I’ve just discovered Eugene Volokh’s daily postings, which he calls The Volokh Report. And since he is a noted law professor (U.C.L.A.) and a Constitutional scholar focusing especially on the First and Second Amendments, I find his deeply intelligent digests of what’s going on in law substantial food for intellectual chewing.
When I first became aware of Volokh, I was somewhat suspicious about his politics and, indeed, according to the always questionable Wikipedia (see above link), Volokh (who is a lot younger than I thought and was born in Russia, and that explains a great deal about his politics which anyone who has ever had a political discussion with a Russian cabbie will understand) supported Fred Thompson’s presidential campaign.
Knowing that squeezes lemon directly into my mouth (Fred Thompson!?!? And he was lousy actor, too), but I do like Volokh’s postings. They keep me informed about lawsuit stuff I would not otherwise be aware of.
So occasionally I’ll be giving you sections of the Volokh Report. Here’s one about a lawsuit involving “reasonable accommodation,” in this case concerning a schoolteacher’s requirement for a day off on her own particular Sabbath: Tuesday. The emphasis, the court decided, was on the word “reasonable.” Read on:
Posted: 13 Jun 2013 09:50 AM PDT
Here, Defendants do not challenge the sincerity of Plaintiff’s religious convictions or that part of her religion — her Sabbath [which runs from 10 am Tuesday to 10 am Wednesday each week] — conflicts with her employer’s requirement that she work on Tuesdays…. Assuming for the purposes of the pending motion to dismiss that a prima facie case is established, the burden shifts to Defendants to show that it was unable to reasonably accommodate Plaintiff’s religious needs without undue hardship….
Here, Plaintiff teaches special education at an elementary school. Class is held from Monday through Friday. Accommodating Plaintiff’s request to take off every Tuesday would require Defendants to hire a substitute teacher every week, or a part-time employee to cover every Tuesday, in addition to paying Plaintiff’s salary, or perhaps would require her students to sit with another teacher’s class — overloading the student-teacher ratio. Such accommodations appear even more burdensome than those contemplated in Hardison or Eversley. Therefore, this Court finds that obliging Plaintiff’s request and accommodating her religious practices in this regard would require Defendants to bear more than a de minimus cost, and as such would be an “undue hardship.” Accordingly, on the face of Plaintiff’s complaint, and accepting all of her allegations as true, Plaintiff cannot establish that Defendants were in violation of Title VII of the Civil Rights Act of 1964 by denying Plaintiff her request for time off every Tuesday for her Sabbath, and Plaintiff’s claims for religious discrimination will be dismissed with prejudice.
Sounds correct to me; Title VII requires reasonable accommodation, which courts have interpreted as accommodation that doesn’t impose much of a burden on the employer. In some situations and job categories, requests for time off for religious observance can be accommodated with minimal burden, for instance through shift swaps or rearranging the employee’s schedule. But in other situations, including for Saturday (i.e., Friday sundown to Saturday sundown) or Sunday Sabbatarians, the employee must be on the job for all the hours normally required of the job. That’s especially likely for schoolteachers, where continuity of the teacher-student relationship is important, and doubly so when the time off would come in the middle of the work week.
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.