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Fourth Circuit Says Employer Does Not Have to Create Pool of Substitute Workers to Accommodate Religious Beliefs

    Client Alerts
  • January 04, 2013

Last year the Equal Employment Opportunity Commission sued a Raleigh employer, claiming that it violated Title VII when it refused to excuse a Hebrew Israelite dump truck driver from working on Saturdays. The EEOC stated that the employer could have accommodated the employee in three ways: (1) use of contract drivers to fill in on Saturdays; (2) creation from existing employees of a pool of substitute drivers; or (3) allowing the employee to transfer to a different job that did not require Saturday work.

Last month in EEOC v. Thompson Contracting, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) rejected all of the EEOC's proposed accommodations. The court found that use of contractors presented the employer with an undue hardship, because they cost $50-$100 per hour as opposed to employee cost of $100 per day. The substitute driver idea was also unreasonable due to the training requirements, and the need for some of these substitutes to obtain Commercial Drivers Licenses. While the transfer idea could have been reasonable, the employer demonstrated that the employee stated that he was not interested in any alternative position.

Unlike the Americans with Disabilities Act, Title VII's religious discrimination provisions only require accommodations where the cost to the employer is not more than de minimis. In this case, while the EEOC came up with creative and potentially effective solutions, the Fourth Circuit was unwilling to burden the employer with the cost of these alternatives.

Employers faced with religious accommodation requests from employers should thoroughly explore all viable alternatives. If requested accommodations are rejected, employers should document the financial or other reasons why the request is an undue burden, or would not meet the employer's business needs.