Yolanda Pozo, a Cuban native and devout Catholic, worked as a maid at a New York hotel. When she started in 2001, she worked Monday through Friday. Her schedule did not conflict with her church attendance at her Staten Island parish. In early 2002, her boss asked her to temporarily work weekends. Pozo reluctantly agreed, and showed up for work every Saturday and Sunday even though it meant missing mass.
It soon became clear to Pozo that her temporary weekend work was becoming permanent. She raised the issue with her union representative, who told her weekend assignments were set by seniority. Since the only other maid had more seniority, Pozo could not have time off on weekends.
However, the union representative did arrange a meeting with the hotel manager to see if some accommodation could be worked out. Pozo requested at least one Sunday off per month to attend mass. The manager said he would “see what he could do,” but never got back to either Pozo or the union representative.
Almost a year later, Pozo raised the issue again. Her union representative told her at the meeting that he had been working weekends for 15 years, and Pozo did not have the right to time off on the weekends.
Finally, in June 2006, the hotel manager told her she could have four hours off as long as she attended mass in Manhattan close to the hotel. Pozo asked if she could simply work from noon until 8 pm instead of 8 am to 4 pm on Sundays, and attend her own church on Staten Island.
Pozo sued both her union and the hotel, alleging religious discrimination, in addition to several other charges. The hotel tried to introduce evidence that it had offered an accommodation that Pozo refused. However, the court noted that the evidence was not in any of the affidavits submitted by the hotel. As a result, the court felt a jury should decide whether
the hotel really explored accommodations in good faith. The case now will go to trial.
Practical steps for employers: View religious accommodation the same way you view disability accommodation: as an interactive process in which both parties work to find a reasonable result. Like disability accommodation, the employer ultimately decides what is reasonable, and the accommodation may not always be the one the employee requested.
- Severe but short-term conditions can qualify for ADA protection
- You don't have to raise arbitration at the EEOC stage
- When essential duties are at issue, OK to base medical exam on FMLA certification
- Assess ADA disability against average ability
- Retaliation threat doesn't erase time limit for filing lawsuit