Although it does not happen often, most employers have had to consider what to do when an employee says he or she cannot work a shift because of a religious belief. Under Title VII, an employer must offer a reasonable accommodation to address any conflict between an employee’s sincerely held religious belief and his or her work obligations (unless the accommodation incurs an undue hardship). A somewhat common scenario is an employee who cannot work on the Sabbath and requests the company to change his or her shifts or assignments to avoid Sabbath-day work. Many employers have addressed this issue by allowing that employee to find a voluntary substitute instead of changing that employee’s shift. But what happens when a substitute is not available? In Patterson v. Walgreen Co., the Supreme Court was recently asked to weigh in on this consideration.
Mr. Patterson, a Seventh Day Adventist who observes a Friday evening to Saturday evening Sabbath, was a training instructor for Walgreens’ call centers. He requested a religious accommodation—asking that Walgreens not make him work on his Sabbath. Walgreens accommodated his request by not scheduling regular trainings on Friday and Saturday and allowing someone to voluntarily swap shifts to cover any emergency shifts. While this accommodation appeared to work generally, Mr. Patterson’s Sabbath observance caused him to miss a mandatory training session in 2008. Then, three years later, Mr. Patterson did not find a replacement for an emergency training, so he was terminated after passing up Walgreens’ offer for him to transfer to his former position as a customer care representative that would arguably have allowed for more flexibility.
Mr. Patterson filed a lawsuit alleging that Walgreens discriminated against him because of his religion and its failure to provide a reasonable accommodation. Walgreens responded that it provided two reasonable accommodations: Mr. Patterson could find a coworker to swap shifts or he could transfer to his former position. The Middle District of Florida granted summary judgment for Walgreens, concluding that it reasonably accommodated Mr. Patterson. On appeal, the Eleventh Circuit held that
“Walgreens met its obligations under Title VII by allowing Patterson to arrange a schedule swap with other employees when they were willing to do so.”
So Why Is the Supreme Court Involved?
Mr. Patterson asked the Supreme Court to take his case, arguing that Walgreens’ accommodation did not “eliminate” the conflict, as required by the Supreme Court’s 1986 case, Ansonia Board of Education v. Philbrook. It appears that not all courts agree about what Ansonia requires. At least four circuits (the Second, Sixth, Seventh, and Ninth) have recognized that a religious accommodation to enable an employee to honor the Sabbath must completely eliminate the conflict or it is not reasonable. Although, in those cases, the employers did not offer voluntary shift swaps. Two other circuits (the Eighth and Tenth) have allowed the jury to determine whether the accommodation appropriately resolved the conflict, including when an employee was unable to get a substitute for the Sabbath shift and was eventually terminated. Finally, the First and Fourth Circuits have upheld accommodations, including shift swaps, as reasonable that did not eliminate the hardship completely—much like the Eleventh Circuit here.
What Does This Mean for Employers?
Allowing an employee to voluntarily swap shifts with a coworker to accommodate his or her sincerely held religious belief might not be enough for now. Until the Supreme Court rules, employers should check the law in their circuit. Additionally, here are a few other considerations:
- When faced with a request for a religious accommodation, consider whether shifts could be rotated without true undue hardship—including hardship on other employees. Have you made similar shift accommodations for other reasons? How often will this shift change affect other employees? All of that should be considered.
- If alternate shifts are not possible, and the employee is unable to find a replacement for a shift, think before you terminate. Consider whether any other alternative arrangements can reasonably be made such as offering overtime wages to the covering employee for that shift, advancing vacation days, or delaying discipline for missing the shift. You might ultimately reject all of the options as undue hardships but you should at least consider them.
- The Department of Labor has encouraged employers to provide a “central file” where employees can view other employees’ schedules to encourage easy swapping.
- Is providing the schedule change when the employee cannot find a substitute truly an undue hardship? The undue hardship standard in this area of the law is not as onerous as under the Americans with Disabilities Act but you will still have to establish a hardship. In fact, another issue in Patterson is whether there was actually any undue hardship because Walgreens was able to delay the training that Mr. Patterson missed.
The good news is that this uncertainty may not last long. More than five briefs have been submitted to the Supreme Court supporting Mr. Patterson’s petition, and on March 18, the Supreme Court asked the solicitor general to weigh in—signaling that the Court may be interested in deciding this issue.