems of their co-workers.”  While I compliment the sensitivity your flexible attitudes reflect, your approach strikes me as problematic for at least five reasons.

First, what does this informal accommodation do to your payroll costs?  Does the fact that certain employees pick up an extra day (or two) on the weekend mean that some of your employees are working more than forty hours per week?  Assuming that these employees are non-exempt, that additional time investment means potentially significant payroll expenses since these workers will be entitled to overtime compensation under both federal and state wage and hour laws.

Second, your flexibility also is potentially problematic from a practical perspective.  You will need to ensure that you carefully record the extra time certain employees invest on the weekends or you risk potential exposure under the FLSA and/or parallel state statutes.

Third, perhaps counter-intuitively, the informal “accommodation” you extend to these employees may, in part, undermine your position that the religious beliefs cannot be accommodated.  As with disability accommodation cases, an employer may take the position that the accommodation will constitute an “undue hardship.”  (In the religious accommodation arena, it typically is easier to meet the undue hardship burden than in disability accommodation contexts.)  But, if your organization already has made the accommodation (for example, by allowing employees to have others fill in on the weekends notwithstanding the impact on your payroll), it will be more difficult for your company to argue that those extra payroll costs constitute an undue hardship.

Fourth, in this area, like other aspects of discrimination law, a fundamental measure of your actions is whether your conduct represents differential treatment.  Perhaps I am being unduly pessimistic but let’s just suppose, hypothetically, that you routinely were able to find employees to swap shifts (or work an extra day) for individuals whose belief systems treated Saturday as a holy day.  Would an employee who wanted the company to accommodate his/her day off on Sunday have a complaint that he/she was treated discriminatorily if the company could not find someone to fill in on that day?

This idea bumps into the second part of your inquiry that confuses me somewhat. You state that “sometimes,” you “require your employees to adjust their schedules to accommodate their co-workers.”  When?  If “sometimes,” why not all the time?  What standards do you apply?  Are they uniform?  Are all of your employees’ belief systems treated equally?  Your question does not provide me enough information to offer any insights into these issues, but I confess that the context makes me slightly uneasy.

Fifth, you also state in your question that at times, your approach may conflict with the rights set forth in your company’s collective bargaining agreement.  You observed that at times, it is difficult for your company to accommodate those who would prefer to avoid working on the weekend, a problem exacerbated when the individuals you are asking to adjust their schedules have greater seniority than those who wish to take time off.  It is unclear to me whether all of the employees affected by this issue are unionized employees, but whether this problem only involves your collective bargaining employees or a subset of some collective bargaining employees, this does present a problem.  Sooner or later, a conflict between religious accommodation and bargained-for union rights will likely lead to litigation.

Although not the focus of an earlier religious accommodation Quirky Question, I have touched on this topic at least once in the last several years.  (To access prior analyses, you can either search by category – here, “Reasonable Accommodations of Religious Beliefs” – or you can search by word.  In Quirky Question # 57, I briefly commented on this issue, when responding to a question from a retailer that operated six days each week. I won’t repeat the observations I made in that analysis, but you might want to take a look at the earlier question if you are interested in this issue.)

With that backdrop, let’s quickly review some of the basics of religious accommodation law.

First, the religious belief for which the employee seeks accommodation must be sincere, or bona fide. This usually is not an issue but at times it can be.  For example, I previously described a case involving a woman who wanted the company to accommodate her facial piercings despite the company’s appearance policy that prohibited this type of facial jewelry.  The affected employee tried to justify her request by pointing out that she belonged to the “Church of Body Modification.”  The court didn’t buy it.  Another way in which the sincerity of the religious beliefs issue sometimes arises is when a person who has largely been non-religious suddenly offers his deep-seated religious beliefs as an explanation for why he does not want to work on the weekend.  If there are collateral facts that cast doubt on those beliefs (e.g., the employee coaches his son’s or daughter’s traveling sports teams and they typically play on the weekends), the employer may elect to challenge the accommodation request simply on the basis of the sincerity of the belief systems.  (Of course, as a long-time coach of youth sports, I personally believe that parents who coach or attend their kids’ games on the weekend should be supported.  I “worshipped” at the ball park, although I’m not sure an employer would see it the same way.  That, however, is a topic for another day.)

Second, as referenced above, an employer is not obligated to accommodate an employee’s request for a religious accommodation, even when based on a sincerely held religious belief, if doing so would cause an “undue hardship.”  Like so much of employment law, determinations of what constitutes an undue hardship are made on a case-by-case basis.

One type of undue hardship is a conflict with an established collective bargaining agreement.  For example, take a look at the relatively recent Eighth Circuit decision of Harrell v. Donahue, 638 F.2d 975 (March 31, 2011).  In Harrell, a letter carrier who was a Seventh-day Adventist sought an accommodation from the US Postal Service that would have enabled him to avoid the rotating schedules in his post office branch that periodically required Saturday work.  The appellate court affirmed the trial court’s analysis that such an accommodation would have constituted an undue hardship: “However, the CBA prohibited the [United States Postal Service] from making this accommodation, and doing so would have therefore imposed an undue hardship.”

Harrell recognized that an accommodation that conflicted with the collective bargaining agreement might not fly, and proposed, as an alternative that he simply be given periodic Saturdays off, without pay.  The court found that this too would have constituted an undue hardship because of its impact on his co-workers.  “In addition to the violation of a collective bargaining agreement, an accommodation creates an undue hardship if it causes more than a de minimus impact on co-workers.” (Case citations omitted.)

The Eighth Circuit recognized that nearly every accommodation has some impact on co-workers (“every religious accommodation will inevitably cause some differences in treatment among employees”), but not every impact rises to the level of an undue hardship.  The court stressed, however, that “if accommodating an employee’s religious beliefs also causes ‘real’ and ‘actual’ imposition on co-workers, . . . Title VII does not require an employer to make such an accommodation.”

Third, the appellate court also examined the issue of whether a seniority system that was not established by a collective bargaining agreement, even a system unilaterally imposed by an employer, warranted deferential treatment when considering a religious accommodation issue.  The court concluded it did.  “The relevant seniority system advantages, and related difficulties that result from violations of seniority rules, are not limited to collectively bargained systems.” (Citations omitted.)

Simply because your company likely does not need to accommodate your employees’ requests for accommodation with respect to weekend work does not mean that you should stop thinking creatively about whether there is a mutually acceptable solution.  For example, is there another facility to which the employee could be transferred, which does not operate seven days per week?  Or, are there other jobs, for which the affected employee is qualified and for which there is a vacancy, that do not require weekend work?  These kinds of ideas may be worth exploring, particularly given the attitudes reflected by your current, albeit somewhat haphazard approach to this issue.  Who knows – you may arrive at a solution that works well for your company and your employee alike, one that enables you to keep a qualified, contributing employee gainfully employed at your company.  And though I don’t have all of the relevant facts, you have shared enough to lead me to conclude that your company should explore an alternative to your current approach, which has the potential to create considerable mischief for your firm.