On May 7, 2010, the EEOC Office of Federal Operations ("OFO") issued its decision in White v. Department of Defense, EEOC Appeal No. 0120080191. OFO modified the agency’s final order accepting the AJ’s decision, and remanded the matter to the agency so that the agency could provide the complainant, Theresa White, a reasonable accommodation of her religious beliefs, conduct a supplemental investigation on whether White deserved compensatory damages, provide at least eight hours of training on Title VII to the management officials responsible for denying White the accommodation, and consider taking disciplinary action against the same management officials.

At the time of the complaint, White was a part-time meat-cutter at the Marine Corps Base in Quantico, VA. As a Baptist, her religious beliefs required her to attend church services, Sunday school, and church meetings every Sunday. Because the church meetings typically lasted until 6:00 pm every Sunday, working on Sunday was a virtual impossibility for White. To incorporate her religious life into her work life, on April 28, 2006, she requested religious accommodation from her supervisor. She asked her supervisor if she could be off from work on Sundays so that she could attend the services, school, and meetings. The supervisor denied the request to take Sunday off, and instead offered the complainant an arrangement whereby she could have part of Sunday off to attend services, but would then have to work the remainder of the day. White did not accept the alternative because it did not permit her to attend Sunday school and the meetings.

White filed an EEO complaint claiming that the lack of accommodation was discrimination based upon race (African-American) and religion (Baptist). The administrative judge (AJ) issued a decision without a hearing on August 8, 2007, which the agency adopted with a final order. The AJ found that the agency made a reasonable effort to accommodate White’s religious beliefs, i.e., that a schedule which permitted her to both work and attend church on Sunday was sufficient for a "good faith effort" on the part of the agency. The AJ pointed out that this type of "flexible scheduling" was an alternative form of reasonable accommodation. The AJ also declined to find any discrimination, believing the agency’s explanation that the reason that it could not grant the complainant Sundays completely off was because Sunday was the busiest day at the facility, and that without White there, the meat department would be overloaded and would overburden the other employees.

The complainant appealed to the OFO, claiming that the "flexible schedule" of both work and church still forced her to miss Sunday school and meetings, and thus it was not a reasonable accommodation of her religious beliefs. Furthermore, White argued that it was discriminatory, as the "compromise" flexible scheduling was only offered to her by the agency after she wrote to her congressperson, and that Sundays off were offered to other part-time employees.

In reaching its decision modifying and remanding the decision of the AJ, the OFO determined that the complainant successfully put forth a claim of a denial of a religious accommodation—proving that she was a member of the Baptist church, and that she requested Sundays off to attend church services and related activities but was denied. The OFO next stated that because White had put forth a valid claim, the agency needed to have proven that it had made a good faith effort to reasonably accommodate her, or in the alternative, that the means of accommodation put forth by her could not be granted without severe hardship for the agency’s operations. In assessing the case, the OFO cited to the EEOC’s "Guidelines on Discrimination Because of Religion," which instruct that alternatives for accommodating an employee’s religious practices include voluntary substitutes and swaps (of employees), flexible scheduling, and lateral transfers and job changes.

The OFO concluded that in looking at all the facts, the agency failed to prove that it had reasonably accommodated White or that accommodation of her requests would be an undue burden. The OFO further found that the flexible scheduling offered by the agency was not a reasonable accommodation because it would not permit her to attend Sunday school and meetings, which were required by her religious faith. Specifically, the OFO found that the agency did not investigate the use of voluntary substitutes or swaps White on Sundays. Particularly damaging to the agency’s claims was that the affidavit of White’s supervisor revealed that six meat cutters had Sundays off. The OFO found that the agency did not offer evidence as to why White could not switch schedules with any of these six meat cutters, nor did it offer evidence that it even explored this option. As such, the OFO did not find any merit to the agency’s claim that to give White Sundays off would be unduly burdensome.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

 

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