The Employer's Legal Resource: Employer May Violate Title VII by Requiring Employees to Swap Shifts or Use Paid Time Off to Avoid Working on Sabbath

02.01.18

Richard Tabura and Guadalupe Diaz are both Seventh Day Adventists. They worked at a Kellogg food production plant in Clearfield, Utah. As Seventh Day Adventists, they observed the Sabbath and refrained from work each week from sundown Friday to sundown Saturday. When they were hired, Tabura and Diaz worked Monday through Thursday (ten hours each day) and there was no conflict with their religious observance. But Kellogg changed their plant-wide work schedule in 2011, adopting "continuous crewing" by dividing the plant's workforce into four shifts, where each shift worked twelve hours per day for three days and then had three days off. In conjunction with the new plant-wide crew scheduling system, employees on each of the four shifts were expected to work every other Saturday.

Kellogg assessed disciplinary points against any employee who missed all or part of a scheduled work day without taking paid time off or trading shifts with another employee, and employees would be terminated if they accrued a certain number of points in any twelve-month period. Tabura and Diaz informed Kellogg that they could not work on Saturdays because it conflicted with their religious observance of the Sabbath, but they were terminated after accruing the requisite number of disciplinary points for not working their scheduled Saturday shifts (one year after the "continuous crewing" work schedule was implemented).

Tabura and Diaz sued Kellogg, alleging that the company violated Title VII of the Civil Rights Act by failing to accommodate their religious practices. Title VII, in this context, requires an employer to make reasonable accommodations to the religious needs of its employees, unless doing so would cause an undue hardship on the employer's business. According to the court, a reasonable accommodation need not be without any cost to the employee and it need not totally eliminate any conflict between an employee's religious practice and his work requirements. The accommodation need only be reasonable under the specific facts at issue in any given case.

Kellogg sought to accommodate Diaz and Tabura's Sabbath observance through a combination of allowing them to use their vacation and other paid time off, as well as permitting them to swap shifts with other employees. This neutral policy was available to all Kellogg employees for absences of any kind. The court explained that such a combination might, under the facts of a particular case, reasonably accommodate an employee's Sabbath observance. But it did not do so in this case. Even if Diaz and Tabura used all of their vacation and other paid time off, that would still have been insufficient to avoid working some scheduled Saturdays. And the shift-swapping arrangement was problematic; employees apparently had difficulty in arranging voluntary swaps with other qualified employees under Kellogg's existing schedule and related practices. For example, the universe of qualified employees with whom Diaz and Tabura could swap shifts was quite limited (they were outright pr ohibited from swapping with one group of employees, pursuant to company policy and work hours restrictions) and management acknowledged it would have been "challenging" for them to swap with the other night shift workers. That left only one remaining group with whom Tabura and Diaz could realistically swap.

For Tabura, that meant twelve to fifteen processing employees, only three of whom were actually qualified to perform Tabura's exact position. Tabura ultimately was able to arrange a total of three swaps. But Tabura further noted that he was, in turn, not qualified to perform the jobs of two of the three employees with whom he swapped; thus, they were not willing to swap with him again. Diaz had a similar experience. She was able to swap with another employee who observed the Sabbath on Sunday on an ongoing basis until that employee left the company some months later. Other than that, she was able to arrange a swap on only one other occasion.

Further, it was unclear how helpful Kellogg was in facilitating any of those swap arrangements; Diaz and Tabura argued the company was decidedly not helpful. In light of the difficulties Plaintiffs had in arranging shift swaps, the court concluded that Kellogg needed to "take a more active role in helping arrange swaps in order for that to be a reasonable accommodation of [the employees'] Sabbath observance." The company's neutral employment policy did not automatically absolve them of liability in this case, nor did the court adopt a per se rule (as urged by the employees) that an employer can never reasonably accommodate an employee's religious observance solely through use of a neutral policy. Such a determination is simply dependent on the facts before the court at that time.

The court's ruling here means that the case must proceed to trial and be decided by a jury; it remains to be seen whether Diaz and Tabura will ultimately succeed on their claims.

By Rebecca D. Bullard, RBullard@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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