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Chapter 10
REASONABLY ACCOMMODATING
DISABILITY AND RELIGION
OUTLINE
Reasonable Accommodation of Disability
Clippings
Elements of a Claim: Failure to Reasonably Accommodate Disability
Disability
Actual Disability
Record of a Disability
Perceived Disability
Qualified Individual with a Disability
Able to Perform the Essential Functions of the Job
Henschel v. Clare County Road Commission
Meets Job-Related Qualification Standards
Just the Facts
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
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
Adeyeye v. Heartland Sweeteners
Clippings
Just the Facts
Religious Advocacy and Religious Harassment
Clippings
Religious Organization Exemption
KEY TERMS
CHAPTER SUMMARY
PRACTICAL ADVICE SUMMARY
CHAPTER QUESTIONS
CASE QUESTIONS
Horgan v. Simmons
2010 U.S. Dist. LEXIS 36915 (N.D. Ill.)
The plaintiff Horgan had been diagnosed as HIV positive ten years previously, but chose
to keep his status confidential. His job performance remained good and he was promoted
to the position of General Manager of the company’s Chicago facility. Simmons is the
president of the company and was Horgan’s supervisor. Simmons requested a meeting
with Horgan. The meeting was purportedly a “social visit,” but Simmons began to press
Horgan for information about his medical condition. In response to Simmons’ insistent
questioning, Horgan felt compelled to reveal his HIV positive status. Simmons asked
questions about Horgan’s prognosis and then asked him "how he could ever perform his
job with his HIV positive condition and how he could continue to work with a terminal
illness." Simmons also allegedly said that he "did not know how [Plaintiff] could lead if
the employees knew about his condition." Simmons allegedly told Horgan that he needed
"to recover" and that he should "go on vacation" and "leave the plant immediately.” An e-
mail sent out to other managers the next day stated that Horgan had been terminated.
1. What were the legal issues in this case? What did the court decide?
The court had to decide whether Horgan was disabled with the meaning of the ADA (as
amended by the ADA Amendments Act), for purposes of determining whether the
employer should be granted summary judgment on his discriminatory termination claim.
The court also had to decide whether summary judgment should be granted on Horgan’s
claim that the employer had violated by the ADA by inquiring about his medical
condition. The court decided that the plaintiff had alleged facts sufficient to avoid
summary judgment on both of his ADA claims.
2. On what basis does the court conclude that this employee is disabled? If the court
had not found him to have an actual disability, would he have been able to successfully
argue that he was “regarded as” having a disability?
The court relied heavily on the ADA Amendments Act, and the EEOC’s regulations
implementing that law, in concluding that there was sufficient evidence that Horgan’s
HIV positive status was an actual disability. The employer conceded that it was a
physical impairment, but argued that the plaintiff had not shown substantial limitation
with respect to one or more specific major life activities. The ADAAA states that the
operation of "major bodily functions," including "functions of the immune system,"
constitute major life activities under the ADA's first definition of disability. In addition,
"an impairment that is episodic or in remission is a disability if it would substantially
limit a major life activity when active." The court concluded that “it is certainly plausible
-- particularly, under the amended ADA -- that Plaintiff's HIV positive status
substantially limits a major life activity: the function of his immune system. Such a
conclusion is consistent with the EEOC's proposed regulations to implement the ADAAA
which lists HIV as an impairment that will consistently meet the definition of disability.”
Alternatively, there might be grounds for arguing that this employer erroneously
regarded Horgan as disabled. Simmons’ comments reveal an inclination to assume the
worst about Horgan’s condition – despite evidence that his job performance had not
suffered. Simmons speculated about Horgan’s prognosis and the chances he would
develop AIDS, opined that his condition rendered him unable to lead, told him that he
needed to recover and go on vacation, removed him immediately from the workplace,
and terminated him the next day. Language in the ADAAA specifying that a perceived
disability can be established without showing that the defendant regarded the plaintiff as
substantially limited in performing a major life activity would also assist Horgan in
arguing for coverage under the “regarded as” prong of the ADA’s definition of disability.
3. Why was the employer’s questioning of this employee illegal? If, as it appears, the
termination was based on the employee’s disability, is there any way the employer could
defend its actions?
After hiring, the ADA restricts medical inquiries that might reveal the existence of a
disability to situations in which those inquiries are job related and consistent with
business necessity or voluntary. The questioning by Simmons, including both the initial
inquiries about “something physical or mental” that must be going on with Horgan and
the questions about his prognosis that followed the plaintiff’s admission that he was HIV
positive were certainly medical inquiries. The information would not be considered
voluntarily provided by Horgan, insofar as the purpose of the meeting had been
concealed and he divulged the information only under the pressure of insistent
questioning. It is unclear what exactly prompted Simmons to engage in this line of
inquiry – perhaps a rumor he had picked up on or possibly some discernible differences
in Horgan’s behavior. The limited evidence presented in the case suggests that there had
been no adverse effects on Horgan’s job performance. Thus, it seems unlikely that the
employer would be able to show that it had “a reasonable belief, based on objective
evidence” that a medical condition was making it not possible for the employee to
perform the essential functions of his job or that he was a direct threat to himself or
others. And if there were not sufficient grounds to ask him questions about his medical
condition, it is most unlikely that the employer would be able to defend the
discriminatory termination claim by showing that the employee’s HIV positive status
rendered him unable to perform the essential functions of the job or that he was a direct
threat.
4. Why do you think the company president acted as he did?
Normally, I would not use a brief district court decision as a chapter case. However, I
wanted a case illustrating the impact of the ADA Amendments Act and there were very
few cases available at the time at which this text was being prepared. But this case also
has the virtue of presenting us with a simple set of facts showing the potential for the
misunderstanding and stigma surrounding some conditions – especially HIV and AIDS –
to result in disability discrimination.
EEOC v. UPS Supply Chain Solutions

620 F.3d 1103 (9th Cir. 2010)
The plaintiff in this case is a deaf person who does office work for UPS. His primary
language is American Sign Language (ASL). He reads and writes in English at a fourth or
fifth grade level. He was able to successfully perform his job duties. However, he
encountered difficulties participating in weekly workplace meetings, job training, and
disciplinary meetings.
1. What was the legal issue in this case? What did the court decide?
The issue was whether UPS failed to reasonably accommodate a disabled employee. The
appeals court reversed the district court’s grant of summary judgment to the employer
and remanded the case.
2. What things did UPS do for this employee? Why does the court nonetheless allow the
employee’s failure to reasonably accommodate claim to go forward?
The plaintiff regularly complained about not being able to understand what was going on
at meetings and to participate in them by asking questions. He was given written notes
after meetings, although these were not very comprehensive. A system was briefly
adopted of having a co-worker take notes during the meeting and show them to the
plaintiff, but it was difficult for the note takers to keep up or provide more than the broad
outlines of what was being discussed. The plaintiff repeatedly requested assignment of an
ASL interpreter during meetings. After a period of complaining, a sign language
interpreter was provided for monthly meetings, but not for the weekly meetings. When
the plaintiff announced that he would not attend meetings if an ASL interpreter was not
present, he was written up as being insubordinate. However, managers’ treatment of the
question of his attendance was inconsistent. While being told that he needed to attend all
meetings, he was not actually disciplined when he did not do so.
Regarding job training, the plaintiff had been told for years that he needed
training to improve his Excel spreadsheet skills. He attempted to use an on-line training
program but could not understand the written material. After issuing numerous reminders
that he needed to complete this training, he was assigned a sign language interpreter for
the training. Upon being hired, the plaintiff had been issued a copy of the sexual
harassment policy, but was unable to understand it. There was subsequently an incident
where his behavior was construed as violating the company’s harassment policy. An
initial disciplinary meeting was held. An ASL interpreter was assigned. The plaintiff
apologized for the language and offensive gesture he had directed at another employee.
At a subsequent meeting to convey a written warning, no interpreter was provided. The
plaintiff had many questions about the meaning of the notice. He was told to look the
words he didn’t understand up in the dictionary. He was later asked to complete a
questionnaire and to sign for receipt of another copy of the company’s conduct and
harassment policies. Again, he had many questions about the materials and was told to
just look things up in the dictionary.
There was evidence that the accommodations offered during weekly meetings were
ineffective. The information was not sufficiently detailed and did not allow for
participation and questioning during meetings. The employee made regular requests for
interpreters and made it clear that he was frustrated with not receiving information. “[I]n
determining whether to provide an ASL interpreter for weekly meetings, UPS did not
consider the nature of the information being communicated in a particular meeting or the
length of the meeting, but instead relied on relatively arbitrary considerations. Schulz
testified that she decided to approve an interpreter for the monthly meetings but not for
the weekly meetings because she "felt once a month was sufficient." A trier of fact could
conclude that UPS refused to provide an interpreter for regular meetings that were less
than two hours long because there was a two-hour minimum charge for ASL interpreter
services. If UPS failed to consider whether the circumstances of a weekly meeting
necessitated the use of an ASL interpreter, then the trier of fact could find that UPS failed
to engage in the interactive process in good faith.” When it came to the training, an
interpreter was eventually provided, but not until several years after the need for training
was first identified. Problems in understanding the harassment policy and the meaning of
the disciplinary action taken against him were also known to the employer, but produced
inconsistent responses. ASL interpreters were sometimes provided, but at other times the
plaintiff was simply advised to consult the dictionary. “Even if Centeno did not
expressly request an interpreter to understand the Policy, a reasonable trier of fact could
conclude that UPS was aware or should have been aware that the modification it offered--
consulting an English-language dictionary--was not effective.”
Fundamentally, this case is about the employer’s obligation to accommodate a
disabled employee so that he could fully participate in the workplace and enjoy the same
benefits and privileges of employment enjoyed by non-disabled employees. Conditions of
employment do not have to be made literally identical for disabled employees, but the
employer clearly has an obligation to ensure that a disabled employee is not isolated and
excluded by virtue of failure to make accommodations to a known disability. The
company’s actions in this regard were inconsistent, grudging, and somewhat arbitrary.
3. Why does UPS not argue that providing the ASL interpreter would be an undue
hardship?
Under the ADA, UPS would have to show that providing the requested accommodation
would result in significant difficulty or expense for the company. Given the size and
resources of UPS, and the fact that it was able to provide interpreters for monthly
meetings, they would have a difficult time arguing that providing the interpreter would be
an undue hardship. The court suggests that a primary motive for not approving the
interpreter for weekly meetings was that interpreters are assigned on the basis of a two-
hour minimum and that UPS would not get its money’s worth for meetings that last less
than two hours.
4. Is the issue in this case deafness or literacy? Are these connected?
While the literacy levels of deaf persons differ, it is common for deaf persons to have
difficulty learning to read and write in English and to read at a primary school level.
Deaf persons are at a severe disadvantage learning English or other languages because
they lack exposure to spoken language. Most people learn language by first hearing it and
then making associations between letters and sounds. It is also the case that deaf persons
who learn ASL are in the position of having to learn an entirely different English
language with a different grammar and without direct parallels for certain words or
concepts. For deaf persons, problems in reading and writing in English are a
manifestation of their disability.
5. Do you agree with the court’s decision? Why or why not?
Cloutier v. Costco
390 F. 3d 126 (1st Cir. 2004), cert. denied, 2005 U.S. LEXIS 4923
The employer instituted a dress code that included a “no facial jewelry” requirement. An
employee who wore facial jewelry informed the employer that she was a member of the
Church of Body Modification and that the policy conflicted with her religious practices.
The employee was eventually suspended and then terminated for non-compliance with
the policy. The district court granted summary judgment to the employer on the grounds
that it had offered a reasonable accommodation that the employee refused, even though
the offer of accommodation did not come until after a charge was filed with the EEOC
and the parties were in mediation.
4. Should courts consider accommodations offered after an adverse employment action

has been taken, in determining whether an employer has failed to offer a reasonable
accommodation?
In general, post-filing actions of an employer cannot be used to excuse prior violations of

the law. Ruling otherwise would allow employers to violate the law and then avoid
liability by doing what should have been done before a charge had to be filed. Yet, there
are also benefits to allowing accommodations offered post-charge to be considered, as it
encourages mediation and voluntary settlements. The district court said the
accommodation offered during the mediation process was reasonable and had been
rejected by the plaintiff. The appeals court declined to decide the matter, focusing instead
on its conclusion that no accommodation could be given without undue hardship.
5. Does Costco meet its burden of showing that there is no accommodation acceptable to
Cloutier that it could provide without undue hardship? Under the logic of this decision,
would employers ever have to make exceptions to established dress and appearance
codes in order to accommodate religious practice?
The appeals court concluded that Costco had met its burden in this regard. This
conclusion rested primarily on the view that Costco has a basic right as an employer to
decide on personal appearance standards and to protect the image that its employees
convey to the public. Since exemption from the policy was the only accommodation that
Cloutier would accept, the cost of losing control of its public image, though non-
economic, was far more than de minimis. The court rejected the plaintiff’s arguments that
there was no undue hardship shown because the employer’s concerns were purely
hypothetical, the employee had not received any complaints or comments during the time
that she worked with the facial jewelry in place, her job performance did not suffer, and
the policy was not consistently enforced anyhow. The court cited other cases in which
appearance requirements stood up to legal challenges on religious and other grounds, but
no cases in which courts have found for the plaintiffs.
Certainly, this would be an easier case if the plaintiff had been willing to cover
the facial jewelry in some fashion and the employer refused to go along with that. It is
hard to see how making an exception of this sort would impose undue hardship. But the
court’s rationale that employers have a basic right to control their public image by
establishing appearance requirements and that assumed customer preference trumps the
need to accommodate religion is very sweeping. Costco offered no evidence of hardship
other than the existence of the policy itself and its own notion about what looks
“professional.”
JUST THE FACTS
Page 346 of text
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 she 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? (See 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.
Page 356 of text

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 and went to work
elsewhere. Did this employer fail to reasonably accommodate this employee? (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. Eckstrand'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.
Page 370 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
In light of the ADA, how should employers deal with employees afflicted by 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).
What 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).
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.
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
persuasions. 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.
END OF 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 woman with severe, chronic back problems that resulted in multiple surgeries
returned to her job as an inspector at a candy factory. Her physician cleared her for light
work that required no bending, stooping, or lifting of more than twenty pounds. The
factory had three lines on which inspectors worked. On two of them, inspectors could
remain seated while performing their tasks. On the third (line 7), inspectors had to stand
and repeatedly bend and twist to sort different-sized candies moving down the conveyor.
Initially, on her return, the woman was assigned to only one of the less physically
demanding lines. However, the company subsequently decided, due to the high incidence
of repetitive stress injuries at the plant, to implement a job rotation system. Under this
system, the woman would sometimes have to work on line 7. The woman requested an
exemption from the job rotation system, but this was denied. The woman was unable to
continue on the job. Has this employer failed to reasonably accommodate this employee?
Why or why not? (Turner v. Hershey Chocolate USA, 440 F.3d 604 [3d Cir. 2006])
The appeals court reversed the lower court’s grant of summary judgment to the employer.
A reasonable jury could find that rotating between these positions was not an essential
function of the inspector job. Thus, the accommodation of allowing the employee to be
exempted from having to rotate between lines would constitute the elimination of a
marginal function, making it a “reasonable” accommodation. The court noted that the
inspector position does not exist for the purpose of having employees rotate between
lines; the use of a rotation system had no bearing on the number of employees needed to
perform the work; and rotating between lines is not a highly specialized function for
which the plaintiff was specifically hired (indeed, it is the opposite of a specialized skill).
The court also noted that neither the written job description for the inspector position nor
the collective bargaining agreement made reference to rotation. Nor has job rotation been
the general practice of this company in the past. The court stopped short of actually
deciding that job rotation is not an essential function of this job, leaving that
determination for a jury.
3. A bank loan officer who was taking medication for depression had numerous drinks at
a local bar, went to a cemetery, and, with a gun in his hand, threatened to commit
suicide. He eventually drove off but was intercepted by the police and committed to a
psychiatric facility for four days. His physician certified that he would be able to resume
all of his duties in a week, but the bank balked at reinstating him. Officials at the bank
expressed their shock that he was released from the hospital so quickly after threatening
to kill himself. He was told that he could not be immediately reinstated because of “the
impact of your action in the community and on the ability to perform your job.” He was
placed on a leave of absence and then terminated. Did the bank violate the ADA? Why or
why not? (Lizotte v. Dacotah Bank, 2010 U.S. Dist. LEXIS 1223 [D.N.D.]
The district court denied the employer’s request for summary judgment on the plaintiff’s
ADA disparate treatment claim. The plaintiff argued that he was covered under the
ADA’s “regarded as” prong of the definition of disability. The relevant decision makers
were aware of the plaintiff’s psychological problems and that he was taking medication
and receiving treatment prior to the suicide threat. They made statements indicating that
they were concerned that his condition rendered him unfit for bank work because of
safety and public image concerns. One manager professed to be amazed that he had been
released so soon and was looking to return to work rather than in jail. “There is
undisputed evidence that Lizotte was terminated on December 14, 2006 because of the
Defendants' concerns about "safety," "reputation," "customer acceptance," "liability," and
a desire to protect the bank's image in Minot. The EEOC regulations and case law
explicitly state that such "attitudinal barriers" may reflect a perception of disability based
on "myth, fear or stereotype" and that this is a scenario the ADA is designed to guard
against. The Court finds that Lizotte has presented sufficient evidence at this stage to
show that there are genuine issues of material fact as to whether Dacotah Bank officials
regarded Lizotte as being disabled or impaired under the ADA.”
The court concluded that his physician had certified his ability to return to his job
(hence, he was “qualified”) and that absent the incident in November 2006, he would not
have been terminated. The bank asserted that its decision to terminate was based on
concerns for the safety and customers and co-workers and for the public image of the
bank. However, the employer did not assert the direct threat defense (which, as an
affirmative defense, it must do) and there appeared to be little evidence that he continued
to pose a threat to safety. Arguments about reputation were also questionable, since the
bank did not suffer losses or adverse publicity in the wake of incident. The incident was
known to only a few other employees at the bank. The employer’s concerns appeared to
be highly speculative at best. The court concluded that “The ADA does not require that
Dacotah Bank officials put its staff and the general public at risk by employing an
individual who poses a direct threat to others. But the ADA does require the bank to
provide due consideration to an individual they arguably may have "regarded as" having
a mental impairment and who may be able, with reasonable accommodation, to perform
his work productively and safely.”
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 ws termianted 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 Catholid Church. The teacher sued for 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 rhe 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.
15. Should employers be required to allow disabled employees to work from home as a
reasonable accommodation? If so, under what circumstances? (See U.S. Equal
Employment Opportunity Commission. Work at Home/Telework as a Reasonable
Accommodation. Viewed July 17, 2007 (http://www.eeoc.gov/).
The issue goes back to whether attendance is an essential function of jobs or, as the
EEOC suggests, simply a condition under which the essential functions of job are
performed. Courts have sometimes held that allowing a disabled employee to work from
home might be required as a reasonable accommodation. According to the EEOC, factors
relevant to determining whether the essential functions of jobs can be successfully
performed at home include whether the person can be effectively supervised remotely,
whether specialized tools or equipment available only at a work site are required to do the
job, whether in-person interaction and close coordination with other employees is
required, whether the work requires in-person interaction with customers or clients, and
whether there is a need to access documents or other materials available only at a work
site. The opportunity to work from home would open up employment opportunities for
many disabled persons, particularly those whose physical mobility is impaired. As more
work is done on-line and the physical location of the person performing the work
becomes less important, the number of jobs that could be performed by a disabled person
from his/her home has also increased.
FOR A CHANGE OF PACE
The following role play presents a situation in which an employee with a
disability broaches the topic of reasonable accommodation. The role play can be used to
introduce an employer’s obligation under the ADA to engage in an interactive process
and reasonably accommodate its disabled employees.
“Too Much to Ask?”
ACT I
[ Dorothy Davis is an insurance claims representative for All-Farm Insurance Company.

Her supervisor Jenny Jackson has asked to meet with her.]
Ms. Davis – [entering Ms. Jackson's office] Am I early? I could come back later …
Ms. Jackson – No, not at all. Come in … please. The reason that I asked you to come in
is because I have some concerns about your performance, particularly in the past few
months. First of all, you've been getting into the office late, sometimes not until 9:30 or
10:00. And when you get here, you appear to be moving in slow motion. Your
backlogged claims are starting to pile up. You've been around for a while and you know
that we can't have claims piling up.
Ms. Davis – [clears throat] Well, I've been kind of having some problems lately.
Ms. Jackson – What problems?
Ms. Davis - Winter is a really tough time for me. I've been battling depression for a few
years. I'm taking medication and it makes me groggy in the morning. Sometimes I just
can't get out of bed when the alarm clock goes off. When I finally drag myself here, I
feel like I don't have any energy. It gets better in the afternoon.
Ms. Jackson - I'm sorry to hear about this. … But that still doesn’t resolve the problem of
your sub-par performance.
Ms. Davis – Well, I was hoping that I might be able to get some help from the company.
Ms. Jackson – Help? What kind of help?
Ms. Davis - My doctor told me that drowsiness is a normal side effect to my medication
and that I should change my work hours to start later in the morning. The limited
daylight this time of year is also a problem for me. My doctor says that I should have
some special lighting for my office and get the walls painted in brighter colors. My
doctor also says that she wants to see me more often now. I may need to start taking
some half days if she doesn't have evening hours open.
Ms. Jackson – Well, I must admit that this is a lot to take in. … I'll tell you what. Let me
talk with my boss Mr. Maxwell and then I'll get back to you.
Ms. Davis - Thanks, I really appreciate your help.
ACT II
[Ms. Jackson and Mr. Maxwell confer]
Mr. Maxwell – [incredulous] Winter is a "really tough time" for her? Well, she can just
join the crowd. I'd like to be in the South Pacific right now myself. And I suppose that
she wants an art deco office?
Ms. Jackson – She seems to be serious about this. She said that she suffers from
depression and that her doctor has recommended these things …
Mr. Maxwell – [louder] Hold it right there! How do we know how serious her condition
is? Or if she has this condition at all? And so what if some shrink says that she needs us
to do all of these things. You know how flaky psychiatrists can be. Look, we don't have
a flex-time program in this company and I don't see why we should create one just to
satisfy one claims representative who has the blues. New lighting and re-painting would
cost us money. But my bigger fear is that is that we'll have to start refurbishing
everyone's office. And this idea of taking half days off here and there to get therapy
sounds like a real headache.
Ms. Jackson – Even if we're not crazy about doing all of this, we have some legal
obligations here, don't we? And Dorothy has done good work for us for many years. I
checked with people in the office and they tell me that she's been suffering with
depression for a long time, but that it seems to have gotten much worse over the past
month. She can barely drag herself into work.
Mr. Maxwell – Again, that's hardly a mark of distinction around here. I don't think that
we should do anything until she gets us some detailed information in writing from her
psychiatrist. And she's going to have to see another doctor that we choose. If it turns out
that she really has a problem, then we'll put in the new lighting. If she needs time off to
see her doctor, she'll have to schedule it at least a week in advance. The rest of the stuff
she is talking about is nonsense and would cost too much money or violate our
established policies. And she needs to understand that she can't keep coming back to the
trough. I don't want to hear about a whole new set of demands next month!
Ms. Jackson – So I guess that's what I'll tell Dorothy then. …

From Act I, it is important to point out that a request for accommodation need not
expressly reference the ADA or “reasonable accommodation.” It is enough that the
employee has informed the employer about a disabling condition (which would include
adverse side-effects from her medication) and her need for assistance in dealing with the
condition’s impact on her ability to perform her job. The supervisor did not dismiss the
request out of hand or make some other obvious blunder, but she should have sought
more detailed information on how the employee’s condition affected her ability to
perform the job and on other possible accommodations.
From Act II, the overriding issue is the partial, grudging compliance with the
ADA. Rather than engage in the “interactive process” in good faith, Maxwell expresses
considerable skepticism about the request, unilaterally determines what accommodations
will be provided or not provided, places limitations on the use of leave that might not
apply to other employees, and makes a blanket judgment that certain accommodation
would be too costly or disruptive. An important point to be made is that the obligation to
accommodate is on-going; additional or different accommodations might have to be
provided in the future. The employer can require additional medical documentation, but
should not do so as a matter of course (and must pay for any second opinion). The
information provided should focus on functional limitations imposed by the employee’s
condition and not “detailed” medical information more generally (remember that medical
inquiries regarding current employees are limited by the ADA to those that are job
related or voluntary in nature). It can also be noted that the employee’s condition would
likely qualify as a serious health condition entitling her to FMLA leave.
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Adequate study demands not simply that an abundance of data
which bear on the problem be secured, but that the validity of the
data be brought into question. Children ought not to accept blindly
the statements of books or even of the teacher. The one thing which
characterizes the student is his search for truth, his attitude of inquiry
as opposed to an appeal to authority. It is well for children at times to
question the statements found in their books when experience
suggests the doubt. It is equally important, of course, that they be
willing to acknowledge their mistake, should proof be forthcoming in
support of the book. If a child really studies, he must, even as an
adult, find statements of fact, the records of observations or
experiments, which are at variance with the evidence which he
already possesses. It is just in this particular that the student differs
from ordinary men who allow others to do their thinking for them. The
student may not be able to settle the question, and so forms a
judgment which is frankly tentative. Children ought to have the
experience of finding that there are some questions to which a
definite answer cannot, in the present state of knowledge, be given.
They should be shown, wherever possible, how the conclusions of
men on some of the most important problems that have been studied
have changed from time to time. They can at times be made to
realize the folly of overhasty generalization.
No one has learned how to study who has not been trained to
reflect upon his experience, whether the experience has been
recently acquired with the express purpose of solving his problem, or
is some more remote element in experience which may shed light on
the question in hand. A skillful teacher can guide in this process of
reflection, and will later tell them what is meant, and demonstrate for
them something of the value of the practice. It is quite worth while for
a student to know when he has concentrated his attention upon a
problem, and just what is meant by reflection. Many older people
deceive themselves into thinking that they are exercising themselves
in these directions when a slight acquaintance with the elements
involved in fixing attention or in reflection might awaken them to the
futility of their practices. There need be nothing occult or hard to
understand about the practice of study. It is not a matter of
terminology nor of a systematic course in psychology, but rather
consists in guiding the individual in his practice of the art, and then
making known to him the elements in his experience which have
meant success or failure. It may be enlightening to compare the
emphasis upon careful examination of data, the formation of
tentative rather than fixed judgments, the guarding against hasty
generalizations, and the emphasis upon reflection with the steps of
presentation, of comparison and abstraction, and of generalization in
the inductive lesson, and with the corresponding steps of the
deductive lesson. The conviction will probably be deepened that
when the teacher instructs the student in the art of study she is
making available for him the method which she employs in
instruction. This must be the relationship; for the teacher can do
nothing more than take account of the way the child learns, and
adapt her method to his possibilities.
The habit of verification is one of the most important from the point
of view of learning how to study. The questions which the student
must constantly ask himself are: “Can the conclusions be applied?”
“Do they always hold?” “Does it work?” Fine-spun theories are of
little avail, however much satisfaction the originator of them may
have found in deriving them. At every step in the progress of his
thought the conclusions must be tested by an appeal to known facts.
The teacher cannot too frequently insist upon this step as the
criterion of the worth of the thinking which has been done. And the
insistence will be necessary, for it seems natural for human beings to
become so enamored of their theories that they hesitate to expose
them to the test which may prove them false.
Teaching children to memorize: Throughout the school life of the
child, memorizing is a regular part of his work. If practice alone were
necessary, every child should soon learn how to do this kind of work
in the most economical manner. The great difficulty is that often
neither teacher nor pupil has given any thought to the method
employed, their attention having been wholly engrossed with
success or failure in achieving the result. It is a well established
principle of psychology that the possibility of recall is conditioned by
the system of ideas with which that which we wish to recall has been
identified. The more associations made, or the more perfect our
control of any system of ideas which involves that which we wish to
remember, the greater the probability of bringing to mind the fact
when we need it. As Professor James puts it: “Of two men with the
same outward experience, the one who thinks over his experiences
most, and weaves them into the most systematic relations with each
other, will be the one with the best memory.” And along with this fact
is another equally important for the teacher: that we may not hope to
increase the native power of retentiveness. The child whom we
teach may be endowed by nature with little or much power of this
sort, and we cannot change it; but we can improve his method of
memorizing.
The first step in memorizing is to understand. If we try to commit to
memory the words of a book when we do not fully comprehend the
meaning, we are depending very largely on our desultory memory,
i.e. upon our ability to remember the things because they have been
once present in mind; and our efficiency will depend wholly upon our
quality of native retentiveness. But, unfortunately, for want of
knowledge of a better method, children are frequently satisfied that
they are doing adequate work when they are repeating over and
over again the words which they have made little attempt to
comprehend.
Even when the sense of the words to be memorized is fairly clear,
it is uneconomical to employ this method of accretion. The child who
studies the poem by saying first the first line, then the second, then
the first and second, then the third, then the first, the second, and the
third, depends upon mere repetition, not upon thinking, for the
persistence of the impression. It has been demonstrated that on the
basis of the amount of time required this method is uneconomical.
Add to this the fact that after the first complete repetition, later
successful recall depends upon the efficiency of the system of
associated ideas which have been established; and there can be no
doubt of the folly of such a method of procedure. It is no wonder that
children who commit to memory in this way forget so readily. They
may have understood what they said when they first repeated the
poem; but the method they employed almost precludes the building
up of a system of associated ideas on the basis of careful thinking.
If the child has read aloud and understands the selection to be
memorized, the next thing to be done is to analyze it into its principal
thought units; and then each of these large units of thought may be
again carefully scrutinized until a full appreciation of the thought has
been accomplished. The thought of the whole may then be stated,
using as far as possible the words of the author, and then each of
the subdivisions or thought units may be examined in more detail in
order to get the shade of meaning that is brought out by this or that
word, by relationship of coördination or subordination of clause, or
the modification indicated by this word or phrase. It will be
necessary, as the work progresses on the large thought units into
which the selection has been divided, to return constantly to the
whole thought in order to keep clear the relationship of the part to the
whole, and to establish the part in the system of ideas which we
seek to build up. “All the evidence we have goes to show that the
method of memorizing by wholes is most economical.”[12] If children
were taught to work in this way, there would be little drudgery about
memorizing. The careful, thoughtful study once completed,
memorization has been accomplished. The energy and attention of
the child have not been centered upon a merely technical process,
but he has been concerned mainly in trying to appreciate fully the
thought that he is to make his own. Memory work of this kind is
highly educative, not merely because of the product, but also
because of the process employed. Suppose, for example, you wish
children to memorize Stevenson’s Bed in Summer:—
In winter I get up at night

And dress by yellow candle-light.
In summer, quite the other way,
I have to go to bed by day.
I have to go to bed and see

The birds still hopping on the tree,
Or hear the grown-up people’s feet
Still going past me in the street.
And does it not seem hard to you,

When all the sky is clear and blue,
And I should like so much to play,
To have to go to bed by day?
You would begin by reading the whole poem, calling to mind the
experiences of the children in going to bed before dark on the long
summer evenings and of the cold, dark winter mornings when they
may have dressed before it was light. The number and the kind of
explanations which will need to be made will, of course, depend
upon the previous experience of the children and the time of the
year. Then the poem might be read again a time or two. After this
preliminary work has been done, you might ask some one to tell you
the story. Let us suppose that the reply was about as follows: “A little
boy had to get up before it was light in the winter, and go to bed
before it was dark in the summer. In summer when he went to bed
he heard the birds hopping on the trees and the people walking past
him in the street. He thought it was hard to have to go to bed when it
was still daylight, when he wanted so much to play.” If the main facts
were less well told, or if there were notable omissions, it would be
necessary to get at least an outline of the main thought before
proceeding. Now we are ready to call the attention of the children to
three main thoughts, each told in a stanza. First, the difference
between getting up in winter and going to bed in summer. Second,
what did the boy in the story see and hear when he went to bed
before dark? Third, how do you feel when you have to go to bed in
summer while the sky is still so clear and blue, and you would like so
much to play?
It will be very easy to get the thought of the first stanza impressed
in the words of the author. It will help to read the whole poem again,
the teacher meanwhile asking the children to pay particular attention
to the way the author says it. Possibly there will be some difficulty
with “quite the other way,” but skillful questioning will get the correct
form. And so for the second and third stanzas; if the thought is clear,
the words will follow very easily. After each thought has been thus
carefully developed, with the whole story always in mind, and the
words of the author have been made the vehicle of expressing the
thought by the children, it will be advantageous to have the poem
repeated several times by individual members of the class. In this
repetition the dramatic element should enter as far as possible. To
suit the action to the word, to really feel what one recites, helps
greatly to strengthen the impression, and thus aids recall.
It may be thought that the illustration used was particularly well
adapted to illustrate the theory advanced. Or some teacher may say
that children would memorize Bed in Summer without teaching. It
may, therefore, not be out of place to suggest that the best way to
discover for one’s self the value of the method is to try it. It will work
equally well if the subject is Lincoln’s Gettysburg Address, a
selection from the Declaration of Independence, the Twenty-third
Psalm, or any other masterpiece of English.
The principles to be applied are essentially the same even when
verbatim memorization is not required. To get lasting control of the
facts of geography or of history, one must have reduced them to a
system. There must be a relating of less important facts to more
important, a clustering of important points of reference to any other
facts which are logically related. This, indeed, is just what scientific
organization means, and the main purpose of such organization is to
render facts more available, to save labor. The memory is relieved of
much of its burden when once we have established the relationship
of cause and effect, of equivalence, of similarity, or of analogy
among facts. It is this association of ideas on a logical basis which
counts most in the possibility of recall.
It is quite possible for children, very early in their school life, to
begin to apply these principles and to become conscious of the fact
that the way they do their work has an important bearing upon the
ease with which it is accomplished and the permanency of the
results gained. The work of the teacher is not done by merely
dictating the method, even though that may help greatly to establish
right habits of study; our best assurance that the method will be
employed when the teacher is not present to direct the work is found
in our knowledge that the children not only habitually, but also when
a question arises or there is a suggestion of another way,
consciously employ the right method.
Teaching children how to form habits: Our next problem is to
inquire how children may be led consciously to employ the principles
of habit formation when their school work involves work of this type.
They can be taught the function of drill or repetition, and can be led
to see under what conditions such work will prove most successful. It
is not difficult to prove to a boy that his listless, half-hearted work in
repeating the spelling of the words he has missed is making little
improvement in his ability to spell them. A boy can be led to see by
an illustration in which he himself is the chief actor that concentrated
attention will make much difference. Let him see how much he can
accomplish in ten minutes, and thus get him in the habit of using this
means when he finds that he is not working up to his normal
capacity. Show him that a new impetus will be given and that
attention will be easier if he reverses the order, writes instead of
spelling orally, or closes his eyes and attempts to visualize the
words. No matter what motive the boy has for the attempt he is
making, he will welcome the suggestions which make the task
easier.
Later you can teach this same boy the need of verification before
drilling himself whenever a question of fact is raised. In the
beginning, of course, the doubt or question will be raised by the
teacher, and it will be the chief work of the child to find an authority
and assure himself that he has the right idea or form before
proceeding. A big step in the education of a child has been taken
when he is able to say, “I know I am right, because I have consulted
the commonly accepted authority.” Occasions will arise constantly in
the study of any subject where, instead of asking the teacher or
being satisfied with information which is of questionable validity, the
child should, as a matter of habit, turn to the authority for verification.
It is not at all unusual for children to have misgivings, but they too
frequently end by going ahead and ignoring their doubt. To respect
one’s doubts, to be somewhat critical, is significant for education
only when one is led thereby to endeavor to discover the truth.
Children will work to advantage when they realize that these steps of
doubt, verification, repetition, with undivided attention, are essential
to good work.
Children can be taught the necessity of accuracy in practice. Any
day’s work in a schoolroom will furnish illustrations of the danger of
lapses and the necessity of guarding against them. The fallacy of the
notion that “this one doesn’t count” can be made just as clear to
children as to adults. So, too, the mistaken notion that cramming
may be substituted for systematic work day in and day out can be
brought to the attention of pupils.
It would be a good plan for every teacher to ask herself questions
like the following: “What would the children do if I did not carefully
direct their work?” “How much better able are they now to work
independently than they were at the beginning of the year?” “Can
they take a book and find in it the part which bears upon the topic
assigned for study, and do they do it with the least possible waste of
time and energy?” “Do they know how to memorize; what it means to
concentrate their attention; how to reflect?” “Are they more open-
minded or more dogmatic on account of the year spent with me?”
“Have they established the habit of verification?” “Do they appreciate
the method to be employed in habit formation?” To answer these
questions honestly will give the teacher some idea of her success as
a teacher, for the teacher’s goal is realized in proportion as her
pupils have advanced in power to work independently of her
guidance or control.
In teaching children how to study, it will be well to devote whole
periods to this type of exercise. The teacher will gain much in the
progress which her class will make by taking a period frequently
during which she studies with the children. By example rather than
by precept, by guiding children in correct methods of study and then
making them conscious that they have done their work to the best
possible advantage, rather than by telling them what to do, she will
secure the maximum of results in her endeavor to teach children
how to study.
For Collateral Reading

F. M. McMurry, How to Study.
Lida B. Earhart, Teaching Children to Study, Chapter VIII.
Exercises.
1. What is the relation between a knowledge of the principles of teaching and
the attempt to teach children how to study?
2. How would you teach a boy to study his spelling lesson?
3. What exercises would you give your pupils to make them able to use books to
the best advantage?
4. State five problems which you have assigned to your pupils which seem to
you to have furnished a sufficient motive for study.
5. Which would be better as an assignment for a class in history: “Study the
topic of slavery for to-morrow”; or, “Try to find out why slaves were not kept in the
Northern states”; or, “Did all of the people in the Northern states believe that
slavery should be abolished?”
6. What is the advantage in individual or group assignments? Give a list of such
assignments which you have recently given to your class.
7. Why is it necessary in studying to restate the problem under consideration at
frequent intervals?
8. When children study, should they try to remember all that they read in their
books?
9. Is it wise to have children critical of each other’s contributions during a
recitation?
10. How could you hope to train children to discriminate between the material of
greater and of less importance when they read books to find the answers to their
problems?
11. What do you think of the success of a study period where ten problems are
given, each independent of the others?
12. How would you expect children to verify the conclusions which they reach in
solving their problems in geography, nature study, or arithmetic?
13. Take any poem of from four to ten stanzas, and have your pupils commit it to
memory as a whole by reading it over and discussing the thought as often as may
be necessary. Take another poem of equal length and of equal difficulty, according
to your judgment, and have them commit it to memory line by line and stanza by
stanza. (A good plan would be to take four stanzas for each test from the same
long poem.) Three weeks after each selection is learned, without suggesting to the
pupils that the selection is to be called for again, find out what part of each
selection can be recalled.
14. How could you teach your pupils that the repetitions which count when
studying a spelling lesson are the ones which are made with attention
concentrated upon the work in hand?
15. Is a study period in the schoolroom properly regarded as a rest period for
teachers and pupils?
16. Are the children you teach better able to get along without a teacher than
they were when they came to you? What evidence can you give to show that they
can work independently?
CHAPTER IX
R E V I E W O R E X A M I N AT I O N L E S S O N
The review or the examination, in so far as methods of teaching

are concerned, present the same problem. We seek by means of
exercises of this type to bring about a better organization of
knowledge, to test the efficiency of our work by finding out whether
or not pupils can, when put to the test, utilize the knowledge or
habits which we have labored to make available for them, whether
they are actuated by the ideals and purposes which we have sought
to inculcate, whether they do actually employ the most economical
methods of work when they meet a situation which challenges their
strength. It will be recognized at once that work of this sort is a part
of every recitation. But for our own satisfaction, and, possibly, in
order to meet the requirements which may be imposed by those
higher in authority, we may at times feel the need for a stated
exercise of this sort.
A review should mean a new view, a placing of facts in their true
relationship. It should mean a clearer view of the topic or the subject
which the children have been studying. It avails little to go over the
ground that has already been covered more rapidly. The purpose to
be accomplished is not to fix in mind a series of unrelated facts. In
our discussion of memory we had occasion to call attention to the
fact that recall of past experiences was conditioned by the number
and the quality of the associations which had been established. And
it is not simply a matter of recall. The use that we can make of a fact
depends upon our ability to relate it logically to other facts. It is quite
possible that a man of great native retentiveness might be able to
recall thousands of facts, and yet be stupid, utterly unable to do the
thinking required for effective action. To bring about such an
organization of ideas demands that from day to day the new facts or
principles that are learned be consciously related to the old. It will not
be economical to put off all reviewing until the end of the month, or
quarter, or term. The step taken in advance to-day can be properly
appreciated only when it is seen in relation to that which has gone
before; and the work of the past week or month will, in turn, by this
additional effort be seen in truer perspective.
There are, however, convenient units into which subjects naturally
divide themselves; and when one of these units has been
completed, it may be well to take a period or two for the express
purpose of review. We may then clear up any misconceptions, give a
chance for additional verification and application of the knowledge
thus far gained. It cannot be too strongly emphasized that the review
which really counts is one in which the teacher works with the
children, guides them and instructs them, rather than sits in
judgment over them. There is nothing more disastrous to the best
type of work than the idea on the part of children that the review
lesson is the teacher’s opportunity to ask catch questions, or to
overemphasize unimportant details. Children respond very quickly in
such a situation by their endeavor to cram, with little or no effort at
organization, all of the facts that they have been taught.
A convenient stimulus to the proper sort of review is found in the
requirement that pupils prepare an abstract or topical outline of the
ground which has been covered, and submit it, preferably from
memory, for class criticism and discussion. If the teacher asks
questions, she should be very careful to see that they are questions
of large scope which demand organization, or still better the
application of organized knowledge. This brings us to the problem of
testing.
The only adequate test of school education, as of all other
education, is action. The nearer we can in our tests reproduce the
conditions which will confront the child in actual life, the better. Not
that we can always have him actually present in the situation; but
when that is impossible, we can present for his consideration ideal
situations which correspond to those which he will later find. The
possibilities of presenting precisely the test which he will meet and is
meeting in life are, I believe, much greater than most examiners
suspect. We have discovered after many years that the best test of a
child’s ability to spell in the only situation in which he will ever need
to spell is to test him in that situation; i.e. by judging his ability in
writing words in connected discourse. The way to discover whether
one can speak or write grammatically is to listen to him speaking or
reading what he has written, and not to ask him to recite rules of
grammar. The only real test of a child’s ability to give adequate oral
expression to the story or poem is to see whether or not he can
make clear the thought and furnish enjoyment to others, preferably
to those who have not before heard the selection which he reads.
We can assure ourselves that we have awakened an interest in
literature and history, when we know that children read good books
other than those which we compel them to read. The success of
manual work, the time spent in art or music, ought certainly to be
measured by ability to make and to decorate, the singing of songs,
and the desire to hear music, or to see pictures. The more occasions
that can be found for the application of the arithmetic we teach in
actual measurements and computations which have real significance
to children, the better will children understand their work, and the
more certain we can be of their future efficiency.[13] It is coming to be
a recognized principle of nature study that the common things, the
animals and plants which are significant for our living, are the ones
which should engage our attention; and we expect that children will,
on account of the teaching, enjoy more, take better care of, and
utilize to better advantage the plant and animal life with which they
come in contact. Even in such subjects as history and geography,
one can hope to find just such applications while the child is studying
as are apt to occur in his later life. The presentation of the results of
the study of a country to a school assembly with the aid of pictures
and a lantern, or the interpretation of current events in the light of
their geographic setting will afford no mean test of the children’s
knowledge of geography. The comparison of to-day’s happenings in
the light of the events of a decade or a century ago; the explanation
of the historical reference in the period devoted to literature; the
writing and presentation of a historical drama, will afford as great
application of one’s knowledge as most of us ever make.
Work of the sort indicated above will not only serve to test the
value of the work that children have done, but will also add greatly to
the interest and enthusiasm with which children do their work. We
can scarcely hope that all examinations will satisfy this ideal; but of
this we can be sure, the more work of this kind we do with our pupils,
the firmer will be their grasp upon their work and the greater is apt to
be their power to satisfy even less adequate tests.
Examinations have another function which we as teachers should
not overlook. Any adequate test of children’s abilities is also a test of
our teaching. It will probably not be best for us to try to defend
ourselves by pleading the inadequacy of the test, nor the
backwardness of the pupils when they come to us, nor their
parentage, nor any other less common reason. If children do not
write as well as they should, if they misspell words they commonly
use in their written work, if they cannot tell the story, recite the poem,
solve the problem, describe the geographical area, or relate the
events of the historic period, we had better inquire whether we have
helped them to work to best advantage, whether we have clearly
differentiated the several aspects of our work and have then applied
the methods suitable to accomplish the desired result. There may be
mistakes made, but, all things else being equal, the teacher who
gets results is the best teacher.
We shall do better work, children, teachers, and supervisors, when
we have provided for our use more definite standards or scales by
which to measure our results. There is no reason why we should not
have a scale which would enable us to tell with a fair degree of
accuracy just what the standing of this group of children is in writing,
in ability to perform the fundamental operations in arithmetic, in
spelling, in writing compositions, in discussing the geography of
North America, in decorating a cover for a notebook, or in any other
subject or aspect of their school work. Beginnings have been made
in this direction, and we may hope for more as time passes.[14] As
these units of measure are perfected and applied in examining the
results of school work, we will, of course, hear the cry of those who
will tell us that the best things that a teacher does cannot be
measured. The obvious reply will be that efficiency in accomplishing
results which can be measured need not in any way prevent a
teacher from exercising that influence or doing that sort of work
which is not recorded on examination sheets. Rather it will be found,
I venture, that the efficient teachers, as measured by the results
which we can test, are, on the whole, the teachers that are doing the
noblest work. Strength of personality, appreciation of child nature, a
life which by its example makes for truth and beauty in other lives,
are qualities not uncommon in the teacher who is glad to be judged
by the results which pupils can demonstrate.
For Collateral Reading

W. C. Bagley, The Educative Process, Chapter XXII.
W. W. Charters, Methods of Teaching, Chapter XI.
Exercises.
1. What is the purpose of an examination?
2. Would you be willing, in a review of a large topic in history, to demand fewer
details than in the original study of the topic?
3. What is the value of an outline prepared by pupils as a part of their review
work?
4. Which is the better test of a boy’s ability in English, a high mark in an
examination in grammar, or a well written story of a fishing trip written for a school
paper?
5. Prepare a series of questions which you think might be used to advantage in
the examination of a class that has been studying the geography of Europe.
6. Give as many illustrations as you can of the application of the knowledge
gained in school to situations in which the pupils use their information or skill to
satisfy needs comparable to those which one meets in everyday life.
7. What is meant by saying that a review should mean a new view?
8. Do children commonly fail in examinations when they have been well taught?
9. Should children be promoted solely upon the marks made in examinations?
10. A boy’s average in an examination was 67 per cent. An examination of the
marks he received showed the following results: geography 80 per cent, history
100 per cent, composition 80 per cent, spelling 70 per cent, arithmetic 40 per cent,
grammar 40 per cent, and drawing 60 per cent. The passing mark was 70 per
cent; would you have promoted the boy?
11. How often should reviews be conducted?
12. Should children be notified in advance that examinations will be held on
certain days or weeks of the term?
CHAPTER X
T H E R E C I TAT I O N L E S S O N
The recitation lesson as commonly conducted consists in having

children tell what they have read in their textbooks. Sometimes the
teacher accepts or even demands that the pupils recite by repeating
the words of the book. Better teaching requires rather that they
render the thought of the author in their own language. In this
chapter we shall discuss some of the worthy ends which may be
accomplished by such an exercise, some of the common
deficiencies in work of this type, and the modifications which are
advisable in the light of the principles already enunciated.
The recitation lesson commonly tests the pupil’s memory for facts.
The questions asked and answered serve to reveal to the teacher
the knowledge or lack of it on the part of the pupil. In a way this
testing also gives the teacher some idea of the amount of work done
by the pupil. The great weakness of work of this kind is found in the
tendency to demand and to accept words, the rehearsing of facts
unrelated and unorganized. Of course this need not be true, since it
is entirely within the power of the teacher to frame her questions in
such a way that the pupil’s grasp on the whole topic rather than his
memory for isolated facts is tested.
The recitation which tests the pupil’s ability to present in orderly
fashion the substance of the thought found in the sections assigned
in the book for study is of genuine value. The topical recitation
affords an opportunity to develop on the part of children the ability to
stand on their feet and speak to a question for some minutes. And it
may be suggested in this connection that we should develop more
power of this sort than is commonly found in our schools. The ability
to express one’s self adequately on the topic under consideration will
always make for effectiveness in social life. It would be well to test
the progress of our pupils from grade to grade by their ability to
speak more effectively and for a longer period as they advance
through the school, on some topic connected with their school work.
When pupils are required not simply to recite on some topic which
is presented for their consideration, but are required to furnish their
own outline and to recite on the basis of their own organization of the
selections which they have read, the recitation may become a
valuable exercise in thinking. The success of work of this kind will
depend upon the definiteness with which the problem or aim of the
work has been provided. It will not require much thought simply to
follow the paragraph headings or marginal notes of the author and to
present the organization as a basis for recitation. If, however, a
problem has been suggested the solution of which may be found in
the pages assigned for study, then the recitation may test the pupil’s
power to analyze and organize the material which the book provides.
And this is the only test of a thorough mastery of the book. We do
not read to find out everything that an author says. Our needs may
demand a very different ordering of facts, we may use facts in
entirely new relations, and may ignore much that was essential from
a different point of view. Children have read their textbooks
thoroughly when they have derived from these texts the facts or
ideas which are essential in the solution of their problem, the
satisfaction of the aim which they hope to realize.
This ability to use to best advantage a book is a very valuable
accomplishment. When the recitation lesson accomplishes this
result, it justifies its use. Too frequently we find adults who seem to
feel that they must try to gather all of the knowledge and must try to
follow none other than the author’s point of view in their reading.
These persons read one book, and, as a result, believe one theory. It
seems not to disturb them greatly that the next book they read takes
the opposite point of view and that they range themselves on that
side of the question. Books are, or at least ought to be, our servants,
not our masters, and in the handling of books in his regular school
work the child ought to come to realize their true function. There is
no greater proof of a lack of thought than the ready acceptance of
whatever one finds in print.
There is great danger in the use of textbooks that children and
teachers will become satisfied with words, that they will come to
think that the repetition of the formula of the textbook is proof of
knowledge. Textbooks are all too often merely books of texts. They
have been made frequently enough by those who possess a very
wide knowledge of the field in which they write; and by some strange
process of thought they have apparently reached the conclusion that
the way to make a subject simple is to condense it. Many of our most
used textbooks are merely summaries or outlines of the subject
treated. They lack richness of detail, and state conclusions instead of
furnishing a large number of experiences, from which one may,
through processes of logical thought, derive the generalizations of
the subject. Take, for example, most of the textbooks in history for
elementary schools, and read carefully upon any topic selected at
random, and then ask yourself just what these words mean to
twelve-year-old children; or, better still, ask these children who
repeat so glibly the words or reproduce the statements of the book
just what they mean by the words they use. Try to discover whether
they have any adequate knowledge of facts, or any command of
images, which would make possible the generalizations which they
give as a result of the process of thought. Remember that a textbook
is not logical for children because it has been logically arranged by
the scholar. The test is rather to be found in the pupil’s ability to
reproduce in his own thinking the steps which have made possible
the conclusions of the author.
Any wide-awake teacher can make her work more interesting and
more significant for children, if she will carefully provide for the
enrichment of the text. The sources from which data can be
gathered, regardless of the subject under consideration, are almost
without number. Especially to be recommended are the standard
works in the subjects. It will be interesting to discover that children
would rather read Parkman than to study the text in which some less
competent person has endeavored to tell his story in a few
paragraphs which mean absolutely nothing to the child. The
magazines which publish articles of wide social interest will furnish
much helpful material. There is no school that may not greatly enrich
its work by an appeal to the actual experiences of the children and
by carefully directed observations and experiments. We need our
textbooks as a summary, as a convenient condensed outline, or as
books of reference; but we must provide as best we can other books
of reference which will furnish the details which are impossible in the
limited number of pages allowed to the text. In every room of every
school a library of books, pamphlets, magazine articles, and
illustrative material should be found, and every teacher should
expect to increase this collection and to improve its quality as the
years go by.
It will give new meaning to notebooks and note-taking, if both
teacher and children realize that the books thus prepared are a real
addition to the texts used. A comparison of the work done by
different members of the class will add interest in the work. One of
the greatest deficiencies of the recitation lesson is the danger that
nothing new will be presented. It is not intellectually stimulating to
listen to others who repeat simply the thought with which you are
already familiar. Where good notebook work is done and reported
upon, the chance for new ideas, the stimulus to thought, through the
presentation of new material, will greatly strengthen the work.
A tendency in work of this type to accept vague and indefinite
answers is another argument against the recitation lesson which
consists merely in rehearsing the words of the book. Statements are
apt to be vague when ideas are vague, and we may not expect ideas
to be very clear when the child lacks experience. The child’s power
of expression, aside from the difference in original talent in this
direction, is conditioned first of all by his acquaintance with things
and processes. The recitation lesson, as it is ordinarily conducted,
gives little opportunity for this sort of firsthand knowledge. To work at
the sand table, to construct with wood, clay, paper, or yarn, to
experiment, and to observe carefully the working of nature may
mean more for the command of language than much more time
devoted to so-called language lessons. But the effective use of such

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