Regulating Religious Accommodation at Work

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Federal appeals court weighs employers’ obligation to accommodate employees’ religious practices.

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How far must an employer go to accommodate the religious practices of its employees? If an employee’s religious observance creates a conflict with a work schedule, must the employer craft a solution tailored to that employee? Or can the employer simply rely on its neutral policies—sick time, shift-swapping, and the like—that it makes available to all employees for any type of scheduling conflict? At what point could the employer fire employees who cannot fulfill their employment duties for religious reasons?

In a recent decision, a panel of judges on the U.S. Court of Appeals for the Tenth Circuit grappled with these questions and overturned a lower court’s ruling in favor of an employer who fired two employees after their Sabbath observance interfered with their work schedules.

The case, Tabura v. Kellogg, arose from the firing of Richard Tabura and Guadalupe Diaz who worked at a food production plant in Utah owned by Kellogg USA, Inc. Tabura and Diaz were each “Seventh Day Adventists who honor the Sabbath by refraining from work each week from Friday at sundown through sundown Saturday.” Kellogg fired Tabura and Diaz after each missed several work shifts due to the conflict between their Sabbath observance and work responsibilities.

After Kellogg fired them, Tabura and Diaz sued the company in federal court alleging it failed “to accommodate their Sabbath observance.” Title VII of the Civil Rights Act prohibits employers from firing or discriminating against employees on account of their religion. The Act defines “religion” to include “all aspects of religious observance and practice.” It also requires employers to “reasonably accommodate” an employee’s religious practices unless the employer can demonstrate that to do so would impose “undue hardship” on its business.

The federal trial court ruled in favor of Kellogg, but Tabura and Diaz appealed to the Tenth Circuit.

A panel of three appellate judges disagreed with the district court. In an opinion written by Senior Judge David M. Ebel, the panel held that additional proceedings were needed to determine whether Kellogg satisfied its Title VII duty to accommodate Tabura’s and Diaz’s religious practices.

When they first started working at the plant, Tabura and Diaz each “worked Monday through Thursday, ten hours a day.” Kellogg later adopted a “continuous crewing” system that divided the “workforce into four shifts.” Two shifts worked days, and the other two worked nights. Some employees in each shift were assigned to “processing” and others to “packaging.” The four shifts shared Saturdays, meaning each employee was required to work “twenty-six Saturdays each year.” To avoid conflicts with their Sabbath, Kellogg instructed Tabura and Diaz to use their “paid vacation and sick/personal time” and to “swap shifts with other employees.” These were the same options generally available to all employees.

Judge Ebel, writing for the court, explained that Title VII does not require a “total” accommodation. The law did not require Kellogg to “guarantee” that Tabura and Diaz would “never be scheduled for a Saturday shift.” On the other hand, Judge Ebel explained that an accommodation would be unreasonable if it only avoids conflicts with “some, but not all, Saturdays.” Kellogg’s accommodation would also have been unreasonable if it merely allowed Tabura and Diaz to “delay their eventual termination.”

Kellogg used a points system to penalize employees for missing work. Judge Ebel observed that if Tabura used all of the paid time off that he earned, it would only cover roughly half the Saturdays he was required to work. Even if Tabura took the remaining Saturdays off without being paid, he still “would accumulate…well over the…points that would result in his termination.” Likewise, Diaz earned only enough paid time off to cover just over half the Saturdays Kellogg expected her to work.

The U.S. Equal Employment Opportunity Commission (EEOC) filed a brief in the appellate litigation in support of Tabura and Diaz and participated in oral argument before the judicial panel.

Created by the Civil Rights Act of 1964, the EEOC is a federal agency responsible for investigating “charges of discrimination against employers.” If the EEOC finds that an employer violated Title VII, it has authority to pursue a settlement between the employer and employee or to file a lawsuit against the employer or support a lawsuit filed by the employees.

The panel declined to rely on an interpretation of Title VII advocated by EEOC that would demand employers do more to resolve religious conflicts than merely following a “neutral policy.” The EEOC argued that relying only on tools generally available to all employees “who wanted to take a day off for any reason” would be insufficient.

The Tenth Circuit panel, however, reasoned that although an employer may satisfy its duty to accommodate under Title VII merely “by using a neutral policy,” such a policy still must not be an unreasonable one.

Judge Ebel concluded that Kellogg’s accommodation in the case of Tabura and Diaz “might” have been a reasonable one—and that the case needs to go back to the trial court for further resolution of this point. The reasonableness of Kellogg’s policy of allowing use of vacation time and shift-swapping is an issue of material fact for the jury to decide, he explained.

In weighing the “reasonableness” of the accommodation, Judge Ebel elaborated on the relevant considerations for the trial court. The analysis, he explained, must be informed by how difficult it actually was for Tabura and Diaz to coordinate “voluntary swaps with other, qualified employees.”

The Tenth Circuit issued its opinion on January 17, 2018. Tabura v. Kellogg will now go back to the trial court for further proceedings to determine whether Kellogg reasonably accommodated Tabura’s and Diaz’s Sabbath observance.