“Reasonable” accommodation of religious beliefs does not have to eliminate every conflict between workplace rules and religious practices

For the week of February 18, 2008

Title VII makes it unlawful for an employer to discriminate against an employee because of that individual’s religion. An employer has a statutory obligation to make a "reasonable accommodation" for the religious observances of its employees, unless such accommodation would create an undue hardship for the company. The 4th U.S. Circuit Court of Appeals has held that an employer’s existing policies, combined with efforts to cooperate with an employee’s requests for leave constituted a "reasonable accommodation," even though those efforts did not provide the employee with his preferred accommodation. EEOC v. Firestone Fibers & Textiles Co., 4th Cir., No. 06-2203, Feb. 11, 2008.

David Wise was employed by Firestone Fibers & Textiles at two of its North Carolina facilities. In 2001, Wise became a member of the Living Church of God. As a member of that Church, Wise was prohibited from working on the weekly Sabbath – from sundown on Friday until sundown on Saturday – and on various religious holidays. During 2001, Wise’s religious holidays and weekly Sabbath did not interfere with his work attendance, as he typically worked from 7:00 a.m. until 3:00 p.m., Monday through Friday. However, in 2002, the company underwent restructuring as a result of a series of layoffs, and Wise was bumped from his 7-to-3 shift position by a more senior employee, as that shift was deemed to be more desirable. Wise was reassigned to work from 3:00 p.m. to 11:00 p.m., Monday through Fridays, and on Saturdays whenever his "unit" was operating.

Because his new shift would require him to be at work during Sabbath, Wise met with his supervisor and an HR manager (Jozwiakowski) to discuss the issue. Wise asked whether he could be accommodated in a way that would allow him to observe his Sabbath on a weekly basis. In considering the request, Jozwiakowski first determined that Wise could not be transferred into a 7-to-3 position without displacing a more senior employee, which would have contravened the collective bargaining agreement (CBA) in effect at the time. In addition, Wise lacked the seniority and/or skills to be placed into other jobs that might have accommodated his request.

Jozwiakowski also considered whether it would be possible to leave Wise’s shift uncovered during the hours of his Sabbath, but determined that it was not feasible from a work-process perspective. Also, allowing Wise to be excused from work for Sabbaths without having the absences count against him under the company’s attendance policy would require constant overtime on the part of Wise’s fellow workers, and therefore was not implemented. Wise then was told that the company was unable to change his shift, and that he would have to rely on existing policies related to attendance to cover his absences.

The CBA in effect allowed Wise 15 vacation days and three floating holidays, and employees could take up to 60 hours of unpaid leave for any reason. Further, if an employee had taken less than 36 hours of unpaid leave, he could use up to three vacation days in half-day increments (for six, half-day absences). Also, under Firestone’s policies, employees could swap shifts twice each quarter (eight times per year) with a willing co-worker.

From February to September 2002, Wise used vacation days, floating holidays, and unpaid leave time to avoid working on Sabbath or on religious holidays, but did not utilize the shift-swapping option. In September, after Wise had exhausted his allotted vacation/floating holidays, and was close to having used his 60-hours of unpaid leave, Wise requested an unpaid leave of absence of 11 days to cover two religious holidays. His request was denied, as such leaves typically were granted only for "one-time" non-recurring events. When Wise subsequently failed to report to work for those days, he exceeded his 60-hour leave allotment, and his employment was terminated.

The EEOC filed a complaint in federal court on behalf of Wise, claiming religious discrimination based on Firestone’s alleged failure to reasonably accommodate Wise. The district court granted summary judgment in Firestone’s favor, holding that the company had provided reasonable accommodation, and in the alternative that "to the extent that Firestone did not accommodate [Wise}, its failure was legally excused by the [undue] burden" that such accommodation would inevitably have caused for Firestone.

On appeal, the Fourth Circuit upheld the judgment in favor of Firestone, but premised its decision solely upon the fact that reasonable accommodation had been offered to Wise by Firestone. The Court specifically held that "any reasonable accommodation" is sufficient to meet the company’s obligation under Title VII, even if that proposed accommodation is not the employee’s preferred resolution of the issue. According to the Court, the duty of "reasonableness" cannot be interpreted to mean that a proposed accommodation must "eliminate the conflict between workplace rules and religious practices." The Court pointed out that Firestone sought to assist Wise through a number of mechanisms, including the company’s existing policies (60 days of unpaid leave, voluntary swaps, shift swapping), avenues provided by the CBA, and in the supervisor’s attempts to work around Wise’s schedule when possible.

Title VII does not require an employer to violate the terms of the CBA or to adversely affect the working conditions of an individual’s co-workers in its quest for a "reasonable accommodation." The employer in this case was successful because it actively attempted to accommodate Wise’s religious beliefs, using available avenues while considering the impact its actions would have on its seniority-based scheduling system and on its other employees. According to the Fourth Circuit, that is the effort required by the law.