Religious Accommodation Cannot Require Excessive Absenteeism From Work

Howard Bashman of How Appealing brings word of an interesting religious discrimination case decided recently by the Fourth Circuit:

A unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued a decision rejecting the EEOC's appeal from the grant of summary judgment against that federal agency in a religious discrimination case. On appeal, the EEOC argued that a Firestone subsidiary had failed to reasonably accommodate the beliefs of an adherent of the Living Church of God. The Fourth Circuit disagreed, holding that it would be too burdensome to give the employee as much time off as he was seeking.

The case, EEOC v. Firestone Fibers and Textiles Co., 06-2203 (4th Cir. Feb. 11, 2008), includes the following statements from the court:

The charge claimed that Firestone violated Title VII when it failed to provide Wise with a reasonable accommodation that would allow him to observe his Sabbath and religious holidays without being fired. After conducting an investigation, the EEOC determined that the evidence supported Wise’s allegations . . . .

For the reasons that follow, we cannot accept appellants’ interpretation of § 2000e(j) and hold that "reasonably accommodate" means what it says: reasonably accommodate. The problem with appellants’ "total" accommodation interpretation is that such a construction ignores the plain text of the statute, namely the inclusion of the word "reasonably" as a modifier of accommodate. If Congress had wanted to require employers to provide complete accommodation absent undue hardship, it could easily have done so. For instance, Congress could have used the words "totally" or "completely," instead of "reasonably." It even could have left out any qualifying adjective at all. Rather, Congress included the term reasonably,
expressly declaring that an employer’s obligation is to "reasonably accommodate" absent undue hardship — not to totally do so.

As the statutory language of § 2000e(j) makes clear, this is not an area for absolutes. Religion does not exist in a vacuum in the workplace. Rather, it coexists, both with intensely secular arrangements such as collective bargaining agreements and with the intensely secular pressures of the marketplace. Hence the import of the statutory term "accommodate . . . .

Because of the magnitude of the accommodation sought, and the sheer number of hours a small group of coworkers would have been forced to cover, it was sensible for Firestone to believe that Wise’s proposed accommodation was not a reasonable one.

All of this seems reasonable, but the more difficult question in any case is where the line falls between reasonable and unreasonable accommodation?  Does the court's decision mean that religions with less holidays and sabbaths have more protection than those like the plaintiff in this case? Does that many any sense?  Should the burden on an employer become greater the more intensively a religious adherent follows their beliefs?  And what about the role of a collective bargaining agreement in this case? The court found that Barnett favored the employer, but was that right?

Of course, I do not know the answers to these questions, but I do know that the Hardison de minimis test does not strike the balance appropriately between employer interests and employee free exercise of religion claims.

Paul Mollica has his thoughts here.

PS