The Equal Employment Opportunity
Commission (EEOC or Commission) brought this enforcement action against Walmart
Stores East, L.P., and Walmart, Inc. (collectively, Walmart), pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), 42
U.S.C. § 2000e et seq. See R.1
at 1. The district court had jurisdiction under 28 U.S.C. § 1331 and Title VII, 42 U.S.C. § 2000e-5(f)(3). The district court
granted summary judgment in Walmart’s favor and entered final judgment against
the EEOC on January 16, 2020. R.64 (A-21);
R.65 (A-22). On March 16, 2020, the EEOC
timely filed a notice of appeal. See R.72;
Fed. R. App. P. 4(a)(1)(B). This Court has
jurisdiction to review the district court’s final decision pursuant to 28 U.S.C. § 1291.
1. Did the district court err in concluding that Walmart
offered a religious accommodation that was reasonable as a matter of law where,
in response to Edward Hedican’s request to avoid work on his Sabbath, Walmart
neither accommodated him in the job it had offered him, nor offered to reassign
him to the most comparable position available, but instead merely invited him
to apply to lower-paying, lower-ranking jobs?
2. Did the district court err in holding that a
reasonable jury would be compelled to find that Walmart demonstrated that it
would have incurred undue hardship if it had accommodated Hedican in a way that
would have let him both observe his Sabbath and keep the job Walmart had offered
him?
Pertinent statutory and regulatory provisions are
reproduced in the short appendix attached to this brief.
A. Statutory Background
Title VII generally
prohibits employers from “fail[ing] or refus[ing] to
hire . . . any individual, or
otherwise . . . discriminat[ing] against any individual
with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . religion.” 42 U.S.C. § 2000e-2(a)(1). In 1972,
Congress amended Title VII to clarify that
the term “religion” “includes all aspects of religious observance and practice,
as well as belief, unless an employer demonstrates that he is unable to
reasonably accommodate to an employee’s or prospective employee’s religious
observance or practice without undue hardship on the conduct of the employer’s
business.” Id. § 2000e(j).
Together, these provisions “make it an unlawful
employment practice . . . for an employer not to make
reasonable accommodations, short of undue hardship, for the religious practices
of his employees and prospective employees.” Trans World Airlines, Inc. v. Hardison,
432 U.S. 63, 74 (1977); see also Ansonia
Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 n.1 (1986); 29 C.F.R. § 1605.2(b)(1) (EEOC
guideline). Pursuant to this statutory accommodation obligation, employers must
therefore sometimes make exceptions to generally applicable employment policies
and practices so that an individual may keep his job and observe his religion. See,
e.g., EEOC v. Abercrombie &
Fitch Stores, Inc., 575 U.S. 768, 135 S. Ct. 2028, 2032 n.2, 2034 (2015); Reed v. Great Lakes Cos., 330 F.3d 931,
934-35 (7th Cir. 2003).
B. Factual Background
1. Walmart’s job offer
and Edward Hedican’s request for religious accommodation
The EEOC brought this enforcement action on behalf of
Edward Hedican. R.1 at 1. For all times
relevant to this case, Hedican was a practicing Seventh-day Adventist. R.42 at 2. It was Hedican’s religious practice
to abstain from secular work on his Sabbath, which was sundown Friday to
sundown Saturday. Id.
In April 2016, Hedican applied to work as a salaried
assistant manager at a Walmart store in Hayward, Wisconsin. R.52-1 at 2-25. Walmart offered
Hedican the position on the conditions that he pass a drug test and a
criminal-background check. R.52-5 at 3-4.
Hedican responded to Walmart’s offer by email, saying that he was “very excited
to accept the position.” R.52-2 at 2
(emphasis omitted). Hedican then explained that, as a devout Seventh-day
Adventist, he keeps the Sabbath and therefore would “not [be] able to work any
Saturdays until after sundown.” Id.
Hedican emphasized, however, that he was “available any other day of the week
and can be available after sundown on Saturday nights if needed.” Id.[2]
Lori Ahern, a Walmart human resources official,
responded to Hedican that he would “need to apply for an accommodation,” and
she attached an “[Americans with
Disabilities Act] Accommodation Request Form”—a form designed for individuals
requesting disability-related accommodations that had no questions bearing specifically
on requests for religious accommodations. Id.;
R.52-7 at 6-10. Soon after Hedican submitted
that form, Walmart’s “Accommodation
Service Center” notified him that it did “not approve accommodations for
Religious beliefs,” and that his request would thus go back to Ahern for
handling. R.52-6 at 2. A week later, Ahern
told Hedican in an email that Walmart had “denied the request” and, “effective
immediately,” “rescind[ed]” the salaried assistant-manager job offer. R.52-10 at 2. Ahern’s stated reason for
rescinding the offer was Hedican’s “inability to perform the essential
functions of the job.” Id.
In the same email, Ahern told Hedican to “advise [her]
of any interest [he] may have in other positions” and said she would “assist
[him] in [applying].” Id. Ahern and
Hedican then spoke on the phone about this suggestion, during which call Ahern
confirmed to Hedican that he needed to reapply for any new position. R.45 at 38-39; R.47 at 12. Ahern testified that she told
Hedican he could apply for “hourly supervisor positions”—lower-ranking
positions that would have paid “a little less” initially. R.47 at 12; R.42
at 17; see also, e.g., R.41
at 11-12; R.52-11 at 2 (job description
making clear that assistant managers “supervis[e] and develop[]” hourly
employees). For his part, Hedican testified that Ahern told him that any
alternative positions would not be “managerial,” which he understood to mean
“salaried management positions.” R.45 at
39. The only specific alternate positions Hedican recalled Ahern mentioning
were customer-service-representative roles, and he said that he “had no idea
what else was available.” R.45 at 39, 43.
Hedican did not explore other jobs or reapply to work at Walmart. R.42 at 18. Ahern testified that she “got the
impression” that Hedican’s lack of interest in other jobs was “due to money.” R.47 at 12.
2. The Hayward store’s
operations and Walmart’s practices
The Hayward Walmart store at issue here operated 24
hours a day, 364 days a year. R.38 at 1. When
Hedican applied in April 2016, there were eight assistant-manager positions and
one store-manager position in the Hayward store, all of which were salaried. Id. at 1-2. Assistant managers were
generally assigned to one of seven “area[s] of responsibility,” such as
“apparel,” “entertainment,” and “overnights.” Id. at 2. Two assistant managers worked
overnights. Id. They typically
worked from 8 p.m. to 8 a.m., “on a four days on, three days off basis,” R.42 at 8, and they oversaw “anything that
happen[ed]” in the store during the overnight hours, R.23 at 24. Other assistant managers
ordinarily worked five days a week in one of the six other areas of
responsibility, from 7 a.m. to 5 p.m., 8 a.m. to 6 p.m., or 11 a.m. to 9 p.m. R.38 at 3.
According to store manager Dale Buck, “Walmart wants its
[a]ssistant [m]anagers to be familiar with all aspects of its operations,” so
he generally “rotated” them to “new areas of responsibility” once a year. Id. After rotating them, he adjusted their
schedules to work “shifts that best allow[ed] them to manage their specific
area.” Id. Buck testified that he
“would never give an [a]ssistant [m]anager a permanent area[] of responsibility
or a permanent schedule.” Id. Even
so, at least one assistant manager at the Hayward store worked the overnight
shift for more than two consecutive years, from July 2016 to September 2018. R.52-13 at 2-14; R.44 at 33-34. Further, Walmart’s corporate
representative testified that rotating assistant managers was not always
required, and some worked in the same area for up to six years. R.23 at 25; see also R.24 at 36 (Ahern testifying that rotating
assistant managers was at the discretion of the store manager).
Assistant managers in the Hayward store most frequently
requested Fridays, Saturdays, and Sundays as days off. R.44 at 28. According to Buck, “on any given
Saturday,” he “usually scheduled half or more of the [a]ssistant [m]anagers” to
be working in the store; and, “[o]n average,” from July 2016 through June 2018,
assistant managers “were generally scheduled for more than 60% of Saturdays.” R.38 at 3-4.
3. Walmart’s analysis in
denying Hedican’s accommodation request
Ahern was the principal decisionmaker in denying
Hedican’s accommodation request. R.44 at 19. At her deposition,
Ahern testified that she considered giving Hedican a flexible arrival time so
he could work on Saturdays after sundown. R.47
at 13. She rejected this idea, however, concluding that it “would be a
lot . . . to keep track of” because the sun sets at
different times each day. Id. She
also asserted that it would be “a hardship” for assistant managers other than
Hedican “to constantly adjust their schedules . . . for one
person,” but she did not explain why other assistant managers covering other
areas would need to make any such adjustments based on Hedican’s schedule. Id. at 13, 15. In addition, Ahern noted
that a flexible schedule “would be something [Walmart] would have to do
differently just for” Hedican and “didn’t necessarily match” Walmart’s “need[s]
for the start of a shift,” although Ahern did not explain why Walmart’s needs
were inflexible in this regard. R.24 at
38.
Ahern also testified that she considered letting Hedican
trade shifts with other assistant managers who volunteered to do so, but she
concluded that this “would be difficult to do because [the others] may have
plans and may not want to [swap shifts] every single week.” R.47 at 13-14. Ahern did not, however,
actually ask any assistant managers whether they might be willing to swap
shifts with Hedican. Id. at 14. She
claimed that she talked to store manager Buck about the possibility of shift
swaps and that Buck “agreed with [her] that it would put hardship on the” other
managers. Id. Buck’s testimony on
this point is quite different, however. He testified that he had no “role in
reviewing [Hedican’s] request” for accommodation, or in “the decision to deny
[that] request.” R.44 at 18, 21-22, 23.
Buck was unequivocal that he did not talk to Ahern about giving Hedican
flexible arrival times or letting him swap shifts. Id. at 23-24; see also id. at 18-19 (Buck testifying that the only communication
he had with Ahern about Hedican’s accommodation request was an “FYI” email from
Ahern notifying him of the request, see R.52-8 at 2).
When asked whether she considered assigning Hedican to
work overnights on a schedule that would not interfere with his Sabbath (for
example, Sunday through Wednesday), Ahern said she did not think such an
arrangement would work. R.24 at 35. She
stated that, “at some point,” Hedican would need to rotate into new areas, such
as apparel or entertainment, which she apparently assumed would necessarily
include work on his Sabbath. R.24 at
35-36. And Ahern rejected letting Hedican use leave as part of any
accommodation because she believed that he was not entitled to any paid time
off right away. R.47 at 14. According to
the offer letter Walmart sent Hedican, however, he would have been able to use
21 days of paid time off during his first full fiscal year with the company,
which would have commenced on February 1, 2017. R.52-3 at 2-3. Between his hire date and
February 1, 2017, he would have received a pro-rated number of days off. Id. at 3; see also R.44 at 16-17. Ahern admitted that, before
denying Hedican’s accommodation request, she did not speak to anyone to clarify
when he might have been entitled to begin using paid time off. R.47 at 14.
C. Procedural Background
After Walmart rescinded
Hedican’s job offer and told him he would need to reapply to obtain any other
job, he filed an administrative charge with the EEOC, R.1 at 2, and the Commission
subsequently filed suit on his behalf. The district court granted Walmart
summary judgment on all claims, including the claim at issue in this
appeal—that Walmart violated Title VII’s reasonable-accommodation provision
because it (1) did not provide Hedican a reasonable accommodation for his
Sabbath observance; and (2) failed to establish that any such
accommodation would impose an undue hardship. R.64
at 1, 18, 20 (A-1, A-18, A-20).
The district court first held that Walmart offered
Hedican a reasonable accommodation as a matter of law when Ahern told him that
she would help him apply for “hourly managerial positions.” R.64 at 1, 13-18 (A-1, A-13-18). The
EEOC had argued that Ahern’s offer was not reasonable because Walmart did not
offer Hedican an alternative job, but rather “only the opportunity to apply”
for one. Id. at 14 (A-14). The
court rejected this argument, stating that “several courts have concluded that
offering an employee the opportunity to apply for alternative
positions . . . can be a reasonable accommodation.” Id.
The court also disagreed with the EEOC’s contention that
Walmart’s offer was unreasonable because the alternative jobs Ahern suggested
“would have paid less than the assistant manager position.” Id. at 14-16 (A-14-16). Although the court
recognized that “offering a different position with lower pay and benefits
might not be a reasonable accommodation” in some cases, id. at 14 (A-14), it also observed that Title VII “does not require employers to
accommodate an employee’s religious practices” “in exactly the way the employee
would like to be accommodated,” or “in a way that spares the employee any cost
whatsoever,” id. at 15 (A-15)
(citation omitted). And, the court said, “[n]umerous courts have concluded that
an offer to help an employee find another [position] that does not require
Sabbath work is a reasonable accommodation, even if the other position pays
less or is less [desirable].” Id.
at 16 (A-16).
The court then pointed out that the record included
limited evidence about the pay differences between the assistant-manager and
hourly management positions, and it concluded that Hedican bore at least some
responsibility for the missing information, stating that “employees have a duty
to cooperate with an employer in searching for an accommodation for religious
needs.” Id. at 16-17 (A-16-17).
Here, the court added, Hedican did not “explore . . . what
other positions were open” or apply for any such positions. Id. at 17 (A-17). Therefore, according to
the court, “Hedican failed to satisfy his duty to make a good faith effort to
cooperate . . . in finding a reasonable accommodation.” Id. “Because [Walmart] has shown that it
offered Hedican a reasonable accommodation, and that [Hedican] failed to make a
good-faith effort to engage with [Walmart] regarding the proposed
accommodation,” the court concluded that the EEOC’s accommodation claim failed.
Id. at 18 (A-18).
The court next addressed the parties’ undue-hardship
arguments “for the sake of completeness” and held that Walmart proved, as a
matter of law, that it would have incurred undue hardship if it had
accommodated Hedican in the assistant-manager position. R.64 at 18, 20 (A-18, A-20).
The court observed that the EEOC had proposed several potential accommodations,
including (1) permitting Hedican to swap shifts with other assistant
managers, use paid time off, or have a flexible arrival time; and
(2) scheduling him for a day shift Sunday through Friday or for overnight
shifts that did not conflict with his Sabbath. Id. at 18-19 (A-18-19). The court held,
however, that these proposals did not “fully address” Walmart’s “undisputed”
evidence that: “(1) no assistant manager is assigned to a permanent shift;
(2) assistant managers are expected to be available to work varied shifts,
including Saturdays; (3) assistant managers are expected to rotate through
every area of the store; (4) Saturday was a busy day for the Hayward
store, and all assistant managers were expected to work some Saturday shifts;
(5) other assistant managers wanted Saturdays off as well; and
(6) Hedican would not have any paid personal time off until he had worked
for [Walmart] for a full fiscal year.” Id.
at 19 (A-19). The court determined that it followed from this evidence that
accommodating Hedican’s request for Saturdays off would have forced Walmart to:
(1) require another assistant manager to involuntarily work on additional
Saturdays; (2) hire another assistant manager who could help cover
Saturday shifts; or (3) operate the store with one fewer assistant manager
than needed. Id. at 20 (A-20).
Thus, the court held that the EEOC’s proposals would have resulted in undue
hardship. Id. at 18-20 (A-18-20).
This case raises the question
whether Walmart violated Title VII
when it denied Edward Hedican’s request for a religious accommodation in the
assistant-manager position he had been offered, and instead offered him
assistance in reapplying for lower-paying, lower-ranking jobs. The district
court erred in concluding that a reasonable jury would be compelled to conclude
that Walmart complied with its obligation under the statute to provide Hedican
with a reasonable accommodation for his religious practices, absent a showing
of undue hardship.
First, the district court was incorrect in holding that
Walmart provided a reasonable accommodation as matter of law when it offered
Hedican help in reapplying for jobs that were inferior—in terms of pay and
rank—to the one it had already offered him. Title VII’s text, decisions of this
Court and other circuits, and the EEOC’s guidance all support the conclusion
that, to qualify as reasonable, an accommodation should preserve an
individual’s compensation, terms, conditions, and privileges of employment to
the maximum extent possible without causing an employer undue hardship. In
accordance with this principle, a reasonable jury could conclude that Walmart
would have acted reasonably had it accommodated Hedican in the
assistant-manager role; or, if such an accommodation was not possible without
undue hardship, had it offered to reassign him to the most comparable job available.
Contrary to the district court’s analysis, a jury would not be compelled to find
that Walmart’s mere offer to help Hedican reapply for lower-paying,
lower-ranking jobs was reasonable, given that there were alternative
accommodations readily available that would not have imposed an undue hardship
on Walmart and would have better preserved the compensation, terms, conditions,
and privileges of the employment offered to Hedican.
The district court further erred when it concluded that
Hedican’s decision not to seek other jobs at Walmart defeated the EEOC’s
accommodation claim. Although employers and individuals are under a duty to
cooperate with each other in resolving conflicts between an employer’s
requirements and an individual’s religious needs, an individual generally has
no duty to try out an employer’s proposed accommodation that is not reasonable.
Because Walmart offered Hedican a resolution of the conflict between his religion
and his job that was unreasonable, Hedican was under no obligation to
participate with Walmart in carrying it out.
Finally, the district court was mistaken in concluding
that a reasonable jury would be required to find for Walmart on the
undue-hardship issue. Undue hardship is an affirmative defense on which Walmart
bears the burden of proof. And a reasonable jury would not be compelled to
conclude that Walmart demonstrated that all of the accommodations the EEOC
proposed to allow Hedican to work in the assistant-manager position would have
caused Walmart to incur undue hardship. For example, a jury could reasonably
conclude that Walmart could have, without enduring undue hardship, scheduled
Hedican for a shift that did not interfere with his Sabbath and, to the extent
any minor conflicts arose, made scheduling adjustments to fit his Sabbath
observance. Also, a jury would not have to conclude that Walmart would have
faced an undue hardship had it exempted Hedican from its practice of rotating
assistant managers to other areas of responsibility and thus different
schedules. In any event, a jury would not be required to find that Walmart
proved that letting Hedican swap shifts with other assistant managers who
agreed to such swaps, or allowing him to use accrued annual leave to avoid
conflicts with his Sabbath, would have been an undue hardship.
This
Court reviews a district court’s grant of summary judgment de novo. Adeyeye v.
Heartland Sweeteners, LLC, 721 F.3d 444,
449 (7th Cir. 2013). On summary judgment, the nonmoving party (here, the EEOC)
“is entitled to the benefit of conflicts in the evidence and all reasonable
inferences that could be drawn in [its] favor.” Id. Reversal of summary judgment is
required “if a genuine issue of material fact exists that would allow a
reasonable jury to find in favor of the” EEOC. Id.
This case concerns Title VII’s bar on “fail[ing] or
refus[ing] to hire . . . any individual, or
otherwise . . . discriminat[ing] against any individual
with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . religion.” 42 U.S.C. § 2000e-2(a)(1). The statute
defines “religion” to “include[] all aspects of religious observance and
practice, as well as belief, unless an employer demonstrates that he is unable
to reasonably accommodate to an employee’s or prospective employee’s religious
observance or practice without undue hardship on the conduct of the employer’s
business.” Id. § 2000e(j). This
Court has emphasized that “[t]he term ‘reasonable accommodation’ is a relative
term and cannot be given a hard and fast meaning”; “[e]ach case involving such
a determination necessarily depends upon its own facts and circumstances”; and
“[t]he trier of fact is in the best position to weigh these considerations.” Redmond v. GAF Corp., 574 F.2d 897, 902-03
(7th Cir. 1978).
As explained below, the district court did not heed
these principles when it granted Walmart summary judgment on the EEOC’s religious-accommodation
claim. First, the court incorrectly held that Walmart offered Edward Hedican an
accommodation that was “reasonable” as a matter of law when it rescinded his
offer to work as an assistant manager, and instead invited him to apply for
lower-paying, lower-ranking jobs that did not conflict with his religion. Second,
the court mistakenly determined that any reasonable jury would be compelled to
conclude that Walmart proved it would have suffered “undue hardship” if it had
accommodated Hedican in the assistant-manager role.
I.
A reasonable jury could conclude that Walmart’s offer to help Edward Hedican
apply for lower-paying, lower-ranking alternative jobs was not a reasonable
accommodation.
After Walmart rescinded Hedican’s
offer to work as an assistant manager, Lori Ahern—Walmart’s human resources
official—offered to “assist” Hedican in applying for other positions. R.52-10 at 2. Ahern testified that her efforts
at such “assistance” were limited to looking at a listing of available jobs on
a Walmart website, which she acknowledged any member of the public likewise
could have done. See R.24 at 37. A
reasonable jury could find that Walmart’s offer to provide Hedican such
“assistance” in applying for other jobs—which by all accounts would have
entailed lower pay and a lower rank—was not a reasonable accommodation. Title
VII’s text, the EEOC’s guidelines, and the precedents of this Court and others
all make clear that a critical consideration in determining whether an
accommodation offered by an employer is “reasonable” is whether it preserves an
individual’s compensation, terms, conditions, and privileges of employment, and
employment opportunities, to the greatest extent possible short of undue
hardship. A jury could reasonably conclude that what Walmart offered here was
not reasonable under that standard. The district court’s various rationales for
concluding otherwise are without merit.
A. An accommodation is not
reasonable if it unnecessarily diminishes an individual’s compensation, terms,
conditions, or privileges of employment.
As noted above, Title
VII defines “religion” to include “religious observance and practice,” “unless
an employer demonstrates that he is unable to reasonably accommodate” the
observance or practice “without undue hardship,” 42 U.S.C. § 2000e(j), and the statute
generally prohibits discrimination based on religion with respect to an
individual’s “compensation, terms, conditions, or privileges of employment,”
id. § 2000e-2(a)(1). Title VII also bars employers from
“limit[ing], segregat[ing], or classify[ing] his employees or applicants
. . . in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect his status
as an employee” based on religion. Id.
§ 2000e-2(a)(2). These prohibitions would be meaningless if an employer
could accommodate an employee’s or prospective employee’s religion without
regard to the accommodation’s impact on his compensation, terms, conditions,
and privileges of employment, and his employment opportunities and status as an
employee, even though another, readily available accommodation would better
preserve those attributes of employment.
Given this statutory command, the EEOC’s guidelines
explain that if there are two potential accommodations that “would not cause
undue hardship,” the employer must offer the one that “least disadvantages the
individual with respect to his or her employment opportunities.” 29 C.F.R. § 1605.2(c)(2)(ii). The EEOC’s
Compliance Manual similarly states that, to qualify as reasonable, an
accommodation must not “unnecessarily disadvantag[e] the employee’s terms,
conditions, or privileges of employment.” EEOC
Compliance Manual § 12-IV(A)(3) (July 22, 2008), 2008 WL 3862099. Thus, the
Compliance Manual adds, an accommodation is not reasonable if it “requires the
employee to accept a reduction in pay rate or some other loss of a benefit or
privilege of employment and there is an alternative accommodation that does not
do so.” Id.
As a corollary to this principle, the Compliance Manual
specifies that, in general, an employee “should be accommodated in his or her
current position if doing so does not pose an undue hardship.” EEOC Compliance Manual § 12-IV(C)(3),
2008 WL 3862099. The EEOC’s guidelines add that “[w]hen an employee cannot be
accommodated [in his job],” employers should consider whether it is possible to
“give the employee a lateral transfer.” 29
C.F.R. § 1605.2(d)(1)(iii). “The employer cannot transfer [an employee] to
a position that entails less pay, responsibility, or opportunity for
advancement unless a lateral transfer is unavailable or would otherwise pose an
undue hardship.” EEOC Compliance Manual §
12-IV(C)(3), 2008 WL 3862099.
These principles are well supported by decisions of this
and other courts of appeals. This Court, for example, has held in a series of
decisions that certain accommodations offered by employers were reasonable only
after emphasizing that the accommodations in question did not require the
plaintiffs to take a job involving lower skill or “accept a reduction in pay or
some other loss of benefits.” Wright v.
Runyon, 2 F.3d 214, 217 (7th Cir. 1993); see also Porter v. City of Chicago, 700 F.3d 944,
952 (7th Cir. 2012) (deeming an employer’s proposed accommodation reasonable
because it would have both eliminated the religious conflict and would
not have “impacted [the plaintiff’s] pay or benefits in any way”); Rodriguez v. City of Chicago, 156 F.3d
771, 775-76 (7th Cir. 1998) (holding that the employer’s offer to change the
district to which the plaintiff was assigned constituted a reasonable
accommodation because, inter alia, it would have resulted in no
“reduction in pay or benefits”). Indeed, this Court’s decisions have admonished
that the reasonableness of a proposed accommodation is subject to considerable
doubt if it would force the plaintiff to accept a loss of pay, opportunities,
or other employment benefits. See Wright,
2 F.3d at 217 (explaining that “[a] much more searching inquiry might [have
been] necessary” if the employer’s proposed accommodation had required the
plaintiff to take a job involving lesser skill, or “a reduction in pay or some
other . . . benefits”); see also Porter, 700 F.3d at
952 (same).
This approach is also reflected in decisions from other
courts of appeals. For instance, in Cosme
v. Henderson, 287 F.3d 152 (2d Cir. 2002), the Second Circuit explained
that even if an employer’s proposed accommodation would eliminate the religious
conflict at issue, the accommodation may still be unreasonable “if it cause[s]
[the employee] to suffer an inexplicable diminution in his employee status or
benefits” “without justification.” Id.
at 160; see also id. (going on to
hold that the position the employer offered as an accommodation was reasonable
because, inter alia, it would not have caused the employee any
“discernible loss,” such as a reduction in pay or seniority); Baker v. Home Depot, 445 F.3d 541, 548 (2d
Cir. 2006) (similar). Similarly, the Ninth Circuit has held that employers must
offer accommodations that, to the extent possible short of undue hardship, “preserve
th[e] employee’s . . . compensation, terms, conditions, or
privileges of employment.” Am. Postal
Workers Union v. Postmaster Gen., 781 F.2d 772, 776-77 (9th Cir. 1986)
(remanding for district court to conduct such an inquiry).
The principle derived from these authorities is
consistent with the Supreme Court’s decision in Ansonia, which rejected a court of appeals
conclusion that Title VII requires an
employer to provide the plaintiff with his preferred religious accommodation
absent proof of undue hardship. 479 U.S.
at 66, 68-69. The Supreme Court disagreed with the court of appeals’ analysis,
holding that under the plain terms of the statute, if an employer has offered
any reasonable accommodation, “the statutory inquiry is at an end,” and the
employer need not show that other accommodations would have resulted in undue
hardship. Id. at 68-69. In reaching
this conclusion, Ansonia suggested
that the EEOC guideline calling for employers to offer the accommodation that
least disadvantages an individual’s employment opportunities (without undue
hardship) is reconcilable with its holding. See id. at 69 n.6 (referring to 29 C.F.R. § 1605.2(c)(2)(ii)). The Court
noted that, unlike the standard applied by the court of appeals there, the
guideline “contains a significant limitation,” calling for comparative analysis
of accommodations only when they disadvantage employment opportunities to
varying degrees. Id. The Court then
went on to conclude that the accommodation the employer had offered in that
case—unpaid leave to observe religious holidays—is generally a reasonable one,
emphasizing that it has “no direct effect upon either employment opportunities
or job status.” Id. at 70-71
(quoting Nashville Gas Co. v. Satty,
434 U.S. 136, 145 (1977)) (noting that, although the employee would lose pay,
that was only “for a day that he did not in fact work”).
Thus, although Ansonia
held that an employer discharges its duty under Title VII by offering any accommodation that
is reasonable, the decision did not undermine the principle just discussed—that
the predicate determination of whether a given accommodation is reasonable
turns in significant part on whether other available accommodations would have
resulted in less of a disadvantage to the employee’s employment opportunities
or status; or compensation, terms, conditions, and privileges of employment, see
supra pp. 16-20; see also, e.g., Cosme,
287 F.3d at 158-60 (recognizing the holding of Ansonia but stating that an accommodation
may still be “unreasonable if it cause[s] [the plaintiff] to suffer an
inexplicable diminution in his employee status or benefits”); EEOC Compliance Manual § 12-IV(A)(3)
& n.133, 2008 WL 3862099 (explaining that the EEOC guidelines addressing
this principle are consistent with Ansonia
and observing that “[a]ppellate courts in the wake of Ansonia” have analyzed whether “accommodations
had a negative impact on the individual’s employment opportunities” when
evaluating their reasonableness).
B. A jury could reasonably
find that Walmart’s offer was unreasonable because two other accommodations
would have better preserved Hedican’s compensation, terms, conditions, and
privileges of employment, and would not have imposed an undue hardship on
Walmart.
As the preceding discussion illustrates, although Title VII does not require employers to
accommodate an individual in a way that he most prefers or in a manner that
necessarily “spares [him] any cost whatsoever,” Tabura v. Kellogg USA, 880 F.3d 544,
550-51 (10th Cir. 2018) (citation omitted), an accommodation is not reasonable
if it diminishes a worker’s compensation or employment status, and there are
other readily available accommodations that would not do so and would not
impose undue hardship. And, here, there were at least two accommodations that a
reasonable jury could conclude Walmart failed to offer Hedican that would have
better protected his compensation and employment status, and posed no undue
hardship on Walmart.
1. Walmart could have
accommodated Hedican in the assistant-manager job it offered him.
First, a jury could reasonably conclude that Walmart
could have accommodated Hedican in the assistant-manager position it offered
him without undue hardship—and that its offer instead to help him apply for
lower-paying, lower-ranking jobs was therefore unreasonable. As explained
above, see supra pp. 17-18, at least where, as here, any
alternative job would have involved a reduction in pay and rank, see R.44 at 7-8, 24-25, an employer should try,
absent undue hardship, to accommodate an individual’s religious practices in
the job that the individual holds or has been offered. See also Draper v. U.S. Pipe & Foundry Co., 527
F.2d 515, 519-20 (6th Cir. 1975) (holding that a transfer that would have
resulted in, inter alia, a “reduction in pay” and
“wasted . . . skills” was not a reasonable accommodation where
the employer could accommodate the employee in his current position without
undue hardship, explaining that an “employer first must attempt to accommodate
the employee within his current job classification” in such circumstances); cf.
Adeyeye, 721 F.3d at 456 (“At the
risk of belaboring the obvious, Title VII
aimed to ensure that employees would not have to sacrifice their jobs to
observe their religious practices.”).
A jury could reasonably determine that there was a range
of assistant-manager shifts to which Walmart could have assigned Hedican
without interfering with his Sabbath of sundown Friday to sundown Saturday. For
example, Walmart could have assigned Hedican to an overnight schedule working 8
p.m. to 8 a.m. four nights in a row, Saturdays through Tuesdays or Sundays
through Wednesdays. See R.23 at 22-23.
Alternatively, Walmart might have given Hedican a daytime shift of 7 a.m. to 5
p.m. or 8 a.m. to 6 p.m., working five straight days Sunday to Thursday or
Monday to Friday. Id. at 22. To be
sure, if Walmart had assigned Hedican to some of these schedules, there may
have been occasions on which his schedule would still cause minor conflicts
with his Sabbath observance. For instance, if Hedican worked an 8 p.m. to 8
a.m. overnight schedule Saturday through Tuesday, he would need to arrive up to
an hour or so late on Saturdays during certain spring and summer months when
sundown occurred after 8 p.m. See R.52-15
at 2-6 (sunrise/sunset calendar for Hayward).
But in those situations, and even if Hedican’s shift
routinely required him to work on his Sabbath, a jury could reasonably conclude
that Walmart could have resolved any conflicts by, as appropriate, slightly
adjusting the start and end times of Hedican’s shifts, allowing him to swap
shifts with other assistant managers who agreed to such swaps, or letting him
use accrued annual leave, which are all forms of accommodation commonly
recognized as reasonable in these circumstances. See infra pp. 38-48
(describing these accommodations); see also, e.g., EEOC v. Ilona of Hungary, Inc., 108 F.3d
1569, 1576 (7th Cir. 1997) (recognizing that offering time off can be a
reasonable accommodation); Tabura,
880 F.3d at 555 (observing that, in many circumstances, it will be a reasonable
accommodation to let plaintiffs combine “vacation and other paid time off” with
shift swaps to avoid religious conflicts); Draper,
527 F.2d at 520 (concluding that employer should have “experimented with shift
exchanges” and “other scheduling arrangement[s]” to accommodate the plaintiff’s
Sabbath observance); 29 C.F.R.
§ 1605.2(d)(1)(i)-(ii) (listing accommodations that are often understood
as reasonable in this context, including “facilitat[ing] the securing of a
voluntary substitute” as well as “flexible arrival and departure times”).
Because a reasonable jury would be entitled to conclude that Walmart could have
provided Hedican with reasonable accommodations in the assistant-manager
position, and because—for the reasons explained in Section II, infra—those accommodations
would not have posed an undue hardship for Walmart, a jury could also determine
that Walmart’s mere offer to assist Hedican in applying for lower-paying,
lower-ranking jobs was not reasonable.
2. Walmart could have
offered to reassign Hedican to the most comparable job available.
Even if accommodating Hedican in the assistant-manager
position would have imposed an undue hardship on Walmart, a reasonable jury
could conclude that Walmart could have offered to accommodate Hedican by
reassigning him to an hourly supervisor position—the most comparable job
available in the Hayward store and a position that would not have conflicted
with his religious observance. See R.23
at 32-33; see also supra pp. 17-20 (explaining that such reassignment
can be a reasonable accommodation, given that no lateral transfers were
available). A jury could conclude that Walmart’s offer instead to assist
Hedican in applying to such positions and other lower-ranking jobs was
therefore not a reasonable accommodation.
As explained above, see supra pp. 16-21,
an accommodation offered by an employer may be deemed unreasonable under the
statute if it “unnecessarily disadvantag[es] the employee’s terms, conditions,
or privileges of employment,” EEOC
Compliance Manual § 12-IV(A)(3), 2008 WL 3862099, or “employment
opportunities,” 29 C.F.R.
§ 1605.2(c)(2)(ii). Where, as here, an employer has already offered an
individual a job, the employer quite plainly disadvantages that individual’s
terms, conditions, and privileges of employment if, in response to a request
for religious accommodation, it rescinds that offer and instead provides only
the opportunity to apply for other jobs that would not present a
religious conflict. Such an action amounts to a “diminution in [the individual’s]
employee status or benefits” that is unreasonable if it is “without
justification.” Cosme, 287 F.3d at
160.
Significantly, Walmart has never provided a
“justification” for insisting that Hedican reapply for vacant positions. Walmart
has not argued, for example, that Hedican needed to submit a new application so
it could reassess his qualifications for other jobs. In fact, by the time
Walmart insisted he reapply, the company had interviewed Hedican at least
twice, R.42 at 2-3, and other than his inability
to work on Saturdays before sundown, it deemed him qualified for the
assistant-manager position, which is subordinate only to the store-manager
position in the Hayward store, R.52-3 at 2.
It is thus reasonable to infer that to offer Hedican one of the available
hourly manager jobs, without any need to reapply, would have posed no hardship
whatsoever, much less undue hardship. Cf. EEOC
v. Consol Energy, Inc., 860 F.3d 131, 138-39, 143 (4th Cir. 2017)
(criticizing employer for not offering an accommodation that would have “impose[d]
no additional burdens or costs on the company”).
Supporting this analysis, this Court has specifically
held that merely offering someone the ability to reapply to a position he
already holds does not constitute any accommodation whatsoever, let alone a
reasonable one. Indeed, in Adeyeye,
an employee sought a leave of absence for religious reasons, and the employer
argued that it provided the plaintiff with a reasonable accommodation when it
denied his request for leave but told him he could quit his job and reapply
when he was ready to return. 721 F.3d at
447, 456. This Court emphatically rejected this contention. Id. at 456. “We strain to imagine a
situation,” this Court wrote, in which giving a worker the mere
“possibility of being rehired” “could be considered an accommodation” at all. Id. The Court went on to hold that
providing a worker with such reapplication rights was certainly not a
“reasonable accommodation.” Id. The
same principle should hold true here as well.
C. The district court’s rationales
for concluding that Walmart offered a reasonable accommodation lack merit.
The district court erred in its analysis of whether
Walmart’s offer to assist Hedican with applying for lower-paying, lower-ranking
jobs was a reasonable accommodation as a matter of law.
1. The district court
erred in concluding that Walmart’s offer was reasonable, even though it
required Hedican to reapply to jobs that paid less and ranked lower than the
assistant-manager job.
The district court correctly acknowledged that this
Court’s precedent provides that, “in some circumstances, an employer’s offering
a different position with lower pay and benefits might not be a reasonable
accommodation.” R.64 at 14-15 (A-14-15).
The court did not, however, analyze whether any “circumstances” present in this
case rendered Walmart’s offer merely to help Hedican apply for lower-paying,
lower-ranking jobs unreasonable. Instead, the court determined that it was of
no moment that Walmart offered Hedican only the opportunity to apply to
other jobs and that the alternative jobs in question paid less than the
assistant-manager job, reasoning that “several courts have concluded that offering
an employee the opportunity to apply for alternative
positions . . . can be a reasonable accommodation,” id. at 14 (A-14), “even if the other
position pays less or is less [desirable],” id.
at 16 (A-16).
The decisions on which the district court relied,
however, did not hold that offering the opportunity to apply for other
positions is always a reasonable accommodation, much less where, as here, the
other positions involved less pay and prestige. Nor did those decisions conclude
that such a rule should apply to factual circumstances like those present in
this case. At bottom, the district court improperly attempted to distill
bright-line rules from these decisions when instead it should have recognized
that “‘reasonable accommodation’ is a relative term and cannot be given a hard
and fast meaning,” and that “[e]ach case involving such a determination
necessarily depends upon its own facts and circumstances.” Redmond, 574 F.2d at 902.
First, the district court misunderstood this Court’s
decision in Wright, which concerned
an employer that abolished the plaintiff’s original job and then offered him
the opportunity to bid on alternative equivalent positions that would not
conflict with his religious practices. 2
F.3d at 215-16. Although the district court correctly observed that Wright deemed that offer to be a
reasonable accommodation, R.64 at 14 (A-14),
the “bid[ding] process” in Wright was
a mere formality because it was undisputed that the plaintiff “would have
received at least two of the [alternative] positions . . . had
he bid for them,” 2 F.3d at 216. As Wright recognized, the employer there thus
effectively allowed the plaintiff “to select” another comparable
position. Id. at 217; see also Rodriguez, 156 F.3d at 776 (noting the
employer in Wright let the
plaintiff “select [a position] through the bidding system”). This case is
different in two significant ways: Walmart required Hedican to compete for any
alternative positions, and the positions in question were lower paying and
lower ranking.
The district court also mistakenly relied on four decisions
from other circuits— Bruff v. North
Mississippi Health Services, Inc., 244 F.3d 495 (5th Cir. 2001); Shelton v. University of Medicine &
Dentistry of New Jersey, 223 F.3d 220 (3d Cir. 2000); Telfair v. Federal Express Corp., 567 F.
App’x 681 (11th Cir. 2014) (per curiam) (unpublished); and Walker v. Indian River Transport Co., 741
F. App’x 740 (11th Cir. 2018) (per curiam) (unpublished). R.64 at 14, 16 (A-14, A-16). Those decisions
are not, however, binding on this Court, and they should not be followed to the
extent they are construed to conflict with the principles discussed above. In
any event, the circumstances in those cases were meaningfully different from
those present here.
To be sure, Bruff,
Shelton, and Telfair held that the employers in those
cases satisfied their duty of accommodation by, inter alia, offering to
assist the plaintiffs in finding alternative positions that would not have
conflicted with the plaintiffs’ religious beliefs. See Bruff, 244 F.3d at 498, 501; Shelton, 223 F.3d at 226-28; Telfair, 567 F. App’x at 682, 684. But
Bruff and Shelton only reached that conclusion
where, unlike here, the employers had first offered to transfer the plaintiffs
to lateral positions. See Bruff,
244 F.3d at 498, 502-03 (emphasizing that the plaintiff “refused to even
consider” a lateral transfer); see also Shelton,
223 F.3d at 223, 226. And Telfair
reached that conclusion, much as in Bruff
and Shelton and unlike here, where
the employer had first offered to transfer the plaintiffs into other positions.
567 F. App’x at 684. Although the other jobs
that the employer in Telfair offered
would have meant lower pay for the plaintiffs, id. at 682, the court in that unpublished
decision did not opine on the principle discussed above—that an accommodation
is unreasonable if an available alternative accommodation would better preserve
an employee’s compensation, terms, conditions, or privileges of employment
without undue hardship. Telfair
thus provides no basis for departing from that well-supported foundational
principle.
The Eleventh Circuit’s unpublished decision in Walker similarly fails to support the conclusion
that Walmart met its duty of offering a reasonable accommodation. Walker concluded that the “only way” the
employer in that case could “ensure that [the plaintiff truck driver] would not
have mandatory” work on Sundays, which he requested so that he could attend
religious services, was to assign him to another type of delivery route that
“paid differently.” 741 F. App’x at 748.
The court held that “[t]he fact that at least some of those [alternate] routes
happened to pay less than the” type of route the plaintiff had originally been
assigned was “insufficient to render the accommodation unreasonable.” Id. Here, by contrast, a reasonable jury
would be entitled to conclude that Walmart could have accommodated Hedican’s
religion either in the assistant-manager job, or by reassigning him to the most
comparable job available, see supra pp. 22-27, and thus forcing him to
reapply for other lower-paying, lower-ranking positions was not the “only way”
of accommodating him. Walker, 741 F. App’x at 748.
2. The district court
erred in faulting Hedican for not applying for other jobs.
The district court mistakenly relied on one final rationale
for rejecting the EEOC’s challenge to the reasonableness of Walmart’s offer—the
court concluded that the EEOC’s accommodation “claim fails” because Hedican did
not, as the court put it, “make a good-faith effort to engage with [Walmart]
regarding” its “proposed accommodation.” R.64
at 18 (A-18). According to the district court, Hedican’s actions were deficient
because he did not apply for any positions other than the one Walmart offered
him, and “declined to even explore” what jobs were open. Id. at 17 (A-17).
The district court was correct, as a general matter,
that applicants and employees are sometimes under a duty to engage in
“bilateral cooperation” with employers “in the search for an acceptable
reconciliation of the needs of [their] religion and the exigencies of the
employer’s business.” Ansonia, 479
U.S. at 69 (citation omitted). In particular, when an employer “offers a
reasonable resolution of the conflict,” an employee or applicant has a duty to
cooperate in carrying out that resolution. Id.;
see also, e.g., Horvath v. City
of Leander, 946 F.3d 787, 791 (5th Cir. 2020) (“The employer’s offer of a
reasonable accommodation triggers an accompanying duty for the
employee . . . to cooperate in achieving accommodation of
his or her religious beliefs . . . .” (citation omitted)).
Because Walmart’s offer was unreasonable, however,
Hedican had no legal obligation to help Walmart carry it out. Indeed, no court
of appeals has ever held that an employee or applicant must try an
accommodation deemed by the court to be unreasonable. To the contrary, this
Court has suggested that a worker’s “lack of interest” in particular positions
discussed as accommodations is understandable where the positions do not
qualify as reasonable accommodations because they “would not be available” “in
the near future.” EEOC v. United Parcel
Serv., 94 F.3d 314, 319 & n.5 (7th Cir. 1996); see also Draper, 527 F.2d at 518, 519-20 (employer
may be deemed to have violated Title VII even
though the plaintiff did not attempt to bid on the jobs it offered as
accommodations, where such jobs would have meant, inter alia, lower pay
and “wasted . . . skills”). Moreover, except as discussed infra
on pages 33-34, the courts of appeals to have concluded that a worker did
not satisfy his duty of bilateral cooperation have done so only in cases where
the court also made an independent determination that the accommodation the
employer offered was reasonable. See, e.g., Shelton, 223 F.3d at 226-28; Walden, 669 F.3d at 1293-94; cf. Wright, 2 F.3d at 217.
In Ansonia,
the Supreme Court recognized an employee’s duty of bilateral cooperation in the
context of concluding that once an employer offers an accommodation that is
reasonable, the employer need not prove that other accommodations that the
employee preferred would have posed an undue hardship. 479 U.S. at 68-69. Ansonia reasoned that if the “employer
offers a reasonable resolution of the conflict,” but the employee can hold out
for an accommodation that he finds more advantageous, the employee would have
“every incentive” to resist cooperating with the employer, thus undermining Congress’s
hope that “accommodation[s] would be made with ‘flexibility.’” Id. at 69 (citation omitted). Ansonia’s
concern about discouraging cooperation is certainly valid where the employer has
presented the employee with a reasonable accommodation, but such concerns do
not extend to situations where, as here, the employer offers an unreasonable
accommodation. To the contrary, if a worker must try out a proposed
accommodation that is unreasonable, his employer would be incentivized to offer
a series of unreasonable accommodations in an effort to wear the employee down,
thus undermining Title’s VII’s important accommodation mandate and its goal of encouraging
flexibility. Id.
This is not to say, however, that a worker’s duty of
bilateral cooperation is triggered only if the employer first offers an
accommodation that qualifies as reasonable as a matter of law. There may be,
for example, limited situations in which an employer offers something that
requires a worker’s participation in order to determine whether it would
eliminate the religious conflict and constitute a reasonable accommodation in
practice. In those cases, the employee’s failure to cooperate may well redound
to his detriment. In Brener v.
Diagnostic Center Hospital, 671 F.2d 141 (5th Cir. 1982), for example, the
employer told the plaintiff that he could arrange shift swaps with any
co-worker who was willing to do so, but the plaintiff “made only haphazard
efforts” at arranging such swaps. Id.
at 143-44, 145. The Fifth Circuit faulted the employee for not “fully
explor[ing] the possibilities” that the employer had offered, stating that,
“[i]n such circumstances, he cannot reject [his employer’s] efforts as
inadequate.” Id. at 146; see
also id. at 145 (also affirming
determination by district court that the employer “took active steps to
accommodate” the plaintiff). Similarly, when an employee makes a
religious-accommodation request but quits before his employer has had an
adequate chance to address the request, it may be appropriate to fault the
employee for “short-circuit[ing] the interactive process required by Title VII.” EEOC v. AutoNation USA Corp., 52 F. App’x
327, 329 (9th Cir. 2002).
But this case presents no such scenario. Unlike in Brener, there was no need here to test
Walmart’s proposed accommodation to determine if it would eliminate the
religious conflict and constitute a reasonable accommodation; instead the
unreasonableness of the accommodation was apparent when it was offered because,
although the accommodation would have eliminated the religious conflict, it
would have plainly resulted in an unnecessary diminution in Hedican’s
employment opportunities. See supra pp. 16-27. Nor is this a situation, as
in AutoNation, where the employee
or applicant abandoned the accommodation process before providing the employer
with adequate time to reach a decision on the request. Quite the contrary,
Hedican declined to explore other job opportunities only after Walmart
unequivocally rescinded his offer to work as an assistant manager and made
clear that he would have to reapply for any other job. R.52-10 at 2; R.45
at 39; R.47 at 14-15.
As the discussion above illustrates, if an employer
offers an accommodation that is reasonable, the employee must help carry it out;
but if an employer fails to offer a reasonable accommodation, the employee
generally has no obligation to try the accommodation. Here, the district court apparently
predicated its ruling that Hedican failed to satisfy his duty to participate in
the bilateral process on its earlier conclusion that giving Hedican the
opportunity to compete for inferior jobs was a reasonable accommodation. R.64 at 17-18 (A-17-18) (concluding the
accommodation Walmart offered was reasonable and Hedican failed to
engage in the bilateral process). But because that predicate ruling is wrong
for the reasons already discussed, see supra pp. 14-31, the court’s
consequent holding regarding bilateral cooperation should also be reversed.
Moreover, even if the district court deemed Hedican’s
failure to apply for inferior jobs an independent ground for rejecting the
EEOC’s claim, the court’s analysis was flawed because it again failed to grapple
with the fact-dependent nature of the relevant inquiry. The court cited two
out-of-circuit decisions for the proposition that “[c]ourts have rejected Title VII religious accommodation claims
because the plaintiff employee failed to engage with the employer regarding the
employer’s accommodation proposal” without acknowledging that, in each case,
the court of appeals had also deemed the proposed accommodation to be
reasonable. See R.64 at 17 (A-17)
(citing Walden v. Ctrs. for Disease
Control & Prevention, 669 F.3d 1277, 1294 (11th Cir. 2012); and Shelton, 223 F.3d at 228). But, as
explained above, there is no basis for extending that result to the facts here,
where Walmart offered an accommodation that was unreasonable.
II. A reasonable jury would
not be required to find that Walmart would incur undue hardship if it accommodated
Hedican in the assistant-manager position.
The district court also erred in holding that Walmart proved
as a matter of law that accommodating Hedican’s request to take his Sabbath off
while serving as an assistant manager would have posed an “undue hardship on
the conduct of [its] business,” 42 U.S.C.
§ 2000e(j). See R.64 at 1, 20 (A-1,
A-20). In Hardison, the Supreme
Court held that under Title VII’s undue-hardship provision, employers need not
“bear more than a de minimis cost” to accommodate a religious practice. 432 U.S. at 84.
Under Hardison, an accommodation
poses undue hardship if it forces employers regularly to make premium (overtime)
payments to someone substituting for an employee who cannot work for religious
reasons. 432 U.S. at 76-77, 84. An
employer is also not obliged to replace a worker seeking an accommodation with
another employee who would otherwise be performing different functions,
resulting in “lost efficiency.” Id. at
84. And Hardison establishes that employers
need not mandate shift swaps that contravene contractual seniority systems. Id. at 76-77, 79, 81-83.
In applying Hardison,
this Court has emphasized that “Title VII
requires proof not of minor inconveniences but of hardship, and ‘undue’
hardship at that.” Adeyeye, 721
F.3d at 455-56 (quoting § 2000e(j)). Because
undue hardship is an affirmative defense under Title
VII on which Walmart bears the burden of proof, Walmart may not obtain summary
judgment on this ground unless it shows that the only reasonable conclusion to
draw from the record is that “any and all accommodations would have imposed an undue
hardship.” Id. at 455.
Here, the EEOC proposed numerous accommodations that
Walmart could have offered to Hedican that would have allowed him to serve as
an assistant manager while also observing his Sabbath (from Friday sundown to
Saturday sundown). Those include: flexible arrival and departure times;
voluntary shift swaps; paid time off; an overnight shift Saturday through
Tuesday, or Sunday through Wednesday; or a day shift Sunday through Thursday or
Monday through Friday. See R.64 at
18-19 (A-18-19). And Walmart’s evidence falls short of compelling the
conclusion that “any and all” of these would have subjected it to undue
hardship. Adeyeye, 721 F.3d at 455.
A. Walmart has not proven
that it would have been an undue hardship to assign Hedican to a permanent shift
that either did not conflict with, or that only minimally conflicted with, his
Sabbath observance.
First, Walmart could have, without incurring undue
hardship, assigned Hedican to an overnight schedule (8 p.m. to 8 a.m.) working
Saturday through Tuesday or Sunday through Wednesday. See R.23 at 22-23. Or it could have assigned him
to a daytime schedule (7 a.m. to 5 p.m. or 8 a.m. to 6 p.m.) working Sunday
through Thursday or Monday through Friday. Id.
It is true, as discussed, see supra pp. 23-24, there would be situations
in which a Saturday through Tuesday overnight schedule or a Monday through
Friday daytime schedule might require Walmart to adjust slightly Hedican’s
starting and ending times for at least part of the year to accommodate Hedican’s
Sabbath observance. See R.52-15 at
2-6, 12-19. To work the overnight shift on Saturdays, for example, his starting
and ending times would need to be delayed by up to an hour or so during certain
spring and summer months. See id.
at 2-6.
Lori Ahern, the human resources official who was the principal
decisionmaker on Hedican’s accommodation request, rejected making such
scheduling adjustments because she stated that they would not “necessarily
match” Walmart’s needs, R.24 at 38, and
would require other assistant managers to “adjust their schedules,” R.47 at 13. She did not explain, however, how such
adjustments conflicted with Walmart’s needs or why other assistant managers
covering different areas of the store would need to adjust their schedules because
of a slight modification to Hedican’s schedule. In addition, Ahern claimed that
adjusting Hedican’s schedule “would be a lot for [the store] manager to keep
track of because [the time of sundown] varies day by day,” R.47 at 13, and Ahern also apparently deemed
such an arrangement infeasible because it “would be something [Walmart] would
have to do differently just for” Hedican, R.24
at 38. But a jury could reasonably reject Walmart’s contention that any such
consequences constituted an undue hardship.
For one thing, adjustments to Hedican’s schedule would
have been unnecessary if he were assigned to an overnight or daytime schedule
that started on a Sunday. In addition, contrary to Ahern’s apparent
understanding, the mere fact that offering flexible arrival and departure times
was something Walmart “would have to do differently just for” Hedican does not
establish that it would have posed an undue hardship. Id. Quite the contrary, accommodations
under § 2000e(j) are frequently
modifications that employers must make to otherwise-neutral workplace policies
specifically for a worker’s religious practices. E.g., Abercrombie, 135 S. Ct. at 2032 n.2, 2034;
see also Reed, 330 F.3d at
934-35 (noting “Title VII requires an
employer to try to . . . adjust the requirements of the job
so that [an] employee can remain employed without giving up the practice of his
religion”).
Nor would a jury be required to conclude that it would
have been an undue hardship for the store manager to keep track of any flexible
arrival and departure times Hedican received as accommodations. If Walmart
assigned Hedican to an overnight shift that started on Saturday evenings, for
example, it could have simply adjusted his schedule to work from 9:15 p.m. to
9:15 a.m., rather than the standard 8 p.m. to 8 a.m. shift, during certain spring
and summer months when the sun sets after 8 p.m. R.52-15 at 2-6; R.23 at 23. Or, if Walmart preferred, it could
have provided Hedican with a modified 9:15 p.m. to 9:15 a.m. schedule for the
entire duration of his assignment to the overnight area. If Hedican were
assigned to a daytime shift, Walmart could have made similar one- or two-hour
adjustments to his schedule to account for the fact that, in certain fall and
winter months, the sun went down in Hayward before 5 or 6 p.m., the usual
ending time for two of Walmart’s daytime shifts. See R.52-15 at 12-19; R.23 at 22-23.
And because the approximate time of sunset during
various periods of the year is common knowledge, Walmart would have had ample
advance notice regarding when these issues would arise, and it could plan
accordingly. See Ilona of
Hungary, Inc., 108 F.3d at 1576-77 (employer failed to establish that it
would have been an undue hardship to modify plaintiffs’ work schedules because
the employer had “ample time” to make the adjustments after learning of
plaintiffs’ religious conflict). Under this Court’s case law, implementing such
minor schedule modifications would not amount to undue hardship. See id.; cf. Adeyeye, 721 F.3d at 455-56 (recognizing
that “costs . . . incurred in rearranging schedules [do] not
amount to an undue hardship” and relying on 29
C.F.R. § 1605.2(e)(1), which sets forth similar proposition).
Walmart argued in district court that even if it could
have initially scheduled Hedican to work a shift that did not conflict with his
Sabbath (with minor schedule adjustments, if needed), “no [a]ssistant [m]anager
is ever granted a permanent schedule.” R.41
at 7. According to Walmart, Hedican “would have eventually had to rotate to” a
new area of responsibility (such as apparel, entertainment, or overnights)—and
a new schedule—“that would require working Saturday before sundown.” Id. at 18; see also R.60 at 16. And it is true that store manager
Dale Buck’s general practice was to rotate assistant managers in the Hayward
store to new areas about once a year, although he typically waited longer, up to
two years, if an assistant manager joined Walmart mid-way through the year, as
would have been the case for Hedican. See R.44 at 27; R.52-4
at 2; see also R.44 at 15-16.
Adopting Walmart’s argument on this point, the district
court relied on the fact that the company had an “expectation and practice”
that assistant managers “would rotate through all areas of responsibility.” R.64 at 7, 19 (A-7, A-19). Contrary to the
district court’s apparent assumption, however, the pertinent question is not
whether Walmart maintained such a practice but rather whether diverging from it
to accommodate Hedican’s religious observance would have caused Walmart undue
hardship. See Abercrombie, 135 S.
Ct. at 2034 (making clear that employers must make exceptions to generally
applicable employment practices to accommodate an applicant’s religious observance,
short of undue hardship). And a jury would have good reason to doubt that
Walmart would have endured undue hardship if it had exempted Hedican from its
general practice of rotating assistant managers.
Walmart claimed that it periodically rotated assistant
managers so they could gain “experience in each area of store operations” and
thus fill in for each other as needed. R.41
at 5, 9. Walmart also stated that “being over the same area of responsibility
for too long would hinder the [a]ssistant [m]anagers’ [professional]
development and cause them to fall behind on innovations in other areas.” R.41 at 5; see also id. at 7 n.4 (stating that allowing one
assistant manager to work in one area permanently would “hinder the growth and
development of” that assistant manager, as well as others “who would be blocked
from learning the area” occupied by the first assistant manager). But a
reasonable jury would not have to agree that it would have been an undue
hardship for Walmart to exempt Hedican from this general practice.
A jury could reasonably conclude, for instance, that
Walmart could have assigned Hedican to a permanent, or at least indefinite,
overnight shift, which had two assistant managers assigned to it at any given
time. R.38 at 2. Walmart’s operational
needs would have been met in that situation, a reasonable jury could find,
because every assistant manager other than Hedican would have an opportunity to
rotate through all the areas of responsibility, including overnights, so they
could easily fill in for each other and advance their own professional
development. Moreover, a jury could reasonably conclude that Hedican also could
have readily filled in for other assistant managers under such an arrangement,
given that he would have been assigned to overnights, and thus would have
experience overseeing “literally anything that happen[ed]” in the store during
the overnight hours, including in other areas of responsibility such as apparel
or entertainment. R.23 at 24. Indeed,
under this arrangement, it stands to reason that Hedican’s experience in all
areas of the store would at least rival that of the other seven assistant
managers, who—a jury could reasonably conclude—would not have experience being
assigned to each of the seven areas of the store until they had worked for at
least seven years, see R.38 at 2-3
(Buck stating there were seven areas of responsibility in the store, and he typically
rotated assistant managers every February).
Further undercutting Walmart’s undue-hardship argument,
it is undisputed that Walmart assigned one assistant manager in the Hayward
store to an overnight schedule for more than two years, from July 2016 to
September 2018, see R.52-13 at 2-14;
R.44 at 34, the very period that Hedican
likely would have been working in that store, R.52-3
at 2; R.52-4 at 2. And Walmart admits that
it allowed some assistant managers in other stores to work “in the same area
for up to six years.” R.23 at 25. A jury
could reasonably conclude that Walmart should have offered a similar
arrangement to Hedican. See, e.g., Consol
Energy, Inc., 860 F.3d at 143 (suggesting in dictum that an accommodation
likely will not pose undue hardship where the employer has offered the same
arrangement to similarly situated employees); United States v. City of Albuquerque, 545
F.2d 110, 114-15 (10th Cir. 1976) (similar).
It is also significant on this point that Walmart
readily acknowledged that the company’s practice of rotating managers was
recommended but not always required, R.23
at 25; R.24 at 36. And it is undisputed
that the assistant-manager job description says nothing about rotations. See
R.52-11 at 2-5. For all these reasons, a
jury could reasonably determine that Walmart would not have incurred undue
hardship if it had exempted Hedican from its practice of rotating assistant
managers and, instead, given him a permanent or indefinite assignment working a
shift that interfered minimally, if at all, with his Sabbath observance. This
consideration alone supports reversal of the district court’s ruling on the undue-hardship
defense. See Adeyeye, 721 F.3d at 455
(employer must prove “any and all accommodations would have imposed an undue
hardship”).
B. Even if Hedican were assigned
regular Sabbath shifts, Walmart has not proven that it would have been an undue
hardship to let him use time off and voluntary shift swaps to accommodate his
religious needs.
Even assuming, as Ahern asserted, that Walmart would
have “at some point” needed to rotate Hedican to a shift that entailed regular
Saturday work, R.24 at 35-36, a jury could
still reasonably conclude that Hedican could have avoided work on his Sabbath
by combining voluntary shift swaps with accrued leave, and Walmart has not
established that a jury would be required to find that these accommodations
would have imposed an undue hardship.
The district court stated that it was “logical” for
Ahern “to conclude that it would be difficult or impractical for Hedican to
attempt to swap shifts with other assistant managers.” R.64 at 20 (A-20). But the relevant question
is whether Walmart put forth evidence that would require a reasonable jury to
find that voluntary shift swaps would have been infeasible, and a reasonable
jury could conclude that such a finding was not compelled here. Store manager Buck
stated that he “usually scheduled half or more of the [a]ssistant [m]anagers on
any given Saturday,” and that “[o]n average,” assistant managers at the Hayward
store worked “more than 60% of Saturdays.” R.38
at 4, 5. Therefore, because there were eight assistant managers total, id. at 2, if Hedican were scheduled to
work before sundown on a particular Saturday, a jury could reasonably conclude
that there typically would have been three or four assistant managers with whom
he could potentially trade shifts. Moreover, it is undisputed that assistant
managers most often requested Fridays, Saturdays, and Sundays as days off. R.44 at 28. Hedican was available to work 48
of the 72 hours most requested off (anytime on Sundays, before sundown on
Fridays, and after sundown on Saturdays). A reasonable jury could therefore
conclude that, if Walmart scheduled Hedican to a daytime shift on Saturdays, he
could have swapped that shift with one of his co-workers who might have
preferred to take another day off, like a Friday or a Sunday. See Opuku-Boateng v. California, 95 F.3d 1461,
1471 (9th Cir. 1996) (reasoning, on similar facts, that “other employees [may]
have been willing to trade for many, if not all, of [the plaintiff’s] Sabbath
shifts in exchange for” shifts they found less desirable).
Importantly, Ahern did not bother to ask the other
assistant managers whether they would be willing to swap shifts with Hedican. R.47 at 14. In addition, a jury could conclude
that Ahern did not even discuss this possibility with store manager Buck, as he
denied ever talking to Ahern about shift swaps. R.44 at 24. Instead, Ahern merely speculated
that other managers “may have plans” and thus “may not want to” trade shifts
with Hedican. R.47 at 13-14. But such
speculative assumptions cannot support Walmart’s undue-hardship defense. Title VII requires employers to
“demonstrate[],” not speculate, that an accommodation poses an undue hardship.
42 U.S.C. § 2000e(j). Accordingly, courts
have expressed “skeptic[ism]” “of hypothetical hardships that an employer
thinks might be caused by an accommodation that never has been put into
practice.” Cloutier v. Costco Wholesale
Corp., 390 F.3d 126, 135 (1st Cir. 2004) (citation omitted). Courts have instead
demanded that employers base their undue-hardship assessments on objective
evidence. See, e.g., Tabura,
880 F.3d at 558 (reversing summary judgment for employer where it “did
not . . . cite to any evidence to support its assertion[]”
that accommodating plaintiffs’ need to observe their Sabbath would impose an
undue hardship); Brown v. Gen. Motors
Corp., 601 F.2d 956, 960 (8th Cir. 1979). See generally EEOC Compliance Manual § 12-IV(B)(1)
& nn.146 & 147, 2008 WL 3862099 (citing cases).
In Opuku-Boateng,
for example, the Ninth Circuit concluded that the employer failed to prove that
voluntary shift swaps would have been infeasible because, although the employer
took an “informal poll” of the plaintiff’s prospective co-workers to determine
whether they would swap shifts with him, the court held that it “failed to
conduct the type of inquiry into the feasibility of trading shifts that would have
been necessary to answer that question one way or the other, and thus to enable
it to carry its burden.” 95 F.3d at
1471-72. Here, Walmart did not even conduct an “informal poll” like the
employer in Opuku-Boateng. Id. at 1471. Walmart therefore has not shown
that voluntary shift swaps would have posed an undue hardship, as it predicated
its conclusion that they were infeasible not on objective facts but on Ahern’s
speculative hypothesis. Thus, reversal on the district court’s undue-hardship
ruling is warranted based on consideration of this accommodation, standing
alone.
Next, the district court’s decision overlooks the
possibility that Hedican could have used accrued annual leave, in combination
with shift swaps, to avoid working on his Sabbath. The court discounted paid
leave as a feasible accommodation because it thought that Hedican would not
“begin to acquire paid time off” until “after he had worked for [Walmart] for
one full fiscal year.” R.64 at 3, 19 (A-3,
A-19). But a jury could reasonably construe the document on which the district
court relied—Hedican’s offer letter—to have entitled Hedican to 21 days of paid
time off each fiscal year, and a prorated amount available between his
start date and the beginning of the upcoming fiscal year. See R.52-3 at 3 (providing that salaried employees
“receive a grant of [paid time off] each February 1” for the following twelve
months, noting such employees “receive 21 days of [paid time off] on the first
full plan year after [their] hire date,” and explaining that, “[f]or [such
employees’] first year,” paid time off “will be pro-rated relative to [their]
month of transfer”); see also R.44
at 16-17 (Buck deposition indicating that Hedican likely would have been
entitled to some amount of paid time off upon being hired).
In any event, Buck’s testimony indicates that if an
assistant manager were hired in the summer—which would have been true in
Hedican’s case, R.52-4 at 2; R.41 at 9—he likely would not have rotated
that assistant manager to a new schedule “for almost two years,” R.44 at 27. Therefore, even under the district
court’s reading of the offer letter, Hedican would have been entitled to at
least 21 days of annual paid time off by the time Walmart would have rotated him
to another area of responsibility. R.52-3
at 3. Therefore, a jury could reasonably determine that Walmart could have
initially assigned Hedican to a schedule that did not conflict with his
Sabbath, and it then could have rotated Hedican to any schedule, including one
that involved regular shifts working Saturdays before sundown. By that point, a
jury could reasonably find, Hedican would have been able to combine his accrued
time off with periodic voluntary shift swaps to avoid working on his Sabbath. Cf.
Opuku-Boateng, 95 F.3d at 1474-75
(holding that where an applicant seeks an accommodation and a viable
arrangement is immediately available, the employer must offer this arrangement
in the short term until it can “determine what actual hardships, if any, would
result”).
* * *
Walmart argued in district court that even if Hedican
could have avoided being scheduled to work on his Sabbath through the
accommodations just described, there might have been situations in which he
would have needed to come into work unexpectedly, which could have interfered
with his Sabbath. It said, for example, that “if customers complain[ed] that
produce quality [wa]s poor on Saturday mornings, the [a]ssistant [m]anager over
the [f]resh area would be expected to spend more time in produce on Saturday
mornings to find out what[] [was] happening and fix it.” R.41 at 6-7. It is true that Walmart’s
corporate representative testified that such a hypothetical situation could
arise, R.23 at 24-25, but—despite having
the burden of proving undue hardship—Walmart has not offered any evidence to
suggest (1) that such an occurrence requiring an assistant manager’s immediate
action would come up with any regularity; or (2) that a voluntary swap with
another assistant manager would be impossible in that situation. As noted
above, see supra pp. 46-47, employers cannot rely on such hypotheticals
to satisfy their burden of proving undue hardship under Title VII, but rather must rely on objective information.
Walmart has cited none here.
As the discussion above shows, the district court erred
in adopting Walmart’s argument that if it had accommodated Hedican’s request to
avoid Sabbath work, it inevitably would have been forced to: (1) require
another manager “to work on additional Saturdays” involuntarily; (2) hire
another manager to fill in for Hedican; or (3) “operat[e] the store with
one less manager than needed.” R.64 at 20 (A-20).
Walmart plainly would not have been required to take any of these three actions
if it had assigned Hedican to a permanent shift that did not conflict with his
Sabbath (which Walmart could have accomplished by slightly adjusting Hedican’s
arrival and departure times if required). And even if Walmart eventually would
have needed to rotate Hedican to a shift involving regular work on his Sabbath,
the district court’s analysis presupposed that Hedican could not have used accrued
leave to avoid Sabbath shifts and that he could not have exchanged his Sabbath
shifts with other assistant managers who volunteered to do so. If Hedican could
have done these things, Walmart would not have needed to take any of the three
actions the court identified. The district court therefore erred in concluding
that a reasonable jury would be compelled to find that Walmart proved that it
would have suffered undue hardship if it had accommodated Hedican in the
assistant-manager position.
For the foregoing reasons, the district court’s judgment
should be reversed.
Respectfully
submitted,
sharon fast gustafson
General
Counsel
JENNIfer s. goldstein
Associate
General Counsel
SYDNEY A.R. FOSTER
Assistant
General Counsel
/s/
Philip M. Kovnat
PHILIP M. KOVNAT
Attorney, Appellate Litigation Services
Office of General Counsel
Equal Employment Opportunity Commission
131 M St. NE, Fifth Floor
Washington, DC 20507
(202) 663-4769
philip.kovnat@eeoc.gov
August
21, 2020
