The Employer's Legal Resource: Employers Should Properly Document the Religious Accommodation Process

05.01.13

Robert Antoine was fired from his job as a bus driver for excessive absenteeism. He sued his employer, First Student, Inc. for failing to accommodate his religious beliefs.

Antoine, a Seventh-Day Adventist, typically completed his bus route around 5:40 p.m. each day. At the time of his bus route assignment, Antoine did not inform his employer that, once daylight savings ended and sunsets started occurring before his shift ended, he would be unable to complete his Friday afternoon shift due to his religious observances. Once Antoine realized his Friday afternoon shift would interfere with his observance of the Sabbath, he met with his supervisor and explained that he would be unable to complete those shifts. After a series of meetings and internal communications between Antoine supervisor and several HR managers, Antoine was told if he could not complete his shift on Friday afternoons, he should not come to work that afternoon. During a meeting with HR, he was also given a warning letter for not completing his shift.

Antoine also left the meeting believing that his supervisor and dispatchers would find a replacement driver for the Friday afternoon shift. However, the supervisor claimed he told Antoine it was his responsibility to swap shifts with a co-worker. Neither Antoine nor the supervisor got a replacement driver. However, another driver, who overheard Antoine complaints, offered to take his Friday afternoon shift, but declined after being told they would be required to swap shifts for the entire week. Believing it was not his responsibility to find a co-worker to swap shifts and believing he was not to appear for his shifts on Friday afternoons, Antoine did not appear for work for several consecutive Friday afternoon shifts. Consequently, Antoine received several written warnings, followed by a suspension and was ultimately terminated for excessive absenteeism. Antoine then sued for failure to accommodate his religious beliefs. The trial court found in favor of the employer, but the appeals court reversed. Here's why:

The appeals court found that there were facts that required this case be heard by a jury. Specifically, a fact issue existed regarding whether the employer informed Antoine that it was his responsibility to find a replacement driver for his Friday shifts. The court found that Antoine offered evidence supporting his contention that his supervisor told him that the company would arrange a voluntary shift swap for him. Furthermore, the union steward testified that Antoine supervisor and dispatcher stated they would find a driver to swap routes with the employee. Accordingly, the court determined that it was unclear whether the employer offered Antoine the accommodation of the opportunity to arrange a voluntary shift swap himself.

The court decision highlights the need to document and record all communications and decisions during the accommodation process. Employers are required to provide reasonable accommodations for the sincerely-held religious beliefs of their employees. Once an employee provides a request for accommodation, which should be made in writing or reduced from a verbal request to a written request, the employer should document all communications between the employee and the employer during the interactive accommodation process. Any decisions made during the process, including temporary accommodations and final accommodations, should be made in writing, reviewed by the employer, dated, and signed by all parties, including the employee receiving the decision. Not only does this simple practice clear up any unnecessary confusion, but it can also be vital in defending a lawsuit for a failure to reasonably accommodate religious beliefs.

By Kenneth T. Short, kshort@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment
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