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Fifth Circuit Says Community Service Can Be Protected Religious Practice

    Client Alerts
  • September 26, 2014

Title VII requires employers to accommodate employees’ religious beliefs and practices. Understandably, courts are reluctant to make judicial determinations as to what are and what are not sincere religious activities. Last month, the Fifth Circuit of Appeals concluded that church-sponsored community service can be a religious practice for which employers are required to consider reasonable accommodation.


In Davis v. Ft. Bend County, the plaintiff requested a day away from work for her church-sponsored service day to be spent helping feed disadvantaged persons in the community. The requested day off was critical for the employer, which denied the leave request. The county terminated the plaintiff when she failed to show up for work that day, and she sued under Title VII, claiming religious discrimination.


The district court dismissed the complaint, finding that the service day was not a legally protected religious practice. The judge noted that not every function associated with the church rose to this level. In a 2-1 decision, the Fifth Circuit Court of Appeals reversed this holding and remanded the matter for trial on the question of whether the time off was for religious purposes, and if it constituted an undue hardship on the employer.


The majority opinion stated that in determining the protected status of the requested time off, courts should not focus on the nature of the activity itself. Instead, if the plaintiff had a sincere belief that this service was part of a bona fide religious belief, it was protected under Title VII. The dissenting judge disagreed, noting other federal court decisions requiring the protected activity to be of a religious nature.


Employers faced with employee requests for time away from the job for church-affiliated service projects should not reject the requests out of hand. While these activities may ultimately be deemed non-religious in nature, the grey area created by this decision raises litigation risks for employers that refuse to consider such requests. A more conservative approach would be for the employer to consider these requests as it would a request for time away from work for direct religious observations. If the request presents an undue hardship, the employer should document the hardship, clearly explain it to the employee, and look for alternative ways to meet both business needs and the employee’s religious practices.