Title VII Archives - Employing Alabama

Groundbreaking Decision on LGBTQ Employee Rights

June 17, 2020Robert C. Lockwood

On Monday, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from taking adverse employment actions based upon the sexual orientation or gender identity of an employee. See Bostock v. Clayton County, Ga., 2020 WL 3146686 (Jun. 15, 2020). The Bostock decision is a groundbreaking reversal of longstanding precedent in the Eleventh Circuit, which includes Alabama. In the past, gay and lesbian employees have enjoyed very limited employment rights, while transgender employees enjoyed some protection. Here is an old blog post providing a good overview of prior law for LGBTQ employees: Emerging LGBT Issues in the Workplace

The Bostock case was initially decided by the Eleventh Circuit Court of Appeals. Gerald Bostock worked as a child welfare advocate for Clayton County, Georgia. After a decade of working for the county, and winning numerous awards, he began participating in a gay recreational softball league. Shortly thereafter, community members made disparaging comments about Mr. Bostock’s sexual orientation and he was ultimately terminated for conduct “unbecoming” a county employee. Mr. Bostock sued, and lost, in the United States District Court for the Northern District of Georgia. On appeal, a panel of the Eleventh Circuit issued a one-page opinion upholding dismissal and adhering to longstanding precedent that “[d]ischarge for homosexuality is not prohibited by Title VII.” Bostock v. Clayton County Bd. of Comms., 723 Fed.Appx. 964 (2018) (quoting Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979).)

The Supreme Court reversed the Eleventh Circuit in a decision authored by Justice Neil Gorsuch. Title VII prohibits discrimination on the basis of “sex.” And, in the first paragraph of his opinion Justice Gorsuch concluded: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex necessarily plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Justice Samuel Alito, writing for a three-justice minority, argued that employers do not discriminate against LGBTQ employees on the basis of their “sex,” but on the basis of their conduct, which would not be prohibited by Title VII. According to Justice Alito, if an employer terminates both men and women for being gay, it draws no distinction on the basis of sex. But, Justice Gorsuch responded to that argument: “[I]t doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee — put differently, if changing the employee’s sex would have yielded a different choice by the employer — a statutory violation has occurred.”

While Bostock is a huge win for LGBTQ employees, it has not resolved all issues involving LGBTQ rights. After all, Justice Gorsuch is a conservative. Thus, he noted that employers with strong religious objections to LGBTQ employees might be protected by the Religious Freedom Restoration Act of 1993. In fact, Justice Gorsuch noted that “[b]ecause the RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supercede Title VII’s commands in appropriate cases.” But, because the RFRA was not before the Court, he made no express ruling on that issue. As a result, there is a strong likelihood that we will see further decisions involving employers like Hobby Lobby whose religious beliefs influence their business plans.

Justice Gorsuch also declined to say whether an employer violates Title VII by requiring sex-segregated bathrooms, locker rooms and dress codes. Instead, he expressly limited his opinion to a situation where an employer fires an individual merely for being gay or transgender.

Federal Courts Frown on “Shotgun Pleading.”

December 20, 2018December 20, 2018Robert C. Lockwood

shotgun pleading Alabama employment law — “Shotgun Pleading” creates problems in employment litigation.

As I drafted today’s post, a couple of colloquialisms came to mind. First: “Shoot first and ask questions later.” Second: “Sometimes, less is more.” Federal judges are more fond of the second saying. Frequently, lawyers file complaints (the document that starts a lawsuit) in a broad manner — including all possible facts and all possible claims — without specifying which facts apply to which claims. In the legal profession, this is called “shotgun pleading.” Federal judges don’t like shotgun pleading and two of our judges in the Northern District of Alabama recently entered decisions related to shotgun pleading.

In Roney v. City of Huntsville, No. 5:18-cv-1482-CLS, 2018 WL 632483 (N.D. Ala. Dec. 4, 2018), Senior United States District Court Judge C. Lynwood Smith, Jr. provided a synopsis of the different types of shotgun pleading:

A complaint containing multiple counts/claims, where each count adopts the allegations of preceding counts. This is a well-worn practice in Alabama, and I think it evolves from fears that a lawyer doesn’t want to accidentally omit something from a claim. So, the lawyer will start each claim in a complaint with something like: “Plaintiff incorporates all of the allegations and pleadings in the preceding paragraphs as if set forth fully herein.”
A complaint “replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action.”
A complaint which fails to separate into a different count/claim each cause of action or claim for relief.
A complaint which asserts multiple claims against multiple defendants, but fails to specify which defendants are responsible for which acts or omissions, or against which of the defendants the claim is brought.

Roney is a Title VII action in which Judge Smith granted a motion to dismiss the employee’s shotgun pleading. He concluded that the complaint fell into the first and second types. Most particularly, Judge Smith faulted conclusory pleading such as: “she was subjected to a sexually hostile work environment by her supervisor ….” Roney, 2018 WL 6326483 at *4. It appears that a better pleading would have identified the specific actions of the supervisor that amounted to a hostile work environment. While Judge Smith granted the motion to dismiss, he also gave the employee an opportunity to file a subsequent complaint that would not contain the same defects.

Judge Annemarie Carney Axon also found that the employee filed a shotgun pleading in Hawkins v. Holy Family Cristo Rey Catholic High School, No. 2:18-cv-00638-ACA, 2018 WL 6326485 (N.D. Ala. Dec. 4, 2018). She found that the complaint filed by the employee in that Title VII case was a Type 1 and 3 shotgun pleading. Nevertheless, she continued to review the complaint and found that a partial dismissal was warranted.

Employment litigation is a specialized field and litigating in federal court requires precision. The Roney and Hawkins cases demonstrate that a lack of precision, and reliance upon a shotgun approach, can be detrimental to an employee’s case.

Is Your Christmas Party a Form of Religious Discrimination?

December 18, 2018Robert C. Lockwood

Christmas Title VII religion religious Alabama Employment Law — Christmas celebrations can cause legal problems for employers.

Merry Christmas!! December 25 is just around the corner. Many employers hold a Christmas party to celebrate this time of the year. But, not all employees are Christians. Many don’t celebrate Christmas. Could your Christmas party be a form of religious discrimination?

In summary, Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of religion. The word “religion” in Title VII includes “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s … religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). Therefore, an employer has a statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship. Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277, 1293 (11th Cir. 2012).

Generally, my advice is to make sure employees enjoy the holidays and Christmas celebrations. You won’t violate Title VII merely by having a Christmas party. But, you get closer to trouble if you require employees to attend a Christmas party, or take action against them because of their refusal to participate in Christmas activities. If an employee has a reasonable religious objection to a holiday activity, try to work with them to resolve their objections and accommodate their beliefs. If their religious objection puts an undue burden on your business, call your lawyer before taking any specific action. Following is a discussion of a few cases involving allegations of religious discrimination at Christmas.

Close to home is the decision in Chandler v. Infinity Ins. Group, No. 2:12-cv-2870-TMP, 2014 WL 2547826 (N.D. Ala. Jun. 4, 2014). In Chandler, the employee was a Jehovah’s Witness. She alleged that her employer discriminated against her by forcing her to attend a Christmas party in violation of her religious beliefs. Magistrate Judge T. Michael Putnam dismissed the employee’s claim, however, because she never informed anybody that attending a holiday party would conflict with her sincerely held religious beliefs.

A slightly different fact situation was presented in Mitchell v. American Eagle Airlines, Inc., No. 15-757-SDD-RLB, 2017 Wl 2588597 (M.D. La. Jun. 14, 2017). In Mitchell, a Jehovah’s Witness employee claimed that she suffered religious discrimination when her employer made her work after she refused to attend a Christmas party. The trial court dismissed that claim, primarily because the employee failed “to demonstrate how working during a Christmas party is a cognizable adverse employment action under the law.”

At least one court has found that an employer may refuse an employee’s request to attend Christmas social gatherings — even when those gatherings are closely tied to Christmas mass. See Duran v. Select Medical Corp., No. 08-cv-2328-JPM-tmp, 2010 WL 11493117 (W.D. Tenn. Mar. 19, 2010). In Duran, the employee was scheduled to work as a charge nurse on Christmas day. She made multiple requests to be off-work that day, including a letter to the CEO that concluded: “I would like to remind you that I and my family are Catholic and Christmas day is a very special holy day for us.” Despite those requests, the employee was still required to work on Christmas day. The evidence showed that the employee celebrated Christmas mass from midnight to 1:00 a.m. on December 25. Then, she participated in a family meal and exchange of gifts at home until approximately 5:00 a.m. She was required to be at work at 7:00 a.m. The Court concluded that “the family meal and gift exchange that followed Christmas Mass are not religious practices or observances protected by Title VII. …. Title VII does not protect purely social events.” The Court found that attendance at Christmas Mass is a protected religious observance, but there was no conflict between a mass that ended at 1:00 a.m. and a work schedule beginning at 7:00 a.m.

In at least one case, an employer was required to endure a trial to decide whether an employee was compelled to wear a Santa hat during the holiday season. Velez-Sotomayor v. Progresso Cash & Carry, Inc., No. 01-1678, 279 F.Supp.2d 65 (D.P.R. 2003). The employer required all employees to wear Christmas hats, and the employee refused because of her Jehovah’s Witness beliefs. The employer then suspended her with pay during the Christmas season. The employer’s main defense was that the employee could not explain why wearing a Christmas hat violated a sincerely held religious belief. The trial court found that a jury should resolve that issue.

I hope that all of your days are merry and bright during this Holiday Season!!

Complaints About Homosexual Discrimination Not Protected by Title VII

July 18, 2018Robert C. Lockwood1 Comment

Title VII homosexual discrimination retaliation Alabama Employment Law — Employees who complain about homosexual discrimination are not protected by Title VII’s anti-retaliation provisions.

In some areas of the country, federal courts have interpreted Title VII of the Civil Rights Act of 1964 to prohibit discrimination on the base of sexual orientation, including homosexuality. However, the Eleventh Circuit Court of Appeals, which interprets federal law for Alabama, has held that sexual orientation is not protected by Title VII. In December of 2017, the United States Supreme Court declined to review the Eleventh Circuit’s position on this issue. Here’s a link to a post that I wrote on that decision: Supreme Court Won’t Review 11th Circuit LGBT Decision.

Although sexual orientation is not protected in the Eleventh Circuit, the court has prohibited discrimination against employees for “failure to conform to gender stereotypes.” Here’s a link to a previous post that discusses the issue: LGBT Issues in the Workplace. In short, employers in the Eleventh Circuit can discriminate based upon sexual orientation, but arguably can’t discriminate because an employee’s manner, attributes, attire, etc. don’t comply with gender stereotypes. As a result, homosexual employees who suffer discrimination are forced to file claims alleging that they suffered discrimination, not because of their sexual orientation, but because of their failure to conform to gender stereotypes.

In Brakeman v. BBVA Compass, No. 2:16-01344-JEO, 2018 WL 3328909 (N.D. Ala. Jul. 6, 2018), Chief United States Magistrate Judge John Ott discussed these issues in the context of a retaliation claim. Krystal Brakeman is gay and married to another woman. She claimed that a co-worker made statements to the effect that Brakeman needed to “talk to Jesus” and “get a man in her life.” Ms. Brakeman complained to a supervisor about those statements. Two months later, she was terminated from employment. Her employer asserted that the termination was based upon separate improper conduct by Ms. Brakeman and a lack of truthfulness during an investigation of that conduct.

Ms. Brakeman sued and asserted several theories, including a claim that she was fired in retaliation for complaining about the homosexual-oriented comments of her co-worker. Because homosexual discrimination is not prohibited in the Eleventh Circuit, complaints about homosexual discrimination are not protected. Therefore, Ms. Brakeman argued that she suffered retaliation for complaining about a failure to comply with gender stereotypes. Judge Ott refused to accept that argument, finding that “a plaintiff cannot ‘bootstrap’ an invalid sexual orientation claim into a viable gender stereotyping claim by asserting that homosexuals failed to comply with gender stereotypes because of their homosexuality, real or perceived. …. To hold otherwise ‘would mean that every case of sexual orientation discrimination would translate into a triable case of gender stereotyping.'”

In short, Judge Ott found that Ms. Brakeman was really complaining to her supervisor about homosexual discrimination. And, because homosexual discrimination is not prohibited in the Eleventh Circuit, Ms. Brakeman’s complaints were not protected by Title VII’s anti-retaliation provisions.

At this point, there do not appear to be any decisions from the Eleventh Circuit itself addressing retaliation and gender stereotyping. Nevertheless, Judge Ott’s analysis appears to be a natural extension of the Eleventh Circuit’s position on sexual orientation discrimination. As a result, at least in the Eleventh Circuit, complaints about sexual orientation discrimination are unlikely to be protected by Title VII’s anti-retaliation provisions.

Arbitration Agreements: The Gifts That Keep On Giving

June 13, 2018June 13, 2018Robert C. Lockwood

arbitration agreements Alabama Employment Law — Arbitration agreements can be binding even if they were signed during a different period of employment.

Diamonds are forever — and so are employment arbitration agreements. That’s the lesson to be learned from Gillian v. Cowabunga, Inc., No. 2-17-cv-01389-JEO, 2018 WL 2431345 (May 30, 2018). (For fans of Teenage Mutant Ninja Turtles, I unsuccessfully tried to find a way to work “Cowabunga, Dude!” into the title of this blog post.)

Scarlett Gillian was first employed by Cowabunga from November 2015 to March 2016. When she was first hired, Ms. Gillian signed an agreement to arbitrate any disputes relating to her employment. Ms. Gillian quit her job on March 14, 2016, but was re-hired on May 4, 2016. She did not sign an arbitration agreement when she was re-hired. Ms. Gillian claimed that she was sexually harassed during her second period of employment and filed suit in federal court. Cowabunga moved to dismiss that lawsuit and claimed that Ms. Gillian was required to arbitrate any claims because of her prior arbitration agreement. Ms. Gillian argued that she should not be required to arbitrate because she did not sign a new arbitration agreement when she was re-hired.

United States Magistrate Judge John Ott agreed with Cowabunga. There appears to be no authority from the Eleventh Circuit Court of Appeals on this issue. Nevertheless, Judge Ott relied upon decisions from several United States District Court Judges. His opinion hinged upon the following conclusion: “Where an arbitration agreement contains express language indicating intent for the agreement to survive termination of employment, parties may be compelled to arbitrate claims arising during subsequent re-employment.” Gillian, 2017 WL 2431345 at *2. Ms. Gillian’s arbitration agreement contained an express provision stating that it survived termination of her employment. Therefore, Judge Ott found that she could be compelled to arbitrate, even though she did not sign a new arbitration agreement when she was re-hired.

Gillian provides employers with another way to avoid lawsuits in federal court. Of course, if you are a regular reader of my blog, you know that arbitration agreements aren’t always a perfect solution for employers: Arbitration Isn’t Always Good for Employers. Nevertheless, if you require your employees to sign an arbitration agreement, you should make sure that the agreement also contains a provision stating that the agreement survives termination of employment.

Title VII, Premarital Sex and the Religious Employer

June 6, 2018Robert C. Lockwood

Title VII pregnancy discrimination Alabama Employment Law premarital sex religious employer — Employers who terminate employees for premarital sex risk violating Title VII’s rule against pregnancy discrimination.

Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act prohibit termination of employees because they are pregnant. But, what if pregnancy is irrefutable evidence of premarital sex? And, what if a religious employer has beliefs prohibiting premarital sex? Can that employer terminate the pregnant employee without violating Title VII? Those are the issues that United States Magistrate Judge Herman Johnson struggled with recently in Kelley v. Decatur Baptist Church, No. 5:17-CV-1239-HNJ, 2018 WL 2130433 (N.D. Ala. May 9, 2018).

Alexandria Kelley was employed by Decatur Baptist Church as a maintenance and child care employee. She notified her employer in the Summer of 2015 that she was pregnant, and she was terminated shortly thereafter. When Ms. Kelley sued in federal court, Decatur Baptist moved to dismiss her complaint, and argued that she was terminated because she engaged in sexual conduct outside of marriage — which violates biblical standards. Judge Johnson denied that motion to dismiss, while leaving open the possibility for dismissal at a later stage of the litigation.

Decatur Baptist provided Judge Johnson with two legal arguments in support of dismissal. First, the church argued that the “ecclesiastical abstention doctrine” barred Ms. Kelley’s claims. Under that doctrine, courts do not decide issues connected to “theological controversy, church discipline, ecclesiastical government, or conformity of members of the church to the standards of morals required of them.” Myhre v. Seventh-Day Adventist Church, 719 Fed. Appx. 926 (11th Cir. 2018). (I previously wrote about courts’ reluctance to engage in ecclesiastical disputes here: Ecclesiastical Disputes In Alabama.) Second, Decatur Baptist argued that Ms. Kelley’s claims were prohibited by the “ministerial exception,” which “precludes application of [employment discrimination laws] to claims concerning the employment relationship between a religious institution and its ministers.” Kelley, 2018 WL 2130433 at *4.

Judge Johnson found that both of the church’s arguments were premature. While the church claimed that its decision was based upon religious principals, Ms. Kelley’s complaint (which Judge Johnson was required to accept as completely true) alleged that the termination was based solely upon her pregnancy, and had nothing to do with religion. Therefore, Judge Johnson gave Ms. Kelley the opportunity to engage in discovery in an attempt to provide evidence in support of her claim.

Decatur Baptist will unquestionably move to dismiss Ms. Kelley’s claims after discovery by filing a motion for summary judgment. At that point, the church will probably also assert an additional fact-based defense — that it terminated Ms. Kelley for engaging in premarital sex, not for getting pregnant. “Title VII does not protect any right to engage in premarital sex, but as amended by the Pregnancy Discrimination Act of 1978, Title VII does protect the right to get pregnant.” Hamilton v. Southland Christian School, Inc., 680 F.3d 1316, 1319-20 (11th Cir. 2012).

Government Contracts: OFCCP Compensation Audits Might Change

May 17, 2018Robert C. Lockwood

government contracts contractors OFCCP Title VII compensation Alabama Employment Law — The OFCCP might make compensation audits more fair for government contractors.

Recent discussions inside the Office of Federal Contractor Compliance Programs (“OFCCP”) indicate that compensation audits of federal contractors might become more fair for employers. On April 19, 2018, Bloomberg News released an article indicating that OFCCP was contemplating significant changes to its audit rules. Here’s a link to the Bloomberg article: Bloomberg OFCCP Article. The OFCCP conducts audits of government contracts and federal contractors to ensure that employers are complying with federal laws and regulations prohibiting pay discrimination. Under the Obama Administration, the OFCCP issued Directive 307, which allows auditors to compare compensation of employees even if they perform different work. For example, auditors might find discrimination by comparing the compensation of two “managers,” even though one manager works in accounting and the other in human resources.

Comparisons of dissimilar employees are generally not permitted in discrimination cases arising under Title VII of the Civil Rights Act of 1964. Instead, an employee suing for pay discrimination must usually compare themselves to another employee doing the same work, in the same location, with the same supervisors. Because of the discrepancies between OFCCP’s enforcement efforts and traditional employment law, the U.S. Chamber of Commerce released a report in late 2017 critical of the OFCCP. It’s report, “OFCCP, Right Mission, Wrong Tactics” can be found here.

The Bloomberg article indicates that the OFCCP is about to scrap or significantly change Directive 307. That’s good news for federal contractors, who need consistency in the law to succeed in business. Unfortunately, the Bloomberg article caused some concern among civil rights groups, and an article from the Society for Human Resource Management (which can be found here) indicates the OFCCP’s plans may be delayed. Even with the delays, the information coming from OFCCP is good news for government contractors, because it indicates a willingness by OFCCP to address employer concerns.

Title VII: Being a Jerk Is Not Discrimination

April 9, 2018Robert C. Lockwood

Title VII jerk harassment Alabama Employment Law — Title VII does not protect employees from bosses or co-workers who are jerks

Employees frequently think that they should be able to sue under Title VII of the Civil Rights Act of 1964 because their boss, or a co-worker, is mean to them. I frequently hear the complaint: “I’m being harassed, and that’s illegal!” In the employment law context, however, there is nothing illegal about being a jerk. In fact, there is nothing illegal about harassing employees — unless that harassment is bad-enough and based upon a protected characteristic like race, sex or age. Being a jerk generally does not violate any employment laws.

At the outset, let’s be clear. Sexual harassment, racial harassment or harassment based upon any other protected characteristic will get you sued. But, even that harassment must be so severe and pervasive that it alters an employee’s terms and conditions of employment. There is abundant case law holding that Title VII is not a general civility code. It is not designed to make sure that people “get along” in the workplace. Instead, Title VII is supposed to prevent discrimination at work. Sometimes, there’s a fine line between behavior that’s boorish and behavior that will violate the law. Some obvious examples of conduct that will get you sued, however, are repeated use of the “N” word toward African-American employees, and touching a female employee in a sensitive location.

An employee must suffer an “adverse employment action” to possess a claim under Title VII. Such an action must have a tangible adverse effect on the plaintiff’s employment. As a result, giving discriminatory job assignments, in many cases, won’t be illegal. Similarly, just being mean to an employee, even if based on a protected characteristic, does not violate Title VII. For example, last year, the Eleventh Circuit affirmed dismissal of a Title VII action filed against the Post Master General. See Coles v. Post Master General, 711 Fed. Ap’x 890 (11th Cir. 2017). In that case, a postal employee claimed she was subjected to age and race discrimination because: her vehicle was searched at work; an investigation was conducted into her work absences; and, she was assigned “culling belt work” (an unfavorable assignment). The Eleventh Circuit found that treatment was not an “adverse employment action” under Title VII.

The foregoing observations on the state of the law are not intended to encourage employers to be jerks to their employees. Indeed, positive morale is a vital component of any workplace. Moreover, sometimes a court will allow an employee to sue for “constructive discharge.” A constructive discharge occurs when an employer makes an employee’s working conditions so intolerable that an employee is compelled to resign. In short, if an employer is too much of a jerk, and the employer’s conduct is aimed at a protected characteristic, an employee may be able to sue — even if they resign.

Alabama Employers Need Effective Anti-Harassment Policies

March 26, 2018Robert C. Lockwood

harassment hostile work environment severe pervasive Alabama Employment Law — Many types of harassment are prohibited by Title VII. An effective policy prohibiting harassment can help employers avoid liability.

Almost 20 years ago, the United States Supreme Court provided employers with an important defense to harassment claims under Title VII of the Civil Rights Act of 1964. Under that defense, even if impermissible conduct occurs in the workplace, an employer can avoid liability by maintaining an effective policy against harassment. Even though two decades have passed, I still occasionally encounter an employer who has not adopted an anti-harassment policy. A recent decision from a federal judge in Alabama demonstrates the wisdom of adopting such a policy.

In Garrett v. Tyco Fire Products, LP, No. 2:16-cv-00372-SGC, 2018 WL 1319060 (N.D. Ala. Mar. 14, 2018), Tyco was sued by six African-American employees for racial harassment. Magistrate Judge Staci Cornelius conducted an extensive review of each employee’s claims, and found that three of them potentially were exposed to the types of severe and pervasive conduct that that are impermissible under Title VII, as well as another law, 42 U.S.C. § 1981. They each heard, or were called, “boy” and the “n” word “constantly,” saw racial grafitti in Tyco’s bathroom and saw lightning bolts and other Nazi paraphernalia.

Nevertheless, Judge Cornelius found that Tyco was not liable, because of its effective anti-harassment policy. Importantly, employers cannot just slap a policy on the books and expect to avoid liability. Instead, the policy needs to be comprehensive, well-known to employees, vigorously enforced, and provide alternate avenues of complaint (so that an employee is not forced to complain to a harassing supervisor). Tyco’s policy was effective because it did those things, and it was disseminated to all employees through orientation, training, publication in the employee handbook, and postings throughout Tyco’s facilities. Despite that well-disseminated policy, none of the employees made a harassment complaint to Tyco. And, because they failed to complain, their harassment claims were barred.

Judge Cornelius’s decision demonstrates that Alabama employers will benefit from adopting effective, well-disseminated anti-harassment policies. Importantly, if an employee makes a complaint under such a policy, the employer is further required to diligently investigate any complaint and take “prompt remedial action” that is reasonably likely to prevent the misconduct from recurring.

Religious Objections to Work Shifts and Reasonable Accommodations

March 13, 2018Robert C. Lockwood

Religious discrimination accommodations Title VII Alabama Employment Law — Religious accommodations can require employers to make difficult decisions.

The Eleventh Circuit Court of Appeals issued an opinion on March 9, 2018 which provides guidance to employers on their duty to accommodate the religious beliefs of employees. See Patterson v. Walgreen Co., No. 16-16923, 2018 WL 1224391 (11th Cir. Mar. 9, 2018). Darrell Patterson is a Seventh Day Adventist, and his beliefs prohibit him from working during his Sabbath — sundown on Friday to sundown on Saturday. He was hired by Walgreens as a customer care representative, and Walgreens initially accommodated his beliefs.

Patterson was promoted a number of times and became a training instructor. The training classes he taught were regularly scheduled between Sunday and Thursday, but sometimes emergency trainings were needed on Friday nights or Saturdays. In those circumstances, Walgreens allowed Patterson to swap shifts with other available trainers. But, when Patterson could not find a replacement, he was disciplined. In 2011, Walgreens scheduled Patterson for an emergency training on Saturday. Patterson asked another training instructor to cover for him, but that trainer was not available. Patterson did not ask several other employees about their availability to cover for him.

Patterson met with Walgreen’s Human Resources representative the next week. That representative suggested that he return to a prior position as a customer care representative or look for another job at Walgreens that had a large employee pool from which Patterson could find employees willing to switch shifts. Patterson refused unless he received a guarantee that he would not have to work on his Sabbath. Walgreens terminated his employment because of his refusal to work on the Sabbath and his refusal to look for another position with more likely availability.

The analysis of religious accommodation cases is similar to other discrimination cases under Title VII of the Civil Rights Act of 1964. An employee establishes a prima facie case of discrimination by showing: (1) he had a bona fide religious belief that conflicted with an employment requirement; (2) he informed his employer of that belief; and, (3) he was discharged for failing to comply with the conflicting employment requirement. If the employee establishes a prima facie case, the burden shifts to the employer to demonstrate that it either offered the employee a reasonable accommodation or could not do so without undue hardship.

The Eleventh Circuit’s Patterson decision focused on the reasonable accommodation offered by Walgreens. The court found that “[a]n employer may be able to satisfy its obligations involving an employee’s Sabbath observance by allowing the employee to swap shifts with other employees, or by encouraging the employee to obtain other employment within the company that will make it easier for the employee to swap shifts and offering to help him find another position.” Patterson, 2017 WL 1224391 at *3. Importantly, Walgreens was only required to make shift swapping available — if Patterson could find another employee to swap. Walgreens was not required to guarantee a shift swap. “Walgreens was not required to ensure that Patterson was able to swap his shift, nor was it required to order another employee to work in his place.” Id. at *4.

The Court further found that Walgreens’ offer to allow a transfer to a customer care representative position was also a reasonable accommodation, and that Patterson “had a duty to make a good faith attempt to accommodate his religious needs through the means offered by Walgreens.” Id.

The Patterson decision is useful for Alabama employers. It firmly establishes that the duty to accommodate an employee’s Sabbath observance is not unlimited. In most circumstances, offering the employee the ability to swap shifts should suffice. Nevertheless, every situation is unique and employers should proceed cautiously if they are contemplating taking an employment action based upon a Sabbath observance or other religious belief.