Employment & Labor Law

Handling requests for religious accommodations by employees can pose challenges for employers. A recent opinion by the United States Court of Appeals for the Third Circuit provides a helpful illustration of how an employer can get it right.

In Miller v. The Port Authority of New York and New Jersey, No. 18-3710 (3d Cir. Oct. 11, 2019), a recently hired utility systems maintainer was required to work Friday evenings and Saturdays by virtue of his employer’s seniority-based scheduling system. The employee observed the Jewish Sabbath (the period from sunset on Friday to sunset on Saturday) and other Jewish holidays. As a result, he requested that his employer accommodate his religious beliefs by not requiring him to work on the Jewish Sabbath.

After consulting with numerous departments (including legal), his employer denied the specific accommodation requested based on several factors including the constraints of a collective bargaining agreement, potential overtime costs, and the effect of requiring other employees to work additional weekend shifts on employee morale. However, the employer offered the employee an alternative accommodation: he could swap shifts with other employees and use vacation days, personal time, or compensatory time to observe religious holidays. The employer also took steps to facilitate the employee’s ability to swap shifts.

The employee used personal time for religious purposes for over a month, but was ultimately denied leave when he had no excused time remaining. He apparently did not attempt to use vacation time or swap shifts, instead choosing to not appear at work on five occasions. He was ultimately terminated for his unexcused absences. He sued under Title VII, claiming his employer failed to provide a reasonable accommodation for his religious observances.

The trial court granted summary judgment for the employer. The employee appealed, and the Third Circuit affirmed, finding that the accommodation offered by the employer (shift swaps and use of vacation/personal/compensatory time) was reasonable. The Court’s opinion highlights some valuable points for employers facing religious accommodation requests to remember:

1. The employer here ran the employee’s initial request by a number of departments and individuals – including its law department – for input before responding with an alternative accommodation. Proactive involvement of legal counsel (and others) is key in these situations because courts want to see that an employer has considered all relevant factors and information before arriving at a decision about the reasonableness of an accommodation.
2. Under Title VII, an employee is not entitled to his or her specific requested or preferred accommodation. An accommodation offered by an employer need only be reasonable.
3. An accommodation is not reasonable if it would pose an “undue hardship” on the employer. In the religious discrimination context, this means it would impose more than a de minimis cost on the employer.
4. In the Third Circuit, there is no requirement that an employer engage in an interactive dialogue with an employee before rejecting a preferred religious accommodation or proposing an alternative. However, as a practical point, engaging in such an interactive process may be helpful in identifying alternative accommodations. Note: the requirements for religious accommodations under Title VII differs from the ADA reasonable accommodation protocol, which generally requires employers to engage in the interactive process.