Employment Law Daily Requiring employees to use vacation or find coverage on Sabbath may violate Title VII
Friday, January 19, 2018

Requiring employees to use vacation or find coverage on Sabbath may violate Title VII

By Lorene D. Park, J.D.

In a Title VII suit by two Seventh Day Adventists, who were fired for excessive absences after Kellogg’s new scheduling policy required they work every other Saturday, the Tenth Circuit refused the employee’s and amicus EEOC’s invitation to adopt a per se rule that a “reasonable” accommodation must completely eliminate the conflict between an employee’s religious practice and work requirements. That said, the court reversed the grant of summary judgment against their failure-to-accommodate claim, finding a triable question on whether Kellogg reasonably accommodated them by requiring that, to avoid working on Sabbath, they use vacation or other accrued time off or find a qualified coworker to swap schedules (Tabura v. Kellogg USA, January 17, 2018, Ebel, D.).

New “continuous crewing” schedule creates problems. For years, the employees worked at a Kellogg plant, one measuring spices and the other placing frozen veggie burgers in bags, without problems. But in 2011, Kellogg changed the production schedule to “continuous crewing,” which required production workers to work every other Saturday. The employees, both of whom are Seventh Day Adventists, observe Sabbath beginning Friday at sundown and ending Saturday evening. The new schedule required them to work 26 Saturdays per year.

Under Kellogg’s absence policy, they could use vacation and other accrued time off to amend their schedules and could swap with coworkers. But the coworkers had to be qualified to do the employees’ job and policy limited the number of work hours in a day, limiting the pool of coworkers who could swap. Neither employee had enough accrued vacation to cover all Sabbaths in a year and both struggled to find coworkers with whom to swap. They requested further accommodations without success. Both were eventually terminated for absences.

Lawsuit. The employees filed suit under Title VII claiming that Kellogg failed to accommodate their Sabbath observance. The EEOC entered the fray as amicus curiae and both sides moved for summary judgment. The district court granted summary judgment for Kellogg, finding it reasonably accommodated the employees’ religious practices and its religion-neutral absentee policy was sufficient under Title VII. The employees appealed.

Noting that Kellogg conceded, for purposes of its summary judgment motion, that the employees established a prima facie case, the Tenth Circuit focused on whether Kellogg reasonably accommodated the employee’s Sabbath observance and alternatively whether it would incur an undue hardship if it further accommodated their religious practice.

Reasonableness. Reversing, the appeals court first explained that an accommodation would not be reasonable if it only provided the employees an opportunity to avoid working on some, but not all, Saturdays. Nor would it be reasonable to only give them an opportunity to delay their eventual termination. That said, Kellogg was not required to provide a “total” accommodation guaranteeing they would never be scheduled for a Saturday. Nor was it required to provide an accommodation “that spares the employee any cost whatsoever.”

No “per se” rules. The EEOC and the employees championed a “per se” rule that, to be reasonable, an accommodation had to completely eliminate a conflict between an employee’s religious practices and his or her work requirements, but the appeals court was not swayed. In its view, such an absolute rule would read “reasonably” out of Title VII. The court further explained that the other circuit courts using the “elimination” language only did so in a specialized context where an employee had two religious practices that conflicted with job requirements and the employer only tried to accommodate one of the two. That was not the case here.

Also rejected was the EEOC’s argument, relying on Abercrombie & Fitch, that Kellogg could not accommodate a religious observance with a neutral policy available to any employee wanting a day off for any reason. Abercrombie addressed a different issue—an employer’s motivation to avoid the future need to accommodate. Here, the issue was effectiveness of the accommodation. Moreover, the language on which the EEOC relied merely recognized that an employer can’t hide behind a neutral policy if something more is required to reasonably accommodate a religious need. But a neutral policy can still meet an employer’s obligation: “Nothing in Title VII requires the accommodation uniquely to target a religious concern,” said the appeals court.

Kellogg may not have reasonably accommodated employees. With this in mind, the court found triable issues on whether Kellogg reasonably accommodated the employees’ conflict between observing Sabbath and their work schedules. Kellogg wanted to accommodate them through a combination of using their accrued time off and finding coworkers to swap shifts. Under the right facts, this might be a reasonable accommodation. Here though, even if the employees used all accrued time off, it wasn’t enough to avoid working some Saturdays. And while Kellogg let them swap shifts, the facts suggested the universe of qualified employees with whom they could swap was limited. Even management acknowledged it would have been “challenging” to swap. There was also disputed evidence on how helpful Kellogg was in facilitating swaps and on whether the employees reasonably cooperated in trying to find coworkers with whom to swap shifts. Based on all of this, neither party was entitled to summary judgment on whether Kellogg reasonable accommodated the employees’ Sabbath observance.

Undue hardship. Nor was summary judgment warranted on Kellogg’s affirmative defense that any additional accommodation of the employees’ Sabbath observance would cause undue hardship. Kellogg did not move for summary judgment on this defense and the district court did not give “notice and a reasonable time to respond,” as required to grant judgment on that basis. While the employees briefly addressed the defense in opposing summary judgment, neither party put forth all of their evidence on it, the appeals court averred. Consequently, resolution of this issue had to await further proceedings.

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