The district court order in Fouche, reported at 2011 WL 2792450, seems
unremarkable; the CBA was straightforward; a more senior driver
returned to work, exercised his seniority rights not to work on
Sunday, bumping Fouche into a Sunday assignment, and Fouche responded
by not coming to work on Sunday rather than by working out, or even
offering evidence that he could have worked out, a voluntary job swap
with a more senior employee. The employer discharged him for
nonattendance, he exercised his CBA rights and grieved his discharge;
the employer first offered him reinstatement to part time work that
would exempt him from Sunday driving as a reasonable accommodation,
and he refused; it then reinstated him contingent upon passing a
physical exam required of returning employees, and he refused to show
up for his physical.
Under Hardison, what plausible argument does Fouche have that 1) there
was a reasonable accommodation other than part time work and that 2)
the employer failed to offer it to him? And if the offer of part time
work was a reasonable accommodation, isn't that offer sufficient, in
and of itself, to discharge the obligation to offer a reasonable
accommodation even if it is not the employee's preferred obligation?
I agree that the panel should have omitted its gratuitous and improper
comment about the employee's good faith, but its judgment -- affirming
the district court -- seems correct. And given that unpublished
non-precedential opinions don't establish circuit law, I don't think
the court has created a new exemption from Title VII protection for
religiously observant employees; rather, it has just reminded
applicants for seven day a week jobs governed by a CBA that Hardison
still controls.
Mike
Michael R. Masinter 3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu 954.262.3835 (fax)
Quoting Marc Stern <ste...@ajc.org>:
An unpublished opinion of the Third Circuit in Fouche v.NJ Transit
(11-3031) portends excluding large classes of jobs from the
protection of Title VII.A full time driver sought to be
accommodated in not driving on Sunday. The employer claimed its
labor contract precluded accommodation; whether this is so, depends
on whether, for example, swaps were possible and from the bare bones
description of the facts given by the Court one cannot tell. But
the court went on to say that it doubted the good faith of the
claimant who applied for a job in a seven day a week employment
situation when he knew or should have known in advance of the
conflict with his religious requirements. Given the number of
accommodations worked out in such cases there is in any event no
factual basis for this doubt. Worse, the court's off-hand comment
suggests that all employers in need of seven day a week services
(e.g. police ,hospitals etc.) have a new , non-statutory,
unprecedented, defense in Title VII religious accommodation cases.
Marc Stern
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