When an employee requests a medical leave, employers can rightfully ask for supportive documents from a doctor. But, what happens when the person requests a schedule change for religious reasons? You can't exactly ask for a note from the employee's higher power.
In religious accommodation cases, everyone is operating on good-faith beliefs and honesty. That is, until the employee doesn’t show up to work. Then what? Is the employee exempt from the attendance policy? Is a written absence warning considered an act of retaliation?
One court recently ruled that as long as you properly dot your “i’s” and cross your “t’s," you can discipline employees for not showing up as scheduled ... even if they claim it's for religious reasons.
Case in Point: Najmah Rashas worked as a legal secretary for a Washington, D.C., transit agency (WMATA). She is Muslim and asked for an alternative work schedule that would allow her to leave early on Friday afternoons to attend the weekly Muslim prayer service. Her employer granted the request and rescheduled her to start work earlier and stay later on Mondays through Thursdays to make up for the early-Friday exits.
However, one Thursday, Rashas missed work without giving advance notice (as required under the attendance policy) or possessing available leave.
WMATA sent her a warning letter, noting that her Friday accommodation “conflicts with” the agency's normal alternative schedule and “may impose a burden” on the department. The letter referred to Rashad's unapproved absence from Thursday and urged her to be careful to adhere to her new schedule. If she did not, she would risk discipline for being AWOL, the letter said.
Rashad objected to receiving a written warning and claimed it was intimidating and punitive. So she filed a religious discrimination and retaliation lawsuit against WMATA.
Verdict: The court ruled in favor of WMATA, saying Title VII requires an employer to reasonably accommodate an employee's religion if it can do so without undue hardship. The court noted that WMATA correctly engaged in an "interactive process" with Rashad for several months to agree upon a reasonable accommodation.
The court ruled, “WMATA's messages informed Ms. Rashad that her absences constituted a burden but that it was willing and able to accommodate her religious practices despite the burden. WMATA was well within its rights to consider any burden imposed by an accommodation request and whether the burden rose to the level of an undue hardship.” (Rashad v. Wash. Metro. Area Transit Auth., D.D.C., 5/23/13)
3 Lessons Learned … Without Having To Go To Court
- Engage in the interactive process. The court was satisfied that the employer complied with the law even though it initially denied Rashad's request and then took five to six months to grant it. While the interactive process took a long time, it did, in fact, occur and the employee never disputed it or that she was granted an accommodation.
- Have an attendance policy with teeth. If the employer didn’t have an attendance policy to point to, this situation might indeed smack of discrimination and retaliation. But, a well-drafted policy alerts employees (and the courts) to the “house rules,” regardless of what religion they follow.
- Start with a warning letter. Now, this is key. The court observed that the warning letter "did not come out of the blue” and that “no repercussions would follow from the letter unless Rashad in the future failed to follow those procedures.” This strategy builds a strong record in the event the employee goes AWOL again. And, Lord knows it could happen.