Employment & Labor Insider

A school in Pennsylvania will be going to trial on a former employee’s religious accommodation and constructive discharge claims after it essentially failed to engage in the interactive process with an employee who needed an accommodation.

Our plaintiff (we’ll call her “Monique”) was a business manager for the school. As you might assume from that job title, she worked in an office. Her regular schedule was eight hours a day Monday through Friday during the school year and 10 hours a day Monday through Thursday during the summer.

At some point during her eight years of employment, Monique began practicing an unspecified religious belief that observed the Lunar Sabbath. The Lunar Sabbath – at least, as far as Monique's beliefs were concerned – occurred on the day of each new moon, or approximately once a month.

So Monique asked not to have to work on the Lunar Sabbath.

I’m terrible at this type of thing, but by my calculation, in a calendar year she would need to take off one work day per month roughly eight or nine months out of the year. Three or four months would be unaffected because the new moon would fall on a non-working day.  

Monique submitted a formal written request to her boss to be off whenever the Lunar Sabbath fell on a work day and, instead, to work 10 hours a day on the non-Sabbath days of that week. She also stated that her need was religious in nature. The boss asked her to provide some documentation and other information, which Monique did.

Among other things, Monique subsequently made it clear that she (1) would not need any accommodation when the new moon fell on a non-working day, including Saturday or Sunday, (2) would be willing to work on Fridays during the summer if the new moon fell on one of the summer workdays of Monday, Tuesday, Wednesday, or Thursday, and (3) would be willing to respond to emergencies that could not wait until the next day if they occurred on the Sabbath. She also made it clear that she was willing to work a total of 40 hours per workweek at all times.

Sounds pretty “accommodating” to me. On Monique's part.

“Let me put it this way: No.”

As you might guess (otherwise, I wouldn’t be blogging about this case), the school said no. The requested time off would be an “undue hardship.” The school was willing to consider other accommodations but didn’t suggest any, and also told Monique that it had no alternatives to propose.

Monique resigned a few days after her accommodation request was, for all practical purposes, denied. Then she filed discrimination charges under Title VII and the Pennsylvania Human Relations Act, and then she sued. The school filed a motion for summary judgment, seeking to get the case dismissed before trial.

But in a decision issued last week, the school’s motion was denied. Monique's claims will go to a jury.

In the school’s defense, the denial of the accommodation and Monique's resignation occurred in 2019, before the Supreme Court’s 2023 decision in Groff v. DeJoy, which applies a more demanding standard for employers considering religious accommodation requests. But because of the administrative charges, Monique wasn't able to file suit until 2023, so Groff applied to the school’s pre-Groff decisions.

Religion and the “interactive process”

Employers, the “interactive process” that we’ve become familiar with through disability accommodations also applies to religious accommodation requests. The expressed willingness of the school to talk about reasonable accommodations while denying Monique’s (arguably, very reasonable) requests and offering no alternatives was not truly “interactive,” much less an “accommodation,” according to the court. And it was also not a defense to Monique’s constructive discharge claim.

Regarding the first, when an employee requests a religious accommodation, and assuming the requested accommodation is truly an undue hardship, the employer should engage in a genuine “interactive process.” This is a two-way discussion in which the employer and the employee make proposals and counter-proposals for accommodation. “Leaving the door open” but placing all of the burden on the employee won’t cut it.

Regarding the constructive discharge claim, the school’s refusal to agree to Monique’s proposed accommodations coupled with its failure to propose any alternatives meant, in effect, that Monique would be forced to work while violating her sincerely held religious beliefs.

In the view of the court, requiring an employee to violate her sincerely held religious beliefs is arguably “so intolerable that a reasonable person in the plaintiff’s position would feel compelled to resign.” In other words, it’s arguably a constructive discharge. So the court let that claim move forward, too.

This was only a denial of summary judgment, so the school may still win at trial. But I suspect that Monique’s specific requests could have been accommodated. She was a business manager, not a classroom teacher whose schedule would presumably have to coincide with the students’ schedules. And we are talking about one day a month for maybe eight or nine months out of the year. All of which she was willing to make up during the same workweek. And she was willing to handle emergencies even on her Sabbath days.

Of course, there may be times when no accommodation is possible. (“Work is against my religion.”) But even in these cases, it would be wise for the employer to make a constructive, good-faith counter-suggestion or two. Doing so should make it much easier for the employer to win summary judgment and avoid a jury trial.

You may not be able to accommodate, but you have to be able to show that you tried.

And one more thing . . .

I almost forgot: The officials at this school may have thought observing the Lunar Sabbath sounded a little "flaky." If so, they had a right to their opinion, but they didn't have the right to flatly deny a religious accommodation to an employee if the employee’s belief was (1) religious in nature (as opposed to, say, philosophical or political), and (2) sincerely held. In the eyes of the courts, an employer's personal view of the validity of the employee's beliefs doesn’t count.