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Co-worker complaints not enough to establish accommodation hardship

by on
in Discrimination and Harassment,Human Resources

Four days after the University of Tennessee Knoxville hired Kimberly Crider, she told her supervisor that she was a Seventh-day Adventist, which precluded her from working from sundown Friday through sundown Saturday. Crider’s job responsibilities included monitoring an emergency cellphone on a rotating basis during weekends.

When Crider’s co-workers refused to exchange shifts to accommodate her, the university determined she was unable to fulfill her job duties and fired her. As you would guess, Crider sued, claiming religious discrimination under Title VII.

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation poses an undue hardship if it causes more than de minimis cost on the operation of the employer’s business.

In Crider v. University of Tennessee (No. 11-5511, 6th Cir., 2012), the 6th Circuit applied those principles and concluded that a jury should decide whether the university lawfully refused to force its employees to change shifts to accommodate Crider’s religion.

Hardship or accommodation?

The university insisted that requiring its employees to work Saturday shifts every other weekend would have created an undue hardship for Crider’s former co-workers, so much so that it would cause “undue hardship on the conduct of the employer’s business.”

The court concluded that “employee dissatisfaction or inconvenience alone” does not create an undue hardship. Instead, “it is the effect such dissatisfaction has on the employer’s ability to operate its business that may alleviate the duty to accommodate.”

In EEOC guidance on religious accommodation, the agency says, “It would pose an undue hardship to re­­quire employees involuntarily to substitute for one another or swap shifts.”

What employers should do

Some might argue that this case undercuts the EEOC’s position. In reality, I think the university simply failed to prove the undue hardship with actual facts and data relative to its operations.

If you are planning to reject an employee’s request for a shift change as a religious accommodation, you must be able to support the claim of hardship with facts. Ask:

  • How does it impact your scheduling?
  • Do you have to hire additional staffing to cover for the missed shifts?
  • How much would it cost you in added overtime or other premium wages?
  • How often would you have to pay overtime or other premium wages?

Without answers to those questions, you will be hard-pressed to prove that a shift swap creates an undue hardship.

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