Most employers know they have to reasonably accommodate qualified applicants’ and employees’ disabilities. Not all employers know that they also have to reasonably accommodate employees’ religious practices. That doesn’t mean you have to grant every request for an accommodation, however. The key word here is reasonable. So what is a reasonable accommodation, and what determines if the requested accommodation is reasonable? When is an accommodation not reasonable? What types of requests are not reasonable? Let’s see if we can answer these and maybe even a few other questions.
(images from library.cqpress.com, progressive.org)
Last month, in Christmon v B&B Airparts, the 10th Circuit Court of Appeals addressed this very issue with respect to religious accommodations. Let’s see what the court said and how it might answer our questions. Jerome Christmon, a Hebrew Israelite, may not work on Saturdays, which his faith regards as the Sabbath. His employer, B&B Airparts, required all employees to work overtime on Saturdays. Christmon asked that he be allowed to work overtime on Sundays instead of Saturdays. B&B did not grant his request, but did tell him to request time off on Saturdays. Christmon did not do so, and simply didn’t show up for work on Saturdays. B&B did not discipline him, effectively accommodating him by excusing him from the requirement of working overtime on Saturdays. Sounds good, no? Christmon didn’t think so. He complained that because of his religious observance he was deprived of the opportunity to earn overtime pay. After B&B fired him for unrelated reasons, he sued, alleging that B&B violated Title VII by not providing a reasonable accommodation for his religious observance.
In a nutshell, here’s what the court said: In excusing Christmon from working on Saturdays, B&B did provide a reasonable accommodation. Its refusal to provide makeup overtime, according to the 10th Circuit was not a failure to accommodate and did not violate Title VII. In support of its ruling, the court cited older cases that unpaid leave is a reasonable accommodation of a religious practice. To be fair, this ruling is contrary to a number of EEOC consent decrees cited by Christmon in which the employers agreed to offer makeup work or overtime. The court disregarded the consent decrees as “lacking any persuasive authority or legal analysis”, however.
Now let’s have a look at Williams v AT&T Mobility Services, LLC. Ms. Williams an AT&T Customer Service Representative (CSR) suffered from depression and anxiety and took FMLA and Short-Term Disability leave for most of 2013 and a significant part of 2014. She made multiple requests for extended leave and then requested a flexible start time and 10 minute breaks every 2 hours to be able to stave off or calm down from anxiety episodes. AT&T in 2014 denied the requests for extended leave, because she did not provide sufficient supporting information from her healthcare providers. AT&T also showed that regular attendance is an essential job function. When CSR’s are late or absent, calls must be re-routed, negatively impacting customer wait time, quality of service and employee morale. AT&T fired Ms. Williams in June 2014.
Ms. Williams sued, alleging failure to accommodate under the ADA. The 6th Circuit Court of Appeals wasn’t having it, though. The court cited other cases that found attendance to be an essential job function and found it to be true in this case as well. The court also noted that Ms. Williams’ proposed accommodations would not have ensured her attendance, and therefore were not reasonable accommodations. The court went further and noted that Ms. Williams’ history showed that she could not work at all for significant periods of time, and that she therefore was not qualified for the job. (Remember the ADA only protects qualified individuals with disabilities). Finally, the court held that since Ms. Williams’ doctor could not even guess when she might be able to return to work and perform her essential job functions, additional leave (after already having received many months of leave) could not be a reasonable accommodation.
OK, now I get to comment. In both cases the employer either offered a reasonable accommodation or at least tried to reasonably accommodate the employee. The point is: Just because an employee needs an accommodation (whether of a disability or a religious practice) doesn’t mean s/he is entitled to the specific accommodation s/he requests. If the employer offers an equally (or perhaps more) effective accommodation than the one requested, it has fulfilled its obligations. An employee who refuses such an accommodation may no longer be protected under Title VII or the ADA.
One more point: As the employer, you still have to engage in the interactive process with any employee who requests a reasonable accommodation under either law. Remember that whether an accommodation is reasonable depends on the specific circumstances, so you must do an individualized assessment of every request. If you cannot provide the requested accommodation, you must make every effort to find an alternative that is reasonable–and, of course, document everything you do, along with your reasons, (particularly if you are unable to provide a reasonable accommodation) from the time you get the request.
OK, let’s call that a wrap for now. See you next week!
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