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The Sliding Scale of Reasonable Accommodations

We have previously discussed how to protect against religious discrimination claims and best practices when addressing requests for religious accommodations. A recent decision from the U.S. Court of Appeals for the Tenth Circuit (covering Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah) reminds employers that the offered religious accommodation truly has to be “reasonable,” and provides guidance for what “reasonable” may mean on a case-by-case basis.

The employer in this case maintained a factory that operated twenty-four hours a day. It divided the approximately 100 employees into four designated groups, two day-shift groups and two night-shift groups.  Each group worked a shift schedule of two to three twelve-hour shifts followed by two to three days off, on a continuous or rotating basis. The plaintiff-employees worked in one of the day-shift groups, and informed the employer that, due to their religious observance of the Sabbath, they could not work from sundown Friday through sundown Saturday.

The company responded by providing the Sabbath-observing employees with the same accommodation offered to any employee who wanted to take a day off: They could avoid working specific shifts by using any accrued paid time off or by swapping their shifts with employees from the other shift groups.  However, the maximum accrued time off did not cover every Sabbath shift, and the plaintiffs claimed difficulty swapping shifts on a consistent basis due to the limited number of employees available for the shift swap. The employees therefore missed a number of scheduled shifts due to their Sabbath observances, and were ultimately terminated pursuant to the employer’s progressive discipline policy.

The employees sued for religious discrimination and the trial court granted summary judgment in favor of the employer, dismissing the case because it determined that the company had provided sufficient reasonable accommodations. The Tenth Circuit reversed this decision, however, and sent the case back to the trial court, holding that the question of whether these specific accommodations were reasonable is a question for a jury or a fact-finder to decide.  Despite the unfavorable decision for the employer, there are two takeaways from the case that can help employers implement best practices.

First, the Tenth Circuit rejected the plaintiffs’ argument that the accommodation should be a “total” or absolute accommodation that completely eliminates the conflict brought by the protected category. Instead, the court clarified that the employer was not necessarily obligated to give the plaintiffs every single Saturday off.  Second, the Tenth Circuit also rejected the employees’ argument that the employer should not be able to use a neutral employment policy – such as the use of paid time off or swapping shifts – in order to provide a reasonable accommodation, and clarified that the employer did not have to create a specific accommodation if a neutral policy already provided a reasonable one.

In essence, the Circuit emphasized the idea of reasonableness, and whether a proposed or offered accommodation is reasonable will depend on the specific circumstances of a particular case. If you are in a position of addressing a request for a religious accommodation, it is important to consider the facts specific to that request and assess a variety of accommodations in order to determine which one may be the most reasonable.

© 2020 Foley & Lardner LLPNational Law Review, Volume VIII, Number 71


About this Author

Archana R. Manwani, Foley Lardner, Cal/OSHA Lawyer, Complex Litigation Attorney

Archana Acharya Manwani is a litigation associate with Foley & Lardner LLP. She has experience in a wide range of litigation matters, including complex commercial disputes, wage and hour class actions and single-plaintiff cases. Ms. Manwani has also defended and advised employers on safety and health related matters under the California Occupational Safety & Health Act (Cal/OSHA), and regularly counsels corporate clients on a variety of employment issues. She has also counseled corporate clients on a variety of employment issues. She is a member of the firm’s...