By John M. (Jack) Collins, General Counsel, Massachusetts Chiefs of Police Association, Grafton, Massachusetts
hen presented with requests for time off to attend religious observances (or for the day off, to observe a holy day or holy days, or if work on a Sabbath is prohibited or seen as “sinful,” for example) law enforcement agencies are required to attempt to reasonably accommodate them, as long as they reflect officers’ sincerely held religious beliefs. Generally, this requirement entails taking the first step, including a review of reasonable alternatives. It is reasonable to expect officers to use existing means of accommodation.
Under federal statute 42 U.S.C. section 2000e-2(a), hiring and employment discrimination on the basis of religion, including “any sincerely held religious beliefs,” is unlawful. However, an employer, in accommodating employees’ religious beliefs and practices, need not incur “undue hardship.”
Reasonable accommodation without undue hardship is required by federal law under section 701(j) of Title VII of the Civil Rights Act of 1964. Section 701(j) makes it an unlawful employment practice under section 703(a)(1) for an employer to fail to reasonably accommodate the religious practices of employees or prospective employees unless the employer demonstrates that accommodation would result in undue hardship on the conduct of the business. Section 701(j), in conjunction with section 703(c), imposes an obligation on a labor organization to reasonably accommodate the religious practices of employees or prospective employees unless the labor organization demonstrates that accommodation would result in undue hardship.
When there is more than one method of accommodation available that would not cause undue hardship, the U.S. Equal Employment Opportunity Commission (EEOC) determines whether the accommodation offered is reasonable by examining both (1) the alternatives for accommodation considered by the employer or labor organization and (2) the alternatives for accommodation, if any, actually offered to the individual requiring accommodation.
If an alternative is available that will not cause officers requesting time off to suffer a reduction in pay or other employment benefits, this must be offered, unless it causes undue hardship. If there is more than one such means of accommodation, the employer or union must offer the alternative that causes the least disadvantage to the officers with respect to their employment opportunities.
An employer meets its obligation to reasonably accommodate employees’ religious observances or practices without undue hardship on the conduct of the employer’s business when it demonstrates that it has offered a reasonable accommodation to the employees.1 Once an employer shows that it offered employees a reasonable alternative to accommodate their religion, a court should not require the employer to demonstrate the hardship of the employees’ alternatives.2
Certainly an agency cannot make it more difficult for officers to use established methods for soliciting a replacement, such as by sending a notice through the agency’s e-mail system or placing one on a bulletin board. Similarly, while there is some disagreement around the country, most courts do not look favorably on an offered accommodation that requires employees to accept lower-paying positions to be granted time off for a religious observance.
Most cases under section 701(j) involving religious accommodation provisions involved situations in which an employee did not want to work on a particular day for religious reasons. Generally courts will find that the employer has reasonably accommodated an employee where the employer
- met a number of times with the employee to attempt to find a solution,
- attempted to arrange voluntary shift swaps with other employees that would accommodate the employee, and
- attempted to find another position within the company that would accommodate the employee.
These cases dealt primarily with non–law enforcement situations.
State “Sabbath Day Off” Statutes
Some states have enacted statutes that appear to require employers to grant employees’ requests for part or all of their “Sabbath” off. In a 1985 case from Connecticut, the U.S. Supreme Court ruled that a statute that provides Sabbath observers with the absolute and unqualified right not to work on their Sabbath violates the establishment clause of the First Amendment to theU.S. Constitution under the following conditions:
- Where the statute imposes on employers and other employees the absolute duty to conform their business practices to the particular religious practices of one employee by enforcing the observance of a Sabbath that the employee unilaterally designates
- Where the statute provides no exception for special circumstances
- Where the statute allows for no consideration of whether an employer has made reasonable accommodation proposals3
The Court explained that to pass constitutional muster under the establishment clause, not only must a statute “have a secular purpose and not foster excessive entanglement of government with religion, its primary effect must not advance or inhibit religion.”4
The Connecticut statute stated: “No person who states that a particular day of the week is observed as his Sabbath may be required by his employer to work on such day. An employee’s refusal to work on his Sabbath shall not constitute grounds for his dismissal.”5
A state law that provides that an employer may show that any reasonable accommodation of an employee’s religious observance or practice will cause undue hardship to the conduct of the employer’s business will likely be found to be constitutional.6 On such a showing, the employer is not obliged to accommodate the employee’s religious observance or practice. This balancing of interests would distinguish a state’s law from the Connecticut statute, which provided employees with an absolute right not to work on their chosen Sabbath. The Supreme Court struck down the Connecticut statute because it “[took] no account of the convenience or interests of the employer.”7
Collective-Bargaining Agreement Constraints
Where an agency’s collective-bargaining agreement or past practice permits officers to secure voluntary substitutes or to swap shifts, allowing officers to use these would not constitute an undue hardship. Employees’ rights under collective-bargaining agreements to paid or unpaid leave and to avoid overtime may, in fact, qualify as reasonable accommodations of employee religious practices. Clearly, where officers request time off for a religious holy day or Sabbath observance, they may be required to attempt to use any such arrangements and to cooperate in the employer’s efforts to accommodate their requests.
In most cases, an employer will be found to have incurred an undue hardship if it has to violate the terms of a collective-bargaining agreement to accommodate an employee’s religious practices or to incur a greater than de minimis cost in so doing. For example, the following would generally qualify as undue hardships:
- Requiring shift swaps
- Paying overtime to obtain a replacement worker from among the agency’s current employees
- Paying premium wages to hire a person to work solely on the day on which an employee refuses to work
- Allowing an employee to work a four-day week
- Using salaried supervisory personnel to fill the position on the day in question to substitute for the employee or to leave the position unfilled
Note that a police department that has a reserve force available to work at straight time might have to consider using such officers as replacements for those who have a religious objection to working on a holy day or Sabbath.
Most law enforcement agencies probably need not grant officers the entire day off on their Sabbath or other holy days if this would conflict with the applicable collective-bargaining agreement or result in any replacement costs to the agency. This is in spite of the provision in some states’ antidiscrimination statutes that on their face would seem to require such accommodation.8 Allowing officers time to attend a required service on the Sabbath might be a different issue if it can be arranged without undue hardship, such as through voluntary swaps. ?
1Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 107 S. Ct. 367, 93 L. Ed. 2d 305 (1986).
3Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985).
5Connecticut General Statute, section 53-303e (LEXIS 2008).
6See New York & Mass. Motor Serv., Inc.v. Massachusetts Comm’n Against Discrimination, 401 Mass. 566, 575–576, 517 N.E. 2d 1270 (1988). Some states do have antidiscrimination laws that might appear to require absolute accommodation, but as this case shows, courts will interpret such statutes in line with the U.S. Supreme Court decision in the Connecticut case and require some reasonableness.
7Thornton, 472 U.S. at 709, 105 S. Ct. at 2917.
8See, for example, Massachusetts General Laws, ch. 151B, section 4, para. 1A.