Solution Manual For Employment Law For Human Resource Practice 6th Edition David J Walsh

Solution Manual for Employment Law for Human Resource Practice 6th Edition David J.
Walsh
Solution Manual for Employment Law for Human

Resource Practice 6th Edition David J. Walsh
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Chapter 9
REASONABLY ACCOMMODATING
DISABILITY AND RELIGION
OUTLINE
Reasonable Accommodation of Disability

Clippings
Elements of a Claim: Failure to Reasonably Accommodate Disability
Disability
Actual Disability
Practical Considerations
Just the Facts
Record of a Disability
Perceived Disability
Clippings
Qualified Individual with a Disability
Able to Perform the Essential Functions of the Job
Meets Job-Related Qualification Standards
Samson v. Federal Express
Not a Direct Threat
Reasonable Accommodation
The Process of Reasonably Accommodating Disability
What Makes an Accommodation Reasonable?
Keith v. County of Oakland
Just the Facts
EEOC v. Ford Motor Co.
Clippings
When Does an Accommodation Impose Undue Hardship?
Reasonable Accommodation of Religion

Religion
The Changing Workplace: Religion in the Workplace
Failure to Reasonably Accommodate Religion
Elements of a Claim
Davis v. Ford Bend County
Just the Facts
Religious Advocacy and Religious Harassment
Clippings
© 2019 Cengage. All rights reserved.

Religious Organization Exemption
KEY TERMS
CHAPTER SUMMARY
PRACTICAL ADVICE SUMMARY
CHAPTER QUESTIONS

CASE QUESTIONS
Samson v. Federal Express, 746 F.3d 1196 (11th Cir. 2014)
Samson applied for a job with Fed Ex as a Vehicle Technician. He was an experienced
vehicle mechanic, and also a Type-1 insulin-dependent diabetic. Since FedEx is a motor
carrier, the Federal Motor Carrier Safety Regulations (“safety regulations”) apply.
Samson was offered the job conditional upon his passing a physical exam, as required by
the safety regulations, but because of his diabetes, he failed the medical exam. The job
offer was withdrawn, and Samson sued.
1. What was the legal issue in this case? What did the appeals court decide?
The legal issue was whether Samson was qualified for the position. Fed Ex contended
that he was not qualified, because he could not pass the medical exam required by the
safety regulations; Samson contended that he applied for a job as a mechanic, not a
driver, and that FedEx used a qualification standard that screened out disabled
individuals who were otherwise qualified.
2. How do courts determine whether particular tasks are “essential functions” of jobs?
What was the evidence that test-driving was an essential function of the Vehicle
Technician job? Why does the court nonetheless conclude that a reasonable jury could
find that test-0driving was not an essential function of this job?
Whether a particular function is an essential function of the job is decided on a case-by-

case basis by examining a number of factors, including the employer’s judgment as to
whether a function is essential. Other factors include any written job description
prepared before advertising or interviewing applicants for the job, the amount of time
spent performing that function, the consequences of not requiring the employee to
perform the function, the terms of any collective bargaining agreement, the work
experience of past employees in the job, and the current work experience of employees
in similar jobs. The evidence that test-driving was an essential function of the job were
the judgment of Fed Ex, the written job description which included duties that
technicians maintain, troubleshoot, and repair trucks – all duties that could involve test-
driving, and the requirement that Technicians possess a commercial driver’s license and
have truck experience. Also, if Technicians did not conduct test-drives, it was reasonable
to infer that there could be adverse consequences regarding the diagnosis of problems. ;
Finally, test-driving might be a “highly specialized” job function.
The evidence that the function of test-driving vehicles was not essential includes the
fact that there were nine other licensed truck drivers at the facility to which Samson
applied to whom the test-driving could be distributed; the amount of time a Technician
actually spends test-driving is miniscule; regarding the work experience of other
employees in similar jobs, they drive an average of about only 3.71 hours per year, an

insignificant portion of their total time on the job. Because of this evidence, reasonable
jurors could conclude that driving was not an essential function of the job.
3. Why do the Federal Motor Carrier Regulations requiring medical certification of

drivers not resolve the case in favor of Federal Express?
Disability discrimination includes actions circumstances in which an employer uses

qualification standards that tend to screen out people with disabilities. In that case, the
employer must prove that the qualifications of the medical exam required by the safety
regulations were job-related and consistent with business necessity. But the court noted
that the safety regulations apply to “employers, employees, and commercial motor
vehicles, which transport property or passengers in interstate commerce.” Whether the
safety regulations apply to Samson for this position depend upon whether the test-
driving constitutes driving property or passengers in interstate commerce, and the
appeals court found that it did not.
4. What argument does the dissenting judge make? Is it persuasive? Why or why not?
The dissenting judge would hold that the safety regulations applied to Samson, as
required by statute. He contends the majority opinion erred because it relied on the
location of Ft. Meyers, far from the Georgia-Florida state line, making it unlikely that
Samson would ever test-=drive a truck in interstate commerce. Students’ assessments
of this argument will vary.
Keith v. County of Oakland

2013 U.S. App. LEXIS 595 (6th Cir.)
Plaintiff Keith was born deaf. He wears an external sound transmitter, and can detect
noises through his cochlear implant, such as alarms, whistles, and people calling for him.
Although he is unable to speak verbally, he communicates using American Sign
Language (ALS). Keith successfully completed two lifeguard training courses with the aid
of a sign language interpreter, and was certified as a lifeguard. He applied at Oakland
County, and was offered a position as a lifeguard at the wave pool, subject to a physical
examination. The doctor who examined him, upon reading his medical file, said, “He’s
deaf. He can’t be a lifeguard.” before making any other inquiry or examination. Water
safety experts were consulted who also said that Keith was not qualified, and the job
offer was withdrawn. Keith filed an action with the EOC, alleging a violation of the ADA.
1. What are the legal issues in this case? What did the appeals court decide?
The legal issues in this case were whether the county violated the ADA when it
withdrew its job offer to the plaintiff, Keith, by failing to make an individualized inquiry
(or ignoring its own assessment in favor of the advice of others who had not done so);

failing to determine whether he was “otherwise qualified;” failing to determine whether
the accommodations offered and then withdrawn were reasonable; and for failing to
engage in an interactive process.
2. Does it appear that the type of “individualized inquiry” required by the ADA occurred
in this case? Why or why not?
The individualized inquiry was done by Stavale on behalf of the county, and included a
list of what both parties believed were reasonable accommodations for Keith’s
disability. But the offer of employment was subject to physical examination. The doctor
who performed the exam made no individualized assessment. He had no training or
education in the subject of whether people who are deaf could be lifeguards, and he
made no such inquiry. The water safety firm representative relied on by the county also
decided that Keith was unqualified without making any kind of individualized
assessment, or seeking information on whether people who are deaf could serve as
lifeguards. When they overruled Stavale, the job offer was withdrawn, dismissing the
individualized assessment required by the ADA.
3. Was the plaintiff “otherwise qualified” for this lifeguard position? Why or why not?
The average lay person would assume that someone who is deaf would not be qualified
to be a lifeguard. The common assumption is that a lifeguard needs to hear swimmers in
distress, but the fact is that most of them do not cry out, and are detected visually, not
aurally.
Among the experts that supported Keith’s qualifications were these: Anita Marchitelli, a
certified lifeguard training instructor with the American Red Cross, and an associate
professor at Gallaudet University, who had certified more than 1,000 deaf lifeguards
through the American Cross program; Sheri Garnand, a deaf lifeguard certified by the
American Red Cross, whose statement explained that distressed swimmers exhibit visual
signs of distress, seldom aural ones; Dr. Colleen Noble, a physician specializing in
pediatric neurodevelopmental disabilities who has worked with individuals who are
hearing impaired for over 30 years, and who stated that in a noisy swimming area,
recognizing a potential problem is almost completely visually based. She also stated that
people who become deaf before age three have better peripheral vision that hearing
individuals. Given these facts, Keith’s successful completion of two lifeguard training
courses, and the reasonable accommodations first offered by the county, a reasonable
jury could find that Keith is otherwise qualified to serve as a lifeguard. That issue will be
determined when the case is remanded to the trial court, or the case will be settled.
4. What accommodations was the plaintiff requesting? Are they reasonable? Why or
why not? Would they likely impose an undue hardship? Why or why not?

Keith agreed with the accommodations Stavale initially proposed, and also asked for an
ALS sign language interpreter for staff meetings and instruction, to which Stavale had no
objection. The parties seemed to agree that these were reasonable accommodations.
Stavale proposed the following:
1. Keith will carry laminated note cards in the pocket of his swim trunks to
communicate with guests in non-emergency situations.
2. Keith does not need to hear to recognize and rescue a distressed swimmer;
experience reveals that distressed swimmers do not cry out for help.
3. Keith will use his whistle and shake his head “no” to enforce pool rules.
4. Keith will briefly look at other lifeguards on duty when scanning his zone to
see if they enter the pool for a safe.
5. Because Keith cannot use the megaphone or radio, another lifeguard will have
this responsibility when Keith is working.
6. Keith will not work the slide rotation, which should not be a problem because
this is one of the favorite rotations and many lifeguards like to work more than
one slide rotation.
7. The Emergency Action Plan (“EAP”) will be modified, regardless of whether
Keith is scheduled. To initiate the EAP, lifeguards will be required to signal with a
fist in the air, opening and closing it like a siren. This will accommodate Keith and
improve the effectiveness of the EAP for the entire team.
5. What did the county do well in this case? What things should it have done
differently?
The county’s first assessment by Stavale was an individualized inquiry, which

determined that Keith was “otherwise qualified,” with a reasonable accommodations,
and offered reasonable accommodations. Unfortunately, the county failed to follow its
own recommendation, and did not again conduct an interactive process with Keith after
the doctor and water safety experts determined that Keith was not qualified.
EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015)
EEOC sued Ford Motor Co. on behalf of Jan Harris, a Ford Motor Co. with irritable bowel
syndrome. She sought to work from home on an as-needed basis, up to four days per
week. Ford had denied her request on the grounds that her position as resale buyer was
highly interactive and required her presence on the job site. The district court granted
summary judgment for Ford, and EEOC appealed. The appellate court affirmed.
1. What were the legal issues in this case? What did the appeals court decide?

The legal issues in this case were first, whether Ford Motor Co. discriminated against
Harris by failing to accommodate her disability, and second, given Harris’s disability,
whether she was still qualified for the position.
2. What is the evidence that regular presence at a physical workplace is an essential

function of the job of resale buyer at Ford? What is the evidence that it is not an
essential function of this job? What would you conclude? Why?
The evidence that regular presence at a physical workplace is an essential function of

the job include these facts: Resale buyers meet with suppliers at their sites and with
Ford employees and stampers at Ford’s site, meetings which are most effectively
performed face to face. Ford also requires resale buyers to work in the same building as
stampers so they can meet on a moment’s notice. The job requires a high level of
interactivity and teamwork, and predictable attendance in the workplace is essential.
The evidence that it is not an essential function of the job includes these facts: Gontko,
Harris’ first supervisor, had told her that her job would be appropriate for
telecommuting and Ford’s telecommuting policy generally said the same thing; and
other resale buyers telecommuted, although only for 1 day per week, and with the
stipulation that they will come in if necessary.
3. What accommodations are discussed in this case? Which, if any, of these would be
“reasonable” accommodations? Why?
Ford met with Harris several times, reviewed her job duties, and tried to determine
which could be accomplished from home. Of ten job responsibilities, four could not be
performed at home, four could not effectively be performed from home, and two that
were not significant enough to support telecommuting. Ford told her they could
accommodate her in other ways, such as moving her closer to the restroom or looking
for jobs better suited for telecommuting. Harris refused these alternative
accommodations. Ford said it would meet with her again if she identified another
accommodation. She sued instead. Ford’s offer to find a job more suitable for
telecommuting was perhaps the most workable accommodation, but one which Harris
refused.
4. Comment on the “interactive process” engaged in by Ford and this employee. Did Ford
make a sufficient good faith effort to find an accommodation for this employee? Why or
why not?
Ford’s interactive process with Harris was ongoing, although not successful. Their most
recent offers – to move her closer to the restroom, or to find another job for her that
would allow telecommuting – were both rejected by Harris. At their last meeting, they
offered to meet with her again if she developed any other accommodations, but she
rejected that offer when she sued under the ADA.

5. What are some practical implications of this decision?
The value of an ongoing interactive process cannot be overstated.
Davis v. Fort Bend County, 765 F.3d 480 (5th Cir. 2015), cert. denied 135 S. Ct. 2804
(2015)
Davis was a Desktop Support Supervisor responsible for supervising about fifteen
information technology technicians. Over the weekend of July 4, 2011, the County was
installing new desktop computers, network components and audio-visual equipment
into its new facility. For this reason, it required all employees to be present. Davis
advised that she could not be present on Sunday morning, July 3, because of a
previously scheduled religious commitment, (a special church service). but that she
could attend after the service. She also arranged for a replacement during her absence,
as she had done in the past. The county did not approve her absence, telling her that it
would be grounds for a write-up or termination. After Davis attended her church event
and did not report to work, the County terminated her. Davis sued alleging religious
discrimination in violation of Title VII. The district court entered summary judgment in
favor of the County, and Davis appealed.
1. What are the legal issues in this case? What did the appeals court decide?
The legal issues in this case were whether the County discriminated against Davis when
it failed to make reasonable accommodations for her religious observance, and whether
Davis held a bona fide religious belief; the County contended she did not. The district
court held that Davis’s belief was not religious, but that her absence from work was due
to personal commitment, not religious conviction. The district court further found that
she did not present a conflict between religious beliefs and employment requirement,
that at most, she presented a conflict of time. Another issue was whether, in the
circumstances, the County suffered an undue hardship caused by Davis’s absence,
reliving them from the duty to accommodate her religious observance.
2. Was this employee acting in accordance with a sincerely held religious belief or
practice when she missed work on the morning of June 3, 2011? Why or why not?
Although its possible students’ answers may differ, the appeals court majority opinion
concluded that there was ample evidence of her sincerely held belief: that she attended
at least two services every weekend, that she volunteered for the church, that the
pastor knew her and would vouch for her, and that she believed strongly that she
“needed” to be a church on that day, as a religious matter. The court also noted that
any review of this issue “must be handled with a light touch, or judicial shyness.”

3. What do you think of the dissenting judge’s focus on the underlying motivation of
employees in assessing whether their beliefs or actions are religious in nature? Do you
agree with his statement that attendance at a church service because one enjoys
listening to the choir is not a religious belief or practice? Why or why not?
A focus on the motivation underlying one’s religious beliefs would necessarily call into
question the sincerity of the beliefs of all adherents, and require them to prove their
sincerity. Such application would nullify the protection of religious expression offered by
Title VII. Nevertheless, students’ answers may vary. Listening to the church choir is
perhaps an expression of religious belief, though the dissenting justice believes only
religious convictions and not religious expressions are worthy of protection. The case
should lead to a very lively discussion.
4. Was there a reasonable accommodation that this employer could have provided
without incurring undue hardship? Why or why not?
The employer could have done what it did in the past, permit Davis to attend her church
services, and have a substitute cover for her during her absence. Their argument was
that her presence was vital because of the installation of a new computer system for the
office, that she had no authority to arrange for a substitute, and that her actions posed
an undue hardship on the County. The change in the employer’s attitude and willingness
to accommodate can perhaps be traced to her new supervisor, Kenneth Ford, a friend of
the IT Director.
5. Do you agree with the decision in this case? Why or why not?
Students’ answers will vary.

JUST THE FACTS
Page 326 of text
An analyst who conducted statistical research, wrote reports, and made presentations,
fell while exiting a commuter train on his way to a client’s facility. He lost his footing and
struck both knees against a train platform. He was taken to the hospital, where doctors
determined that he had fractured his left leg, tore the meniscus tendon in his left knee,
fractured his right ankle, and ruptured the quadriceps-patellar tendon in his right leg.
The analyst had to have surgery on both legs. His employer permitted its employees to
work remotely if the client approved. The client the analyst was working with preferred
contractors to work on-site during business hours, but permitted them to work from
home when putting in extra time on a project. Doctors did not allow the analyst to put
any weight on his left leg for six weeks and estimated that he would not be able to walk
normally for seven months at the earliest. The analyst contacted his employer about
working from home as he recovered. The employer agreed to discuss “accommodations
that would allow him to return to work,” but suggested that he “take short-term
disability and focus on getting well again.” The employer never responded to his request
to work from home or offered any other working arrangement. While he was still
recovering, he was informed that he had been terminated and another analyst was
assigned to the client. Did this employee have a disability? Why or why not? If so, did his
employer violate the ADA by refusing his request and terminating him? Why or why not?
Summers v. Altarum Inst., 740 F.3d 325 (4th Cir. 2014).
Yes, the employee was disabled. A sufficiently severe temporary impairment may
constitute a disability, and the description of the analyst’s injuries and expected
recovery time demonstrate such a disability. Yes, the employer violated the ADA by
terminating his employment because of his disability. In large part responsible for the
appeals court’s reversal is the ADA Amendments Act of 2008, which broadened the
definition of disability “in favor of broad coverage of individuals under this chapter, to
the maximum extent permitted by [its] terms.” Prior to that Act, a temporary disability
was not deemed a disability at all. The EEOC guidance on the matter provided that the
effects of an impairment lasting or expected to last fewer than six months could be
“substantially limiting” under the statute for purposes of proving a disability. The
duration of the factor is only one factor that is relevant in determining whether the
impairment substantially limits a major life activity.
Page 343 of text

A woman employed as a deputy clerk in the criminal division of a state court had a
history of mental illness dating back to her teenage years. As a teen, she had been
diagnosed with severe situational performance anxiety, hospitalized for several days
after threatening harm to herself and others, diagnosed with a mood disorder and
prescribed antidepressants, and received an additional diagnosis of social anxiety

disorder for which she had been treated intermittently by several physicians. Social
anxiety disorder is characterized by a “marked and persistent fear of … social or
performance situations in which [a] person is exposed to unfamiliar people or to possible
scrutiny by others.”
A total of 30 deputy clerks worked in the criminal division. Four or five of the deputy
clerks provided customer service at the division’s front counter. The remaining deputy
clerks performed other filing and record-keeping tasks, many of which did not require
face-to-face interactions with the public. The most junior deputy clerks were usually
assigned to the front counter, but all deputy clerks had the same title and job
description. After a period of doing mostly back-office work, it was decided that the
woman should be trained to work at the front counter. She was assigned to work four
days a week at the front counter and one day a week microfilming. She soon began to
experience extreme stress, nervousness, and panic attacks while working at the front
counter. She informed her supervisor about her condition and the problems she was
having working the front desk. She subsequently made an e=mail request to be “trained
to fill a different role in the Clerk’s Office and perhaps work at the front counter only
once a week.” After a delay of about three weeks because the head clerk was on
vacation, the woman was called into a meeting a terminated. She was told that she was
being fired because she was not “getting it” and the clerk’s office did not have any other
position for her. Did this employer violate the ADA. Why or why not? Jacobs v. N.C.
Admin. Office of the Courts, 780 F.3d 562 (4th Cir. 2015)
This case was decided on the basis of summary judgment in favor of the employer AOC;
that judgment was vacated by the appeals court. Curiously, the district court here made
a number of factual determinations which had little or no basis in fact based on the
evidence presented. The district court ignored much evidence submitted by Jacobs, and
misapplied the standards for the construction of evidence at the summary judgment
stage. Upon review, the appeals court determined that there was ample evidence from
which a jury could find that AOC violated the ADA, and fired Jacobs in retaliation for her
request for an accommodation.
Page 362 of text

A cashier at a Costco store wore facial jewelry. The company subsequently revised its
dress code to prohibit all facial jewelry except earrings. Despite the change of policy, the
woman continued to wear her eyebrow piercings without managerial objection. A few
months later, however, managers started to actively enforce the policy. The woman was
told that she would have to remove her facial jewelry. At this point, the woman
mentioned for the first time that she was a member of the Church of body Modification
and that her facial piercings had religious significance. Members of this Church
participate in various forms of body modification, including piercing, tattooing, branding,
and cutting. The Church’s mission is to promote its adherents’ personal growth so that
they may become “confident role models in learning, teaching, and displaying body
modification.” The Church does not strictly require that its members wear or display

facial jewelry at all times, but the woman said that this is how she regarded its call to be
a confident role model. The woman was eventually terminated for noncompliance with
the company’s dress code. After she filed a charge with the EEOC, and during mediation,
the employer offered for the first time to allow her to come back to work if she would
either use clear plastic retainers or cover her facial piercings with Band-Aids. Although
the woman had made the same request when she was initially confronted by her
supervisors, she now took the position that only being allowed to openly wear the facial
jewelry would fulfill her religious obligations. Costco refused, and the case went to court
What should the court decide? Why?
The legal issue is whether the employer failed to reasonably accommodate the religious
practices of an employee by making an exception to the no facial jewelry provision of its
dress code. The court affirmed the district court’s grant of summary judgment to the
employer, but on the alternative grounds that the employer could not accommodate
the employee without incurring undue hardship.
Cloutier did suffer adverse employment consequences (suspension, termination) and

she informed the employer about the conflict between her religious practices and the
dress code before being suspended (although only after there was a confrontation with
a supervisor about the policy and she had not invoked her religious beliefs in an earlier
dispute over jewelry wearing that resulted in her transfer to a clerk position). The
existence of a sincere religious belief or practice is more in question. Cloutier’s
application to join the Church of Body Modification was dated two days after she was
first told to remove her facial jewelry, although she claimed that a prior application
dated three months earlier had been sent, but not processed due to a computer error.
The tenets of the church, as stated on its web site, do not include a requirement that
body modifications be visible at all times. Nevertheless, Cloutier asserted that she was
called to be a “confident role model” and thus, had to display her facial jewelry at all
times. While Cloutier’s recent adherence to the CBM and her broad interpretation of its
tenets raised questions about the sincerity of her practices, courts are very reluctant to
find a practice

PRACTICAL CONSIDERATIONS
P 325 of text
Under the ADA, how should employers deal with employees who suffer from alcoholism?
Unlike current users of illegal drugs, persons who suffer from alcoholism are potentially
disabled under the ADA. To be protected, the employee would also have to “qualified.”
Someone whose drinking does not allow him or her to perform the essential functions
of a job and to meet the employer’s disciplinary standards, even with reasonable
accommodation, would not be protected. As a potentially disabling condition,
prospective employers should refrain from inquiring about whether an employee is an
alcoholic or about drinking habits more generally. However, inquiring about whether a
job candidate has been drinking would not be an illegal pre-employment medical
inquiry. Blood or other tests to determine alcohol use are considered medical exams
and can lawfully be conducted only after a conditional offer of employment has been
made or after an employee has been hired when the test would be job related and
consistent with business necessity. Reasonable suspicion that an employee might be
abusing alcohol on the job is one circumstance that would render such a test job
related. An employee could not be terminated for being an alcoholic, but could be
terminated for violating rules about being impaired in the workplace. The ADA explicitly
provides that alcoholics can be held to the same standards of performance and behavior
as other employees. If an employee misbehaves in a manner that warrants termination,
that employee can be terminated even if he or she then cites a problem with alcohol as
the cause of the misbehavior. However, if the appropriate discipline is something less
than termination, the discipline can still be administered, but the employer should also
engage in the interactive process with the employee to determine whether any
reasonable accommodations could be made that would help the employee meet the
employer’s performance and behavioral expectations. Accommodations might include
referral to an EAP (Employee Assistance Program), leave, or a modified work schedule.
(EEOC. The Americans with Disabilities Act: Applying Performance and Conduct
Standards to Employees with Disabilities. Viewed October 11, 2008.
(http://www.eeoc.gov/facts/performance-conduct.html).
P 334 of text
Which reasonable accommodations would be most appropriate for persons with
psychiatric disabilities?
Psychiatric disabilities often limit employees who suffer from them in such major life
activities as learning, thinking, concentrating, sleeping, caring for oneself, speaking,
interacting with others, and working. Accommodations that could be helpful include
leaves of absence; part-time schedules; dividers, partitions, and other sound-proofing or
visual barriers; modified supervisory methods (e.g., adjusting the means of
communicating with supervisors, the level of supervision provided, and the amount of

structure); job coaches; and modified work rules. As with alcoholics, poor performance
or disciplinary infractions need not be excused or ignored simply because they might be
linked to a psychiatric disability. However, it should be considered whether performance
and behavioral problems are related to a disability and hopefully, reasonable
accommodations can be made that will alleviate these problems before they become
severe. (EEOC. Enforcement Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities. March 25, 1997. Viewed. May 12, 2009
(http://www.eeoc.gov/policy/docs/psych.html).
P 354 of text
What are some ways of handling conflicts between work schedules and religious
obligations?
Conflicts between work schedules and religious holy days, celebrations, Sabbaths,
prayer times, and other religious observances are probably the most common issue
encountered by employers in terms of accommodating religion. Employers need incur
only de minimis hardship in order to meet their legal obligations, but should permit and
facilitate swaps between employees (e.g., by providing information about other
employees’ schedules, allowing postings on bulletin boards), permit employees to use
available personal time, offer flexible schedules and break times (e.g., allow breaks to
coincide with prayer times), and if necessary, consider transfer or reassignment to
positions or shifts that would not pose the same conflicts. While authorization of
vacation or other paid time off might be appropriate for special needs, employees
should not be required to use up all of their time off in order to practice their faith.
P 363 of text
How should employers deal with religious advocacy or proselytizing by employees?
This is potentially a problem for all employers, but especially for public employers who
are constrained by the dual requirements of the First Amendment that they permit the
free exercise of religion yet also not allow the establishment of religion in the
workplace. In general, employers should not attempt to stifle all religious
communication in the workplace. Nor should separate rules and policies be established
for different religious beliefs. Allowing space and opportunity for voluntary gatherings
or communications relating to religion that could be attended or ignored is often a
workable option. Policies on the display of religious articles should distinguish between
areas of the workplace in which co-workers, customers, and others are likely to be
exposed to potentially unwelcome religious messages and other areas where that is
unlikely to happen. Anything that the employer can do in the way of diversity training
and promoting tolerance and mutual understanding should be helpful with this issue.
But ultimately, the employer has to be most concerned with maintaining a productive
workplace and one that is free from religious and other forms of harassment.

CHAPTER QUESTIONS
1. A woman worked part-time as a clerk at a drug store. She worked mostly on weekdays
from 5 PM to 9 PM, but was occasionally given other shifts. Due to glaucoma, she
eventually lost all sight in her left eye. She had no difficulty performing her job, but she
did experience problems getting to work. She asked to be given a “day shifts only”
schedule because of the danger of driving home at night and the complete unavailability
of public transportation. Her supervisor said that she would not be given the schedule
she requested because that would not be fair to the store’s other employees. The woman
provided a doctor’s note recommending that she not drive during evening hours, but the
store did not change its position. Her union representative met with store officials and
reported that he “got nowhere.” Other attempts to arrange meetings involving the
woman fell through. She received rides from family members and did not miss any work
following the denial of her request. However, it became too difficult to continue to
arrange rides and she quit. Did the store fail to reasonably accommodate this employee?
Why or why not? Colwell v. Rite Aid, 602 F.3d 495 (3d Cir. 2010)
The appeals court reversed the lower court’s grant of summary judgment to the
employer on the plaintiff’s failure to reasonably accommodate disability claim. The
appeals court agreed that the effects of her glaucoma, including her eventual blindness
in one eye and inability to see at night, were sufficient evidence that she was
substantially limited in the major life activity of seeing. Regarding the employer’s failure
to reasonably accommodate, the court said that “the questions at issue … are whether
Rite Aid had any duty to accommodate Colwell in her request for a shift change, and
whether Rite Aid satisfied its duty to accommodate Colwell.” The plaintiff’s requested
accommodation – modification of her shift assignment to the day shift – is an
accommodation that the ADA specifically lists among examples of reasonable
accommodations. In this court’s view, reasonable accommodation is not strictly limited
to things that disabled employees need after they report to work and are engaging in
work activities. “We therefore hold that under certain circumstances the ADA can
obligate an employer to accommodate an employee's disability-related difficulties in
getting to work, if reasonable. One such circumstance is when the requested
accommodation is a change to a workplace condition that is entirely within an
employer's control and that would allow the employee to get to work and perform her
job.” The court distinguished its holding from other district court decisions saying that
employers do not have to provide accommodations aimed at helping employees
commute to work. Here, the accommodation was a requested shift change – a
modification that was entirely within the control of the employer. The plaintiff could get
to work on her own, provided that she was able to work during the day time so that she
could see where she was going.

The court also considered whether the employer had engaged sufficiently in an
interactive process. The employer claimed that it had because after a conversation with
the plaintiff, it was left that she would try to get rides from her grandson. There was no
further duty because the plaintiff did not inform them that she still needed an
accommodation. On the other hand, there was evidence that that she had told the
employer that the solution was unreliable and temporary. When she asked the union
rep to press the issue of a schedule change, he was rebuffed. At no point did the
employer inquire further with her or offer any other accommodation. A reasonable jury
could find that the interactive process was insufficient.
2. A schoolteacher was successful at teaching kindergarten for five years. She requested
to teach first grade and was then reassigned to a classroom that had no exterior
windows. She told the school principal that she suffered from seasonal affective disorder,
a form of depression. She made numerous requests to be moved to a classroom with
natural light, but the school refused to do so. She also presented the school district with
a letter from her psychologist stating that her depression was being exacerbated by the
lack of natural light. Another teacher who had been assigned to a classroom with
exterior windows had offered to switch rooms. There was also one vacant room with
exterior windows, but this room was being reserved for the possible addition of another
class section. The woman’s health deteriorated. She suffered from significant inability to
concentrate, organize her thoughts, retrieve words, make decisions, and focus on the
needs of her students. She also experienced racing thoughts, panic attacks,
uncontrollable crying, inability to eat, and thoughts of suicide. She went on medical
leave. Eventually, she quit, went to work elsewhere, and sued. What should the court
decide? Why? Ekstrand v. School District of Somerset, 583 F.3d 972 (7th Cir. 2009).
The appeals court reversed the district court’s grant of summary judgment to the school
district on the teacher’s failure to reasonably accommodate disability claim. [However,
summary judgment was affirmed on her additional claim that she was constructively
discharged .] The parties apparently did not dispute that the teacher’s seasonal affective
disorder was a disability. On November 28, 2005, the plaintiff’s doctor notified the
school district's workers' compensation claims representative of "the importance of
natural light for individuals with a history of this disorder" and that "Mrs. Ekstrand's
current episode of depression was most likely directly related to a change in her work
location, to a room lacking any [exterior] windows." Prior to then, the plaintiff had not
provided the school district with anything more than her own belief that natural light
was necessary to accommodate her. Thus, there was no evidence that the school district
knew natural light therapy was the only way to accommodate the plaintiff before
November 28.
However, once the district became aware of the medical necessity of natural light, and
having been informed by the plaintiff two weeks earlier that she was willing and able to
return to work in a classroom with natural light, the school district was obligated to
provide Ekstrand's specifically requested, medically necessary accommodation unless it

"would impose an undue hardship" on the school district. “Little hardship would have
been imposed in providing Ekstrand an available classroom.” The school district would
have experienced costs associated with switching the items in the two rooms and with
performing any necessary readjustments specific to the teachers' respective curricula. If
the teacher had been accommodated by providing the empty room, it would have
experienced the costs of moving her items, plus the costs of switching and readjustment
due to the room being needed for a new third-grade section reduced by the probability
that creation of the third-grade section would not occur. These costs were judged to be
modest.
3. A photography studio hired a profoundly deaf employee as a “performer.” She

communicates with hearing individuals by writing notes, gesturing, pointing, and
miming. She can also type, text message use body language, employ basic
American sign language signs that most people can understand, and speak some words.
However, she cannot read lips effectively and she speaks only a few words. Her written
communication skills are poor and she scores below average on vocational tests.
Performers have four areas of responsibility: customer intake, sales, portrait
photography, and laboratory duties. The job description lists “strong verbal
communication skills” and “strong customer service skills” as job qualifications for
performers. During peak (holiday) periods, performers mainly work in one area of
responsibility, and the deaf employee was assigned to work primarily in the camera
room doing photography. However, during nonpeak periods, only one manager and one
performer are scheduled to work at a time. During these periods, performers are
expected to cover all four areas of responsibility. The woman had the opportunity to
shoot photographs on fifteen to twenty occasions with a hearing performer and she
conducted shoots by herself on a couple of occasions. She communicated with photo
subjects by writing notes, gesturing, and miming. She experienced some difficulty doing
this, particularly because the photo subjects were usually young children. To sell photo
packages to customers, she had to write notes, gesture, or get assistance from a
coworker. The woman made several requests for an ASL interpreter, including during her
initial orientation and then for a subsequent training session for performers, but no
interpreter was ever provided. After the holiday season, the woman’s hours were
eliminated and she was eventually terminated She sued. What should the court decide?
Why? EEOC V. Picture People, 684 F.3d 981 (10th Cir. 2012).
The court found in favor of the employer, upholding summary judgment, on the basis
that the employee was not qualified for the position of performer, with or without a
reasonable accommodation. The court found that verbal communication skills were an
essential function of the performer position, especially because a performer had only 20
minutes to communicate with young children for a photo shoot; notes and gesturing
would not be adequate to address these requirements. In fact, the court found that the
employee was unable to fully perform three of the four duties of a performer. The court
then considered whether a reasonable accommodations was available. The employee
had asked for an ASL sign language interpreter, but the court, reviewing case law, found

that interpreters were provided for meetings and the like, but not for the performance
of an essential function of the job. In each of the previous cases where a sign language
interpreter was provided or should have been provided, the employee was able to
perform the essential functions of the job without a sign language interpreter.
Therefore, supplying one would not qualify as reasonable accommodation because
plaintiff was unable to perform the essential functions of her job. Thus, no reasonable
accommodation was available. The court also reviewed whether the employer retaliated
against her in violation of ADA – cutting her hours - but everyone had hours cut after
the end of the busy holiday season. One judge filed a dissent, and would have vacated
summary judgment in favor of the employer, believing that plaintiff was qualified to do
her job.
4. A delivery person injured his back on the job, resulting in a serious disc problem that
required surgery. Following surgery, the employee’s doctor imposed a lifting restriction
of twenty-three pounds. This restriction precluded a return to his former position. The
employee requested reassignment to another vacant job. The employer’s established
procedure was to post all job openings and to require that employees initiate any
requests for transfer. The employee completed one transfer request for a
computer/clerical position but was judged to be unqualified due to his limited computer
and office skills. The company also considered him for a telephone sales position and
contacted him to set up an interview. At the interview, it was determined that the
employee did not have sufficient motivation for sales. Within about a month of his
request for reassignment, it was concluded that there were no positions available for
which he was qualified and the employee was fired. The employee sued. What should
the court decide? Why? (Burns v. Coca-Cola, 222 F.3d 247 [6th Cir. 2000])
The Appeals Court agreed with the trial court’s conclusion that Burns was disabled, as
evidenced by his being unable to perform at least fifty percent of the jobs previously
available to him. The court also acknowledged that reassignment to a vacant position is
an accommodation that an employer must consider once it becomes clear that he is
unable to perform his current job due to a disability. However, the court decided that
the employer had done enough to meet its responsibilities under the ADA. In order to
prevail, the employee would have had to request a transfer to a position for which he
was otherwise qualified or shown that he sought assistance in identifying such a
position and the employer did not provide the assistance. In short, the court concluded
that Burns did not comply with the employer’s legitimate, non-discriminatory transfer
request policy. The employee’s failure to identify an alternative position and request a
transfer was fatal to his case.
The issue of whether employers must modify or make exceptions to neutral policies in
order to reasonably accommodate disabled persons is important and is especially likely
to be encountered when reassignment is the only available accommodation. The narrow
view, evidenced in this decision and also in Huber v. Wal-Mart Stores (see “Just the
Facts”), is that accommodation is only required for those obstacles or requirements that

the disabled employee cannot surmount specifically due to his or her disability. Under
this view, requiring more than this of employers converts the ADA to an affirmative
action statute. The broader view is that the duty to reasonably accommodate is distinct
from and goes well beyond the obligation to not discriminate. The employer who simply
makes available the same process for reassignment that would be available to a non-
disabled employee appears to be doing little more than refraining from discrimination.
The Supreme Court suggested a leaning toward the narrower view when it held in U.S.
Airways v. Barnett that employers generally would not have to make exceptions to
seniority systems to accommodate disabled employees.
5. A call center representative suffered from a rare condition known as “brittle bone
disease” that permanently confined him to a wheelchair. The call center has a strict
policy on tardiness. Employees are penalized for reporting to work or returning from
lunch more than three minutes late. The representative was frequently late, especially
returning from lunch. His tardiness was caused by a variety of factors including an
insufficient number of disabled accessible parking spots in the company lot, a policy of
not assigning specific cubicles to representatives, cluttered aisles that made it difficult to
maneuver between cubicles, and lack of equipment in some cubicles. The representative
requested that he be given a grace period of an additional fifteen minutes when
returning from lunch. He would be responsible for working the same total amount of
time, but he would be allowed to start a few minutes later if needed. Adjusting his work
schedule in this manner would have eliminated almost all of the incidents of tardiness.
His supervisors refused the grace period request and terminated the representative. Did
this employer fail to reasonably accommodate this employee? EEOC v. Convergys
Customer Service Group, 491 F.3d 790 (8th Cir. 2007)
The issue was whether the employer failed to reasonably accommodate this disabled
employee. A jury found for the plaintiff and the appeals court affirmed. The court first
faulted the employer for failing to engage in an interactive process with the plaintiff to
identify a workable accommodation. They were clearly on notice of his need for
assistance and he had proposed at least one specific accommodation – being allowed to
report to work a few minutes later. The employer claimed that this accommodation
would require it to eliminate an essential function of his position – starting work in a
punctual fashion. The court accepted that punctuality was an essential function of the
job, but said that providing an additional 15 minutes to return from lunch would not
eliminate that requirement or create an open-ended work schedule. Had the employee
been able to have the additional time to return from lunch, almost all of his lunchtime
infractions would have been eliminated. The ADA specifically lists “modified work
schedules” among its examples of reasonable accommodations.
The accommodation discussed in the case is not the only one possible and probably
would not be enough by itself to eliminate problems with punctuality that included the
time at which he initially reported to work. Certainly, creating more parking spots for
disabled employees, making sure that they are not filled by non-disabled employees,

and perhaps even reserving parking spots could and should have been done. Likewise,
reserving a cubicle and making sure that it is adequately equipped would also be a
reasonable accommodation. Indeed, this was apparently done for the plaintiff for a
period of time, only to be removed when a new supervisor took over. It might turn out
that reserving cubicles works better for all employees, although a complete change of
policy would not be required.
6. A man diagnosed with schizophrenia worked for New York City as a case manager. He
took medication that made him drowsy and sluggish in the morning. Even though the
agency he worked for had a flex-time program that allowed employees to start work
between 9:00 and 10:00 a.m. and to leave work anytime between 5:00 and 6:00 p.m. (a
one-hour lunch break was required under a collective bargaining agreement), the man
was frequently late to work. Supervisors ignored his tardiness for over 10 years, allowing
him to make up hours by working later. However, it was eventually decided that he
would have to start reporting to work on time. The man checked with his doctor, who
confirmed that it was important for him to take his medication at that same time in the
morning. He requested that he be allowed to come in later, but make up time by working
through lunch and/or by working past 6:00 p.m. (the agency was open until 10:00 p.m.).
The agency refused these requests, citing the labor agreement’s lunch break
requirement and the fact that managers left at 6:00 p.m. The tardiness continued and
the man was suspended for 30 days without pay. He sued. What should the court
decide? Why? (See McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013).)
On appeal, the employee challenged the district court's findings (1) that arriving at work
by 10:15 a.m. was an essential function of his job; (2) that he was unqualified because of
his tardiness, which was undisputedly a result of his disability; (3) that his requested
accommodations were unreasonable; and (4) that his other failure to accommodate
claims were without merit.
The court found that arriving on or before 10:15 a.m. — or at any consistent time —
may not have been an essential requirement of the employee's particular job. For many
years prior to 2008, his late arrivals were explicitly or implicitly approved. Similarly, the
fact that the City's flex-time policy permitted all employees to arrive and leave within
one-hour windows implies that punctuality and presence at precise times may not be
essential. The court determined that a reasonable juror could find that arriving at a
specific time was not an essential function of the case manager position, provided that
the employee still would be able to complete his work in a sufficiently timely fashion.
Thus, summary judgment was not appropriate.
The employee had suggested as an accommodation that he could work through lunch
and work late in order to "bank" time. If his lunchtime, overtime and tardy arrivals were
approved, he would then be able to apply this banked time against future late arrivals.
The accommodation was plausible. The next question is whether this would this be an
undue hardship to the city. The court noted that the city already had a policy of allowing

employees to “bank” any hours they work in excess of 7/day, and apply banked time
against late arrivals, if approved. There was no evidence that approving late arrivals
would constitute an undue burden on city. But would the employee be able to bank
sufficient time to cover his late arrivals? Requiring a supervisor to work past 6 pm would
be undue hardship for the city, but the employee had been unsupervised when he made
home visits or worked past 7 pm. He proposed that he work through lunch, which is
permissible with approval. Approving such work does not involve “significant difficulty
or expense. ” Summary judgment in favor of the city was vacated, and the case
remanded for further fact-finding and trial.
7. A medical resident has Asperger’s disorder. Evaluations of his work by supervising

physicians were mixed, citing problems with communication skills, self-awareness, social
competence, and relationship management. After the hospital informed the resident
that they intended to terminate his residency, he provided them with information about
his condition and suggested that he could successfully complete the program if the other
nurses and physicians were informed about his condition, its symptoms, and the things
that trigger it. The hospital said that it lacked the resources to comply with his request,
but that it would assist him in locating a residency in a field such as pathology that
requires little patient interaction. The terminated medical resident sued. Did the hospital
fail to reasonably accommodate the resident? Why or why not? (Jakubowski v. Christ
Hospital, 627 F.3d 195 [6th Cir. 2010]; cert. denied, 2011 U.S. LEXIS 4937))
The appeals court affirmed a grant of summary judgment to the hospital. The parties did
not dispute that his condition is a disability. However, the issue was whether he was a
“qualified” individual with a disability. The hospital identified communicating with
professional colleagues and patients in ways that ensure patient safety as an essential
function. Medical care requires teamwork and communication between numerous
parties. “Accordingly, we agree that there is no dispute that these functions are
essential to the work of a family practice physician residency training program. Because
Jakubowski admittedly had difficulty performing these functions, some kind of
accommodations would be necessary for him to continue his work. Thus, whether
Jakubowski was a qualified individual depends on whether he proposed a reasonable
accommodation to account for his disability.” The court did not believe that the
proposed accommodation of greater understanding from others would allow the
plaintiff to successfully communicate and manage relationships with others, particularly
patients who would not been the recipients of this information. The court also found
that the employer had adequately engaged in the interactive process. “Because Christ
Hospital met with Jakubowski, considered his proposed accommodations, informed him
why they were unreasonable, offered assistance in finding a new pathology residency,
and never hindered the process along the way, we agree that there is no dispute that
Christ Hospital participated in the interactive accommodation process in good faith.”
A concurring (in the judgment only) opinion points to an interesting aspect of this case.
Although the plaintiff’s expert witnesses pointed to a number of other potential
accommodations, the court considered only the one accommodation actually requested

by the plaintiff prior to his termination. “But we have never squarely held, as the
majority does today, that the sufficiency of an ADA plaintiff's showing that he is
otherwise qualified must be analyzed exclusively in light of the scope of the
accommodation he requested from his employer prior to his termination from his
position, even where more ample evidence that a plaintiff is otherwise qualified or that
a defendant acted with discriminatory intent, emerges through discovery. The onus to
prove—as a matter of law—that an ADA plaintiff can do the job with the right
accommodation is triggered by the filing of a discrimination lawsuit, not by the prospect
of termination. …“
8. An activities aide worked at a private, for-profit nursing home. Her job responsibilities
included reading newspapers to residents, playing games with them, performing a
nondenominational devotional reading, and keeping residents entertained. She was
called in to work on an off day and assigned to a different building than her normal
assignment. During the shift, a coworker asked her to pray the rosary with a Catholic
resident. The aide refused, saying that she was not Catholic and it was not her religion,
but if the coworker wanted to conduct the rosary herself, she was welcome to do so. The
aide was raised as a Jehovah’s Witness, but she was no longer a member of any
denomination and she did not practice any religion. Word of the refusal got back to a
supervisor who said that the refusal to pray the rosary with a resident constituted
“insubordination.” The aide was terminated. She sued. What should the court decide?
Why? (See Nobach v. Woodland Village Nursing Center, 762 F.3d 442 (5th Cir. 2014).
At trial, the jury found that the nursing home violated Title VII of the Civil Rights Act of
1964 by unlawfully discharging the aide for exercising her religious beliefs. On appeal,
the determinative question is whether the aide failed to produce sufficient evidence
that the nursing home knew of her religious beliefs before it discharged her. We find no
such evidence anywhere in the record and hold that a reasonable jury would not have
had a legally sufficient basis to find that the nursing home violated Title VII by
discharging her. Therefore, the court reversed the district court's denial of the nursing
home’s motion for judgment as a matter of law, and remanded the case “for entry of
judgment consistent with this opinion.”
9. The younger brother of an employee committed suicide. The employee was profoundly
upset by the death, considered taking his own life, and experienced mental health
problems for years thereafter. The brothers had been raised in a strict religious family,
but both had subsequently rejected their religious upbringing. About six years after the
suicide, the employee was approached by the wife of the owner of the company for
which he worked. The wife, who was also a receptionist, said that she had a gift for
speaking to the dead, that she had been communicating with the employee’s brother,
and that the brother wanted the employee to know that he was suffering in hell and that
the employee should turn to God so that he could avoid the same fate. The employee
became very upset and told the woman not to speak with him again about his brother.
Undaunted, the wife continued to speak to him in the same manner each day for three

and a half weeks. After the employee complained to the woman’s husband, the daily
communications stopped, although the wife would bring up the topic of finding religion
every week or two. About six months later, the employee got into a heated argument
with the wife at work and quit. He sued for religious harassment and constructive
discharge. What should the court decide? Why? (Winspear v. Community Development,
574 F.3d 604 [8th Cir. 2009])
The appeals court reversed the district court’s grant of summary judgment to the
employer and remanded. Apparently, the lower court had focused only on the
constructive discharge aspect of the case and failed to reach a separate conclusion as to
whether the employee had been subjected to a hostile environment. While all of the
appellate judges agreed that the plaintiff had asserted a religious harassment claim that
was independent of any constructive discharge claim, the majority did not offer any
analysis of the merits of the harassment claim because the lower court had not yet ruled
on it. However, one of the appellate judges wrote a dissenting opinion in which he
expressed the view that the facts did not support a religious harassment claim. The
judge pointed to testimony suggesting that the frequency of harassment subsided from
an almost everyday event for the first three or so weeks to a much more occasional
occurrence. The conduct had apparently ceased four or five months before the
employee quit. The dissenting judge also questioned the severity of the harassment,
comparing it to examples of egregious sexual harassment. The judge said it was relevant
that the comments were made to the plaintiff in private and did not embarrass him in
front of co-workers. Lastly, although the plaintiff claimed that the harassment
interfered with his ability to concentrate on his work and made him not want to come
into the workplace, the dissenting judge concluded that “Winspear alleged that Sierra's
harassment affected him at work, but he acknowledged that he was already
"overloaded" at work before the harassment began. He also made no allegation that he
could not complete his work or that he received discipline for performance
deficiencies.” While the dissenting judge’s analysis is plausible, it seems to ignore the
reasons why this type of religious communication about a dead brother would be
particularly offensive and upsetting, as well as the failure of the alleged harasser to stop
making such statements despite the employee’s reaction.
10. An employee was a member of the Old Path Church of God, which observes its
Sabbath from sundown on Friday until sundown on Saturday. He had worked for the
company for 25 years. During that time, a supervisor had accommodated the employee
by finding volunteers to replace him when necessary. The employee transferred to a job
on another shift. Initially, there was no problem because he was scheduled to work
Sunday through Thursday. But after the company went to a 24/7 operation and all
employees were required to work overtime, the employee was forced to work on Friday
evenings. The company permitted the man to find someone who would work additional
hours for him, but did not provide any assistance in locating such a coworker and
apparently also stipulated that a complete shift swap was not allowed. When he failed
to find a coworker to take his hours and was unable to work a Friday evening, he was

fired. He sued. What should the court decide? Why? (EEOC v. Robert Bosch Corp., 169
Fed. Appx. 942 (6th Cir. 2006))
The appeals court reversed the lower court’s grant of summary judgment to the
employer. It was not contested that the employee established a prima facie case of
failure to reasonably accommodate. It was also uncontested that the employer had not
offered any reasonable accommodation that was rejected by the employee. The sole
question was whether the employer was unable to reasonable accommodate the
employee’s religious observances without imposing undue hardship. Allowing an
employee to trade shifts with another employee is one means of reasonably
accommodating an employee who cannot work at a particular time due to a religious
practice. However, this is not always sufficient to meet an employer’s responsibilities,
particularly when conditions created by the employer make it unlikely that a trade will
occur. The court pointed to a factual dispute over just what, if anything, the employer
would allow as an accommodation as grounds for a trial. “According to Carter, the only
thing that the employer was willing to do was to let Carter and the union try to find
someone who would work additional overtime. It is unclear exactly what the company
was willing to do with respect to "swapping" overtime with other employees.
…According to the EEOC, the employer's policy was designed only to identify employees
willing to work additional shifts but not to swap shifts. …There appears to be a factual
conflict about whether Bosch was only willing to allow Carter to find volunteers willing
to take on Carter's overtime, or to find volunteers who would "swap" overtime shifts.
There seems to be no dispute that the company itself was unwilling to try to find swaps
or substitutes for Carter. … [A]s a result of the across-the-board overtime requirement,
many employees complained and sought relief from the company. The company's
uniform response was to require the employee to find someone else to work the
overtime. It apparently made no distinction between Carter and others who had no
religious reasons for asking for an accommodation.”
11. A receptionist at a medical office was required to wear a new name badge. The back
of the badge listed “Our Ten Commandments”—a set of office rules. The woman, who is
a Catholic and takes her religion very seriously, objected to the badge and its reference
to “commandments” because she felt strongly that the only Ten Commandments are
those that come from the Bible. Thus, it would be “sacrilegious” for her to wear the
badge. She offered to wear a badge without the “Ten Commandments” on the back. The
offer was refused, the woman was threatened with disciplinary action if she did not wear
the badge, and she was eventually terminated. She sued. What should the court decide?
Why? (See Ambrose v. Gabay Ent & Associates, 2013 U.S. Dist. LEXIS 115353 (E.D. Pa.).)
The court ultimately ruled that the medical office had failed to reasonably
accommodate the receptionist’s religious beliefs by forcing her to wear the badge or be
terminated from her employment. The medical office argued that her objection to the
badge was not a religious belief, but a personal preference that had nothing to do with
religion. This argument failed. They also argued that the badge had nothing to do with

religion, and that there was no Roman Catholic prohibition against wearing a name
badge with secular guidelines referred to as “Our Ten Commandments.” These
arguments also failed. The court said it would not measure the religious validity of her
objection.
12. An evangelical Christian worked for a county social services agency. He placed a
Bible on his desk and posted a sign in his work area saying “Happy Birthday, Jesus.” The
sign and Bible were clearly visible to clients and coworkers. He was told not to display
religious items in this manner. He was also ordered not to talk with clients about
religion. This prohibition did not extend to coworkers. The employee organized a
monthly employee prayer meeting during lunchtime that was held in the department’s
conference room. He was informed that the conference room could not be used for that
purpose, but that he could pray in the employee break room during lunch hours or go
outside the building to do so. The conference room was, in fact, used only for
department business, with the exception of its occasional use for birthday parties and
baby showers. The employee sought a court order authorizing him to share his religious
views with clients when they initiated discussions or were receptive to such discussions,
to display religious objects in his cubicle, and to use the conference room for voluntary
prayer group meetings. Did the agency infringe on his rights? Should the agency be
required to permit his desired forms of religious expression? (Berry v. Department of
Social Services, Tehama County, 447 F.3d 642 [9th Cir. 2006]).
This public employee sued under both the First Amendment and Title VII. The appeals
court affirmed the lower court’s grant of summary judgment to the employer. On the
Constitutional claim, the court applied the balancing test used in speech cases and
found the restrictions placed on his religious speech to be reasonable. The court
expressed sympathy for the delicate position of public employers, as they must steer a
course between allowing the exercise of religious expression and avoiding an
establishment clause violation by appearing to sponsor or authorize religious
viewpoints. As an agent of the government to whom citizens must go to receive public
assistance and other services, allowing discussion of religion “runs a real danger of
entangling the Department with religion.” This concern was heightened by the
employee’s admission that if unrestricted, he would share his faith and pray with others
“when appropriate.” Regarding the display of religious items, the court said that
government agencies have an even greater concern that these will be viewed as
expressions of agency policy than the speech of individual employees. This is particularly
true when clients have access to office areas. The policy does not require the plaintiff to
not have a bible at work, only to not display it for others’ viewing. Regarding the
conference room, the court concluded that allowing occasional birthday celebrations
and baby showers did not evince the intent to convert the facility to a public forum
within which speech would have to be given greater leeway. The decision to allow the
room to be used for birthday parties and showers, but not by employee social
organizations, was deemed a reasonable limitation on the exercise of religion.

The plaintiff also raised failure to reasonably accommodate and disparate treatment
claims under Title VII. The plaintiff established a prima facie case of failure to
accommodate, but the court held that “allowing Mr. Berry to discuss religion with the
Department's clients would create a danger of violations of the Establishment Clause of
the First Amendment. This constitutes an undue hardship. Similarly, it would be an
undue hardship to require the Department to accept, or have to rebut, the inherent
suggestion of Department sponsorship that would arise from allowing the display of
religious items in a cubicle in which Mr. Berry interviews clients who are seeking
assistance.” On his disparate treatment claim, the court stated that “the evidence does
not support his contention that similarly situated employees were treated differently.
The only evidence in the record concerning the use of the Red Bluff Room by a social
organization of employees was that a group held a first meeting to organize a "Relay for
Life" walk to raise money for cancer research. The Department, however, determined
that this was a nonbusiness-related activity and prohibited the group from using the Red
Bluff Room. This is exactly what happened to Mr. Berry. The Department determined
that because Mr. Berry's use was not business related, he could not use the Red Bluff
Room.
13. In 2007, Oregon enacted a law providing legal recognition to same-sex relationships
as domestic partnerships. An employee in a county clerk’s office asked to be excused
from having to register same-sex couples because of her religious belief that
homosexuality is a sin. The county clerk initially said that it would not be a problem,
provided that another clerk was available at the time to register same-sex couples. But a
day later, the county clerk changed her mind and said that the woman must perform the
registrations. Without further discussion of her proposed accommodation, the woman
was informed that it would be an undue hardship to exempt her from this job
requirement. The county offered to discuss a transfer to any other positions that might
arise. However, no positions were available at the time and none were ever offered.
Shortly thereafter, the woman was terminated when she refused to initial a memo
affirming that she would perform the disputed registrations. In the two years following
her departure, there were thirty-seven same-sex domestic partner registrations. Twenty-
six of these registrations were processed by two clerks, while the remaining eleven
registrations were processed by three other clerks. Did the county fail to reasonably
accommodate this employee? Why or why not? (Slater v. Douglas County, 743 F.
Supp.2d 1188 [D. Ore 2010].
The plaintiff alleged that the county failed to accommodate her religious beliefs and
then terminated her based on religion. The court rejected the requests of both parties
for grants of summary judgment. Regarding the accommodation claim, the court found
that she had stated a prima facie case based on the existence of sincere religious belief
that conflicted with her employer’s work assignments, she had informed the employer
of this conflict, and she was terminated due to her inability to comply with the
employer’s requirements. The court did not agree that the county’s general offer to
allow a transfer to another position should one become available sufficed as a

reasonable accommodation. “[N]o positions were available in the brief period between
when Slater requested an accommodation and when she was fired. After she was
terminated, the County rejected her application for re-employment. Thus, I am unable
to conclude that a relatively vague promise to assist plaintiff to transfer if a position
became available during a very short window of time constitutes reasonable
accommodation.”
On the question of whether any accommodation was available that would not impose
undue hardship, the court said that it could not determine whether that was the case
based on the evidence presented by the county. Rather than a genuine interactive
process and an individualized assessment of whether accommodation could be
provided, no efforts were made to ascertain the details of the plaintiff's accommodation
proposal, whether co-workers were willing to take up the slack of any accommodation
and, if other counties had received accommodation requests for similar reasons, how
they responded. The county simply declared that all staff must be willing to register
domestic partnerships or be terminated for failing to perform a duty of the job. The
plaintiff was not replaced. Two of her co-workers processed twenty-six of the thirty-
seven registrations received, with the remainder attended to by the other three. Thus,
this work was readily accomplished and not evenly divided even in the plaintiff’s
absence. This suggests that the shifting of this particular task to others would have been
quite feasible and entirely consistent with the normal functioning of the office. The
court also rejected the county’s broad argument that providing the requested
accommodation would cause it to violate the First Amendment. Providing a reasonable
accommodation does not mean that a public employer is favoring one religion over
another in violation of the establishment clause. Lastly, the court also raised the
question of whether the county would respond the same regarding other tasks that
might be deemed objectionable on religious grounds (e.g., filing judgments in capital
punishment cases). The court suggested that exceptions might be made to the rule that
all staff must perform all tasks and that the hard line taken by the county in this case
might reflect the particular content of the challenged requirement. “Because I cannot
tell from the record before me whether an accommodation to Ms. Slater would have
caused an undue hardship to the County, the County's motion for summary judgment is
denied and the County will be required to present their evidence on that issue to a
jury.”
14. An unmarried teacher at a catholic school was terminated after she revealed that
she was pregnant by artificial insemination. The teacher, who is not catholic herself,
taught computer science. She did not receive any religious instruction as part of her job
and did not provide any religious instruction to her students. The church says that as a
teacher of elementary school students, the woman was expected to serve as a religious
role model for her students. It also points out that the woman signed an employment
contract with a morals clause that stated she would “comply with and act consistently in
accordance with the stated philosophy and teachings of the catholic church. Artificial
insemination is considered immoral by the Catholic church. The teacher sued for

Solution Manual for Employment Law for Human Resource Practice 6th Edition David J. Walsh
pregnancy discrimination. What should the court decide? Why? (see Dias v. Archdiocese
of Cincinnati, 2013 U.S. Dist. Lexis 12417 (S.D. Ohio).
The court considered three issues: whether the ministerial exception applied; second,
whether plaintiff raised legally sufficient claims for breach of contract and pregnancy
discrimination; and third, whether case raised issues of entanglement between church
and state and/or violates free exercise course, in which case, plaintiff would have no
recourse.
Reviewing the record, the court determined the plaintiff was not a ministerial employee.
The school maintained that she ws ministerial because she ws to be a Roman Catholic
role model, but the court cited cases ruling that was not sufficient. An employee must
be a minister or held out as a minister, with religious training, neither of which plaintiff
had here.
The court also considered the breach of contract claim. Plaintiff contended the morals
clause applied only to women, and should be strcken from the contract as
discriminatory. Plaintiff had adequately pled a claim for breach of contract, and so that
claim would proceed. As to pregnancy discrimination, the claim was also adequately
pled. There will be discovery for furthe fact finding before the case goes to trial, but the
claim should not be dismissed.
Finally, the court considered the defendant’s argument that the case would entangle
the government in deciding religious issues, and so should be dismissed, but the court
agreed with plaintiff that its analysis was complete once it addressed the question of
whether the ministerial exception applied. It had determined that it did not apply, so
the court denied defendant’s motion to dismiss.
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Reasonable Accommodation of Disability

Reasonable Accommodation of Religion

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Whether a particular function is an essential function of the job is decided on a case-by-

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3. Why do the Federal Motor Carrier Regulations requiring medical certification of

Disability discrimination includes actions circumstances in which an employer uses

Keith v. County of Oakland

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The county’s first assessment by Stavale was an individualized inquiry, which

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2. What is the evidence that regular presence at a physical workplace is an essential

The evidence that regular presence at a physical workplace is an essential function of

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The value of an ongoing interactive process cannot be overstated.

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Students’ answers will vary.

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Page 343 of text

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Page 362 of text

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Cloutier did suffer adverse employment consequences (suspension, termination) and

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3. A photography studio hired a profoundly deaf employee as a “performer.” She

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7. A medical resident has Asperger’s disorder. Evaluations of his work by supervising

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