Religious accommodations generally do not rise to the level of a disability accommodation when reviewed by courts.  But a recent case against Walgreens indicates that standard may change. 

In the case of Patterson v. Walgreen Co., Patterson began working for Walgreens in October 2005 as a customer care representative in Walgreens’ Orlando Customer Care Center, a call center that operates seven days a week.  As a Seventh Day Adventist, Patterson’s religious beliefs prohibit him from working during his Sabbath, which occurs from sundown on Friday to sundown on Saturday.  At the time he was hired, Patterson communicated to Walgreens that he would not be available to work during his Sabbath, and Walgreens initially accommodated that request.

Patterson was promoted a number of times and ultimately became a training instructor.  To work around Patterson’s Sabbath observance, his supervisor agreed to schedule regular training classes between Sunday and Thursday.  But on occasion, business needs required emergency trainings, which were scheduled on a case by case basis and sometimes included Friday nights or Saturdays.

Patterson was allowed to swap shifts if a Friday/Saturday training was required.  However, it was not always possible.  In 2008, for example, Walgreens’ business needs required that Patterson attend a multi-week mandatory training that included Friday evening sessions.  Patterson refused to do so, and his absence during that period resulted in progressive discipline for each occurrence.

On August 19, 2011, Patterson was informed that he would need to conduct an emergency training session the next day, a Saturday.  The urgent need for a session arose because the Alabama Board of Pharmacy had ordered Walgreens to shut down its call center activities at the Muscle Shoals Customer Care Center, and it gave Walgreens only two days to do so. Patterson’s supervisor told him he would have to come up with a solution, which he took to mean he would need to find someone to cover the emergency training session for him if he wanted to avoid working on Saturday.  The solution he tried, having another trainer cover for him, did not work out.

As can be expected, Patterson did not show up that Saturday, leaving two messages for his supervisor saying he would be observing his Sabbath.  The training was then delayed.  He was then brought in to discuss the situation with HR and his manager.  Given the circumstances of his position, he could not be guaranteed that he would not be required to work on his Sabbath, even if he took a different position in the company. Because of his refusal to ever work on his Sabbath and his refusal to look for another position at Walgreens that would make it more likely that his unavailability could be accommodated, he was suspended and then terminated several days later.

Patterson sued for religious discrimination and failure to accommodate.  At the Trial Court level, it concluded that:  (1) Walgreens had reasonably accommodated Patterson’s religious beliefs by permitting him to swap shifts with other employees when his scheduled shifts conflicted with the Sabbath and by offering him the possibility of transferring to other positions within Walgreens that would make it easier for him to swap shifts when needed; and (2) Walgreens would suffer an undue hardship if required to guarantee that Patterson never worked during Sabbath hours given Walgreens’ shifting and urgent business needs.

The Appellate Court agreed with the Trial Court and upheld the decision for Walgreens.  It stated that a reasonable accommodation is one that eliminates the conflict between employment requirements and religious practices and that the employer, however, is not required to accommodate “at all costs.”  Following Supreme Court precedent, the court stated that an “undue hardship” occurs when an employer must bear more than a “de minimis cost” in accommodating the employee’s religious beliefs, and involves “not only monetary concerns, but also the employer’s burden in conducting its business.” 

The case was then appealed to the Supreme Court, who invited the solicitor general to outline the government's views on whether the Eleventh Circuit properly rejected Darrell Patterson's suit accusing Walgreens of failing to reasonably accommodate his religious practice.

This administration is deferring more to religious beliefs and requirements.  For example, a recent OFCCP Directive has stated that given the Supreme Court’s ruling in the Hobby Lobby case and two others that safeguard the broad freedoms and anti-discrimination protections that must be afforded to religion-exercising  organizations and individuals under the U.S. Constitution and federal law, OFCCP requires compliance officers in audits to not “act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices" and must "proceed in a manner neutral toward and tolerant of ... religious beliefs." Furthermore, compliance officers cannot "condition the availability of [opportunities] upon a recipient's willingness to surrender his [ or her] religiously impelled status."

However, if the standard is changed to an ADA standard, it will be more difficult for employers to deny religious accommodations.  For example, the EEOC holds that a hardship with an ADA accommodation is found when there is significant difficulty or expense when providing a specific accommodation where a religious accommodation hardship is merely where an employer must bear more than a “de minimis cost” in accommodating the employee’s religious beliefs. 

In other words, the Supreme Court, may in this case, hold that religious accommodations must rank at a level comparable to an ADA accommodation, and to deny it, the employer must show a hardship that rises to a much higher standard than in the past.  ASE will keep you posted on this case.

Source:  Patterson v. Walgreen Co., Law360 3/18/19, OFCCP 8/10/18