Employer Need Not Completely Eliminate Religious Conflict

The U.S. Court of Appeals for the 10^th Circuit rejected the EEOC’s position that, under Title VII, an employer must provide an accommodation that completely eliminates any conflict between an employee’s religious needs and work requirements. At the same time, the Tenth Circuit noted that, depending on the circumstances, an employer may be required to be more active in facilitating an accommodation.

In Tabura v. Kellog USA, the Tenth Circuit noted that, while an employer is required to provide a reasonable accommodation, it is not required to provide a “total” accommodation “that spares the employee any cost whatsoever,” as that would not be reasonable. The Tenth Circuit also found that a “neutral” policy, providing days off to any employee whatsoever, could be a reasonable accommodation, depending on the circumstances, contrary to the EEOC’s position that such policy could never be such an accommodation.

In the present case, however, the Tenth Circuit found that permitting the employees to use vacation and other paid time off, as well as allowing them to swap shifts, to avoid working Saturdays, may not have been reasonable, given that the paid time off was not sufficient to cover all Saturdays and it was difficult to find swappers. The Tenth Circuit suggested that the employer might have been required to take a more active role in facilitating swaps. These are questions that will have to be answered by the jury.