The Florida Bar
www.floridabar.org
The Florida Bar Journal
May, 2014 Volume 88, No. 5
Religious Accommodation in the Workplace: The Devil is in the Detail

by Jennifer Fowler-Hermes and Luisette Gierbolini

Page 34

As a leader in technology, Circle 9 Corporation installed new time and attendance biometric hand scanners, which replaced traditional timesheets. Ali Ghieri, an Evangelical Christian, approached Circle 9’s human resources department and asked to continue using paper timesheets, explaining that using the new scanners violates her religious beliefs. Ghieri believes the hand-scanning technology is related to the “mark of the beast” discussed in the Book of Revelation in the Bible. Circle 9’s management thinks that Ghieri’s beliefs are “a little kooky” and refuses her request; however, the company has allowed another employee who is missing fingers to continue using paper timesheets instead of the hand scanners. Has Circle 9 Corporation violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq., by failing to accommodate Ghieri? A scenario similar to this one is the subject of a lawsuit recently filed by the Equal Employment Opportunity Commission, EEOC v. CONSOL Energy, Inc. and Consolidation Coal Company, No. 1:13-cv-00215-FPS (N.D. W. Va. Sept. 23, 2013).

Religious accommodation scenarios like this one have garnered a great deal of attention in recent years, and religious discrimination claims filed with the Equal Employment Opportunity Commission (EEOC) have almost doubled since 2000.1 Navigating work-religion issues is more challenging than ever. This article reviews the existing legal framework for evaluating requests for accommodation and provides examples of how the details of each case affect whether an accommodation is required. It also reviews two lawsuits filed by the EEOC and how that agency is pushing the limits of the established framework for determining when accommodation is required.2

Framework for Evaluating Requests for Religious Accommodation
Title VII prohibits religious discrimination in the workplace and requires employers to reasonably accommodate an employee when that employee’s sincerely held religious beliefs, practices, or observance conflict with a work requirement, unless the accommodation would cause an undue hardship to the employer.3 There are three main issues to consider when addressing requests for accommodations: 1) What is considered religion? 2) What constitutes a religious belief, practice, or observance entitled to Title VII protection? and 3) What is the employer’s obligation to reasonably accommodate an employee’s religious beliefs or practices?

What is Considered Religion? Title VII defines religion broadly to include “all aspects of religious observance and practice, as well as belief.”4 Religion encompasses both traditional organized religions, such as Judaism, Islam, or Christianity, and uncommon beliefs that are not part of a formal church.5 Religion includes atheism,6 as well as beliefs that are “only subscribed to by a small number of people, or that seem illogical or unreasonable to others.”7 The only requirement is a sincerely held religious belief.8 A belief is religious if it occupies a place in the life of the employee parallel to that filled by the orthodox belief in God.9 A religious belief usually concerns fundamental questions about life, afterlife, spirituality, the soul, purpose, and death,10 but does not include social, political, or economic philosophies, or personal preferences.11 To complicate the analysis, an employee’s particular belief or practice can be religious even if the employee’s religious group does not even recognize that individual’s belief or practice.12

Title VII requires employers to accommodate only sincerely held religious beliefs, and the EEOC suggests that employers ordinarily assume that an employee’s request for a religious accommodation is based on a sincerely held belief.13 Nevertheless, an employer can inquire and request additional information if it has an objective basis for questioning either the religious nature or the sincerity of an employee’s belief or practice.14 Factors relevant to evaluating the sincerity of an employee’s beliefs include: Whether the employee has behaved in a manner inconsistent with his or her proclaimed religious belief; whether the requested accommodation is a highly desirable benefit likely sought for secular reasons; whether the timing of the accommodation request is suspect; and/or any evidence that the accommodation is not sought for religious reasons.15

What Constitutes a Religious Practice or Observance Entitled to Title VII Protection? Religious observances or practices include attending religious services, praying, wearing religious garb or symbols, displaying religious objects, following certain dietary guidelines, or refraining from certain activities.16 Whether a particular practice is “religious” will turn on the employee’s motivation and is decided on a case-by-case basis.17 For example, an employee might refrain from eating pork or might follow a vegan diet for religious reasons, while another employee might refrain from eating the same foods for health reasons or based on personal preference.18 Likewise, an employee might object to an employer’s flu vaccination requirement because he or she subscribes to veganism with a sincerity equating to that of traditional religious views,19 while another employee objects to vaccination for health reasons. The underlying details of the accommodation request determines the outcome: The first employee’s restrictions may require a reasonable accommodation while the latter employee’s restrictions would not.

What Is the Employer’s Obligation to Reasonably Accommodate an Employee’s Religious Beliefs, Practices, or Observance? Title VII requires employers to reasonably accommodate an employee’s sincerely held religious beliefs, practices, or observance, unless the accommodation would cause an undue hardship on the conduct of the employer’s business.20 Yet, Title VII does not define “reasonable accommodation” or “undue hardship.” Hence, the employers’ obligation to provide a reasonable accommodation is determined on a case-by-case basis.21

An employee must give the employer fair notice about the conflict between his or her religious beliefs and work duties, and his or her need for an accommodation.22 No “magic language” is necessary; the only requirement is for the request to alert the employer to the fact that the request is motivated by a religious belief.23 Employers should pay attention to the details of the communications because they could be deemed on notice of a religious conflict when they have learned about the need for an accommodation through sources other than the employee or applicant.24

Once the employer is aware that a religious accommodation might be necessary, the employer and the employee are expected to engage in communications similar to the “interactive process” used in disability accommodation cases, by which the employer gathers information to determine whether it can accommodate the request and the employee attempts to work with the employer’s proposed accommodation.25 If the employee does not cooperate in this interactive process, he or she might not be entitled to accommodation.26

So, what is a “reasonable accommodation”? It is an adjustment that eliminates conflict between the employer’s job requirements and the employee’s religious beliefs or practices.27 The burden of attempting to accommodate an employee’s bona fide religious observance or practice rests with the employer.28 Even so, Title VII does not require an employer to accommodate the religious practices of an employee exactly the way the employee requests.29 Once the employer proposes a reasonable accommodation, its obligation under Title VII is discharged and the employee cannot insist on a different accommodation.30 Yet again, sometimes the details matter: An employer’s proposed accommodation will not be considered reasonable if a more favorable accommodation is given to other employees for nonreligious purposes.31

Even if an employee’s professed religious beliefs are sincerely held, an employer does not have to provide a religious accommodation if accommodation poses an undue hardship, which has been described as more than de minimis cost to the employer’s business.32 Because Title VII does not define “undue hardship,” each case turns on its own facts.33 Details that influence this analysis include the type of workplace at issue; the nature of the employee’s duties, the cost of the accommodation vis-à-vis the size and operating costs of the employer; the number of employees who will in fact need that particular accommodation; and whether an accommodation would conflict with another law or regulation.34 Accommodations that diminish employer efficiency, impair workplace safety, or cause co-workers to carry the accommodated employee’s share of work are unduly burdensome.35 The EEOC’s Compliance Manual states that to establish an undue hardship, the employer has to show how much cost or disruption the employee’s accommodation would involve.36

Recent EEOC Litigation
The EEOC’s reasonable accommodation lawsuits predominately fall into two categories: dress/grooming policies37 and scheduling.38 Supercuts, UPS, and AT&T have all been sued by the EEOC for denying employee requests for work schedule accommodations.39 Employers often defend such suits asserting that the requested accommodation poses an undue hardship.

For instance, recently the EEOC filed a lawsuit against an employer even though it was clear that the employer was able to meet its de minimus burden to claim undue hardship. In EEOC v. JBS USA, LLC, No. 8:10-cv-0318, 2013 WL 8821026 (D. Neb. Oct. 11, 2013), the EEOC alleged that by failing to accommodate Muslim employees’ requests for scheduling accommodations throughout Ramadan, JBS engaged in a pattern or practice of discriminating against Muslim employees.40 JBS operates meat processing plants and its profitability is determined, in part, by the number of cattle processed. The number of cattle processed is determined by the speed of the production line. The fewer workers on the production line, the slower the production speed.41 If meat is not fully processed in a set period of time, USDA regulation causes it to be downgraded and drop in value.42

During the relevant period, the plant at issue had 200 to 300 Muslims whose religion required them to pray five times each day at appointed times and fast all day during the holy month of Ramadan, until the time of their sunset prayer.43 At the start of Ramadan, a group of Muslim employees approached management seeking a religious accommodation 1) that JBS permit them to take unscheduled breaks to pray; and/or 2) that JBS move the meal break to a time that coincided with their sunset prayer time.44 JBS attempted to find reasonable accommodations that would work for it and the employees, but the parties ultimately could not agree on an accommodation.45

JBS argued that unscheduled prayer breaks had a negative impact on operational efficiency and could have an adverse effect on food safety. In addition, the unscheduled breaks would require non-Muslim employees to work harder and faster to cover for the employees taking the requested breaks, negatively impacting employee morale and potentially creating dangerous working conditions.46 JBS also argued that allowing the meal break to coincide with sunset would cause plant production to stop during the break. That accommodation could result in the meat being downgraded (a financial loss) and increased exposure to bacteria. Further, to implement this accommodation, the b-shift would be shortened and the non-Muslim coworkers would receive less pay.47

JBS’s evidence of undue hardship clearly complied with the requirements set forth in the EEOC’s Compliance Manual.48 Yet, the EEOC proceeded to a bench trial, arguing that JBS could not claim undue hardship because of accommodations it had implemented subsequent to the dispute.49 The district court found that the EEOC had met its prima facie case of failure to accommodate, but ruled against the EEOC on its claim, holding that JBS established its affirmative defense of undue hardship.50 Not surprisingly, given the existing case law prohibiting consideration of subsequent measures, the court pointed out that the employer’s subsequent actions are not considered in the undue hardship analysis.51

In another recent lawsuit, Equal Employment Opportunity Commission v. Dynamic Medical Services, No. 1:13-cv-2166-KVM (S.D. Fla. May 8, 2013), employees’ requested to be exempt from what were described as religious activities required by the employer as a condition of employment. The lawsuit focused on the fact that the employees at issue did not share their employer’s religious beliefs in Scientology.52 In its complaint, the EEOC alleged that Dynamic’s employees were 1) subjected to disparate treatment when their employer coerced them to adopt Scientology practices and beliefs as a condition of continued employment; 2) subjected to a hostile work environment based on the employer’s unwelcome imposition upon them of Scientology views and practices; 3) not accommodated when the employer denied their requests not to participate in Scientology practices and teachings; and 4) subjected to retaliation for refusing to continue participating in Scientology practices.53

In a motion to dismiss, Dynamic reminded the court that Title VII does not require a religion-free private workplace.54 Dynamic argued that Title VII only protects “those with sincerely held religious beliefs that conflict with a workplace requirement.”55 It maintained that allegations that employees did not want to participate in religious practices at work, without any allegations that the practice conflicted with their own sincerely held religious belief, was insufficient to establish a claim.56 Dynamic argued that the EEOC’s allegations demonstrated only a personal preference of Dynamic’s employees and, therefore, there was no need for an accommodation.57

EEOC filed an amended complaint, alleging that Dynamic’s religious practices and conduct conflicted with the employees’ sincerely held religious beliefs, their conscience, and/or their religious sensibilities as non-Scientologists.58 No additional factual allegations were included to support this conclusory allegation.59 Based on the facts alleged, the EEOC’s accommodation claim arose not based on a conflict with a specific belief, but instead on the employees’ “religious sensibilities as non-Scientologists.”60 The parties entered into a consent decree, so the district court never ruled on Dynamic’s motion to dismiss.61 However, the accommodation claim alleged in Dynamic falls outside the parameters set forth in the EEOC’s own Compliance Manual and existing case law, both of which provide that exemption from a religious-based work requirement is required only when there is a direct conflict with an employee’s sincerely held religious belief.62

Conclusion
It appears that the EEOC is trying to expand the existing parameters of when religious accommodation is required in the workplace. In JBS, the EEOC wanted the court to consider subsequent acts of the employer in determining whether the requested accommodation was an undue hardship. In Dynamic, the EEOC brought a failure to accommodate claim that was not based on a conflict between a sincerely held religious belief and a requirement of the employer. Cases such as JBS and Dynamic add difficulty to the already daunting task of navigating work-religion issues in the workplace. Even so, such issues cannot be ignored. Navigating requests for accommodation begins with familiarity with the legal framework for evaluating such requests and attention to the specific details surrounding why an employee seeks an accommodation and the impact of the requested accommodation. Looking back at the reasonable accommodation scenario described at the beginning of this article, if Circle 9 had been familiar with the already-established legal framework for religious accommodations, and had it paid attention to the details of Ali Gheiri’s request, it would have recognized the need to engage in an interactive process with her, possibly avoiding costly litigation.


1 Equal Employment Opportunity Commission, Religion-Based Charges
FY 1997 – FY 2013,
http://www.eeoc.gov/eeoc/statistics/enforcement/religion.cfm. In 2013, 7,597 charges of discrimination were filed in Florida; 3.9 percent of those charges claimed religious discrimination. Florida religious discrimination charges account for 8 percent of all religious discrimination charges nationwide. See Equal Employment Opportunity Commission, EEOC Charge Receipts by State (includes U.S. Territories) and Basis for 2013, http://www1.eeoc.gov/eeoc/statistics/enforcement/state_13.cfm.

2 The EEOC’s focus on religious accommodation in the workplace is evidenced by the fact that on March 6, it issued two new publications addressing religious garb and grooming in the workplace. See Religious Garb and Grooming in the Workplace: Rights and Responsibilities, http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm; and Fact Sheet on Religious Garb and Grooming in the Workplace: Rights and Responsibilities, http://www.eeoc.gov/eeoc/publications/fs_religious_garb_grooming.cfm. Example 7 in the fact sheet tracks closely the facts of EEOC v. Abercrombie & Fitch, 731 F.3d 1106 (10th Cir. 2013) (holding that the employer was not liable for failure to accommodate an applicant’s dress requirements because the applicant personally and explicitly failed to inform the employer that she sought religious accommodation), rehearing en banc denied, No. 11-5110 (10th Cir. Feb. 26, 2014)). The instruction given by the EEOC in the fact sheet evidences the EEOC’s disagreement with the 10th Circuit’s decision.

3 42 U.S.C. §2000e(j). The Florida Civil Rights Act, §760.01, et seq., has been interpreted to include the same reasonable accommodation requirement. See, e.g., Telfair v. Federal Express Corp., 934 F. Supp. 2d 1368, 1386 n.1 (S.D. Fla. 2013).

4 42 U.S.C. §2000e(j) (2014).

5 Telfair, 934 F. Supp. 2d at 1383; EEOC Compliance Manual §12-I(A)(1).

6 Adeyeye v. Heartland Sweeteners, LLC, 721 F. 3d 444, 448 n.1 (7th Cir. 2013) (“The incorporation of some form of deity…into a belief system is not required for Title VII protection, which recognizes atheism as a religion.”).

7 EEOC Compliance Manual §12-I(A)(1) (citing Thomas v. Review Bd. of the Indiana Employment Sec. Div., 450 U.S. 707, 714 (1981)); EEOC v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F. 3d 49, 56 (1st Cir. 2002) (reiterating that religious beliefs do not need to be acceptable, logical, consistent, or comprehensible to others).

8 U.S. v. Seeger, 380 U.S. 163, 165-66 (1965); Telfair, 934 F. Supp. 2d at 1381-82; Adeyeye,721 F.3d at 448; EEOC Compliance Manual §12-I(A)(2).

9 Seeger, 380 U.S. at 165-66; Adeyeye, 721 F. 3d at 448.

10 Adeyeye, 721 F. 3d at 448; United States v. Meyers, 906 F. Supp. 1494, 1502 (D. Wyo. 1995); EEOC Compliance Manual §12-I(A)(1); EEOC Informal Opinion Letter, Title VII: Religious Accommodation (March 5, 2012), available at http://www/eeoc/foia/letters/2012 /religious_accommodation.html.

11 EEOC Compliance Manual §12-I(A)(1); Telfair, 934 F. Supp. 2d at 1381 (noting that employer is not obligated to accommodate an employee’s purely personal preference); Slater v. King Soopers, Inc., 809 F. Supp. 809, 810 (D. Colo. 1992) (explaining that the Ku Klux Klan is political and social in nature, not a religion); Cf. Chenzira v. Cincinnati Children’s Hospital Medical Ctr., No. 1:11-cv-00917-SAS-SKB, 2012 WL 6721098 at *4 (S.D. Ohio Dec. 27, 2012) (“The [c]ourt finds it plausible that [p]laintiff could subscribe to veganism with a sincerity equating that of traditional religious views.”).

12 EEOC Compliance Manual §12-I(A)(1); Welsh v. United States, 398 U.S. 333, 335-36, 343 (1970) (stating that petitioner’s objection was religious even though his church did not teach those beliefs).

13 EEOC Compliance Manual §12-I(A)(2)-(3).

14 EEOC Compliance Manual §12-I(A)(3); EEOC Informal Discussion Letter, Title VII: Vaccination Policies and Reasonable Accommodation (Dec. 5, 2012), available at http://www.eeoc.gov/foia/letters/2012.

15 EEOC Compliance Manual §12-I(A)(2) (citing cases).

16 EEOC Compliance Manual §12-I(A)(1).

17 Id.

18 Id.

19 See, e.g., Chenzira, 2012 WL 6721098 (2012).

20 42 U.S.C. §2000e(j).

21 See Dixon v. The Hallmark Companies, 627 F. 3d 849, 856 (11th Cir. 2010) (quoting Beadle v. Hillsborough Co. Sheriff’s Dep’t., 29 F. 3d 589, 592 n.5 (11th Cir. 1994) (“Because Title VII does not explicitly define the terms ‘reasonably accommodate’ or ‘undue hardship,’ ‘the precise reach of the employer’s obligation to its employees is unclear…and must be determined on a case-by-case basis.’”).

22 Dixon, 627 F.3d at 856 (citing cases); Adeyeye, 721 F.3d at 450; Hussein v. The Waldorf-Astoria, 134 F. Supp. 2d 591, 597 (S.D.N.Y. 2001) (plaintiff did not provide sufficient notice when he simply showed up at work with a beard, in violation of company policy, and claimed the beard was a religious requirement); EEOC Compliance Manual §12-IV(A)(1).

23 Adeyeye, 721 F.3d at 450-51 (holding that employee’s request for leave to travel to Nigeria and participate in a “funeral ceremony” or “funeral rite” involving animal sacrifice “so that death will not come or take away any of the children’s life” [sic] was enough to put employer on notice that request for accommodation was religious); EEOC Compliance Manual §12-IV(A)(1).

24 Dixon, 627 F.3d at 855-56 (explaining that employer can become aware of tension even if the employee does not expressly object to a work requirement based on her religion); Hellinger v. Eckerd Corp., 67 F. Supp. 2d 1359, 1363 (S.D. Fla. 1999) (employer’s knowledge of employee’s refusal to sell condoms at a prior job due to religious beliefs was sufficient); Brown v. Polk County, Iowa, 61 F.3d 650, 654 (8th Cir. 1995) (employer only needs to have enough information to understand that there is a conflict between the employee’s religious practices and the employer’s job requirements).

25 EEOC Compliance Manual §12-IV(A)(2); see also Adeyeye, 721 F.3d at 450 (explaining that managers can ask employees to clarify the nature of their requests for religious accommodation).

26 EEOC Informal Discussion Letter, Title VII: Vaccination Policies and Reasonable Accommodation (Dec. 5, 2012), available at http://www.eeoc.gov/foia/letters/2012.

27 Morissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1322 (11th Cir. 2007); Telfair, 934 F. Supp. 2d at 1384; Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 475 (7th Cir. 2001); EEOC Compliance Manual §12-IV(A)(3).

28 EEOC v. Townley Engineering & Mfg. Co., 859 F.2d 610, 615 (9th Cir. 1988).

29 Mathewson v. Fla. Game & Fresh Water Comm., 693 F. Supp. 1044, 1050 (M.D. Fla. 1988); EEOC Compliance Manual §12-IV(A)(3).

30 Telfair, 934 F. Supp. 2d at 1384 (reiterating that the employer does not have to give the employee a choice among several accommodations and does not have to give the employee his or her preferred accommodation); Mathewson, 693 F. Supp. at 1050.

31 EEOC Compliance Manual §12-IV(A)(3) (relying on Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70-71 (1986) (“[U]npaid leave is not a reasonable accommodation when paid leave is provided for all purposes except religious ones[.]”).

32 42 U.S.C. §2000e(j); EEOC Compliance Manual §12-IV(B); Beadle, 29 F.3d at 592. In this regard, Title VII’s “undue hardship” defense is very different from the “undue hardship” defense applied in disability cases under the Americans with Disabilities Act. EEOC Compliance Manual §12-IV(B).

33 Beadle v. City of Tampa, 42 F.3d 633, 636 (11th Cir. 1995) (“[E]very case boils down to a determination as to whether the employer acted reasonably.”); Kilpatrick v. Hyundai Motor Mfg Alabama, LLC, 911 F. Supp. 2d 1211, 1219 (M. D. Ala. 2012).

34 EEOC Compliance Manual §12-IV(B)(1); see also Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977) (ignoring co-workers’ contractual seniority rights would be undue hardship, and cost of hiring additional worker or loss of production from not replacing the unavailable plaintiff were beyond de minimus); Tagore v. United States, 735 F.3d 324, 329-30 (5th Cir. 2013) (allowing Sikh employee to bring a ceremonial sword to work was undue hardship because request conflicted with laws and regulations controlling security in federal buildings); Harrell v. Donahue, 638 F. 3d 975, 980 (8th Cir. 2011) (noting that accommodation would have violated the collective bargaining agreement and would have caused more than de minimis imposition on co-workers).

35 EEOC Compliance Manual §12-IV(B)(2).

36 EEOC Compliance Manual §12-IV(B)(1).

37 See, e.g., Complaints, EEOC v. Fries Restaurant Management, No. 3:12-cv-3169-M (N.D Tex. Aug. 22, 2012) (alleging defendant refused to allow Christian Pentecostal employee to wear a skirt instead of pants); EEOC v. Belk, Inc., No.5:10-cv-00300 (E.D. N.C. July 29, 2010) (alleging Belk failed to accommodate employee request not to wear a Santa hat and apron because Jehovah’s Witness faith prohibited her from celebrating holidays); EEOC v. Bo-Cherry, Inc. d/b/a Bojangles, No. 3:13-cv-00210-MOC-DSC (W.D. N.C. April 4, 2013) (alleging defendant terminated employee for refusing to shave his beard, which was based on his religious belief that men have to grow beards the length of their fist); EEOC Abercrombie & Fitch Stores, Inc., No. 5:11-cv-03162-EJD (N.D. Cal. June 27, 2011) (alleging Muslim employee was terminated for refusing to work without head scarf).

38 See, e.g., Complaints, EEOC v. Boca Group, LLC d/b/a Menorah House, No. 9:11-cv-80825-KLR (S.D. Fla. July 19, 2012) (alleging that defendant failed to accommodate Seventh Day Adventist’s requests not to work on sabbath); EEOC v. Convergys Corp., No. 4:11-cv-00395 (E.D. Mo. March 3, 2011) (alleging defendant refused to hire employee whose religious practices did not allow him to work on Saturdays); EEOC v. United Parcel Services, Inc., No. 2:12-cv-07334 (D.N.J. Oct. 29, 2012) (alleging Jehovah’s Witness was fired a few days after seeking a schedule change in order to attend a religious service).

39 See Complaints, EEOC v. Supercuts Corporate Stores, Inc., No. CV-104412-EDL (N.D. Cal. October 1, 2010); EEOC v. United Parcel Services, Inc., No. 2:12-cv-07334 (D.N.J. Oct. 29, 2012); EEOC v. AT & T., No:4:10-cv-00152-HML (N.D. Ga. Sept. 28, 2010).

40 Individual claims were also asserted by the EEOC and Intervenors. However, the court bifurcated the case to try the pattern-or-practice claims before the individual claims. EEOC v. JBS USA, LLC, 2014 WL 298625 at *1 (D. Neb. Jan. 14, 2014).

41 JBS USA, LLC, 2013 WL 8821026 at *4-6.

42 Id. at *6.

43 Id. at *4, *9. During the relevant time, approximately 1,500 employees worked the b-shift.

44 Id. at *17.

45 Id. at *12.

46 Id. at *17-19.

47 Id. at *19-20.

48 See EEOC Compliance Manual §12-IV(B)(1) and (2) (stating that accommodations that diminish efficiency, impair workplace safety, or cause co-workers to carry additional burdens are unduly burdensome).

49 JBS USA, LLC, 2013 WL 8821026 at * 19, n.8.

50 Id. at *16, n.6.

51 Id. at *19 n.8 (citing Rehs v. Iams Co., 486 F. 3d 353, 358 (8th Cir. 2007); and Woods v. Green, 323 F. 3d 1309, 1314 (11th Cir. 2003).

52 See Dynamic Medical Services, No. 1:13-cv-2166-KVM (S.D. Fla. May 8, 2013).

53 Id. The complaint alleged that employees were compelled to attend courses infused with teachings and practices of the Church of Scientology; one employee was compelled to participate in Scientology audits, during which the employee was asked personal questions while connected to an electropsychometer; another employee was compelled to participate in a purification program; and that employees were terminated or constructively discharged shortly after objecting to continued participation in these practices or programs.

54 Motion to Dismiss, Equal Employment Opportunity Commission v. Dynamic Medical Services, No. 1:13-cv-2166-KVM (S.D. Fla. Aug. 26, 2013). ECF 24 (citing Townley, 859 F.2d 610; and Blanton v. Bunch & Assoc., 2006 WL 269981 at *11-12 (M.D. Fla. Feb. 3, 2006)).

55 Id.

56 Id. The complaint did allege that one employee, when objecting to continuing to participate in Scientology practices, did tell her supervisor that she was a Jehovah’s Witness. The defendant argued that since this employee did not specifically assert that a belief of her faith conflicted with the requirements of her employer, that she did not state a claim. However, “Title VII has not been interpreted to require adherence to a rigid script to satisfy the notice requirement.” Adeyeye, 721 F.3d at 450. Arguably, by referencing her faith when objecting to the requirements of the employer, this employee may have provided the employer fair warning that this request was religious in nature, thereby implicating the employer’s duty to pay attention to requests for religious accommodation.

57 Id.

58 Amended Complaint, Equal Employment Opportunity Commission v. Dynamic Medical Services, No. 1:13-cv-2166-KVM (Sept. 30, 2012); ECF 35.

59 See id.

60 See id.

61 Order Approving Consent Decree and Dismissing Case, Equal Employment Opportunity Commission v. Dynamic Medical Services, No. 1:13-cv-2166-KVM (S.D. Fla. Dec. 23, 2013), ECF 53.

62 Townley, 859 So. 2d at 615; EEOC Compliance Manual §12-IV(C)(7); see also U.S. Equal Employment Opportunity Commission Question and Answers: Religious Discrimination in the Workplace, available at http://eeoc.gov/policy/docs/qanda_religion.html.


Jennifer Fowler-Hermes is a shareholder of Kunkel Miller & Hament in the firm’s Sarasota office. She has been advising and representing management in labor and employment matters for 16 years. She is also a Florida Supreme Court certified circuit civil mediator.

Luisette Gierbolini is an associate general counsel for the University of South Florida. Previously, she worked in private practice advising and representing management in labor and employment matters, and as a staff attorney at the Second District Court of Appeal.

This article is submitted on behalf of the Labor and Employment Law Section, Robert Stuart Turk, chair, and Robert Eschenfelder, editor.

[Revised: 05-27-2014]