The Sixth Circuit this week handed down a significant decision that requires a job loss or some actual discipline before the denial of a religious accommodation can be actionable.
After several years of working for the U.S. Postal Service as a full-time letter carrier, Martin Tepper became a Messianic Jew, strictly observing the Sabbath every Saturday. From April 1992 through January 2003, the USPS accommodated his religion and did not require him to work Saturday's or Jewish holidays. At the time, its staffing levels enabled that accommodation without disrupting the rotating day-off schedule of other employees. It is estimated that the accommodation cost the USPS between $7,000 and $9,000 per year in overtime payments to covering employees. By 2003, however, Tepper's branch suffered a decrease in staffing levels, from 36 employees to 32 employees. Management found it more difficult to accommodate Tepper's day off, and had to assign co-workers to work more days than the rotating schedule allowed. While no co-worker formally complained about the arrangement, enough grumbled for their union to hold a meeting, to which Tepper was not invited and at which his co-workers unanimously voted to recommend ending the Saturday accommodation. Shortly thereafter, the Post Office ended the accommodation. Instead, it permitted Tepper to use annual leave and leave without pay on Saturdays, and encouraged him to reserve some of his vacation time for the Saturday absences.
While continuing to work at the Post Office, Tepper sued, contesting the removal of the Sabbath accommodation and claiming that the use of leave without pay reduced his annual pay and future retirement benefits. The District Court and the Sixth Circuit disagreed and found that the discontinuing of the accommodation did not discriminate against Tepper. The Court narrowly read the required elements of a failure to accommodate claim, and required Tepper to prove that he was either "disciplined or discharged" for failing to comply with an employment requirement that conflicted with his religious practice. Because a loss of pay does not amount to "discipline or discharge" Tepper could not prove his case.
As I wrote a couple of months ago (click here for my post on religious accommodation claims), common examples of reasonable accommodations for an employee's sincerely held religious beliefs are flexible scheduling, voluntary substitutions or job swaps, and job reassignments. The Tepper Court suggests, if not impliedly holds, that the denial of an accommodation, no matter how reasonable the request might be, is not actionable unless the affected employee suffers actual discipline or a job loss as a result of the denial. Thus, Tepper might have had a viable claim if he had quit the Post Office claiming religious intolerance, or if he observed his faith, did not show for scheduled Saturdays, and was terminated for attendance violations. I'm not sure that we want to force a job loss on a devout employee before that employee can claim a failure to accommodate. The Tepper decision seems to be much too narrow a ruling of the conduct Title VII is supposed to protect.
While Tepper is now the law in Ohio, Michigan, Kentucky, and Tennessee, I caution that all companies tread very lightly before denying or rescinding a religious accommodation in its wake. The next employee might not be as proactive as Mr. Tepper, instead opting to resign or force a termination before suing for the failure to accommodate.
Click for a copy of Tepper v. Potter.
