Get it on the Calendar: Employees’ Sabbath Work Claims Survive, but Tenth Circuit Rejects Broad “Complete” or “Total” Theories of Religious Accommodation

The Tenth Circuit Court of Appeals recently reversed a decision by the U.S. District Court for the District of Utah granting summary judgment in favor of Kellogg USA in a case involving an alleged failure to accommodate employees’ religious beliefs.

The case, Tabura v. Kellogg USA, emerged after Richard Tabura and Guadalupe Diaz, both Seventh-day Adventists, were terminated for refusing to work on Saturdays, the Sabbath day in their religion.  The former employees filed suit in February 2014, claiming that Kellogg violated Title VII of the Civil Rights Act by failing to accommodate their religious beliefs.

Kellogg had offered to let the employees use paid time off and/or swap shifts with their coworkers in order to avoid working Saturdays, but the plaintiffs argued that this was not enough, given that they allegedly had difficulty getting shifts covered.  On appeal, the Tenth Circuit took the view that enough factual issues existed that the case should move past summary judgment.

Important to the Tenth Circuit’s holding was that fact that neither of the plaintiffs could accumulate enough PTO each year to meet the company’s attendance requirements, which meant they would have needed to rely on shift-swapping to cover the balance of their Saturday shifts.  On this point, the Tenth Circuit noted that, due to the nature of the specific jobs that plaintiffs performed, “there is evidence indicating that the universe of qualified employees with whom each plaintiff could swap shifts was quite limited.”

Applying the reasonableness standard under Title VII, the court concluded that the reasonableness of both the shift-swapping accommodation as well as the combination of PTO and shift-swapping “are critical disputed issues of material fact in this case that a jury must resolve.”

Although Tabura might appear to be a setback for employers, the decision has a silver lining.  The Tenth Circuit rejected two of the arguments advanced by plaintiffs and the EEOC (which filed an amicus brief), which called for increased restrictions on employers’ ability to craft sensible workplace policies.

First, the Tenth Circuit rejected the per se test proposed by plaintiffs and the EEOC that would require a “complete” or “total” accommodation in order to satisfy Title VII.  Plaintiffs and the EEOC had argued that, in order to be reasonable, an accommodation must eliminate any conflict between the employee’s religious beliefs and work requirements.  The court rejected this, reasoning that “few things in life can be conflict-free and Title VII requires only a reasonable accommodation between religion and employment obligations.”

Second, the Tenth Circuit rejected another per se rule proposed by plaintiffs and the EEOC, namely that Kellogg could not accommodate employee religious observation through a neutral policy.  As the court put it: “An employer can, of course, meet its obligation to accommodate its employees’ religious practice by using a neutral policy, so long as that policy reasonably accommodates the employee’s religious needs.”

While Tabura has been remanded back to the District of Utah for further proceedings, this decision nonetheless highlights the importance of taking requests for religious accommodations seriously.  Employers should consider taking a fresh look at their policies and practices with an eye toward compliance with Title VII’s religious accommodation requirement.  Areas to examine include but are not limited to hiring, scheduling, vacation and paid time off, dress and attire policies, and employee codes of conduct.