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A federal court should not have dismissed the religious discrimination claims of two Seventh Day Adventists against Kellogg USA Inc. for failing to accommodate their need for Saturdays off, the 10th U.S. Circuit Court of Appeals ruled, reinstating the claims.
After Kellogg took over a food production plant in Clearfield, Utah, it changed the shift schedule to "continuous crewing." Kellogg did so by splitting the employees into four sets of 12-hour shifts. These shifts were labeled A, B, C and D. A and B were alternating day shifts that lasted from 6 a.m. to 6:30 p.m. Each was immediately followed by the C and D shifts from 6 p.m. to 6:30 a.m. As a result of this shift schedule, all employees were required to work one Saturday shift every two weeks, for a total of 26 Saturdays a year.
Two of the employees who worked the A day shift were Seventh-Day Adventists, one of whom worked in processing and the other in packaging. Both informed Kellogg that they could not work on Saturdays because it was their Sabbath. During the winter months, they had a further conflict, requiring them to finish their shifts on Fridays when the sun set before their shift ended. Kellogg permitted them to avoid these scheduling conflicts by using paid vacation and sick/personal time and arranging to swap shifts with other employees.
[SHRM members-only HR Q&A: Can we require documentation from a religious authority to verify an employee's request for religious accommodation?]
Although the employees could swap shifts with other workers, it was difficult to do so. They had to arrange their own swaps, the swapping employees had to be qualified to perform each other's jobs, and Kellogg had to approve the swap.
Swapping was further complicated because, for safety reasons, Kellogg did not permit any employee to work more than 13 straight hours, so they could not swap with anyone on the C shift, the night shift that followed their A shift. Thus, the employees had to swap with B or D shift employees, who were not at the plant at the same time. The D night shift employees would have had to alter their sleep schedules to work the A day shift.
Kellogg assessed disciplinary points against any employee who missed part or all of a scheduled work day without taking paid time off or trading shifts with another employee, or who failed to give adequate notice of an absence, by assessing two to four points for each absence. Kellogg would fire an employee if he or she accumulated 16 disciplinary points in any 12-month period.
One of the two employees earned 160 hours of paid time off, which would cover a little over 13 of the 26 12-hour Saturday shifts he would have to work in a year. If he timely informed Kellogg that he would not work the other 13 Saturdays without pay, he would accumulate 26 disciplinary points in a 12-month period, well over the 16 points that would result in his termination. Once the employee amassed 17 disciplinary points—mainly for not working on Saturdays, but some for other reasons—Kellogg discharged him.
The other Seventh Day Adventist employee had 200 hours of paid time off, which would almost cover 17 of the 26 Saturdays that she needed off each year. If she took off the other nine Saturdays, she would have accumulated 18 points, resulting in her termination. She was able to swap a few Saturday shifts with another employee, but the swapping employee left Kellogg after several weeks. The employee would not use her paid time off for Saturday absences, instead using the time for visiting her gravely ill sister and to save sick time for when she was ill. As a result, the employee was terminated for accumulating disciplinary points for Saturday absences.
The employees brought a religious discrimination suit against Kellogg after they were fired. The district court dismissed the claims on summary judgment, holding that Kellogg did not specifically require the employees to work on Saturdays and that requiring Kellogg to have done more to accommodate them would have been an undue hardship that the law did not require.
On appeal, the 10th Circuit acknowledged that Kellogg was not required to guarantee Seventh Day Adventist employees that they would never be scheduled for a Saturday shift or that they would be spared any cost whatsoever in complying with their religious beliefs. However, it ruled that an accommodation would not be reasonable if Kellogg only provided the employees an opportunity to avoid working some but not all Saturdays. Nor would it be reasonable for Kellogg to only provide the Seventh Day Adventist employees with an opportunity to delay their eventual termination.
The 10th Circuit thus reversed the district court's dismissal of the employees' claims and required the district court to set them for trial for a jury to determine if Kellogg's actions were sufficient under the circumstances in providing a reasonable accommodation.
Tabura v. Kellogg USA, 10th Cir., Case No. 16-4135 (Jan. 17, 2018).
Professional Pointer: Although a religious accommodation need not be "cost free" to religious employees, employers must still take sufficient efforts so that employees will not necessarily be disciplined or fired as a result of their continued religious practice.
Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.
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