Labor & Employment Law Daily Inviting Seventh Day Adventist to apply for Walmart jobs not requiring Saturday work was reasonable accommodation
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Wednesday, January 22, 2020

Inviting Seventh Day Adventist to apply for Walmart jobs not requiring Saturday work was reasonable accommodation

By Kathleen Kapusta, J.D.

Granting summary judgment against the EEOC’s claim, the court noted that “Title VII does not contemplate ’unequal treatment’ between those employees with religious reasons for avoiding working on certain days and those who have ‘strong, but perhaps nonreligious reasons for not working on weekends.’”

Walmart’s offer to help a Seventh Day Adventist apply for non-salaried jobs that would not have required Saturday work was a reasonable accommodation of his request to not work on Saturdays, a federal court in Wisconsin ruled, granting summary judgment against the EEOC’s VII claim that the retail giant violated Title VII when it rescinded a job offer for an assistant manager position after the applicant requested Saturdays off in order to observe his Sabbath. Although a non-salaried job would have paid less than the assistant manager position, the proposed accommodation eliminated the conflict between the applicant’s employment requirements and his religious practices, said the court, and Walmart showed it could not accommodate his request without incurring undue hardship (EEOC v. Walmart Stores East LP, January 16, 2020, Crabb, B.).

After interviewing with the HR and store managers for an assistant manager position at Walmart’s Hayward, Wisconsin, store, the applicant was given a conditional offer of employment. In his acceptance email, he informed the company that he was a Seventh Day Adventist, he observed the Sabbath, and he would not be able to work any Saturdays until after sundown. He did, however, offer to work after sundown on Saturdays if needed.

Considerations. Upon receiving his email, the HR manager reviewed the company’s religious accommodation policy, which at that time was to provide religious accommodations for applicants or associates to comply with their sincerely held religious beliefs unless the requested accommodation would pose an undue hardship. She also considered Walmart’s expectations for assistant managers and in particular the assistant manager’s role at the Hayward store, which was located in a popular resort town and was open 24 hours a day, seven days a week.

Assistant manager role. Because Walmart requires that assistant managers be familiar with all aspects of its operation, they are typically rotated through different functional areas annually. At the time the applicant applied, the Hayward store was allowed eight assistant managers and when fully staffed, two were assigned to overnight shifts with the other six assigned to one of three varying daytime shifts with the earliest starting at 7 a.m. and the latest ending at 9 p.m.

Although Walmart did not have a policy requiring assistant managers to work on Saturdays, the Hayward store manager did, but not every assistant manager was required to work every Saturday. Because the store lacked a full staff of associates at the time the applicant applied, assistant managers were required to work more to cover the stores needs and Fridays and Saturdays were the store’s busiest days. Between July 1, 2016 and June 30, 2018, each assistant manager at the Hayward store was scheduled to work on more than 60 percent of Saturdays on average.

Denied accommodation request. Based on these considerations, the HR manager determined that assistant managers at the Hayward store had to be available to work on Saturdays and that accommodating the applicant would impose an undue hardship because the store would lack management coverage on Saturdays, which could lead to a loss in customer service and sales. Nor did she think the applicant could swap shifts with other assistant managers because there were so few of them, at least half would likely be scheduled to work on any given Saturday, and the others might have plans. Accordingly, she denied his request to have every Saturday off indefinitely and rescinded the job offer.

But offered to help. She also wrote in an email to him “Please advise me of any interest that you may have in other positions in the store and I can assist you in the application process for them.” She subsequently told him there were non-salaried supervisory positions for which he could apply and again offered to help him. The applicant, however, never contacted her to discuss the open positions.

Suing on his behalf, the EEOC asserted both failure-to-accommodate and retaliation claims against Walmart. Finding that the retaliation claim was “simply a repackaging of the failure to accommodate claim and is based on the same allegations and arguments,” the court considered them together.

Chance to apply. The EEOC first argued that Walmart’s communication regarding alternative positions was not a reasonable accommodation because the applicant was not offered a job but only the opportunity to apply for one. But other courts, observed the court here, have found that offering an employee the opportunity to apply for alternative positions that would accommodate the employee’s religious practice can be a reasonable accommodation. Thus, the fact that Walmart offered him only the opportunity to apply for open positions, as well as help in doing so, did not make the proposed accommodation unreasonable.

Paid less. Nor was the accommodation unreasonable because the hourly management positions would have paid less than the assistant manager job, said the court, pointing out that “Title VII does not require employers to accommodate the religious practices of an employee in exactly the way the employee would like to be accommodated” or “require employers to accommodate an employee’s religious practices in a way that ‘spares the employee any cost whatsoever.’”

Observing that numerous courts have found an offer to help an employee find another job that does not require Sabbath work is a reasonable accommodation, even if it pays less, the court noted that here the only evidence provided by the parties was that hourly manager positions paid “a little less” than the assistant manager position, required fewer hours, and provided the opportunity for overtime.

No good faith effort. Although the court found it difficult to evaluate the reasonableness of the accommodation without more information, Walmart was not solely to blame as employees also have a duty to cooperate with an employer in finding an accommodation for religious needs. And here, not only did the applicant decline to apply for any open positions, he did not even discuss with the HR manager what other positions were open. “He cannot now complain that the proposed alternative hourly management positions identified by defendant would not have been reasonable accommodations,” the court reasoned.

Undue hardship. As to undue hardship, which the court briefly addressed for the sake of completeness, the EEOC argued that Walmart could have permitted the applicant to swap shifts with other assistant managers, use personal time off, have a flexible arrival time, schedule him for a day shift Sunday through Friday, schedule him for overnight shifts, or schedule him to work shorter shifts. But none of these suggestions fully addressed undisputed evidence that no assistant manager is assigned to a permanent shift; assistant managers are expected to be available to work varied shifts, including Saturdays; are expected to rotate through every area of the store; Saturday was a busy day for the Hayward store, and all assistant managers were expected to work some Saturday shifts; other assistant managers wanted Saturdays off as well; and the applicant would not have any paid personal time off until he had worked for Walmart for a full fiscal year.

Further, said the court, “Title VII does not contemplate ‘unequal treatment’ between those employees with religious reasons for avoiding working on certain days and those who have ‘strong, but perhaps nonreligious reasons for not working on weekends.’” Agreeing with Walmart, the court observed that hiring an assistant manager who could never work Saturdays would force the company to choose between requiring another manager to work on additional Saturdays (which would give improper preference to the applicant’s religious request for time off over other requests), hiring another manager who could help cover those shifts (which would be an extra cost), or operating the store with one less manager than needed (which would create operational inefficiencies and lost sales). “Under these circumstances, I conclude that defendant has shown that it would be an undue hardship to provide the accommodations that plaintiff requests.”

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