Title VII requires employers to provide reasonable accommodations for employees’ religious beliefs and practices. While this accommodation obligation may not be as high as that imposed for disabilities under the ADA, a recent decision from the Tenth Circuit Court of Appeals demonstrates that employers may have to do more than apply existing attendance policy options to address the religion-based requests.
In Tabura v. Kellogg USA, the plaintiffs were Seventh Day Adventists who requested excuse from Saturday work following Kellogg’s decision to change its work schedule. The change would have required the plaintiffs to work every other Saturday, and they objected based on their religious beliefs. In response to the accommodation request, Kellogg offered two options. The employees could use their PTO to cover the required Saturday work, or they could swap Saturday shifts with other employees willing to work on that day. The plaintiffs were not able to avoid unexcused absences with these measures in place and were eventually terminated. They filed suit, claiming failure to accommodate under Title VII.
The Tenth Circuit reversed the district court’s dismissal of the claims. The court said that the reasonableness and effectiveness of the accommodations provided by Kellogg must be determined by a jury. With that said, the Tenth Circuit first rejected a legal test advocated by the plaintiffs and the EEOC (which filed an amicus brief in the case) that would have tied the reasonableness of the religious accommodation to a complete excuse from Saturday work. While the court rejected this test, it found the facts of this case indicated that the measures adopted by Kellogg may not have been effective. The employees did not have enough PTO to cover all scheduled Saturday work, and there were a limited number of co-workers qualified to perform their jobs.
This decision does not mean that Kellogg will lose on the accommodation issue, only that a court cannot dismiss the matter without trial. Given the unpredictable nature of juries, this decision adds considerable risk to employers’ alternatives to the employees’ requested religious accommodations. Employers unwilling to grant the specific measures requested by employees need to thoroughly review and document the negative business impact of granting the requested accommodation, as well as the effectiveness of the alternative measures they agree to.