Thursday, January 17, 2019

An expensive lesson on religious accommodations


A federal court jury in Miami has awarded a hotel dishwasher $21.5 million after concluding that her employer failed to honor her religious beliefs by repeatedly scheduling her on Sundays, and then firing her.

According to the South Florida Sun Sentinel, Marie Jean Pierre is a member of the Soldiers of Christ Church, a Catholic missionary group that helps the poor. She claimed that she hold her employer that she needed Sundays off for her missionary work. The hotel accommodate her for the first three years of her employment, but then began scheduling her on Sundays. After she advised that she would have to quit, the company again accommodated her scheduling request for another six years. Then, however, the hotel again changed her schedule to include Sundays. Pierre then provided a letter from her pastor explaining her religious need for the time off. The hotel, however, refused and ultimately fired her for unexcused absences.

The hotel argued that it had no idea that she was a missionary or had requested Sunday off. Her lawyer, however, disagreed. "There were letters in [her personnel] file and her pastor went down there."

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation would pose an undue hardship if it would cause more than de minimis cost on the operation of the employer's business. Factors relevant to undue hardship may include the type of workplace, the nature of the employee's duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.

Scheduling changes, voluntary substitutions, and shift swaps are all common accommodations for employees who need time off from work for a religious practice. It is typically considered an undue hardship to impose these changes on other employees involuntarily. However, the reasonable accommodation requirement can often be satisfied without undue hardship where a volunteer with substantially similar qualifications is available to cover.

In other words, permitting Pierre to take every Sunday off may have imposed an undue hardship, depending on the nature of her work performed and her job duties. Other employees could have agreed to move shifts around to cover for her, but employers cannot force such scheduling changes. In Pierre's case, however, the fact that the hotel appears to have accommodated her for eight years would weigh heavily in favor of the reasonableness of the accommodation.

In plain English, there might be a way around granting time off for an employee to observe a religious practice, but do you want to risk the inevitable (and expensive) lawsuit?

Legalities aside, this issue asks a larger question. What kind of employer do you want to be? Do you want to be a company that promotes tolerance or fosters exclusion? The former will help create the type of environment that not only mitigates against religious discrimination, but spills over into the type of behavior that helps prevent unlawful harassment and other liability issues. If you can grant the accommodation, why not do so? And if you have granted it, why take it away?

* Photo by rawpixel on Unsplash
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