Reasonable Accommodations for a Lunar Sabbath?
By Fiona Ong - Shawe Rosental LLP
October 13, 2023
What on earth (or not) is a Lunar Sabbath, anyway? I’m sure that’s what was going through the employer’s mind when the employee requested a schedule adjustment so that she could observe her Sabbath, in a recent federal case that provides some lessons for employers on religious accommodations – an issue of particular interest following the Supreme Court’s overhaul of the religious accommodations standard earlier this year.
So, for those of you who, like me, are not familiar with this particular religious observance, under some interpretations of the King James bible, the biblical Sabbath (or day of rest from work for religious observance) is fixed by the moon, rather than the traditional 7-day week. The Sabbath falls seven, fourteen, twenty-one and twenty-eight days after each new moon, meaning that the day of the week on which it falls is constantly changing.
In Johnson v. York Academy Regional Charter School, the school’s business manager normally worked five 8-hour days (Monday-Friday) during the school year and four 10-hour days (Monday-Thursday) in the summer. After working at the school for six years, she began observing the Lunar Sabbath. In early October, she requested a religious accommodation of working four 10-hour days on those weeks in which her Sabbath fell on a workday.
In response (in mid-November – a month and a half later), the employer asked for a lot of things (although, in my professional opinion, most of it was reasonable): a statement from a third party to verify from their personal observation that the employee’s belief was sincere and consistently followed; any literature that explained her belief; whether she could provide her Sabbath schedule for the year; whether she would be available for consultation by phone on her Sabbath days; whether she would work the full workweek if her Sabbath fell on a weekend (this one seemed rather questionable – I mean, people who follow the traditional practices of Saturday or Sunday observances work the full workweek. Why would they assume anything different for her?); and her schedule in the summer when she already worked a four-day week.
A week later, the employee provided a third-party statement, an explanation of her religious belief, and a calendar of her Sabbath days for the year. She also stated that she would be available for emergencies on her Sabbath, would not need an accommodation when her Sabbath fell on a weekend day (well, duh), and would work on Fridays in the summer if her Sabbath fell on a weekday.
After another month went by, in early January, the employee asked about her request and was told that the Board of Directors was “digging its heels in” on this one. Due to stress and anxiety from the delay, the employee experienced physical symptoms and ended up taking a brief leave.
When the employee returned in early February, she was told by the school CEO and President of the Board that her request was denied because it posed an undue hardship. According to the employer, the employee had critical responsibilities in handling time-sensitive payroll, human resources issues/concerns, presentation of financial reports, managing audit visits, being present at Board meetings, handling vendor issues, and assurance of payments to creditors. (Huh, this seems pretty weak to me. I mean, most of those things can be arranged in advance or could probably wait for a day – and she did say that she was available for emergencies. Plus, she was already working a four-day week in the summer anyway – so she wasn’t in the office every day then).
The CEO told her that they would be open to alternative options. The employee responded, “I can’t work on my Sabbath day. I’m not sure what the alternative could be.” And according to the employee, the CEO and Board President simply nodded – apparently in agreement with her statement. (So, really, no actual alternative is not an alternative…) Facing a “Hobson’s choice,” the employee resigned and sued.
The employer asked the federal district court to dismiss the case for failure to state a claim (meaning that, as a matter of law, the plaintiff has not alleged facts in her complaint sufficient to support her claim). In order to assert a claim for religious discrimination, an employee must establish that she (1) holds a sincere religious belief that conflicts with a job requirement; (2) informed her employer of the conflict; and (3) was subjected to an adverse employment action. Here, the employer argued that the employee voluntarily chose to resign, and therefore she couldn’t meet the required element of an adverse employment action. But the employee argued that she had been constructively discharged – that the situation was so intolerable that she had no choice but to resign. And the court agreed that a constructive discharge would constitute an adverse employment action – and therefore she had stated a viable claim of discrimination. (Whether or not she, in fact, experienced a constructive discharge will need to be addressed by a jury).
We don’t yet know how this case will turn out. But even at this stage, there are certain lessons that can be drawn for employers.
• Respond promptly to requests for accommodation. Taking a month and a half to ask for more information, and over three months to actually respond, is really not reasonable.
• Be thoughtful about what information you request to support the accommodation request. Asking for a statement from a third party to confirm the sincerity of the belief is likely fine – but remember that the employee’s belief does not need to fall within the practices of an organized religion. Personal beliefs will be deemed religious if they are moral or ethical beliefs as to what is right and wrong and are sincerely held with the strength of traditional religious views. So it is important to remember that it may not be appropriate to request a third-party statement from a religious leader – there might not be one.
• And in that line, it would be wise not to request information that, frankly, doesn’t make a lot of sense to request. Like whether the employee would need an accommodation when her Sabbath fell on a weekend day…
• In addition, take a good hard look at whether the requested accommodation really poses an undue hardship in light of the heightened standard under the Supreme Court’s decision in Groff v. DeJoy, which we discussed here. Prior to this ruling, an “undue hardship” had been interpreted to mean any burden that was more than de minimis, or minimal. However, the Supreme Court “clarified” that “‘undue’ means that the requisite burden, privation, or adversity must rise to an ‘excessive’ or ‘unjustifiable’ level.” Consequently, according to the Supreme Court, “an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” Now, I’ve already made my snarky comments about whether the employer truly faced an undue hardship here.
• Also, don’t pretend there are alternative options when really, there aren’t. But it is important to refrain from assuming there are no options – it is critically important to engage in an interactive discussion with the employee to review all possibilities seriously. Perhaps the end of that discussion will be that there are no other options – but you must go through that interactive process first.