You run a retail establishment. You hire a new Manager. The position requires work on the weekends. The candidate tells you that s/he is a practicing Seventh Day Adventist and needs Saturdays off to observe his Sabbath. What do you do? Can you rescind the offer? Are you obligated to honor your offer and allow this employee to take off every Saturday? If you rescind the offer is it religious discrimination? So, of course, the short answer is our very favorite one: It depends. As with so many other employment law issues, an employer has to do an individualized assessment to see if the requested accommodation poses an undue hardship–if we are talking about federal law, aka Title VII of the Civil Rights Act of 1964. Do we have a real, live case example we can use for guidance? Well yes, we do! So let’s have a look and see what we can learn. The case is EEOC v. Walmart Stores East LP and Walmart, Inc. No. 18-cv-804 (W.D. Wis. Jan. 16, 2020). You may be aware that Walmart being in court over an employment law issue is not exactly unusual. You may also be aware that Walmart often does not do well in court on these issues. Here, however, Walmart did some things right and won. Here’s what went down:
A candidate accepted Walmart’s offer of an Assistant Manager position. He then informed Walmart that he was a Seventh Day Adventist and needed to be off on Saturdays to observe his Sabbath. The record showed that the Assistant Manager position required flexible availability. The specific store was in Hayward, Wisconson, which experienced heavy tourist traffic in the summer. Fridays and Saturdays were the busiest days for the store, resulted in more associates working those days and often included less experienced associates needing management oversight. The HR Representative concluded that granting the employee every Saturday off would pose an undue hardship on the company, rescinded the job offer, but offered instead to help him apply for non-salaried supervisory positions that would not require him to work on Saturdays. While those positions’ straight-time rates resulted in lower pay, they did offer the opportunity of overtime. The employee rejected the offer, filed an EEOC religious discrimination charge, and then the EEOC sued on his behalf.
The court dismissed the claim. The court agreed with Walmart that under the circumstances, allowing the employee to take off every Saturday posed an undue hardship. (To understand why, you can read the opinion, which sets out the specifics, by clicking the hyperlink above). The court also agreed with Walmart that its offer to help him apply for other positions that did not require Saturday work was, in fact, a reasonable accommodation. The court noted that a reasonable accommodation need not always be the specific accommodation requested by the employee, and it need not offer the same or more pay. Specifically, the court held that Title VII doesn’t require employers to accommodate employees’ religious practices in a “way that spares the employee any cost” or “in exactly the same way the employee would like to be accommodated”. Here are at least a few things we can learn from this case:
- An employee can, under Title VII request a reasonable accommodation for a religious practice/belief, which may require an employer to alter its usual practices with respect to that employee;
- An employer may not have to grant the requested accommodation if it would pose an undue hardship;
- On the other hand, just because the requested accommodation poses an undue hardship, doesn’t mean the employer is off the hook. The employer should attempt to find and offer an alternative as Walmart did here.
- The fact that the court was able to agree with Walmart also suggests that Walmart had documentation to back up its arguments about undue hardship, which brings us to one of our all-time favorite takeaways: Document, document, document!
I think we all get the point, so this would seem to be a good place to stop. Bye for now!
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