Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, March 30, 2010

Sabbath Observer Loses Title VII Discrimination Suit Alleging Failure to Accommodate Observance

Waltzer v. Triumph Apparel Corp, ___F.Supp. 2d___, NYLJ, Feb. 26, 2010 (S.D.N.Y. 2010)(registration required) is an interesting case. I bring it to your attention because the court does a nice job in reviewing the duty to accommodate Sabbath observers.

The court dismissed plaintiff's Title VII employment discrimination action asserting defendant's refusal to reasonably accommodate her religious observance. Plaintiff failed to establish a prima facie claim for religious bias. Moreover, defendant showed it offered her a reasonable accommodation of her religious practice by permitting her to leave early enough each Friday to travel to her declared home in New Jersey. In concluding that defendant also showed that accommodation of plaintiff's request to leave early would impose undue hardship, the court noted defendant had shown that plaintiff's absence from her office for hours every Friday substantially interfered with the efficient operation of its business.

    As the court stated:

Once the plaintiff establishes a prima facie case, the employer "must offer him or her a reasonable accommodation, unless doing so would cause the employer to suffer an undue hardship." Baker, 445 F.3d at 546 (citation omitted). An accommodation is not a reasonable one if it does not "eliminate the conflict between the employment requirement and the religious practice." Id. at 548. An accommodation may be unreasonable if it causes an employee "an inexplicable diminution in his employee status or benefits…. In other words…if it imposes a significant work-related burden on the employee without justification, such as the neutral operation of a seniority system." Cosme v. Henderson, 287 F.3d 152, 160 (2d Cir. 2002).

"In formulating such an accommodation, both the employer and employee should remain flexible, with an eye toward achieving a mutually acceptable adjustment." Id. at 158. The Equal Employment Opportunity Commission ("EEOC") publishes a Compliance Manual to provide guidance and instructions for investigating claims under the statutes enforced by the EEOC. 6 With respect to the employee's responsibility to cooperate in negotiating a reasonable accommodation, the Compliance Manual instructs: "If the employer requests additional information reasonably needed to evaluate the request, the employee should provide it." It also notes that

courts have ruled against employees who refused to cooperate with an employer's requests for reasonable information when, as a result, the employer was deprived of the information necessary to resolve the accommodation request. For example, if an employee requested a schedule change to accommodate daily prayers, the employer might need to ask for information about the religious observance, such as time and duration of the daily prayers, in order to determine if accommodation can be granted without posing an undue hardship on the operation of the employer's business.

EEOC Compliance Manual §12-IV(A)(2) (July 22, 2008). Employees are "not entitled to hold out for the most beneficial accommodation," Baker, 445 F.3d at 548 (citation omitted), and the "employer need not offer the accommodation that the employee prefers. Instead, when any reasonable accommodation is provided, the statutory inquiry ends." Cosme, 287 F.3d at 158.

The question of undue hardship arises only when an employer claims that it "cannot afford any reasonable accommodation without such a hardship." Baker, 445 F.3d at 548 (quoting Ansonia Bd. of Educ. v. Philbrook, 479 U.S. at 68, 69). To require an employer to "bear more than a de minimis cost" in order to provide an accommodation is an undue hardship. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). See also Baker, 445 F.3d at 548.

Waltzer has failed to carry her burden of establishing a prima facie claim of religious discrimination. While she has shown that she sincerely believed that she could neither work nor travel during the Jewish Sabbath, which lasts from sundown on Friday through sundown on Saturday, she has not shown that she sincerely believed that she needed to leave work before 3:00 p.m. in order to observe her religion. The undisputed testimony establishes that she could have followed each practice and custom she identified as necessary to the observance of her religion by commuting to either her New Jersey apartment or her Pennsylvania home depending on the time of sunset. For the summer months (when Triumph closed at 1:00 p.m.) and many other weeks of the year when sundown comes after 6:00 p.m., Waltzer had sufficient time to commute to her Pennsylvania home; the remainder of the year she had more than enough time to travel to her New Jersey apartment. 7 Because Waltzer never explained to her employer that she was living in Pennsylvania and needed three hours to commute to Pennsylvania each Friday, she also failed to advise her employer that her preferred manner of practicing her religion required her to leave work three hours before sundown on Fridays. Having chosen to conceal from her employer that she was commuting to Pennsylvania, Waltzer explained that she needed the extra time on Fridays to go to the kosher butcher and to prepare herself mentally for the Sabbath. For this same reason, Waltzer has not shown that Triumph fired her for failing to comply with a requirement of her employment that conflicted with a bona fide religious belief.

Mitchell H. Rubinstein

Employment Discrimination | Permalink


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