By Deryn Sumner, November 15, 2017
Although we see many more cases involving claims addressing the federal government’s obligation to accommodate employees with disabilities, the federal government also has an obligation to reasonably accommodate employees’ religion. In both types of accommodation, an employer can assert that providing the requested accommodation would pose an undue hardship to the employer’s operations. The definition of “undue hardship” when responding to requests to accommodate an employee’s religion is less onerous than when responding to requests to accommodate an employee’s disability.
The Commission’s regulation at 29 C.F.R. 1630.2(p)(1) defines “undue hardship,” in considering requests to accommodate disabilities, as “significant difficulty or expense incurred by a covered entity,” and lists five factors that should be considered, all of which consider the overall cost to the facility and the agency as a whole, and the impact on the operations and the other employees.
Looking at “undue hardship” under the lens of religious accommodations, the regulation at 29 C.F.R. 1605.2(e), an employer may assert that it cannot accommodate a need for accommodation if it would require “more than a de minimis cost” or if it would require a variance from a bona fide seniority system.
The Commission recently addressed a claim of religious discrimination in Allan F. v. United States Postal Service, EEOC Appeal No. 0120150643 (October 27, 2017). The complainant, who was Muslim, worked as a full-time Mail Handler and submitted a leave form requesting 24 hours of LWOP from October 7-12, 2011 for “religious holiday season.” A few days later, the complainant submitted a second leave form requesting 40 hours of annual leave for a “choice vacation.” The LWOP request was denied, but the annual leave request was granted. The complainant filed an EEO complaint alleging religious discrimination when his request for 24 hours of LWOP was denied. After receiving a Report of Investigation, the complainant requested a hearing. The Administrative Judge granted summary judgment in the agency’s favor, and the agency issued a final action adopting this decision, from which the complainant appealed to EEOC’s Office of Federal Operations.
On appeal, the complainant argued, in part, that the agency would have benefited financially by granting the request for LWOP instead of his request for annual leave, and that not being paid during this time was “part of the practice of his faith.” You may be asking yourself, why didn’t the agency just grant the request for LWOP since then it wouldn’t have had to pay the employee? Luckily, the agency articulated a legitimate, non-discriminatory reason for this. The agency denied the request for LWOP because of the needs of the service. If the agency had approved the request for LWOP, it would have allowed another mail handler to be able to take annual leave, which “could have placed them over the maximum percentage of mail handlers off, leading to increased overtime and a financial burden on the Agency.” The agency also noted that LWOP is approved based on management discretion, while annual leave is granted in accordance with the collective bargaining agreement.
Now what about the complainant’s argument that the agency should have accommodated him by not paying him during this timeframe? The Commission found that the agency made a good faith effort to accommodate the complainant because it granted his request for annual leave during the same timeframe and provided an alternative to the requested accommodation. The agency was able to show that granting the requested accommodation of LWOP would have created an undue hardship, since there could be an increase in overtime if another mail handler requested to use annual leave during this same timeframe. So, there you have it — a case where the agency showed granting LWOP would have cost more than approving paid annual leave. Sumner@FELTG.com