Adelina Suarez was a Certified Nursing Assistant (CNA) who worked for a state-operated certified residential nursing facility for vulnerable, disabled adults in Yakima, Washington. Throughout her employment, which was covered by a collective bargaining agreement (CBA), she sought schedule changes to accommodate her religious practice of observing a weekly Sabbath and time off to attend some religious festivals throughout the year.
Although Suarez made several requests for a shift that would not conflict with her religious practices, her requests were denied, at least in part because of the shift-bidding rules under the CBA. But when a shift came open that would accommodate her religious practices, it was not offered to Suarez but was instead opened up for all employees to apply and ultimately a less-senior CNA was awarded that position. Suarez testified that she did not know that she needed to apply for another position to get a different shift, and the employer did not suggest that she apply for it.
Suarez was allowed to ask coworkers to change shifts with her, but the employer did not provide any assistance with this effort. Likewise, although Suarez was granted more unpaid days off for religious observances than provided for in the CBA, several of Suarez’ requests for unpaid time off were denied as being in excess of the number allowed under the CBA. Ultimately, Suarez did not report for a shift that conflicted with her religious practices and for which she was denied time off, resulting in the employer calling in another CNA to cover the shift and paying overtime. Thereafter, Suarez’ employment was terminated.
Suarez filed suit against the facility, asserting multiple causes of action. The trial court granted summary judgment on all her claims, and she appealed. The Washington Court of Appeals reversed summary judgment on two claims: a statutory failure to accommodate her religious beliefs claim and a tort claim for discrimination in violation of public policy.
The Court of Appeals focused on two key issues: what is the standard for a reasonable accommodation, and if a reasonable accommodation exists, what is the standard for holding that providing that accommodation would be an undue hardship on the employer?
As to the first issue, the Court held that a reasonable accommodation “resolves the conflict between an employee’s religious beliefs and their work duty without adverse impact on their job benefits or status.” As the Court noted, the employer does not have to grant the employee’s preferred accommodation, as long as the accommodation resolves the issue without adverse impact on the employee. As an example, the Court pointed to a U.S. Supreme Court decision holding that allowing an employee to take unpaid leave for religious holidays in excess of the leave granted by a CBA would be a reasonable accommodation.
While noting that this employer had allowed Suarez some additional unpaid days off, it had refused to do so for Suarez’ final shift, claiming it would be an undue hardship to grant that request. Suarez countered that the employer regularly covered shifts which employees requested off or missed for various different reasons, so it would not be an undue hardship to do so in this situation.
In reviewing the undue hardship question in the religious accommodation context, the Court adopted the standards set forth by the state Office of Financial Management, detailed in WAC 82-56-020:
In considering whether to grant unpaid leave for religious purposes, a State employer should consider 10 factors:
- The number, composition, and structure of staff employed by the employing entity or in the requesting employee’s program.
- The financial resources of the employing entity or the requesting employee’s program.
- The number of employees requesting leave for each day subject to such a request.
- The financial impact on the employing entity or requesting employee’s program resulting from the employee’s absence and whether that impact is greater than a de minimus cost to the employer in relation to the size of the employing entity or requesting employee’s program.
- Impact on the employing entity, the requesting employee’s program, workplace safety or public safety.
- Type of operations of the employing entity or requesting employee’s program.
- Geographic location of the employee or geographic separation of the particular program to the operations of the employing entity.
- Nature of the employee’s work.
- Deprivation of another employee’s job preference or other benefit guaranteed by a bona fide seniority system or collective bargaining agreement.
- Any other impact on the employing entity’s operation or requesting employee’s program due to the employee’s absence.
As the Court noted, whether a reasonable accommodation existed or whether such an accommodation would be an undue hardship were factual questions, and the Court remanded these claims to the trial court for further analysis of the factual issues in light of its opinion. The Court did note some key points, however.
First, the Court confirmed that an accommodation that would require the employer to violate the terms of a CBA would be an undue hardship. So in this case, the employer did not have to change Suarez’ schedule if doing so violated the terms of the CBA. The granting of unpaid time off in excess of that contained in the CBA was not per se an undue hardship as doing so did not violate the CBA.
The Court also noted that while for smaller employers having to pay overtime to cover Suarez’ last shift might be an undue burden, given the resources of this facility and the regular practice of covering shifts for other reasons, it might not be an undue burden in this particular situation.
Finally, with regard to the opening of a position with a shift that would have accommodated Suarez, the Court held that because the employer was required to take affirmative steps to accommodate Suarez, it should have affirmatively suggested to Suarez that she apply for the position. The employer asserted that it did so when it emailed the notice of the open position to all employees, including Suarez. The Court disagreed, stating, “This passive, generalized action was not an attempt to accommodate Suarez’s scheduling conflict. It was neither dialogue nor an attempt at cooperation…there is no evidence that [the employer] offered or suggested any accommodations.” The Court left open the opportunity for the employer to prove that doing more than it did would be an undue hardship.
The Court’s holding may be limited to public sector employment relationships. Certainly, public sector employers should consider carefully the ramifications of this case to any request they have for accommodation of an employee’s religious beliefs.
But this case may also be instructive for private sector employers. While the specific standards adopted in this case may not apply to a private sector employer, the Court was clearly concerned with the lack of evidence before it that the employer had cooperated with or taken affirmative steps to accommodate Suarez’ religious beliefs. Going forward, this case suggests that all employers would be wise to make some attempt to explore accommodation options with an employee seeking a religious accommodation, to have a truly interactive process, and not place all the burden for finding an accommodation on the employee.
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This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
