March 31, 2021
Religion’s Reasonable Accommodation – What is (not) De Mimimis
Title VII of the Civil Rights Act of 1964 requires reasonable accommodation for religious observance. Like the Americans with Disabilities Act (ADA), that obligation is limited to an accommodation that does not impose an undue burden. Unlike the ADA, however, Title VII’s burden has a much lower threshold. An accommodation is unreasonable if it imposes more than a de minimis burden. What’s an example?
Your assistant managers (AM) work weekends on a rotating basis. When fully staffed, each AM works six weekends every ten weeks. You have an AM vacancy. You offer the job to a candidate who tells you he cannot work weekends due to his religious observance. In order to accommodate his request, the other AMs would have to work seven weekends every ten weeks. Is that a reasonable accommodation under Title VII or does it impose more than a de minimis burden? Asked another way, can you rescind the offer without violating Title VII of the Civil Rights Act of 1964?
The 7th U.S. Circuit Court of Appeals recently held, “Yes.” Why? “Title VII does not require an employer to offer an ‘accommodation’ that comes at the expense of other workers.” Even if the coworkers agreed today, what if they “balked” at some time in the future?
- The EEOC disagrees. Like the March 30th FMLA news story, don’t take this as a Title VII hall pass. The U.S. EEOC, which filed the suit on behalf of the candidate, suggested some other accommodations the employer could have offered but didn’t. This court disagreed but another might not.
- Monitor this issue. On April 5th, the U.S. Supreme Court (SCOTUS) declined to hear a similar case that challenged Title VII’s de minimis rule. Until all the federal circuits agree, we receive a decision from SCOTUS or Congress amends Title VII to provide a new definition, litigation on this matter will likely continue.
- Talk to your company’s legal counsel. Consider options. Before you decline a candidate’s or employee’s request, you could ask your current employees if they would work extra weekend shifts. If they said, “No,” you would have taken a extra step and have more evidence as to why a reasonable accommodation is not available.