CHRISTIANS – 1, CBP MANAGEMENT –MINUS $28,600.

That is the way EEOC scored the Miami faceoff between the Customs and Border Protection Service and one of its CBP Officers who asked for Sundays off to practice his faith.  

Management told him it would not give him Sundays off regularly, but suggested that he ask other Officers to swap duty days with him.  When the employee responded that his religion barred him from asking others to work on the Sabbath, CBP management did nothing.

When the employee filed an EEOC complaint, CBP argued that the employee was obligated to seek an accommodation from among his co-workers before coming to it, but EEOC pointed out that the law says just the opposite,  “. . . requiring Complainant to seek his own swaps after he indicated it was against his faith was not a reasonable accommodation, and after a review of the record, we find the AJ was correct. See E.E.O.C. v. Texas Hydraulics, Inc., 583 F.Supp.2d 904 (E.D.Tenn. 2008) (employer’s offer that Complainant secure his own volunteers was not a reasonable accommodation because employee stated it was a sin for anyone to work on the Sabbath)”.  In other words, the law obligates management to provide the accommodation, not on the employee’s co-workers. Management should not have been surprised because just a month earlier EEOC found the Air Force had discriminated against an employee who also wanted Sundays off when, “. . . the Second Line Supervisor specifically stated that he did not look into the possibility of having other employees voluntarily switch schedules in order to accommodate Complainant.” (White v. Donley, Dept. of Air Force, Appeal No. 0120112943, November 2011.)

CBP management also argued that the employee did not need the accommodation because he had continued to work Sundays despite his faith.  EEOC dismissed that argument too saying, “However, the fact that an employee acquiesces to the employer’s work rule, continuing to work without an accommodation after the employer has denied the request, should not defeat the employee’s legal claim.”  (See Hyde v. Napolitano, Homeland Security (CBP), EEOC Appeal No. 0720110003, January 2012)

When management took the position that the employee did not have a sincere religious belief, the employee presented a letter from his church leaders affirming the necessity of not working on Sundays, which EEOC took as adequate evidence to show a religious obligation.  The employee also pointed out that management had earlier in the proceedings agreed that he did have such a belief.  EEOC ruled for the employee.

A refusal to accommodate an employee’s religious belief is justified only when an employer … can demonstrate that an undue hardship would in fact result from each available alternative method of accommodation. Pursuant to 29 C.F.R. § 1605.2(d), 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. In order to show undue hardship, an employer must demonstrate that an accommodation would require more than a de minimis cost.

Finally, EEOC awarded the following to correct the harm CBP management did by discriminating against the employee because of his religion:

• $7,000 to the employee for the mental anguish caused by having to work on Sundays, which left him unable to focus on his worship, missed ministry activities and compromised his spiritual relationship with fellow worshipers.  (EEOC referenced another case where it gave an employee $3,000 just for being forced to miss a religious rite for a nephew.)
• $20,350 in attorney fees
• $1,313 for costs
• An order that the agency provide training to the responsible management officials on their religious accommodation obligations.
• An order that the agency consider taking appropriate disciplinary action against the responsible management officials, and if it did not discipline the manager that it report to EEOC the reason(s) for its decision not to.
• An order that the agency post for 60 days a notice for all employees in the Miami airport that reported management’s violation of law and its pledge not to do so again.

Frankly, CBP should consider that it got off easy here.  If the employee had resigned over this, the agency could have been required to compensate him for all the salary, overtime and benefits he lost if he could have proved that (1) a reasonable person in Complainant’s position would have found the working conditions intolerable; (2) conduct that constituted discrimination against Complainant created the intolerable working conditions; and (3) Complainant’s involuntary resignation resulted from the intolerable working conditions.  Of course, never advise a member to resign and have him or her talk to a union attorney before doing so.  But if they have already, consider proving these three elements.