Requests for Sabbath Time Off Require Careful Response

The practice of refraining from work on a Sabbath, a day of rest and worship, is a feature of several faith traditions, though it is most often associated with Orthodox Judaism. Employers should evaluate carefully whether or not such time off can be accommodated before making a decision, an expert says.

Joyce Dubensky, executive vice president and CEO of the Tanenbaum Center for Interreligious Understanding, says employers should consider the answers to five questions when deciding how to handle religious issues in the workplace:

• What is the actual effect of this issue on day-to-day business?
• Would saying “yes” to this issue benefit overall business and/or diversity needs?
• If we bar this practice, what alternate behaviors or outcomes might emerge?
• Is there an alternative/compromise?
• Which outcome is the best?

Careful evaluation of such requests is an important part of legal compliance for U.S. employers.

According to the Equal Employment Opportunity Commission (EEOC) web site, “Employers must reasonably accommodate employees' sincerely held religious practices unless doing so would impose an undue hardship on the employer. A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his religion. An employer might accommodate an employee's religious beliefs or practices by allowing: flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers, modification of grooming requirements and other workplace practices, policies and/or procedures.”

The site continues: “An employer can show undue hardship if accommodating an employee's religious practices requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees' job rights or benefits, impairs workplace safety, causes co-workers to carry the accommodated employee's share of potentially hazardous or burdensome work, or if the proposed accommodation conflicts with another law or regulation.”

Even well-intentioned employers might get tripped up by these requirements.

For example, according to a June 18, 2009, statement, United Parcel Service (UPS) will pay $23,500 in damages to a 19-year employee after the EEOC said that UPS violated federal law by forcing the driver to work past sundown on his Sabbath, which violates his tenets as a member of the United Church of God.

The EEOC filed suit after first attempting to reach a voluntary settlement. UPS denied that it engaged in discrimination against the employee.

“This employee has never missed one of his Sabbath celebrations due to work requirements,” says Susan Rosenberg, public relations manager for UPS. “We have worked with him in his 19-year career as a UPS driver through options available through the UPS and Teamster collective bargaining agreement to make those accommodations for his religious beliefs.”

Training to Be Performed

According to the EEOC, UPS agreed to maintain a policy that comports with Title VII in order to provide reasonable accommodations for employees’ religious beliefs. In addition, UPS must conduct training on the prevention of discrimination based on religion for managers, something which the company already provides, according to Rosenberg.

UPS agreed to provide a variety of options to reasonably accommodate the employee’s religious beliefs, including allowing the employee to be relieved of overtime, to use accrued vacation days,to request personal holidays, to request unpaid leave when available and to use allotted unexcused absences.

As for the employee, “He remains on the job providing great service to UPS customers and with a schedule to accommodate his beliefs and Sabbath observance,” Rosenberg told SHRM Online.

Other organizations face similar experiences.

In a June 22, 2009, statement, the EEOC reported that The Vail Corp., which operates ski resorts, will pay $80,000 to Lisa Marie Cornwell, an emergency services supervisor at the Keystone Resort, whose supervisor allegedly ridiculed Cornwell for asking for a scheduling accommodation so that she could attend her preferred religious services and denied her requests while scheduling lower ranking officers for the shifts Cornwell had requested.

“Title VII imposes an affirmative obligation on employers to accommodate employees’ religious practices and beliefs when possible. When Congress added this provision to the statute, they expected employers to cooperate with employees to work out some reasonable accommodation,” said Mary Jo O’Neill, a regional attorney for the EEOC, in the announcement. “The environment in this case, where the employee was not only flatly denied accommodation, but also ridiculed for even asking, is unacceptable.”

“Because religion can be part of an individual’s core identity, even an innocuous joke can be very offensive,” according to Dubensky. She says ridicule and scheduling issues are among the most common scenarios in which religious bias occurs. Others include attire, diet, holidays and prayer.

“What you intend to say or do is only half of the equation; equally relevant is how it is received,” Dubensky says, adding that most problems occur because of ignorance, not malice.

She says employers can create a more inclusive workplace by encouraging employees and managers to:

• Be curious by asking respectful questions about a co-worker’s religious traditions.
• Avoid treating colleagues like they are a spokesperson representing their entire faith tradition.
• Increase knowledge about different faith traditions through continuous learning.
• Debunk stereotypes by avoiding over-generalizing phrases such as “all of them” and “they always.”

Circumstances Are Not Always What They Seem

According to the EEOC, religious discrimination charge filings reported to their agency nationwide increased from 1,388 in fiscal year 1992 to 3,273 in FY 2008.

Once a claim is filed, a company is placed in the position of defending its reputation from allegations even when they believe that there has been no wrongdoing. This leaves plenty of room for facts and circumstances to be misrepresented.

“We’re shocked that the EEOC would issue a news release that repeats only unproven allegations and fails to mention our adamant denials of any wrongdoing in this case. Their news release leaves the impression that we have either ignored or condoned these allegations and that the case was decided in the EEOC’s favor. Nothing could be further from the truth,” said Rob Katz, chief executive officer of Vail Resorts. “We settled this case for various other reasons, not because we admitted any wrongdoing, and we absolutely do not tolerate or condone any form of discrimination or harassment of our employees or guests.”

In a June 24, 2009, statement, Vail challenged the EEOC attorney’s comment that Cornwell was “flatly denied accommodation” to pursue her religious activities: “In fact, even Cornwell admitted, during the course of the case, that she was allowed to trade shifts to attend her preferred religious activities,” the statement reads, “Which is one of the EEOC’s own recommendations to companies for providing an appropriate accommodation.”

“Vail Resorts already provides training to its employees and supervisors regarding discrimination and retaliation and, regardless of the settlement, will continue that training to promote a positive and respectful workplace environment,” Katz added.

“We believe the settlement speaks for itself,” says David Grinberg, senior public affairs specialist with the EEOC. “It is standard operating procedure for EEOC to issue press releases regarding litigation, and it is not uncommon for employers to issue their own press statements in response to EEOC litigation,” he told SHRM Online.

“The EEOC sues employers as a last resort, after we first investigate a case, find reasonable cause that discrimination occurred, and attempt to reach a voluntary settlement with the employer out of court,” Grinberg added.

Rebecca R. Hastings, SPHR, is an online editor/manager for SHRM.