Accommodating Religious Beliefs, Quirky Question # 120
Quirky Question # 120:
Our retail company has mandatory weekly sales meetings which occur across town from one of the store branches. Each week, our store branch manager and his four salespersons must come from across town to the sales meeting. Many of the salespersons are part-time employees and students, and consequently take public transportation to work. The employees who are working a shift during which the meeting occurs have two options for getting to the weekly sales meeting: (1) take public transportation; or (2) carpool with the store manager. Two of the salespersons are male, two are female.
In the past, the store branch manager has driven the salespersons to the weekly sales meeting. Recently, a new branch manager has been hired, and this arrangement is no longer working. The new branch manager refuses, for what appears to be bona fide religious reasons, to carpool alone with any female employee. The practical outcome of this situation is that when only one female employee needs a ride to the mandatory weekly sales meeting, she is usually left taking public transportation at the last minute because of the branch manager’s refusal to drive her to the meeting. Female employees have been late, and sometimes missed the meeting as a result. The female employees have complained to Human Resources. The branch manager has explained the religious belief to the company.
The company has informed the branch manager that it is his responsibility to ensure that his employees are at the weekly sales meeting, and that he will be penalized if they are not because of his refusal to carpool. The company’s human resources manager is troubled by this situation. What should we do?
Your human resources manager is right to be troubled. In analyzing why, we must first discuss whether your company’s decision increases the likelihood that your branch manager would bring a religious discrimination claim and whether your company risks liability if he does. To establish a prima facie case of religious discrimination, an employee must demonstrate that: (1) he had a bona fide religious belief; (2) the practice of which conflicted with an employment duty; (3) he informed the employer of his belief and conflict; and (4) the employer threatened him or subjected him to discriminatory treatment because of his inability to fulfill job requirements. Opuku-Boateng v. State of California, 95 F.3d 1461 (9th Cir. 1996).
Here, we will assume that your branch manager meets the first element, and has a bona fide religious belief that prohibits him from being alone with any female. The second element is also met where the company has created an employment duty for the branch manager (i.e., transporting employees to the sales meeting) by penalizing him if his employees do not attend the sales meeting due to his failure to provide transportation. He has put the company on notice of his belief and the conflict, thus meeting the third element. Likewise, the fourth element is met where the employer has informed him that he will be penalized if an employee is not at the sales meeting because he refused to carpool with them.
Meeting the prima facie case alone is not enough to establish liability, however. Once the employee establishes his prima facie case, the burden shifts to the employer to demonstrate it satisfied its statutory obligation to engage in good-faith efforts to negotiate accommodation of employee’s religious beliefs. Id. at 1467. Only if an employer can show that no accommodation would be possible without undue hardship, is an employer excused from taking the necessary steps to accommodate an employee’s religious beliefs. Id. at 1467, citing Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993), EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 615 (9th Cir. 1988).
It is not clear from the facts you described whether your company satisfied its statutory obligation to engage in a good-faith effort to negotiate an accommodation. It would appear, however, that your company essentially refused to provide any accommodation to your branch manager. In this scenario, your company can avoid liability only if it can show that no accommodation would be possible without an undue hardship. It would seem that your company could accommodate your branch manager’s request that he not be required to be alone with any female in his vehicle without experiencing an undue hardship. As you described, your employees have multiple options for getting to your sales meeting. For example, they could ride the bus. Alternatively, another employee might be able to provide the female employees a ride. Yet another option would be for your company to pay for cab fare, likely an insignificant expense for periodic meetings. In short, it does not seem likely that your company will be able to mount a very effective “undue hardship” hardship defense.
Separate issues are raised by the possibility that the branch manager might offer to provide rides only to male employees as an accommodation to his religious belief? Should the company accept this solution? As EEOC v. Townley Engineering and Manufacturing Company, 859 F.2d 610, 614-615 (1988), states: “The language in our cases merely emphasizes that the burden of attempting an accommodation rests with the employer rather than the employee. When an employer does not propose an accommodation, or when its proposed accommodation does not eliminate the employee’s religious conflict, the employer must accept the employee’s proposal or demonstrate that the proposal would cause the employer undue hardship. (Citing American Postal Workers Union v. Postmaster General, 781 F.2d 772, 776 (9th Cir.1986); Burns, 589 F.2d at 406.)
Note, however, that an employer does not have to accept an employee’s proposed accommodation if it violates the company’s policies. In Peterson v. Hewlett-Packard, decided by the Ninth Circuit Court of Appeals, 358 F.3d 599 (9th Cir. 2004), the Court stated that the company did not fail to accommodate an employee’s religious beliefs where it had four meetings with the employee to discuss his conduct, and the employee refused to consider any accommodations other than those that he himself offered – all of which violated the company’s harassment and diversity policies. The employee, a self-described “devout Christian,” disagreed with his employer’s diversity and nondiscrimination policy, posted Biblical scriptures opposing homosexuality, and in other ways did not cooperate with the company diversity policy. (For a more complete discussion of the Hewlett Packard case, see Quirky Question # 58, accessible by using the “View By Topic” bar to the upper left and scrolling down to the topic, “Reasonable Accommodations of Religious Beliefs.”)
The branch manager’s proposed accommodation may similarly violate your company’s antidiscrimination policy because it could be construed as a discriminatory practice to provide men rides with the branch manager to the weekly sales meeting while women are left taking public transportation. This is potentially discriminatory for two reasons. First, it gives the men access to the manager in the form of time and exclusivity. Second, it treats men preferentially in that they get to carpool and do not have to be dependent on mass transit to get to a mandatory meeting. Each of these arguments could give rise to a discrimination claim by female employees that they were treated differently solely because of their gender. In short, your company would not required to accept the branch manager’s proposed accommodation and there may be compelling reasons not to do so.
What might your company propose instead? Based upon this set of facts, you might consider prohibiting your branch manager from driving any employee, male or female, to the weekly sales meeting. Even though this solution may create some morale problems or minor inconveniences for the affected employees, these risks would not be sufficient to justify accepting your branch manager’s proposed accommodation. Caselaw in the Ninth Circuit is clear that:
“hypothetical morale problems are clearly insufficient to establish undue hardship. ‘Even proof that employees would grumble about a particular accommodation is not enough to establish undue hardship.’” Opuku-Boateng, 95 F.3d 1461, 1474 (9th Cir. 1996), citing Anderson v. General Dynamics Convair Aerospace Div., 589 F.2d 397, 402 (1978), cert. denied in International Ass’n of Machinists and Aerospace Workers AFL-CIO v. Anderson, 442 U.S. 921, 99 S.Ct. 2848, 61 L.Ed.2d 290 (1979); Burns v. Southern Pac. Transp. Co., 589 F.2d 403, 407 (9th Cir.1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979).
In sum, your branch manager seemingly has a bona fide religious belief that precludes him from transporting female employees to your sales meetings in his car. Moreover, it does not seem as though your company could advance a compelling undue hardship argument that would justify forcing your employee to choose between disregarding his religious beliefs or transporting your female employees. As discussed above, however, your company is not obligated to accept your employee’s proposed accommodation, especially where doing so could create other potential liabilities for your firm. Given this fact, it seems that the best solution would simply be to prohibit your manager from transporting any employees to the sales meetings. This solution would accommodate your manager’s religious beliefs while simultaneously ensuring that your company is not risking exposure for gender discrimination.