RELIGIOUS ACCOMMODATION, OVERTIME, AND SATURDAYS OFF FOR PROBATIONER

EEOC just decided a case in an employee’s favor because the agency made a technical mistake in how it considered overtime costs in deciding whether the employee’s request for Saturdays off would create an undue hardship. Practitioners on both sides of the table should remember that when overtime or similar costs of a requested accommodation are being considered there is a right way and a wrong way to do that. Technical errors lead to just as big a back pay check as substantive ones. Another interesting take away from this case is the fact that the employee waited a while after he was hired to declare he felt compelled by religious beliefs to take every Saturday off.  EEOC does not require the employee to have always held the same religious commitment. (The remainder of this post is taken almost verbatim from the very well-written EEOC decision.)

Under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation is shown to impose an undue hardship. The traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires an employee to demonstrate that: (1) he or she has a bona fide religious belief, the practice of which conflicted with their employment; (2) he or she informed the Agency of this belief and conflict; and (3) the Agency nevertheless enforced its requirement against Complainant. 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.

In order to show undue hardship, an employer must demonstrate that an accommodation would require more than a de minimis cost.  An Agency’s obligation to reasonably accommodate the religious practices of its employees, if this can be done without undue hardship, applies equally to probationary and permanent employees. Brewer v. U. S. Postal Service, EEOC No. 05880283 (Aug. 12, 1988).

The employee in Brewer was a part-time probationary letter carrier who claimed that the Agency failed to provide religious accommodation by forcing him to work on Saturdays. Like Complainant, he was a Seventh-Day Adventist whose observance of the Sabbath fell on Saturday. Just as in the instant case, the employee did not inform anyone at the Agency prior to being hired that he would be unable to work on Saturdays for religious reasons. The employee was told that he would have to work on Saturdays and did so. After several months had passed, the employee approached his supervisor telling her that he could no longer in good conscience continue to work on Saturdays. The Supervisor passed the employee’s request on to the Postmaster, who told the employee to put his request in writing. Upon receiving the employee’s written request to be excused from working on Saturdays, the Postmaster fired him. Although the Postmaster promised the employee that he would attempt to find him a position at a larger facility that could give him the accommodation he needed, the Postmaster never did so.

The Commission ultimately concluded in Brewer that the Agency failed to show that granting the employee’s accommodation would result in an undue hardship. The scenario in the instant case is virtually identical to that in Brewer. As in that case, Complainant was a probationary employee and a Seventh-Day Adventist who sought to have Saturdays off so that he could observe the Sabbath in accordance with the tenets of his faith. And, just as in Brewer, his request was denied and he was compelled to work on Saturdays in 6 0120152431 order to avoid being fired. The CSM’s stated justification for not granting Complainant’s request for Saturdays off was that the Post Office would incur overtime.

The Commission has held that accommodations that would require an employer to regularly pay premium wages such as overtime to substitute employees impose more than a de minimis cost on the employer and could constitute an undue hardship. Owings v. U. S. Postal Service, EEOC No. 01841576 (June 24, 1986). However, it bears repeating that the Agency cannot raise the issue of overtime or any other financial or logistical issue as an undue hardship until it demonstrates that it made a reasonable effort to find an accommodation that would enable Complainant to practice his religion without having to worry about losing his job. In this case, neither the Postmaster nor the CSM made any effort to look into the possibility of schedule swaps or any other type of accommodation, and the CSM admitted as much.  Consequently, the Agency cannot support its assertion that granting Complainant his requests to have Saturdays off would have caused an undue hardship by forcing it to incur overtime. We therefore find, based on the evidentiary record before us, that Complainant established that the Agency had denied his request for a religious accommodation when the CSM refused to allow him to have Saturdays off between March 1, 2014 and April 5, 2014. For more details check out Mac O.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120152431 (2017).