One problem in cases like this one is that the accommodation the religious employee seeks has considerable secular value to both nonreligious and religious individuals (what I have called surplus secular value) in addition to it being necessary to the religious employee's exercise of her faith. A fair accommodation in this circumstance would recognize that value and allocate it at least in part to the employees who would lose weekend time off in order to provide the religious employee the opportunity to observe the Sabbath.
This Sixth Circuit decision apparently ignores the cost to co-workers created by granting the sought after accommodation entirely unless the employer can prove that it would internalize those costs. The logic of Establishment Clause cases monitoring religious accommodations that go too far in benefiting religious individuals at the expense of third parties suggests that this is a problematic construction of Title VII. Alan Brownstein -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter Sent: Wednesday, July 25, 2012 7:40 AM To: religionlaw@lists.ucla.edu Subject: Reaasonable acccommodations and Observant Sabbatarians Does an employer's duty to reasonably accommodate the work scheduling needs of a sabbatarian employee include compelling objecting coworkers to accept involuntary shift reassignments requiring additional weekend work in the absence of a formal seniority system? Perhaps, says a split panel of the sixth circuit in an unpublished decision, splitting with two other circuits in Crider v. University of Tennessee, http://www.ca6.uscourts.gov/opinions.pdf/12a0800n-06.pdf Ms. Crider was hired as the third of three university employees whose core job responsibilities included monitoring a portable emergency cell phone through which study abroad students could reach the university in an emergency at any time. The university required the phone to be monitored at all times; the two employees who previously had assumed that responsibility by working alternate seven day shifts objected to the burden of working every other weekend, and the university sought to hire a third employee to spread the weekend workload. Ms. Crider, a Seventh Day Adventist, applied for and accepted the job knowing of the scheduling requirements, but, consistent with her religious observances and practices, informed the university four days after she was hired that she would not work, including answer the phone, from sundown Friday through sundown Saturday. Ms. Crider was unable to work out a voluntary shift swap with either of her two coworkers. After two months of unsu! ccessful attempts to resolve the scheduling dispute, including a threat by one coworker to resign if forced to again work every other weekend, the university discharged Ms. Crider, and she sued, asserting that it had violated Title VII by failing to reasonably accommodate her. The trial court granted summary judgment to the university, and in a 2-1 decision, the sixth circuit reversed, with the panel splitting over whether TWA v. Hardison foreclosed involuntary shift reassignments of coworkers to additional weekend work as a reasonable accommodation. The majority reasoned: "Title VII does not exempt accommodation which creates undue hardship on the employees; it requires reasonable accommodation "without undue hardship on the conduct of the employer's business."" To show that an involuntary shift assignment would impose an undue hardship on an employer, the majority, relying on pre-Hardison circuit precedent, held that the employer was required to prove that involuntary reassignment would create a "chaotic personnel problem" rather than dissatisfaction among coworkers, and to do so, the university could not rely on the repeated threats by one of the two coworkers to resign since, per the panel, [t]he University "provided nothing to show that Meador's threat was more than mere "grumbling."" The dissent argued that the involuntary reassignment to accommodate Crider "would be discrimination against Meador and Rost in violation of Title VII" and that in any event, the personnel problems arising from an involuntary reassignment of weekend work to the two remaining coworkers was more than an abstract burden on the employer. Should Title VII be construed to require an employer to compel objecting employees to work weekends to accommodate a coworker in the absence of a seniority system? Presumably an employer could not compel another religiously observant coworker to accept a reassignment that violated that employee's religious observances and practices, so does the majority's ruling require the employer to engage in religious discrimination by only reassigning employees who religious observances and practices do not foreclose weekend work? If so, what protection does Title VII offer to sabbatarian employees who cannot arrange voluntary swaps? And what purpose does the court serve by issuing an unpublished opinion? Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu 954.262.3835 (fax) _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
