REASONABLE WORK SCHEDULE ACCOMMODATIONS FOR THE MUSLIM SABBATH

A Muslim DHS Supervisory Immigration Services Officer wanted to take every Friday off so he could fully observe his Sabbath. He was initially allowed to do this with the following schedule: working 6:00 a.m. to 3:30 p.m. Monday through Thursday; and 6:00 a.m. to 2:30 p.m. on the first Friday, with the second Friday off each pay period, plus working 45 minutes of credit time before 6 a.m. He used the credit hours to take Friday off.  This went on with the first-line supervisor’s approval for two months before the second line supervisor ordered it stopped. The employee offered to work Saturdays and holidays, but when that option was also rejected without an explanation, he filed an EEO complaint.

Generally, when an employee challenges an agency’s denials of his/her request for a reasonable accommodation for religious reasons the employee needs to show the following three things:

(1) the employee has a bona fide religious belief that conflicts with an employer’s general requirements,

(2) the employee informed the employer of the religious belief and the employment related conflict created by the religious belief, and

(3) the employee’s religious belief was not accommodated by the employer even though the employer could have reasonably accommodated the request without undue hardship.

EEOC ruled that this employee showed that which meant that the agency show that it made a good faith effort to reasonably accommodate the religious beliefs and, if such proof fails, the agency must show that the alternative means of accommodation proffered by the employee could not be granted without imposing an undue hardship on the Agency’s operations.

Here the agency said it allowed the employee to work a flexible schedule, but EEOC ruled that not good enough because that schedule still did not allow the employee every Friday off.

So, the litigation then shifted to whether the accommodation the employee requested would create an undue hardship.  The agency stated that granting the employee’s request would be an undue hardship because his supervisor would be required to approve continual timecard adjustment, month after month after month for years; and there would be a need for other supervisors to cover employee’s responsibilities in his absence.  EEOC responded that to show undue hardship, an employer must demonstrate that an accommodation would require more than a de minimis cost and how much cost or disruption a proposed accommodation would involve. Moreover, the showing of undue hardship cannot be merely hypothetical, but it must instead include evidence of an actual imposition on coworkers or disruption of work schedules or routines.

In the end the EEOC ruled that the Agency failed to meet its burden because—

1)     There was no evidence from the employee’s initial two-month period on the requested schedule that there was an undue hardship, and

2)     There was no testimony about exactly what the hardship would be other than hypotheticals about when other supervisor might have to fill in for the absent employee.

In the end, EEOC ordered the agency to give the employee the requested schedule and to pay him compensatory damages for any harm caused him as well as his attorney fees.  For more details check out Bryce A. v. Alejandro N. Mayorkas, Department of Homeland Security (CIS), EEOC Nos. 2020001712 2021001457 (2021) And do not forget that while this case went through EEOC arbitrators would be required by law to apply the same legal requirements if a religious accommodation case came before them.