Saturday, January 20, 2018

Tabura v. Kellogg USA: Does Title VII require a religious accommodation that "eliminates" the conflict between an employee's religious beliefs and the employer's workplace policies?

In Tabura v. Kellogg USA, Inc., No. 16-4135 (10th Cir. Jan. 17, 2018), Richard Tabura and Guadalupe Diaz alleged that the defendant violated Title VII of the Civil Rights Act of 1964 by denying them a reasonable accommodation. Tabura and Diaz, both Seventh Day Adventists, worked in a food production facility and requested accommodations that would have allowed them to refrain from work between sundown Friday and sundown Saturday. Facility employees were divided into four shifts that worked 12 hours a day for 2 or 3 days, followed by 2 or 3 days off, and it was not feasible for Tabura and Diaz to be given every Saturday off. As a result, to avoid working on Saturdays, Tabura and Diaz had to either use leave, find a substitute, or stay home and be assessed disciplinary points. Both were fired after accumulating too many points under the defendant's progressive discipline policy.

Although the Tenth Circuit reversed summary judgment for the defendant on the plaintiffs' religious accommodation claims, it rejected the contention, which was advanced by both the plaintiffs and the EEOC as amicus, that a reasonable accommodation must "eliminate" the conflict between an employee's religious beliefs and the employer's work requirements. The Tenth Circuit joined the Fourth and Eighth Circuits in rejecting the EEOC's "elimination" position, yet it also disagreed with those circuits in other important respects.

The Tenth Circuit explained that "an accommodation will not be reasonable if it only provides Plaintiffs an opportunity to avoid working on some, but not all, Saturdays." "[T]o be reasonable, an accommodation need not provide a 'total' accommodation; that is, Kellogg is not required to guarantee Plaintiffs will never be scheduled for a Saturday shift, nor is Kellogg required to provide an accommodation 'that spares the employee any cost whatsoever.'"

What I understand the court to be saying is that Title VII requires, at the very least, that an accommodation provide an employee with a reasonable opportunity to comply with his religious beliefs. This opportunity may disadvantage an employee to some degree, and it is not a guarantee that an employee will be able to comply with his religious beliefs. For example, if an employee uses three-quarters of his leave to take a vacation and then has insufficient leave later that year to observe the Sabbath, he may be out of luck since the employer provided the opportunity for him to comply with his religious beliefs. On the other hand, if an employee exhausts all his leave due to illness, then the employer might be required to extend additional leave to the employee if he subsequently needs time off to observe the Sabbath.

In this case, the defendant provided Tabura and Diaz with three accommodations that allowed them to observe the Sabbath: taking authorized leave, taking unauthorized time off and accumulating disciplinary points, and swapping shifts with an employee scheduled to work another day. Even if Tabura and Diaz had used all of their leave entitlement to observe the Sabbath and then accrued disciplinary points for additional days, leaving no time off whatsoever for any other purpose, they would still have needed to arrange swaps with workers on other shifts. But the plaintiffs presented evidence showing that it was difficult to arrange for shift swaps, and the employer provided little assistance. Thus, even considering all three accommodations, the defendant may not have afforded the plaintiffs a reasonable opportunity to avoid working all 26 Saturdays that conflicted with their work schedules.

By contrast, the Fourth and Eighth Circuits both appeared to stop far short of saying that a reasonable accommodation must give an employee the opportunity to comply with his religious beliefs. In Sturgill v. United Parcel Service, 512 F.3d 1024 (8th Cir. 2008), the Eighth Circuit stated that Title VII requires cooperation by both the employer and the employee and that a religious accommodation may require that an employee "either compromise a religious observance or practice, or accept a less desirable job or less favorable working conditions." Similarly, in EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008), the Fourth Circuit concluded that the defendant's accommodations, which included paid and unpaid leave and voluntary shift swaps, were sufficient to meet Title VII requirements even though they were not sufficient for the plaintiff to be off work for all the religious holidays he observed and he was fired when he took off without authorization. 

So unlike the Fourth and Eighth Circuits, the Tenth Circuit agrees with the EEOC that an employee may not be required to compromise his religious beliefs. So what's the Tenth Circuit's beef with the EEOC's position? In rejecting the elimination requirement, the court explains:
Determining what is reasonable is a fact-specific determination that must be made on a case-by-case basis. Plaintiffs' absolute rule would read "reasonably" out of the statute. Adopting a per se "elimination" rule that applies across all circumstances is not helpful to determining whether an accommodation is reasonable. Instead it unnecessarily complicates the question of reasonableness and begs additional questions, including what is meant by "eliminate" or "totally" eliminate or "completely" eliminate.
As suggested by the court, requiring that an accommodation be "complete" or that it "eliminate" any conflict creates an ambiguity. Such a requirement may be misread as requiring that an employee who observes a weekly Sabbath be granted an exception to a neutral workplace policy or that the employee not incur any cost, such as having to use paid leave for a religious observance. Thus, the Tenth Circuit faulted the EEOC and the plaintiffs for suggesting that an employer cannot accommodate an employee's religious practices solely through neutral policies. The EEOC and the plaintiffs cited the Supreme Court's decision in EEOC v. Abercrombie & Fitch Stores, 135 S. Ct. 2028 (2015), for the proposition that an employee requesting a religious accommodation is entitled to "favored" treatment. In the Tenth Circuit's view, the Supreme Court merely recognized that "an employer cannot take refuge behind a neutral policy if something more is required reasonably to accommodate a religious need." Nothing requires an employer to take special steps to accommodate an employee's religious beliefs, however, when the policies it already has adopted will do just fine. As an illustration, in a prior case, United States v. City of Albuquerque, 545 F.2d 110 (10th Cir. 1976), the Tenth Circuit held that the trial court had not erred in concluding that the defendant had reasonably accommodated a firefighter who observed a weekly Sabbath by allowing him to take paid and unpaid leave and to swap shifts and that the firefighter was not entitled to be off on his Sabbath "as a matter of right." 

In rejecting the plaintiffs' and the EEOC's contentions that an employee seeking a religious accommodation is entitled to "favored" treatment that "totally eliminates" any conflict between his religious practices and the employer's work requirements, the Tenth Circuit struck a balance: an employee is entitled to accommodations that allow him a reasonable opportunity to comply with his religious beliefs; however, a reasonable accommodation need not be free of all cost to the employee, and the employee is not entitled to an exception to a work requirement where the employer can reasonably accommodate the employee solely through the same neutral policies that apply to other employees.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.