Sabbath Accommodations – Shift Swaps and Days Off?

Some employees observe Sabbath, a religious day of worship and rest. This poses an issue when their job positions require them to work on their Sabbath. The U.S. Court of Appeals for the Third Circuit recently addressed two possible accommodations under an employer’s Title VII’s reasonable accommodations obligation for religious needs.

What Title VII Requires. Under Title VII, an employer is required to reasonably accommodate an employee’s religious needs. According to several Circuit Courts, including the Third, an accommodation must eliminate the conflict between the employee’s religious practices and the employment requirements in order to be reasonable. (Other Circuits do not require a total elimination of the conflict – so where the employer is located may impact the analysis). Moreover, an accommodation is not reasonable if it imposes an undue burden, which may be either economic or non-economic, on the employer – and anything that has more than a de minimis (or minimal) impact may be considered an undue burden.

Factual Background. In Groff v. DeJoy, the employee informed his employer of inability to work on Sundays because of his Sabbath observance. The employer offered to facilitate shift swaps, but was unable to find co-workers willing to swap on many Sundays. The employee was disciplined when he did not work those days, and eventually resigned. He sued for failure to accommodate.

The Court’s Decision. The Third Circuit agreed that, because the shift swaps did not eliminate the conflict between his religious practice and work obligations, the employer had failed to provide a reasonable accommodation. Nonetheless, the accommodation requested by the employee – to be exempt from Sunday work – would cause an undue hardship, in that it had negative impacts on the employer’s operations, including on productivity, personnel and overtime costs, increased workload on other employees, and reduced employee morale. Accordingly, the Third Circuit found the employer did not violate Title VII in rejecting this request.

Lessons for Employers. Of interest, the Third Circuit also identified other possible accommodations for Sabbath observances – such as paid leave or vacation, unpaid leave, and transfers. It noted, however, that some accommodations that eliminate a conflict may be unreasonable under particular circumstances, using the example of an employer who offers paid leave for non-religious reasons but only unpaid leave for religious ones. The Third Circuit further asserted that offering a less desirable shift, position or location – even involving a reduction in pay – can be a reasonable accommodation, again depending on the circumstances.

The lesson is that employers must review each situation on a case-by-case basis, and be open to different options for accommodations. But ultimately, “an employer is not required to accommodate at all costs.” The accommodations may not impose an undue hardship – but it is important that the employer be able to articulate with some certainty the negative impact that would result. Speculative concerns will not suffice to meet even the de minimis standard.