Seyfarth Synopsis: The Tenth Circuit has recently vacated summary judgment in favor of an employer in a religious accommodation case that centers on what constitutes a “reasonable” accommodation of an employee’s observance of – and consequent inability to work on – the Sabbath. In this case, the Court found that the employer’s reliance on neutral paid time off policies and voluntary swift swaps could not be determined “reasonable” as a matter of law. While the Court’s decision remanding the case for further proceedings leaves the ultimate question of “reasonableness” open, the Court’s analysis is instructive for employers facing similar religious accommodation requests. Tabura, et al. v. Kellogg, USA, Case No. 16-4135 (10th Cir. Jan. 17, 2018).

Procedural History

Two individuals employed at Kellogg’s food production plant filed a lawsuit in the United States District Court for the District of Utah. At the trial court level, their claims included religious discrimination, failure to accommodate their religious practices and retaliation. The parties cross-filed motions for summary judgment. The District Court granted summary judgment in its entirety in favor of Kellogg. On appeal, the plaintiffs only challenged the District Court’s ruling on the failure to accommodate claim. Therefore, the issue before the Court was the propriety of the District Court’s entry of summary judgment in favor of the employer, Kellogg, on two grounds: that the employer’s accommodation was reasonable as a matter of law and that further accommodation would constitute an undue hardship for the employer.

Factual Background

The plaintiffs, both Seventh Day Adventists, refrained from working from Friday at sundown until Saturday at sundown as part of their observance of the Sabbath.

The plaintiffs were long-time employees at Kellogg’s food production plant. They both worked Monday through Thursday, ten hours per day, until March 2011. At that time, Kellogg changed its staffing model to “continuous crewing.” Under this model, the employees of the food production plant were divided between four shifts – A, B, C and D. Each shift was scheduled to work 12 hours per day for two or three days in a row, and then scheduled for two or three days off. Additionally, the shifts were paired so that, for example, Shift A would work 6:30 a.m. to 6:30 p.m., and the Shift C would work from 6:30 p.m. to 6:30 a.m. Shifts B and D were similarly paired. Both plaintiffs were assigned to Shift A.

Under the continuous crewing model, every shift was assigned to work 26 Saturdays per year, creating a scheduling conflict with plaintiffs’ Sabbath observance. Additionally, as scheduled day shifts ended at 6:30 p.m., the plaintiffs had a further conflict in the winter when the sun set, marking the beginning of the Sabbath, before their Friday shifts ended.

Kellogg’s proposed accommodation was to permit the plaintiffs to use paid time off or swap shifts with qualified co-workers in order to avoid scheduling conflicts with their observance of the Sabbath. These options were part of a neutral attendance policy that was available to any employee who wanted to take a day off for any reason and were not specially established for plaintiffs’ religious conflicts.

The plaintiffs earned between 160 and 200 hours of paid time off annually. Therefore, even if the plaintiffs used all of their earned paid time off to observe the Sabbath, they would still be left with between 9 and 13 Saturdays that they could not cover with paid time off. On those days, under Kellogg’s proposed accommodation, they would have to secure a voluntary shift swap with another employee to avoid a conflict between their work schedules and their religious observance.

Kellogg’s attendance policy assessed disciplinary points for any employee who missed part or all of a scheduled work day without taking paid time off or trading shifts with another employee. Accumulation of points triggered certain disciplinary measures, including termination for amassing sixteen disciplinary points in a twelve-month period. Consequently, under Kellogg’s proposed accommodation, if the plaintiffs could not secure coverage via a swap for these remaining Saturday shifts, they would each earn over sixteen disciplinary points in a twelve-month period, warranting termination under the attendance disciplinary policy.

The plaintiffs put forth evidence that there were very limited options to trade shifts with other employees. First, in order to swap shifts with another employee, an employee needed to be qualified to perform the other’s position. Additionally, per Kellogg’s policy, no employee could work more than 13 hours in a row, eliminating the possibility of swapping with an employee assigned to Shift C. Because Shift D was regularly scheduled to work night shifts, it was less likely that an employee on the night Shift D would voluntarily swap with an employee on the day Shift A, which would require adjustment to their regular sleep schedules. After consideration of all of these factors, the plaintiffs argued that they were essentially limited to swapping shifts with “qualified” employees on Shift B, which left them each with three or fewer qualified employees with whom they could seek shift swaps.

Both plaintiffs contended that they were unable to regularly find qualified employees who would voluntarily agree to swap shifts, causing them to miss Saturday shifts to observe the Sabbath and accumulate disciplinary points for leaving their shifts uncovered. Eventually, both plaintiffs were terminated under Kellogg’s attendance policy for accumulation of disciplinary points, at least in part due to missed Saturday shifts.

The Decision

The Court looked at two questions in its decision – whether Kellogg reasonably accommodated the plaintiffs’ religious practice of not working on the Sabbath, and, if not, whether Kellogg could have offered a reasonable accommodation without undue hardship to the business.

Ultimately, the Tenth Circuit vacated summary judgment in favor of Kellogg, holding that there were questions of fact on both issues presented that precluded the entry of summary judgment, and remanded the case for further proceedings. Although the decision leaves open the ultimate question of whether Kellogg’s accommodation was reasonable, the Court did provide additional guidance for employers in rejecting two theories advanced by plaintiffs and the EEOC, which submitted an amicus brief on behalf of plaintiffs.

First, the Tenth Circuit held that there is no per se requirement that a “reasonable” accommodation “completely” or “absolutely” eliminate any conflicts between an employee’s religious practices and his or her job requirements, which in this case could require, for example, that the plaintiffs never be scheduled for a Saturday shift. The Court found that such a rule would read “reasonably” out of the statute. The Tenth Circuit thus expressly declined to adopt the position that in order to be reasonable an accommodation “must eliminate, or totally eliminate, or completely eliminate, any conflict between an employee’s religious practice and his work requirements.” The Court reiterated that the statute only requires that the accommodation to be “reasonable” and the assessment of reasonableness is made on a case-by-case basis. Employers should note that the question of whether a reasonable accommodation must completely eliminate the conflict varies significantly by jurisdiction, as noted in the decision.

Second, the Tenth Circuit rejected plaintiffs’ blanket position that an employer cannot meet its accommodation obligations through use of a neutral policy, such as the accommodation provided in this case. Rather, the Court reaffirmed that a neutral employment policy “may” satisfy the need for a reasonable accommodation, and specifically stated that the combination of paid time off and voluntary shift swaps “might, under the facts of a particular case, reasonably accommodate an employee’s Sabbath observance.”

Nonetheless, the Court found that the evidence created a dispute of fact as to whether the accommodation in this case was reasonable. Specifically, in this case, the Tenth Circuit explained that “an accommodation will not be reasonable it if only provides Plaintiffs an opportunity to avoid working on some, but not all, Saturdays.” And here, there was evidence in the record that, after narrowing the pool of individuals with whom they could seek swaps based on these limitations, each plaintiff was left with less than three options from which to seek voluntary shift trades. Neither plaintiff had substantial success in consistently obtaining shift swaps for Saturdays, and upon advising their supervisor of this difficulty, plaintiffs contend that no further action was taken to assist or accommodate them. The Court noted that in consideration of the limited options for swapping shifts and the demonstrated difficulty plaintiffs had in swapping shifts, a reasonable accommodation “could” require an employer to take a more active role in the accommodation rather than merely permitting the voluntary shift swaps.

The Court emphasized, however, that this does not mean that the employer in this case was required to guarantee that the plaintiffs would never be scheduled for a Saturday shift. And there is no requirement that an accommodation be without cost to the employee. For example, the Court noted that requiring an employee to take unpaid leave could eliminate the conflict between a religious practice and work requirements. Unpaid leave is only a loss of income for the period that the employee is not at work and has no direct effect on either employment opportunities or job status.

With disputed factual issues surrounding the reasonableness of the accommodation and the plaintiffs efforts to utilize the provided accommodation, the Tenth Circuit determined that the case must be decided by a jury.

The Tenth Circuit’s decision touched only briefly on Kellogg’s affirmative defense that any additional accommodation would be an undue hardship for the company. The Court noted that Kellogg did not move for summary judgment on that ground, but the District Court’s granted summary judgment in the alternative on that defense. Similar to the Court’s analysis of the issue of what constitutes a “reasonable” accommodation, the Court found that whether further accommodation would impose an undue hardship on the employer is a question of fact that turns on the particular circumstances in each case.

Employer Takeaways

The resounding theme in the Court’s decision is that “determining what is reasonable is a fact-specific determination that must be made on a case-by-case basis.” This is good advice for any employer in responding to a request for accommodation; the employer should make a factual inquiry into the particular circumstances of each request and whether, as a practical matter, the proposed accommodation provides a realistic opportunity for the employee to avoid conflicts between job requirements and religious practices. It is also a good example of how neutral policies are not always sufficient to constitute a reasonable accommodation. Finally, the decision serves as a reminder that religious accommodation standards may vary considerably from jurisdiction to jurisdiction. Employers are wise to consult with an attorney with expertise in this area who can help assess the specific religious conflict and accommodation possibilities, within the legal standards applicable to the jurisdiction.