A store did not have to adjust the work schedule required of its assistant manager position to accommodate a Seventh-day Adventist who applied for and received the position and then could never work on Saturdays, the 7th U.S. Circuit Court of Appeals ruled.
In April 2016, a Walmart in Hayward, Wis., offered one of its eight full-time assistant manager positions to an applicant. After the applicant received the offer, he revealed that, as a Seventh-day Adventist, he could not work between sundown Friday and sundown Saturday. This disclosure caused Walmart to re-evaluate the offer.
The store's human resource professional assessed whether Walmart could accommodate the applicant's religious practices. The store is open 24 hours a day, seven days a week, and is especially busy on Fridays and Saturdays from late May to late August, the peak tourism season. Assistant managers help the manager run the store, and Walmart tries to have them on hand at all times. The store also hires additional hourly managers and supervisors.
With eight assistant managers available, any given assistant manager works on average six weekend shifts out of every 10 weeks. If one of the assistant managers could not work from Friday sundown to Saturday sundown, that average of six out of 10 would rise to seven out of 10. Of the eight assistant managers of the store, six work five days in a row for 10 hours a day. The remaining two work four days in a row for 12 hours a day.
Even if the applicant were given a four-day-12-hour slot, the need for him to avoid weekends would require the other assistant managers to work more weekends and the store's practice of rotating all eight assistant managers through all eight of the schedules would end. In addition, some departments, such as liquor and firearms, are closed some of the time, making it harder for all eight assistant managers to gain experience in every department.
The HR professional concluded that granting the applicant's request would leave the store short-handed at times, would require the store to hire a ninth assistant manager or would compel the other seven assistant managers to cover extra weekend shifts despite their preference to have weekends off. She suggested to the applicant that he apply for an hourly management position, which would not be subject to the rotation schedule. The applicant did not do so but instead filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).
The EEOC prosecuted a failure-to-accommodate lawsuit on its own behalf against Walmart. It claimed religious discrimination under Title VII of the Civil Rights Act of 1964 for alleged failure to accommodate. Under Title VII, an employer need not accommodate a religious practice that would cause an undue hardship, which the U.S. Supreme Court has defined as anything more than a de minimis cost to the employer.
Walmart moved for summary judgment, arguing that the applicant's request imposed an undue hardship. The district court agreed and granted summary judgment to Walmart.
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On appeal, the 7th Circuit defined de minimis cost as a slight burden and found that the applicant's requested accommodation would cause more than a slight burden on Walmart. It found that Walmart offered a potential accommodation to the applicant by inviting him to apply for an hourly management position, which he rejected.
The EEOC argued that Walmart could have hired the applicant and allowed him to trade shifts with other assistant managers. However, the 7th Circuit reasoned that, if Walmart did so, it would be forcing its other assistant managers to accommodate him, when they did not have any legal obligation to do so. The law does not require an accommodation that comes at the expense of other employees.
A dissenting judge argued that Walmart could have offered the applicant an hourly manager position or have asked its other assistant managers if they would switch shifts with him before rejecting his requested accommodation. Nevertheless, the 7th Circuit ruled that such efforts were not required and upheld the dismissal of his claims.
EEOC v. Walmart Stores East LP, 7th Cir., No. 20-1419 (March 31, 2021), motion for panel or en banc reconsideration denied (June 8, 2021).
Professional Pointer: The religious accommodation requirements of Title VII are much less burdensome than the reasonable accommodation requirements of the Americans with Disabilities Act. Employers need not assume more than a slight burden in accommodating an employee's religious practices.
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.