What do observant Orthodox Jews, Seventh-Day-Adventist Christians and Muslims have in common? (And no, this is not the set-up for a punchline).
If they work for a living, then the answer is that – absent special circumstances – they often need to ask their employers for time off to observe the tenets of their faith. This may mean occasional requests for absences for religious holidays, weekly requests to work outside the Sabbath, or even daily requests to take breaks for prayer. But does an employer have to agree to these requests? And does the denial of these requests amount to illegal religious discrimination?
As is the case with so much of employment law, the devil is in the details.
Under both the federal Title VII anti-discrimination statute, and the New Jersey Law Against Discrimination (the “NJLAD”), employers must allow employees time off for religious observances, as long as such accommodation is “reasonable” and does not impose an “undue hardship” upon the employer.
Defining an “undue hardship”
So what amounts to an “undue hardship” allowing an employer to refuse a request for religious observance? Unfortunately, this depends upon the specific facts of the case and the jurisdiction of the court. Generally speaking, federal law is more employer-friendly, due to a Supreme Court case that defined “undue hardship” as an accommodation that imposes a “more than de minimus” – or minimal – burden on the employer’s operations.
(In contrast, the NJLAD and related caselaw defines undue hardship more severely to include “accommodations requiring unreasonable expense or difficulty,” that result in an employee being unable to perform the essential functions of his or her designated job, or that require “unreasonable interference with the safety or efficient operation of the workplace.”)
Accordingly, federal courts are more likely to deem requests for religious observances “unreasonable” if they force the employer to hire replacement labor, suffer losses due to reduced productivity, or otherwise incur financial costs. With this in mind, employees seeking an accommodation for religious observances need to realize that they are not necessarily entitled to paid leave for such observances. Nor are they necessarily entitled to the exact accommodation of their choice.
What counts as an accommodation?
Instead, employees should accept accommodations that allow them to remain observant while minimizing the expense and disruption to the employer. Such accommodations may include:
- working extra early or late hours to make up for time off
- taking unpaid leave for religious observances
- exhausting paid leave (such as vacation leave) for religious observances
- swapping shifts with other employees to allow for religious observances
With regard to shift-swapping, it’s important to note that courts view this accommodation as more “reasonable” when there is a larger pool of employees, and when the swap is voluntarily agreed to between employees (as opposed to unilaterally enforced by the employer). Moreover, a New Jersey federal court decision, Fouche v. New Jersey Transit Corp., ruled that a bus driver’s request to schedule his hours outside the Sabbath was “unreasonable”, given that the driver’s collective bargaining agreement stated that workers’ selection of schedules would be based upon seniority. As such, the Fouche court held that the employer could not allow the driver to schedule his own hours without violating the union contract and stepping on the seniority rights of his co-workers.
Employers must make a “bona fide effort”
Nonetheless, no matter whether an employee’s specific request is ultimately deemed “reasonable”, both federal and state law require that employers make a “bona fide effort” to accommodate the employee’s religious observances. This means that when an employee notifies her employer that her work schedule conflicts with her sincerely-held religious observances, the employer can’t just shrug and say,“too bad.” Your employer is obligated to engage in an interactive process that considers your request and the alternatives for fulfilling it.
One of our law firm’s current cases illustrates this point very well. In Gary Miller v. The Port Authority of New York & New Jersey, our client, Gary Miller, asked the Port Authority to accommodate his need to observe the Sabbath by assigning him shifts other than on Saturdays. The Port Authority could have made a good faith effort to work with Mr. Miller to create an accommodation that would have allowed Mr. Miller to respect his religion with minimal disruption to the Authority’s operations. They could have, for instance, proposed rotating shift-swaps as a solution.
Instead, as Mr. Miller alleges in his complaint, the Authority offered no solution at all. Despite his repeated verbal and written requests, his managers flatly denied him any change in schedule or hours that would have let him work outside the Sabbath. They simply told him “no” – then, when Mr. Miller did not report for work on Saturdays (as he had previously notified the Authority he was prohibited from doing), they wrote him up for “unexcused absences”. Mr. Miller claims that the Authority then cynically relied upon these bogus “unexcused absences” to fire him.
Mr. Miller is currently suing the Port Authority under Title VII for Religious Discrimination and Failure to Accommodate. His case is in the early stages of litigation.
If you have a deeply-held need to observe your religious faith or practice and believe your employer is denying you an accommodation, call our offices today for a free consultation.