The Give and Take of Religious Accommodations in the Workplace

Employee religious practices may require accommodations. An accommodation is a change in a workplace rule or procedure to support the religious practice. If an employee’s religious practice conflicts with a workplace rule, an employer may be required by Title VII of the Civil Rights Act of 1964 to provide an accommodation. For smaller businesses in Colorado that don’t have enough employees to be subject to Title VII, the Colorado Anti-Discrimination Act (CADA)—which operates in a similar manner to Title VII—may apply.

But both sides need to engage to make the accommodation work. In practice, this presents challenges for employers and employees alike. A recent case from a federal appeals court gives some good advice: religious accommodations require give and take from both sides.

When Religious Practice and Company Rules Collide

The case, Tabura v. Kellogg, involved a pair of workers at a Kellogg plant.¹ The workers were Seventh Day Adventists, and part of their religious practice required that they abstain from work from sundown on Friday to sundown on Saturday. Because of this, they could not work Saturday shifts at the plant. But Kellogg had a policy that required its workers to work every other Saturday: a classic conflict of work rules and religious practice.

Under Kellogg’s disciplinary procedures, when an employee missed a shift, or broke some other workplace rule, Kellogg would assign the employee “disciplinary points.” For a certain number of points, the employee would be terminated. Because of the conflict at issue here, the workers missed more work than was allowed—even after trying to switch shifts with co-workers and, in some cases, taking vacation or other paid leave time to make up for the missed shifts. So, both workers accumulated enough points—most given for missing Saturday work shifts—that they were fired.

After they were fired, the workers sued Kellogg claiming the company failed to accommodate their religious practice. The case did not go to trial. Instead, a court granted summary judgment in favor of the employer. This means that the employer was entitled to win as a matter of law and there was nothing left for a jury to decide. The trial court concluded that Kellogg provided a reasonable accommodation to the employees by letting them switch shifts if they could find someone to cover, or use vacation time if they had it.

The workers appealed this decision. The U.S. Court of Appeals for the Tenth Circuit reversed, ruling that there were too many factual disputes in the case and that a jury needed to decide what was reasonable.

Legal Requirements when Religious Accommodations are in Play

In order to bring a failure-to-accommodate claim—the claim that the workers in this case brought—the employee has to prove three points: (1) the employee had a religious belief that conflicted with a work requirement; (2) the employee told his or her employer about this conflict; and (3) the employer fired the employee for failing to comply with the job requirement.² If the employee can assert these three points, then the employer has a few ways it can defend a legal claim: (1) it can dispute one of these points; (2) it can demonstrate that it reasonably accommodated the religious practice; or (3) it can prove that it would incur an undue hardship if it had to accommodate the religious practice.

In the case at hand, the appellate court made clear that accommodation was at the heart of the conflict: “Accommodate means allowing the plaintiff to engage in her religious practice despite the employer’s normal rules to the contrary.”³

The court’s opinion spends a good amount of time getting to the main point: there is no per se rule on what constitutes a reasonable accommodation in a given scenario—it is always a case-by-case factual determination. The focus is on reasonableness. Sometimes an accommodation can be provided through a neutral policy available to all. At other times, a more focused effort needs to take place.

In this specific situation, where an employee needs to not work on a certain day, an accommodation would not be reasonable if the accommodation only provided the worker with the opportunity to avoid working on some of the required days off. For example, if a worker needed to take off 52 Saturdays in a year, and the proposed accommodation was just to use vacation time, which covered only 14 of those days, the accommodation probably wouldn’t be reasonable.

The court’s opinion spends a good amount of time getting to the main point: there is no per se rule on what constitutes a reasonable accommodation in a given scenario—it is always a case-by-case factual determination. The focus is on reasonableness. Sometimes an accommodation can be provided through a neutral policy available to all. At other times, a more focused effort needs to take place.

But, on the other hand, the accommodation doesn’t have to be a total accommodation. This means that the company does not have to totally eliminate the conflict in order to satisfy its legal burden. It all comes down to give and take.

In the end, the appellate court reversed the judgment in favor of the company because it found that there were too many factual disputes and that a jury would need to decide whether the accommodations offered by Kellogg were truly reasonable. Kellogg could still win, but would have to go to trial first.

Tips for Striking the Right Balance in the Workplace

Even though the employer did not prevail in the Tenth Circuit, this new case provides some helpful guidance for employers seeking to strike the right balance in the workplace, particularly when the issue involves providing time off for employees for religious observance.

1. Requiring an employee to use vacation or other paid time off for a religious observance may be a reasonable accommodation under some circumstances. An employee is not entitled to demand that it not be required to use vacation for those purposes. But here, it was mathematically impossible. Yet requiring an employee use vacation or paid time off for a religious observance might work under some circumstances.

2. Employees have to cooperate with their employers’ efforts to provide accommodations. In this case, Kellogg allowed the employees to swap shifts to allow the workers to take Saturdays off. Whether such an accommodation was reasonable will ultimately depend on whether that accommodation actually worked to allow time off. But just as employers might need to help their employees find people to switch shifts in some cases, employees also need to put forth some effort. Employees cannot simply demand an accommodation, or expect that their employers will accommodate them, without taking advantage of what the employer has offered. It is a give and take.

3. Communication is key. In this case, it may well turn out to be important who communicated what to whom and when. Employers generally need to communicate their accommodations to employees. For example, there was some dispute over whether Kellogg communicated to the employees that they could use vacation time to avoid working on Saturdays. Likewise, the employee needs to communicate the religious nature of the request. Generally, employees don’t get to simply demand an accommodation without explaining that the accommodation is for religious reasons. Here, it was disputed whether one of the employees communicated with her supervisor that needing to be off on Saturdays was for religious reasons. There was other evidence that the need wasn’t communicated until after the employee had been disciplined for missing so much work. It is best for the conversation to occur as soon as the employee realizes that he or she needs the accommodation.

4. Undue hardships require more than just a de minimis burden. Employers are not required to accommodate a religious practice when doing so would create an “undue” burden. This requires more than just inconvenience to the employer. For example, “The cost of hiring an additional worker or the loss of production that results from not replacing a worker who is unavailable due to a religious conflict can amount to undue hardship.”⁴ There must be a real burden in order to avoid an employer’s obligation to accommodate religious practice.

Conclusion

Religious accommodation in the workplace is all about being reasonable. This new case is a good reminder that communication and collaboration is key to peace in the workplace when religious practice is involved. Employers would do well to encourage the conversation and, where possible, find creative ways to accommodate the sincerely held religious beliefs of their employees. And, as always, consult legal counsel before engaging in a termination involving religious accommodations. Reaching a reasonable consensus can benefit the overall workplace and help keep employers on the right side of the law.

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¹ Tabura v. Kellogg, No. 16-4135 (10th Cir. Jan. 17, 2018).

² Id. (slip op. at 8) (citing Thomas v. Nat’l Ass’n of Letter-Carriers, 225 F.3d 1149, 1155 (10th Cir. 2000)).

³ Id. (slip op. at 10) (cleaned up).

⁴ Id. (slip op. at 25).