Employer Reasonably Accommodated Employee's Religious Practices Using Preexisting Mechanisms And Individual Accommodations
From December 1994 to September 2002, Firestone Fibers & Textiles Company employed David A. Wise at its two facilities in Gastonia and Kings Mountain, North Carolina. Both plants operate a treating unit for tire cord fabric that requires support from a testing laboratory. Each laboratory, when fully staffed, has four people working per shift, including a laboratory floater and laboratory technician. There must always be someone working the laboratory technician shift when the treating unit is operating.
In 2001, while serving as a lab floater, Wise became a member of the Living Church of God. His religion prohibits him from working during the faith's weekly Sabbath, which takes place from sundown on Friday to sundown on Saturday. In addition, Wise must observe, and therefore cannot work on, seven sets of religious holidays. The holidays, which are based on certain biblical Holy Days, are Passover, the Feast of Unleavened Bread, the Day of Pentecost, the Feast of Trumpets, the Day of Atonement, the Feast of Tabernacles, and the Last Great Day. These holidays typically total twenty days, including fourteen that do not already coincide with part of the weekly Sabbath. Despite these numerous religious obligations, Wise did not encounter a work attendance problem in 2001 because, as a day-shift floater, he typically worked from 7:00 a.m. to 3:00 p.m., Mondays through Fridays. Thus, he usually was not scheduled to work during the Sabbath and used company vacation days for his non-Sabbath observances.
In February 2002, Firestone instituted a series of layoffs and, as a result, restructured its operations. Though he was not laid off, the restructuring forced Wise to change positions and shifts. Pursuant to the applicable collective bargaining agreement, Wise was bumped by a fellow employee with more seniority from his position as a floater to the job of lab technician. Additionally, and once again based on seniority, Wise also was assigned a new shift: 3:00 p.m. to 11:00 p.m., Mondays through Fridays, and Saturdays whenever the treating unit was operating (which, in 2002, was nearly every Saturday). The more desirable 7:00 a.m. to 3:00 p.m. shift, Wise's former time slot, went to employees with more seniority.
Because the 3:00-11:00 p.m. shift would conflict with his Sabbath on a weekly basis (i.e. Friday evenings and Saturday afternoons), Wise realized he would not possess enough leave time to meet both his work and religious obligations. Thus, soon after the change was implemented, Wise approached his supervisor, Kevin Cash, to talk about his predicament. Wise and Cash then met with Dennis Jozwiakowski, Firestone's Human Resources Manager, to discuss the matter. Wise explained his situation and asked whether he could be accommodated in a way that would permit him to observe his weekly Sabbath without running afoul of the company's attendance policy.
In reviewing the request, Jozwiakowski considered several possible accommodations. First, he looked into whether Wise could be transferred to a different shift, particularly the 7:00 a.m. to 3:00 p.m. slot. Jozwiakowski determined that such a move was not feasible because Wise lacked the requisite seniority to make such a transition without contravening the governing collective bargaining agreement (“CBA”). Similarly, Jozwiakowski looked at whether Wise could be moved to a different position. This, too, was deemed a non-viable option as Wise lacked either the necessary seniority or required skills to be placed in a different job. Jozwiakowski also considered whether it would be possible to leave Wise's shift uncovered during the hours of his Sabbath. However, this was rejected because a lab technician had to be present at all times when the treating unit was operating. Likewise, Jozwiakowski determined that excusing Wise from the portions of his shift that conflicted with his Sabbath, without having the absences count against the company's attendance policy, would be too problematic. This was because of the burden such an accommodation would place on Firestone and especially on Wise's fellow employees, as someone would have to consistently work overtime to cover Wise's shift.
About a week after the initial meeting, Jozwiakowski informed Wise that Firestone could not make any special accommodation and that Wise would instead have to rely on the standard attendance accommodations provided to all employees. Specifically, the CBA granted all employees with Wise's seniority fifteen, eight-hour vacation days and three floating holidays. Firestone also allowed employees to swap shifts twice per quarter, for a total of eight times per year. In addition, pursuant to a company attendance policy referenced in the CBA, employees could take up to sixty hours of unpaid leave for any reason of their choosing. Finally, under the CBA, if an employee took less than thirty-six hours of unpaid leave, he could use up to three of his vacation days in half-day increments, for a total of six half-day vacations. However, under the company's attendance policy, an employee who exceeded sixty hours of unpaid leave would be terminated. Because of the staffing concerns noted above, this sixty hour cap remained in force with respect to Wise.
From February to September 2002, Wise utilized vacation days, floating holidays, and unpaid leave time in order to avoid working during the Sabbath and on religious holidays. He did not, however, make use of the available shift-swapping mechanisms. Cash also assisted Wise by altering the schedule when possible and having Wise work a 7:00 a.m. to 7:00 p.m. shift on certain Fridays when a lab worker from the 7:00 a.m. to 3:00 p.m. shift was absent.
On September 3, 2002, having exhausted his allotted vacation days and floating holidays, and close to using all of his unpaid leave time, Wise requested permission to take an unpaid leave of absence (which is distinct from the aforementioned sixty-hours unpaid leave). Wise requested leave for eleven days in September in order to observe two religious holidays: the Day of Atonement (Monday, September 16) and the Feast of Tabernacles (Friday, September 20 through Sunday, September 29). The request was received and considered by Jozwiakowski and Tom Kirksey, Firestone's Employee Relations Manager. After reviewing Firestone's handling of previous leaves of absence requests, Jozwiakowski and Kirksey determined that such requests had typically been granted only for “one-time,” or non-recurring, events. Consistent with this precedent, they denied Wise's leave of absence request.
Wise did not report to work those days and, as a result, exceeded his sixty-hour unpaid leave limit on September 20, 2002. He was terminated by Firestone three days later.
Wise subsequently brought suit alleging that Firestone discriminated against him because of his religion when it failed to reasonably accommodate his religious beliefs, resulting in his unlawful termination.
The United States District Court granted summary judgment in favor of Firestone, holding that Firestone had “provided reasonable accommodation for Wise's religious observances in accordance with Title VII requirements.” It emphasized the various vacation and leave time policies that were available to Wise and the general nature of the seniority system. In the alternative, the court opined that “to the extent Firestone did not accommodate Wise, its failure was legally excused by the undue burden such accommodation would” have inevitably caused Firestone. Therefore, the court concluded, no reasonable juror could find that Firestone had failed to satisfy its obligations under Title VII.
On appeal, the 4th Circuit affirmed:
Appellants contend, as they did before the district court, that an employer provides a reasonable accommodation only when it “eliminates the conflict between the religious practice and the work requirement.” Put another way, appellants argue that Title VII requires an employer, absent undue hardship, to totally accommodate an employee's religious observances. This would essentially limit the Title VII analysis to whether an employer's failure to provide total accommodation was based on undue hardship.
For the reasons that follow, we cannot accept appellants' interpretation of § 2000e(j) and hold that “reasonably accommodate” means what it says: reasonably accommodate.
The problem with appellants' “total” accommodation interpretation is that such a construction ignores the plain text of the statute, namely the inclusion of the word “reasonably” as a modifier of accommodate. If Congress had wanted to require employers to provide complete accommodation absent undue hardship, it could easily have done so. For instance, Congress could have used the words “totally” or “completely,” instead of “reasonably.” It even could have left out any qualifying adjective at all. Rather, Congress included the term reasonably, expressly declaring that an employer's obligation is to “reasonably accommodate” absent undue hardship-not to totally do so.
As the statutory language of § 2000e(j) makes clear, this is not an area for absolutes. Religion does not exist in a vacuum in the workplace. Rather, it coexists, both with intensely secular arrangements such as collective bargaining agreements and with the intensely secular pressures of the marketplace. Hence the import of the statutory term “accommodate.” The provision's use of the terms “reasonably” and “undue hardship” likewise indicates that this is a field of degrees, not a matter for extremes. Both terms are “variable ones,” dependent on the extent of the employee's religious obligations and the nature of the employer's work requirements. This makes sense in light of the competing purposes and concerns underlying the right to religious accommodation in the workplace. On the one hand, the “principal goal” of Title VII is “to eliminate discrimination in employment.” On the other hand, Congress recognized that because of business necessity and the legitimate rights of other employees, it could “not impose a duty on the employer to accommodate at all costs.”
In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 75, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977), while addressing Title VII's “reasonable accommodation requirement,” the Court observed that “the statute provides no guidance for determining the degree of accommodation that is required of an employer.” Instead, the Court found that while “the employer's statutory obligation to make reasonable accommodation” was “clear,” the precise “reach of that obligation had never been spelled out by Congress.” By struggling to locate the degree of accommodation required under § 2000e(j), the Court recognized that the line was one of reasonable, not total, accommodation.
A duty of “reasonableness” cannot be read as an invariable duty to eliminate the conflict between workplace rules and religious practice.
Finally, appellants' view also fails to square with US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002). In that case, the Supreme Court interpreted a linguistically similar provision of the Americans with Disabilities Act (“ADA”) that also contains a “reasonable accommodations” absent “undue hardship” clause. The plaintiff argued that “reasonable accommodation” should mean only “effective accommodation.” Specifically, he claimed that the Court, when interpreting the term, should only consider the “accommodation's ability to meet an individual's disability-related needs” and not any detrimental impact it might otherwise create, either on the employer or others. In rejecting this interpretation, the Court remarked that “for one thing, in ordinary English the word ‘reasonable’ does not mean ‘effective.’ It also observed that the use of the term “reasonable” in the disability context incorporates considerations other than those involving the effectiveness of the accommodation as it relates to the employee's needs. Likewise, the term “reasonably accommodate” in the religious context incorporates more than just whether the conflict between the employee's beliefs and the employer's work requirements have been eliminated. Considering an accommodation's impact on both the employer and coworkers, for example, is appropriate when determining its reasonableness.
Although we hold the “reasonably accommodate” and “undue hardship” inquiries to be separate and distinct, this does not mean they are not interrelated. Indeed, there is much overlap between the two. For instance, an accommodation that results in undue hardship almost certainly would not be viewed as one that would be reasonable. Likewise, the failure to consider alternative accommodations that pose no undue hardship may, generally speaking, influence the determination of whether an employer's offered accommodation was reasonable. Taken together, these standards ensure that while an employer must “actively attempt to accommodate an employee's religious expression or conduct,” it is not required to do so “at all costs.”
EEOC v. Firestone Fibers
The 4th Circuit Court of Appeals’ jurisdiction includes Maryland, North Carolina, South Carolina, Virginia and West Virginia.