Ask The Lawyer By: Daniel A. Gwinn, Esq.

WEEKDAYS ONLY? WORKER’S DISCHARGE COULD BE A CASE OF RELIGIOUS DISCRIMINATION

QUESTION:  For the last three years I worked at an assisted living facility. I loved helping older people retain dignity in their final years. When I interviewed for this job, I told management that I cannot work from sundown Friday evening to sundown Saturday, as it is against my religious beliefs to work on the Sabbath. For the first two years, I worked Sunday to Thursday, with some work on Fridays in the summer when the sun goes down much later. A year ago, a new management team took over the facility, and although I told the manager about my religious beliefs, I was increasingly scheduled to work on Fridays and Saturdays, and told I could swap with someone else if I had a problem with it. Schedules used to be posted two weeks in advance, but are now posted on Saturdays, which made swapping difficult and I missed several days of work. Last week, I was fired for excessive absenteeism. Is there anything I can do?

ANSWER:     As Americans, we not only have freedom of religion, we also have the right under Title VII of the Civil Rights Act to be free from discrimination based on our religious beliefs. In Michigan, that right is also protected under the Elliott-Larsen Civil Rights Act.

            The law requires employers to make accommodations for the sincere, religious beliefs of their workers when they are able to do so without undue hardship. These accommodations have included allowing a worker to wear a hijab at a place where any head-covering is not generally not allowed, allowing a worker to leave early (without pay) on a regular basis to attend prayers, allowing a worker to take certain days off as religious holidays (without pay), allowing an employee to work a schedule that does not conflict with deeply held religious beliefs and even allowing a worker to refuse to use a biometric clock-in device where he believed the scanning device would associate him with the Mark of the Beast.

            There are two pillars on which a claim of religious discrimination/failure to accommodate its built: The religious belief must be sincerely held, and the accommodation must be not impose “undue hardship” on the employer.

            While the reasonableness of a religious belief often gets a judicial pass (like a belief that a biometric scanner will somehow leave the Mark of the Beast), the requirement that the belief be sincerely held is not so malleable. If a worker asked to have a day off for secular reasons and, after the request was refused, then asked to have it off for a religious reason, the sincerity of the worker’s belief might be suspect. Employers are allowed, according to some courts, to ask for some proof that a religious belief is sincerely held (for example, a note from a pastor).

            Even if a worker’s religious beliefs are sincere, a requested accommodation can be denied if it would impose undue hardship on the employer. According to the Equal Employment Opportunity Commission, hardship means more than financial cost and can occur “where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work.” In addition, employers are not required to violate a seniority system or a collective bargaining agreement in order to accommodate a worker’s religious beliefs, no matter how sincerely held.

            In a recent case out of Minnesota, a Seventh Day Adventist who – like you – was not able to work on the Sabbath for religious reasons, lost her case where she had failed to inform her employer of the religious restriction until after she had been hired. In that case, the woman, a nurse, knew when she applied that the job would require her to work every other weekend. Although the nurse said she would try to find someone to take her shift every other Friday, the hospital thought it was unlikely she would be able to do so as the Friday night shift is, not surprisingly, unpopular. Where patient care was involved, the hospital could not risk having the Friday shift understaffed any time the nurse was unable to find someone willing to swap shifts.

            In contrast, a Florida woman who worked as a hotel dishwasher hit the litigation jackpot this year when a jury awarded her $21.5 million in actual and punitive damages (the hotel chain will appeal; the woman will receive no more than $300,000 in any case because there was a cap on the punitive damages). Her employer, a Hilton hotel, had allowed her to have Sundays off from 2006 until 2015, when a new manager insisted she work Sundays. The attorney there argued (and the jury apparently believed him) that allowing the woman to have Sundays off would not pose any hardship to the hotel, since it had managed just fine on Sundays without her for almost a decade. While the jury’s willingness to hit the employer with punitive damages should be a lesson all employers, employment discrimination cases rarely get such hefty awards, and are more likely to settle before trial for up to a year of back pay, plus costs and attorney’s fees.

            In your case, the fact that your employer allowed you to work a schedule that aligned with your religious beliefs for two years indicates it could have continued to do so without hardship. Your employer was probably going against current trends when it decided to give employees less advance notice of their schedules. In the past few years several states, including Michigan (where the bill failed to advance), have introduced or passed legislation employers to give their workers their schedules up to two weeks in advance.

            While many businesses, especially retailers and restauranteurs, embraced “just-in-time” or “on-demand” scheduling – providing minimal notice of shift changes to keep staffing low —  as a way to cut costs, the scheduling is unpopular with workers who find their hours and pay might vary enormously from week to week, and who must keep their calendars open in case they are scheduled to work.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law

(248) 247-3300
(248) 247-3310 facsimile 
daniel@gwinnlegal.com
www.gwinnlegal.com

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