When Does Failure to Accommodate Sabbath Observance Amount to Religious Discrimination?

When Does Failure to Accommodate Sabbath Observance
Amount to Religious Discrimination?

In Tabura v. Kellogg USA, 880 F.3d 544 (10th Cir. 2018), the United States Court of Appeals for the Tenth Circuit reversed a federal district court’s decision to grant summary judgment to an employer, finding instead that the employer’s failure to accommodate its employees’ religious observance of the Sabbath could constitute religious discrimination and, thus, remanded the case for further proceedings.

In Tabura, the plaintiffs, Richard Tabura (“Tabura”) and Guadalupe Diaz (“Diaz”) were Seventh Day Adventists.  They observed the Sabbath from sundown on Friday evening through sundown on Saturday evening, which prevented them from working on Saturdays at the food production plant where they were employed.  This was not an issue when they were first employed, as they were scheduled to work Monday through Thursday, ten hours a day.  Kellogg, however, changed its shift schedule in 2011, and adopted a “continuous crewing” approach, which divided the plant into four shifts (designated A, B, C, and D), with each shift working twelve hour days for two or three days, followed by two or three days off.  Tabura and Diaz were assigned to Shift A with 25 to 30 other employees, working from 6:00 a.m. to 6:00 or 6:30 p.m.  Tabura worked in processing, and Diaz worked in packaging.  Shift A was paired with Shift C, which typically worked from 6:00 or 6:30 p.m. to 6:00 or 6:30 a.m.  Each of the four shifts had to work every other Saturday, for a total of 26 Saturdays a year.

When the new “continuous crewing” approach was announced, Tabura and Diaz advised Kellogg of the conflict with the Sabbath observance.  They also advised Kellogg that the new scheduled posed scheduling issues for them on Fridays during the winter when sundown was earlier in the day.  Kellogg permitted the plaintiffs to use paid vacation and sick/personal time to avoid these scheduling conflicts.  In addition, the company allowed them to arrange shift swaps with other employees.  These were the same accommodations that were available to all employees who wanted to take a day off for any reason.  Despite the availability of these options, Tabura and Diaz still encountered difficulties observing the Sabbath.  In this regard, they were the ones who had to coordinate schedule swaps and the employees with whom they swapped schedules had to be qualified to perform their respective job duties.  Plus, Kellogg had to approve the swaps and Kellogg would not approve a schedule swap that resulted in an employee working 13 or more consecutive hours.  This limitation automatically excluded swapping schedules with anyone in Shift C.  While Tabura and Diaz attempted to work within the system that was presented to them, they ultimately accumulated enough disciplinary points for missing all or part of their shifts that they were each terminated from employment in March and May 2012, respectively.  They later filed suit, alleging religious discrimination (disparate treatment and failure to accommodate) and retaliation under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”).  The district court denied the plaintiffs’ motion for summary judgment and granted Kellogg’s motion for summary judgment.  The plaintiffs then appealed.

The parties (and court) focused on whether Kellogg provided a reasonable accommodation.  The court explained that a reasonable accommodation does not have to be a “total” accommodation, meaning in this case that Kellogg did not have to ensure the plaintiffs would never be scheduled to work a Saturday shift and Kellogg did not have to ensure that the plaintiffs did not incur any cost whatsoever.  The court further noted that the employees were not entitled to the accommodation of their choice; rather, they were entitled to an accommodation that enabled them to meet their religious obligations.  Against this backdrop, the court rejected the plaintiffs’ (and EEOC, which filed an amicus brief) request to adopt a per se rule that a reasonable accommodation would “actually” or “totally” or “fully and completely” “eliminate” a conflict.  The court concluded such an outcome would eliminate “reasonable” from the nature of the accommodation, which is contrary to the statute’s requirements, and it would be contrary to United States Supreme Court precedent (Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986)), which determined that a reasonable accommodation does not necessarily have to eliminate the need for the plaintiff to incur some cost.  Although the Tenth Circuit acknowledged the “elimination” standard for any conflict had been adopted by some other appellate courts, the court found those cases applied the “elimination” standard in very different contexts, such as when an employer accommodated only one of two religious practices that conflicted with a work requirement or when an employer provided an accommodation that did in fact eliminate a conflict.

Next, the court rejected the plaintiffs’ other request for a per se rule – one that prohibits allowing an accommodation only through a neutral policy.  The court explained that an employer “of course” may accommodate an employee through a neutral policy, provided that the neutral policy reasonably accommodates the employee’s religious needs.  If, however, a neutral policy does not reasonably accommodate an employee’s religious needs, the policy “will not absolve the employer of its Title VII obligation reasonably to accommodate its employee’s religious practices.”  The court further observed that “[n]othing in Title VII requires the accommodation uniquely to target a religious concern.”

The court applied the law to the facts of the case first by examining the practice that allowed the plaintiffs to use paid leave to avoid a conflict with their religious observance.  The court noted that such an accommodation may be reasonable, but, in this case, it was not because this accommodation did not eliminate the conflict with the plaintiffs’ religious practice, as there would still be some Saturday shifts to work after their paid leave was exhausted (assuming the plaintiffs used all of their paid leave to avoid working on the Sabbath).  As for the shift swaps, such a practice also could be a reasonable accommodation, but not in the context of this case according to the court.  Kellogg acknowledged it would have been “challenging” for the plaintiffs to swap shifts with anyone on the other night shift (Shift D), which left only Shift B as the potential universe of available employees.  The court further observed that there was evidence indicating the universe of qualified employees with whom the plaintiffs could swap shifts was even more limited.  Tabura had identified only three potential candidates who were qualified to perform his job and they had said they typically would have declined his request to swap shifts.  Similarly, Diaz had identified only two potential candidates who were qualified to perform her job and with whom she could potentially swap shifts.  Diaz arranged to swap shifts with a Shift B employee who observed the Sabbath on Sundays until that employee left the company, and Diaz was able to arrange a shift swap with the other employee only once.  Based on these facts, the court concluded that there were disputes of material fact as to whether Kellogg reasonably accommodated the plaintiffs’ religious practices.

The Tenth Circuit’s decision in Tabura is an important reminder about the extent and scope of the duty to accommodate.  In this case, although the employer gave the plaintiffs accommodations that could help them avoid working during their Sabbath, and those same accommodations were found reasonable in other cases, those accommodations were not reasonable in this case based on the facts and circumstances specific to these plaintiffs.  Employers should be mindful that there is no playbook on which they can rely to identify potential accommodations.  Rather, businesses must make individualized determinations on a case-by-case basis, recognizing that what might have been reasonable in one contexts will not necessarily be reasonable in other circumstance presen