Love They Neighbor: Should Religious Accommodations that Negatively Affect Coworkers

Fordham Law Review Volume 78 | Issue 3 Article 11 2009 Love They Neighbor: Should Religious Accommodations that Negatively Affect Coworkers' Shift Preferences Constitute and Undue Harship on the Employer Under Title VII? Rachel M. Birnbach Recommended Citation Rachel M. Birnbach, Love They Neighbor: Should Religious Accommodations that Negatively Affect Coworkers' Shift Preferences Constitute and Undue Harship on the Employer Under Title VII?, 78 Fordham L. Rev. 1331 (2009). Available at: http://ir.lawnet.fordham.edu/flr/vol78/iss3/11 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact . NOTES LOVE THY NEIGHBOR: SHOULD RELIGIOUS ACCOMMODATIONS THAT NEGATIVELY AFFECT COWORKERS' SHIFT PREFERENCES CONSTITUTE AN UNDUE HARDSHIP ON THE EMPLOYER UNDER TITLE VII? Rachel M. Birnbach* In applying Title VII, courts are often confronted with proposed religious accommodations that would negatively affect other employees and must decide whether such an accommodation amounts to an undue hardship on the employer. However, there is a conflict among circuit courts over the scope of an employer's duty to accommodate religious employees when doing so would negatively affect coworkers' scheduling preferences, outside the context of a collective bargainingagreement. The conflict turns on whether courts consider any negative impact on coworkers to amount to impermissible preferential treatment, or whether they require that the defendant demonstrate a more severe impact on coworkers' rights before finding that the accommodation would present an undue hardship. This Note argues thatpreferential treatment of the religious employee exists only when the proposed accommodation infringes on coworkers' contractually protected rights, creates an economic burden on the employer, or requires coworkers to take on additional,physically hazardous tasks. TABLE OF CONTENTS INTRODU CTION ........................................................................................ I. PROTECTION AFFORDED FOR RELIGIOUS OBSERVERS: 1333 BACKGROUND OF TITLE VII'S RELIGIOUS ACCOMMODATION RE QU IREM EN T .............................................................................. 1335 A. The History of the Employer's Duty To Reasonably Accommodate a Religious Employee Absent Undue H ardship............................................................................... B. Religion Comparedwith Other ProtectedClasses Under Title VII ................................................................................. * J.D. Candidate, 2010, Fordham University School of Law. 1335 1338 I would like to thank Professor James Kainen for his insight and assistance throughout this process, and my family and friends for all their encouragement and patience. 1331 1332 FORDHAM LA WREVIEW [Vol. 78 C. ProceduralPrerequisitesto Religious Discrimination Claims ....................................................... 1340 D. Prima Facie "FailureTo Accommodate" Claim ................... 1342 E. The Current Understandingof the "Undue Hardship" 1343 Standard...................................................... 1. Facts of Trans World Airlines, Inc. v. Hardison.............. 1344 2. The Two Methods of Demonstrating Undue Hardship .... 1346 a. The FirstMethod: FinancialCost Hardship............. 1347 b. The Second Method of Showing Undue Hardship: Preferential Treatment Hardship .............................. 1349 3. Post-Hardison Decisions: Defining the Limits of an Employer's Accommodation Obligation ........................ 1353 a. Bhatia v. Chevron U.S.A., Inc.: Accommodations That Require Other Employees To Take On Added Hazardous Work Are an Undue Hardship................ 1354 b. Estate of Thornton v. Caldor, Inc ............................... 1355 c. Ansonia Board of Education v. Philbrook: The Supreme Court'sInterpretationof "Reasonable 1356 Accom m odation .......................................... II. CONFLICTING INTERPRETATIONS: WHAT CONSTITUTES ........................... PREFERENTIAL TREATMENT? ............................ 1358 A. The Fifth Circuit Approach ........................................ 1360 1. Brener v. Diagnostic CenterHospital.............................. 1361 2. Turpen v. Missouri-Kansas-TexasRailroad Co.............. 1364 3. Weber v. Roadway Express, Inc.................................. 1365 B. The Ninth CircuitApproach ........................................ 1366 III. STRIKING A BALANCE: OUTSIDE THE COLLECTIVE BARGAINING AGREEMENT CONTEXT, SHOULD A COWORKER'S FAVORED SCHEDULE EVER M ATTER 9 ....................................... 1370 A. JudicialConcern with the Unfairness ofAccommodations ... 1372 B. Statute, EEOC Guidelines, and Legislative History: No Requirement of Considerationof Coworker Impact ............. 1373 C. ProposedFramework: Impact on Coworkers Becomes PreferentialTreatment When It Imposes an Economic Cost on the Employer or Involves Taking On Additional H azardous Work ............................................... 1375 1. A Focused Approach: Framework for Analyzing an Accommodation That Burdens Coworkers ..................... 1375 2. Policy Concerns in Favor of Adopting the Proposed Framew ork ................................................. 1376 C ON CLU SION .......................................................... 1377 2009] LOVE THY NEIGHBOR 1333 INTRODUCTION Imagine that you manage a pharmacy at a hospital that operates twentyfour hours a day, 365 days a year. Some of your employees have certain schedules in which they are off from work on Fridays and Saturdays. During their days off, they may choose to spend time with their spouses, who also have those days off from work, attend their children's sporting events, or take care of an ill family member. Imagine further that a new pharmacist is hired who informs you that his strongly held religious beliefs and observances require him to observe the Sabbath from Friday sundown until Saturday sundown, during which he must abstain from doing work.' Under Title VII of the Civil Rights Act of 1964 (Title VII), you are required to reasonably accommodate the new employee's religious observances absent undue hardship on the conduct of your business. 2 To do this, you may have to require other employees to trade shifts with the new employee, forcing them to work on Friday nights and Saturdays in exchange for other undesirable shifts off, such as Christmas or Thanksgiving. Although the other employees lack contractual rights, such as those found in a collective bargaining agreement, 3 to their preferred schedules, they have been working the same shifts for years and have built their personal lives around their expected schedules. Those employees are unhappy about having to change (...truncated)