Does an employer's duty to reasonably accommodate the work scheduling
needs of a sabbatarian employee include compelling objecting coworkers
to accept involuntary shift reassignments requiring additional weekend
work in the absence of a formal seniority system? Perhaps, says a
split panel of the sixth circuit in an unpublished decision, splitting
with two other circuits in Crider v. University of Tennessee,
http://www.ca6.uscourts.gov/opinions.pdf/12a0800n-06.pdf
Ms. Crider was hired as the third of three university employees whose
core job responsibilities included monitoring a portable emergency
cell phone through which study abroad students could reach the
university in an emergency at any time. The university required the
phone to be monitored at all times; the two employees who previously
had assumed that responsibility by working alternate seven day shifts
objected to the burden of working every other weekend, and the
university sought to hire a third employee to spread the weekend
workload. Ms. Crider, a Seventh Day Adventist, applied for and
accepted the job knowing of the scheduling requirements, but,
consistent with her religious observances and practices, informed the
university four days after she was hired that she would not work,
including answer the phone, from sundown Friday through sundown
Saturday. Ms. Crider was unable to work out a voluntary shift swap
with either of her two coworkers. After two months of unsuccessful
attempts to resolve the scheduling dispute, including a threat by one
coworker to resign if forced to again work every other weekend, the
university discharged Ms. Crider, and she sued, asserting that it had
violated Title VII by failing to reasonably accommodate her.
The trial court granted summary judgment to the university, and in a
2-1 decision, the sixth circuit reversed, with the panel splitting
over whether TWA v. Hardison foreclosed involuntary shift
reassignments of coworkers to additional weekend work as a reasonable
accommodation. The majority reasoned: "Title VII does not exempt
accommodation which creates undue hardship on the employees; it
requires reasonable accommodation without undue hardship on the
conduct of the employer's business." To show that an involuntary
shift assignment would impose an undue hardship on an employer, the
majority, relying on pre-Hardison circuit precedent, held that the
employer was required to prove that involuntary reassignment would
create a "chaotic personnel problem" rather than dissatisfaction among
coworkers, and to do so, the university could not rely on the repeated
threats by one of the two coworkers to resign since, per the panel,
[t]he University "provided nothing to show that Meador's threat was
more than mere grumbling."
The dissent argued that the involuntary reassignment to accommodate
Crider "would be discrimination against Meador and Rost in violation
of Title VII" and that in any event, the personnel problems arising
from an involuntary reassignment of weekend work to the two remaining
coworkers was more than an abstract burden on the employer.
Should Title VII be construed to require an employer to compel
objecting employees to work weekends to accommodate a coworker in the
absence of a seniority system? Presumably an employer could not
compel another religiously observant coworker to accept a reassignment
that violated that employee's religious observances and practices, so
does the majority's ruling require the employer to engage in religious
discrimination by only reassigning employees who religious observances
and practices do not foreclose weekend work? If so, what protection
does Title VII offer to sabbatarian employees who cannot arrange
voluntary swaps? And what purpose does the court serve by issuing an
unpublished opinion?
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)
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