Retail employers are faced with many challenges when confronted with managing reasonable accommodation requests from employees based on their religious beliefs and practices.

Title VII of the Civil Rights Act of 1964 (“Title VII”) requires employers to reasonably accommodate an employee’s sincere religious beliefs or practices so long as such accommodation would not result in undue hardship on the employer. While Title VII does not protect an employee’s mere personal preferences, federal law defines “religion” broadly to encompass theistic beliefs that are uncommon as well as non-theistic moral or ethical beliefs.

The law provides no set list of accommodations available to employees, and, as a result, employers may be faced with—and need to consider and perhaps agree to—unusual requests. Two recent cases address areas of contention surrounding religious accommodation, which have potential relevance for retail employers: objections to identification procedures and scheduling policies.

Objection to Identification Procedures: Mark of the Beast

A West Virginia jury held Consolidated Coal Company and its parent CONSOL Energy (“CONSOL”) liable for discrimination for their denial of an employee’s request to use an alternative means of clocking in and out of work when the employer adopted a “biometric hand scanner” system, which led to the employee’s forced retirement after 38 years of service.^[1] The employee, an Evangelical Christian, objected to using the new time and attendance system because of his beliefs about the relationship between hand-scanning technology, the “Mark of the Beast,” and the Antichrist discussed in the New Testament’s Book of Revelation. CONSOL refused to allow the employee to use another method to clock in and out of work, despite having established a bypass method for employees who were physically incapable of scanning their hands. The employee received an award of $586,860 in lost wages and benefits and compensatory damages. On appeal, the U.S. Court of Appeals for the Fourth Circuit affirmed, finding that the employer’s bypass method constituted sufficient evidence that it had an alternative clocking-in method that could have been given to the employee as a reasonable accommodation.

Scheduling Policies

Retail employers often face requests for shift or schedule changes to accommodate an employee’s religious practices, such as a worship schedule or day of rest. A recent decision of the U.S. District Court for the District of Colorado reaffirmed that Title VII does not require employers to provide the employee’s preferred accommodations when other reasonable options are available. In such circumstances, employers may rely upon business requirements establishing scheduling or past precedent to appropriately respond to such requests.

In Wimbish v. Nextel West Corp.,^[2] the plaintiff, Satya Wimbish, began employment at a Sprint store. While in this job, she requested a schedule that gave her Wednesday evenings and Sundays off to accommodate her church-going schedule. Initially, Sprint was able to accommodate her shift request. Later, Wimbish transferred to a job in Sprint’s “eChat” group, which required consecutive days off for business continuity. Her new schedule provided Wimbish with Tuesdays and Wednesdays off, but not Sunday. The company refused Wimbish’s request to give her a schedule that split her days off. Instead, it offered (i) to permit her to swap schedules temporarily or permanently with other employees, (ii) a starting time two hours later on Sundays, and (iii) to allow her to use paid time off (“PTO”) to cover situations in which she was unable to begin work on time on Sunday. Thereafter, Wimbish and her supervisors had ongoing discussions for several months regarding her use of PTO and shift changes. When business conditions improved, they offered her Wednesdays off as an “exception,” for which she would need to complete monthly paperwork. She did not accept the offer, because, although she was told that she could have the split shift “until further notice,” the company would not promise that the change would be permanent. Ultimately, Wimbish resigned in alleged frustration over the paperwork requirement (which took only two minutes) and sued.

In granting summary judgment for Nextel West, the trial court found that the company had met its obligation to offer Wimbish reasonable accommodation of her religious observances. Although employees may push for a specifically desired accommodation, the case supports the principle that employers are required only to provide one that is reasonable, not preferred.

Conclusion

As employers are faced with religious accommodation requests, they should remain mindful that each request should be considered on a case-by-case basis. While employers may be able to show that certain requests pose an undue hardship, they should engage in discussions with the employee to consider whether any accommodation (even if it is not the one suggested) could be offered.