LEAVE TO ATTEND RELIGIOUS CONVENTIONS
EEOC has gone out of its way to explain that feds are entitled to accommodations for a wide variety of religious activities. If you doubt us, check out RELIGIOUS DISCRIMINATION COVERAGE EXPANDING, CHURCH LADY SMITS DOD, AND CHRISTIANS 1, CBP MANAGEMENT -$28,600. The Commission came out with another last week where an employee asked for leave to attend a religious convention, but never asked for a formal accommodation.
The Commission had no problem finding that the convention was an exercise of one’s right to practice a religion. The agency argued that it was not obligated to offer an accommodations because the employee never asked, but EEOC dismissed that excuse as form over substance given that the employee ‘s leave request slip specifically mentioned a “religious convention.” The record shows that the employee was told to get a replacement if she wished to take the leave, but that she could not. Actually, she found one, but the agency officially explained that employee could not be released from her normal duties to fill in. In contrast, the employee testified she was told she could not be released because of the cost of the overtime pay that would be required.
The Commission began its legal analysis as it often does with a review of the law’s criteria. It said that, “Once Complainant establishes a prima facie case, the Agency must show that it made a good faith effort to reasonably accommodate Complainant’s religious beliefs and, if such proof fails, the Agency must show that the alternative means of accommodation proffered by Complainant could not be granted without imposing an undue hardship on the Agency’s operations. Pursuant to 29 C.F.R. § 1605.2(a)-(e), the Commission’s “Guidelines on Discrimination Because of Religion” (the Guidelines), alternatives for accommodating an employee’s religious practices include, but are not limited to, voluntary substitutes and swaps, flexible scheduling, and lateral transfers and job changes. Undue hardship does not become a defense until the employer claims it as a defense to its duty to accommodate. Antonia Board of Education v. Philbrook, 479 U.S. 60, 68-69 (1986). In order to show undue hardship, an employer must demonstrate that an accommodation would require more than a de minimis cost.”
It then decided that the agency failed to make a good faith effort to reasonably accommodate the employee or, separately, show that an accommodation would have caused an undue hardship. It further concluded that any overtime costs to cover a five day acting assignment would be de minimis. (That sounds like a good benchmark to remember for cases you might get involved with.) In previous decisions the Commission has instructed agencies that they are obligated to help the employee find a replacement. In this case, the agency merely told the employee to find one herself.
In this case the employee took the leave anyway and was fired. EEOC ordered that she be reinstated with back pay and either discipline the manager responsible for the violation or explain in writing to the Commission why it refused to do so.
From what we have seen, unions could do a better job of notifying their members about the wide variety of religious activities for which they can get an accommodation. Employers, on the other hand, need to sensitize their supervisors to think about their legal obligations whenever an employee mentions s/he needs something in connection with a religious event. This is a case from the Postal Service, EEOC No. 0120133188.
