Employers Providing Reasonable Accommodations May Avoid Liability for Religious Discrimination

Author: Beth P. Zoller, XpertHR Legal Editor

Recent federal cases suggest that an employer may not be liable for religious discrimination if the employer offers an accommodation that is reasonable and does not cause the employer an undue hardship. However, employers should carefully consider all relevant and reasonable accommodations.

In Marmulszteyn v. Napolitano, +2012 U.S. Dist. LEXIS 119047 (E.D.N.Y. 2012), the district court dismissed a religious discrimination claim brought by an Orthodox Jew who claimed that his employer failed to accommodate his request that he not work on Saturdays. The evidence showed that the employer had responded to the employee's request for accommodation by assigning him to a morning shift on Fridays and an overnight shift on Saturday evening after sundown until Sunday morning, and that these proposed accommodations were rejected by the plaintiff. Further, the court held that the plaintiff could not establish a discrimination claim because he could not show that he was disciplined and subject to an adverse employment action.

Further, in Fouche v. New Jersey Transit, +2012 U.S. App. LEXIS 14524, (3rd Cir. 2012), the 3rd Circuit held that the employer was not liable for religious discrimination based on the employer's refusal to accommodate a bus driver's request that he not work on Sundays. The evidence showed that plaintiff's requested accommodation would cause the employer undue hardship and violate the seniority provision of the collective bargaining agreement. Further, the employer argued that it attempted to offer the plaintiff a reasonable accommodation as it was willing to reclassify him as a part-time driver, so that he would not have to work on Sundays. However, this was rejected by the plaintiff. The court further questioned the employee's good faith in taking such a full time position with the knowledge that full time drivers ordinarily are sometimes assigned Sunday driving duties.

However, in Jacobs v. Scotland Manufacturing, +2012 U.S. Dist. LEXIS 85826 (M.D. N.C. 2012) (MD NC 2012), the court refused to dismiss an employee's claim that his employer was liable for religious discrimination when it terminated him based on his refusal to work on Sundays in observance of the Sabbath. The employer argued that it had offered the plaintiff a reasonable accommodation that he could take vacation days in lieu of performing work on Sundays. However, the court held that an issue of fact remained as to whether this proposed accommodation was reasonable. Further, the court held that the employer failed to prove undue hardship.

The above cases demonstrate that an employer should make a good faith attempt to comply with an employee's request for an accommodation based upon religion, but that an employer will not be penalized if it can show that the requested accommodation was unreasonable. Just because an employee requests an accommodation does not mean an employer needs to accommodate the request, especially in situations where the requested accommodation would impose an undue hardship. Keeping these decisions in mind, to avoid religious discrimination claims employers should:

Develop a policy of responding to and granting reasonable requests for accommodation based on religion;
Engage in the interactive process with the employee when faced with a request for accommodation;
Make a good faith inquiry about the employee's religious practices if the employer needs more information;
Consider all possible options and be creative in offering reasonable accommodations,
Evaluate whether in fact the proposed accommodation will cause the employer undue hardship;
Treat all religions fairly and equally;
Document all discussions with the employee and considerations of the requested and proposed accommodations; and
Train all supervisors and managers on how to respond to accommodation requests.