Employer Religious Accomodations

Although the Supreme Court remanded the case for further factual findings, it held that where an employer has offered a reasonable accommodation, the statutory inquiry is at an end. Id . at 68-69. That is, the fact that the employee would prefer a different reasonable accommodation than the one offered by the employer is irrelevant. If the employer offers one reasonable accommodation that resolves the conflict, it need not analyze whether the accommodations suggested by the employee would or would not cause the employer undue hardship. Id . Undue hardship only enters the picture when the employer claims that it cannot offer any accommodation without undue hardship. Id . The EEOC suggests a variety of accommodations that employers should consider in religious accommodation cases. These include voluntary job swapping or substituting and flexible scheduling. See 29 C.F.R. § 1605.2(d). In addition, in the federal workplace, 5 U.S.C. § 5550a grants compensatory time off to employees "whose personal religious beliefs require the abstention from work during certain periods of time." Because this statute also provides for an exception "as may be necessary to efficiently carry out the mission of the agency," it is not clear how, if at all, this statute changes the accommodation analysis. In reaching its decision, the Philbrook court reviewed EEOC guidelines that state that an employer should "offer the alternative which least disadvantages the individual with respect to his or her employment opportunities." Philbrook , 479 U.S. at 69 n.6 (quoting 29 C.F.R. § 1605.2(c)(ii)). The Court noted that this provision was inconsistent with the plain language of Title VII to the extent that it required employers "to accept any alternative favored by the employee short of undue hardship." Id . Subsequent to Philbrook , the EEOC has asserted that the provision "does not require an employer to provide any alternative favored by an employee," and thus it is consistent with Title VII as interpreted in Philbrook . See EEOC Policy Statement on Ansonia v. Philbrook , May 9, 1988, available at http://www.eeoc.gov/ types/religion.html. VI. Conclusion Most plaintiffs, if they are sincere in their beliefs, will be able to establish the first step in a prima facie case of religious accommodation. Assuming that such employees notify their employer of their religious practices, and that such practices actually conflict with workplace rules, then such a plaintiff will be entitled to a

Finally, a reasonable accommodation proposed by the employer may burden the employee so long as it does not include an unexplained diminution of employee status or benefits. In Philbrook , the Court noted that requiring the plaintiff to take unpaid leave for church attendance on his Sabbath appeared to be reasonable so long as it had "no direct effect upon either employment opportunities or job status." Philbrook , 479 U.S. at 70-71; see also Wright v. Runyon, 2 F.3d 214, 216 (7th Cir. 1993) (accommodation required plaintiff to accept "nonpreferrable position" but was reasonable because it did not require reduction in pay or benefits); Brener v. Diagnostic Center Hosp. , 671 F.2d 141, 146 (5th Cir. 1982) (employee has burden to explore employer's flexible scheduling policies before requesting additional accommodations); Greenfield v. City of Miami, 844 F. Supp. 1519, 1524 (S.D. Fla.1992) (removal of flex time and unpaid leave was reasonable accommodation where plaintiff had abused flexible scheduling option). Even a reduction in benefits may be an acceptable burden on an employee when it is temporary. Cosme v. Henderson , 287 F.3d at 160 (reasonable accommodation included offer to transfer employee that carried with it a temporary ninety day loss of seniority). The second primary principle of undue hardship for religious accommodations is that the plaintiff is not entitled to the accommodation of his choice. Rather, if the employer offers one accommodation that resolves the conflict between the employee's religious practice and the employment rule at issue, then the employer has done enough. This issue was decided in Ansonia Bd. of Educ. v. Philbrook , 479 U.S. at 69. The plaintiff in Philbrook , as in Hardison , was a member of the Worldwide Church of God. His religious practices required him to take six school days off per year. The school's collective bargaining agreement permitted employees to take up to three days of leave, not charged against annual leave, for mandatory religious holidays. The school board also prohibited personal leave for uses that were otherwise specified in the collective bargaining agreement, such as religious holidays. Thus, plaintiff was forced to take three days of unpaid leave to attend to the full complement of his religious duties. Plaintiff believed this was unfair and argued that he be permitted to either use his personal leave for religious purposes or pay for a substitute teacher in his stead on the days when he was away from the school for religious purposes. Id . at 64-65.

UNITED STATES ATTORNEYS ' B ULLETIN

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