‘TIS THE SEASON FOR RELIGIOUS ACCOMMODATIONS

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By: Claudia D. Orr, Attorney, Plunkett Cooney 

 

‘Tis The Season For Religious Accommodations

 This time, the religious accommodation case was brought under Michigan’s Elliott-Larsen Civil Rights Act, MCL 37.2101, et seq.  Quite frankly, I can’t recall ever seeing one brought under Elliott-Larsen rather than Title VII, so my interest was immediately piqued. After all, it is the time of year when requests are often made.

My initial thought was that the plaintiff may have failed to file a charge with the Equal Employment Opportunity Commission (“EEOC”) within 300 days of the claim.  Or perhaps the plaintiff’s attorney just wasn’t comfortable practicing in federal court.  Or, maybe, an employer’s obligations are greater under state law. But it was odd to see this claim being brought under state law.

We know under Title VII, federal courts routinely recognize that any accommodation that is more than a de minimus cost to the employer is not required.  Of course, the EEOC takes the position that an employer has a much greater burden to accommodate, nearing an undue hardship standard similar to that required by the Americans with Disabilities Act.  But, what are an employer’s obligations under state law? Let’s look at Robinson v JCIM, LLC, an unpublished decision released by the Court of Appeals on November 27, 2018.

Plaintiff Thomas Robinson began working for the Defendant JCIM, LLC, an automotive interiors company in Grand Rapids, as a racker loader in the paint department on the first shift.

In January 2015, plaintiff, a Muslim, asked to leave work early, at 2 p.m., on Fridays so he could engage in congregational prayer, known as Jumu’ah. JCIM allowed plaintiff to do so because, as a racker loader, plaintiff had some flexibility in his schedule because he worked independently racking parts. Typically there were five or six such racker loaders grabbing parts off the line, so when one was missing, the others had to work harder but the line kept moving.

In July 2015, Defendant Yanfeng US Automotive Interior Systems II, LLC took over the ownership of JCIM, and allowed plaintiff to leave work early until October 2015, when plaintiff accepted the position of an assembler. Assemblers work as part of a team, so when an assembler is missing, a replacement has to be found to keep the presses operating so customer needs can be met. Therefore, Yanfeng told plaintiff on October 30, 2015, he would no longer be permitted to leave early.

Despite being told he could no longer leave early, plaintiff disregarded the instruction and continued to do so.  By late November, he had accumulated 19 points for unexcused absences. Under the Collective Bargaining Agreement, an employee is subject to termination at 21 points. Company documents showed that the human resources manager had met with plaintiff on November 10, and 19 to warn plaintiff he couldn’t leave, but offering to allow plaintiff to return to his former position as a racker loader. Plaintiff was also told he could stay an assembler but work on the third shift so that his work hours would not interfere with Friday prayer.

By November 23, 2015, plaintiff was given a final warning. Plaintiff grieved the warning, seeking removal of the points and to require Yanfeng to honor its prior agreement allowing him to leave for Friday prayer.  On December 7, 2015, plaintiff left early and was fired.

In his lawsuit, plaintiff claimed that Yanfeng discriminated against him by demanding he abandon his religious practices, failing to offer him any “alternate” accommodation and applying attendance points based on his religious observances. Defendants argued, among other things, that Elliott-Larsen does not require an employer to accommodate religious beliefs.

So, how did the appellate court rule on this issue? The court stated:

[A]t its core, plaintiff’s case concerns a claim that Yanfeng was required to accommodate his religious practices and failed to do so, thereby establishing religious discrimination. We are not aware of any published, or even unpublished, Michigan cases answering the question whether [Elliott-Larsen] authorizes a religious-accommodation case.  Defendants have directed us to a number of unpublished federal cases that indicate that [Elliott-Larsen] does not include an affirmative duty to accommodate an employee’s religious beliefs.  One published federal opinion, Wessling v Kroger Co, 54 F Supp 548, 552 (ED Mich, 1982), states, without any reasoning, analysis, or explanation, that there is no requirement to accommodate religious practice under [Elliott-Larsen].  We decline to resolve the question…

So, after all of that build up, we still don’t know!  Not definitively. Is my disappointment showing? Until this issue is decided in a published opinion by the Michigan Court of Appeals or the Michigan Supreme Court we can only do what these defendants did – rely on decisions that are only persuasive and not binding on lower courts.

In the meantime, what should an employer do when an employee asks for time off to observe religious practices?  If practicable an employer may wish to consider such things as the following:

  • schedule the employee off on his/her religious holidays and have others of different faiths fill in
  • allow the employee to switch days off with coworkers and “encourage” his/her coworkers to consider doing so
  • offer employees a “floating” holiday instead of their birthday off which can then be used for a holy day
  • be flexible with the employee’s use of paid time off
  • permit the employee to leave work and return a few hours later to complete the shift after the religious observance

Remember, under Title VII, more than a di minimus cost makes the proposed accommodation unreasonable.

In addition to time off, other requests may be made such as allowing piercings, beards, a quiet space for prayer, a variation in the dress code, etc. Employers should be flexible when operations don’t suffer, and safety or health issues are not created. Flexibility shows tolerance and encourages diversity which in turn makes it easier to recruit and retain talent in this competitive labor market. If you receive a request and need legal guidance, consult an experienced employment attorney, such as the author.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association.  She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.  

 Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. December 2018.