IT IS NOW TOUGHER TO DENY A REQUEST FOR RELIGIOUS ACCOMMODATION
Imagine this happens to you. You represent employees at an agency that operates 24 hours a day, seven days a week, like the folks at Customs and Border Protection. They assign officers to work weekends, graveyard shifts and holidays. Further imagine that a member asks union help for a religious accommodation. Specifically, she wants to be exempt from ever having to work a weekend or overtime. You instantly realize that will mean that the other employees will have to work weekends and overtime more often to make up for her absence—and that they are going to be very upset with the union if it backs her. What do you do?
The solution has been a lot tougher to find since a Supreme Court 2023 ruling. It made it tougher for management (and the union) to deny a religious accommodation request because it would cause an undue burden. More specifically it said that an undue hardship must impose on the employer “a burden [that] is substantial in the overall context of [its] business.” Prior to this decision management or the union only had to show the requested accommodation would require an employer to show “more than a de minimis cost.”
For example, in one recent case a VA employee asked for every Friday afternoon off for religious reasons. The VA management VA offered her a choice of working full-time on a six-day schedule (coming in part-time on Fridays and Saturdays) or transferring to a part-time position. The employee chose the part-time option and then filed an EEO Charge. EEOC sided with the employee ruling that the six-day schedule harmed the employee because it deprived her of a day off, while the part-time position reduced her income by approximately 40 percent. Do not miss that another new EEOC consideration in these cases is the “damage to the employee” from a management offered accommodation. No mention yet of concern for damage to other employees. She wound up with gobs of back pay and other cash. The folks at the Olgetree Deakins law firm posted a blog story this week that provides a very good overview of the tougher standard dilemma.
If you think accommodation requests are just going to be about are requesting a day off, think again. In fact, check out our posts about odd religious accommodation requests by clicking here. It can be about fingerprinting, pronouns, on-site prayer meetings or ceremonies, pants versus skirts, facemasks, vaccines, a training conference agenda, leave to attend religious conventions, retreats, time clocks, office decorations, security devices, and off-duty conduct. So, brace yourself now that you know who is using religion to further divide employees.
(You might be asking why the union would have to meet this standard. Well, one response to the member’s request for weekends off eternally would be to reject her request for union representation or arbitration on the grounds that the union also had a good faith belief that the accommodation would create a “a burden [that] is substantial in the overall context of [its] business.”)
