126.4 The employer’s duty to accommodate

The Complainant did not demonstrate a need for an accommodation to observe the sabbath where, although the Respondent required her to be on call for consultations seven days a week and to respond to a call for a consultation within 24 hours, she failed to demonstrate that in her five years of employment for the Respondent this requirement had ever interfered with her observance of the sabbath. Locke v. Advocate Aurora Health Care, Inc. (LIRC, 06/30/23).

The Respondent allowed the Complainant to take twelve of her forty hours of accrued paid vacation time to observe the Jewish high holy days. This permitted the employee to fulfill her obligations both to her employer and to her religion, i.e., it successfully eliminated the conflict between her duties and her religious needs and, as a result, constituted a reasonable accommodation. The Complainant’s contention that the Respondent’s requirement that she use a significant percentage of her paid annual vacation time was not a reasonable accommodation was rejected. Feiler v. Midwest Express Airlines (LIRC, 06/06/03).

Allowing an employee to trade shifts in order to participate in religious observances has been held to be a reasonable accommodation even if the employee is unable to locate anyone willing to trade. Feiler v. Midwest Express Airlines (LIRC, 06/06/03).

The undue hardship issue arises only when the employer fails to reasonably accommodate the employee. Feiler v. Midwest Express Airlines> (LIRC, 06/06/03).

The Complainant failed to state a claim for which relief could be granted under the Wisconsin Fair Employment Act where she alleged that she did not have a social security number due to her religious beliefs, and that she was discharged by the Respondent for not obtaining and providing the Respondent with a social security number. The Respondent was required to obtain a social security number from the Complainant, and it would have caused an undue hardship on the Respondent to accommodate the Complainant’s religious belief. Deguire v. Swiss Colony (LIRC, 08/17/01).

A Respondent cannot be legally required to accommodate an employee’s religious beliefs if the accommodation sought would compel it to contravene a contractually agreed upon seniority system. Brackemyer v. Wis. State Employees Union (LIRC, 04/18/97).

An employee cannot expect an accommodation where there is no legitimate conflict between the employee’s religious practice and the employment. In this case, the Complainant volunteered to staff a booth for a Christian Fellowship event on a day she was scheduled to work. It would not have been burdensome for her to engage in that activity at a time that did not conflict with her employment. Her religious beliefs did not require her to engage in the particular activity in question on the particular day in question. Therefore, the Respondent was not required to accommodate her request to have time off on that particular day. Kramer v. Leath Furniture (LIRC, 03/26/97), aff’d sub nom. Kramer v. LIRC (Dane Co. Cir. Ct., 12/03/97).

To avoid undue hardship to an employer, the impact upon the employee of an accommodation can be no more than de minimus. In this case, the Respondent offered an adequate accommodation to the Complainant, whose belief system was at odds with several of the standard chiropractic principles articulated by the Respondent in daily staff meetings. The Complainant could have had language she objected to taken out of the purpose statement the Respondent’s employees recited every morning. The Complainant also could have excused herself from the meditation and relaxation portions of the afternoon meetings the Respondent held with her employees. Feirer v. Marshfield Chiropractic Ctr. (LIRC, 08/20/96).

Where an employee’s religious beliefs prohibit performing work on Sundays, it is not a reasonable accommodation to offer to allow the employee to only work one Sunday per month. A reasonable accommodation is one which eliminates the conflict between employment requirements and the religious practices by allowing the employee to fully observe religious holidays. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

Asking an employee to forego their religious practices is not an accommodation of those practices. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

An employer is required to make reasonable efforts to help employees avoid conflicts between their work schedules and their religious beliefs through swapping shifts. If an employer makes such efforts and no other employee can be found to swap shifts, there would be no violation if the employer required an employee with religious beliefs to work the scheduled hours uniformly imposed on all employees of that classification. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

It is particularly appropriate to look to federal case law for guidance in applying the religious accommodation provision in the Wisconsin Fair Employment Act. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

An employer may not be required to bear more than a de minimis cost to give an employee certain days off for religious reasons. To require an employer to bear more than a de minimis cost would impose an undue hardship on the employer. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

An employer may not require other employees to take work assignments that they would not otherwise be required to take solely to accommodate another an employee’s religious need for time off from work. Such a requirement would constitute religious discrimination against the employees whom the employer forced to work. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

An Administrative Law Judge erred in determining that an employer should have accommodated an employee’s request to be off from work for religious reasons by requiring co-workers to work for the employee. However, a finding of discrimination was upheld where the evidence established that the employer failed to accommodate the employee’s request for accommodation by informing the employee of the employer’s policy of allowing and assisting employees to find co-employees who would voluntarily work for an employee on a particular shift. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

An employer need not accommodate an employee’s religious need for time off from work by doing any of the following: (1) breaching a seniority system contract, (2) paying a premium wage for substitutes, (3) using overqualified supervisors to substitute for the absent employee, (4) leaving the employee’s position vacant, or (5) discriminating against co-employees. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

In determining what is a “reasonable accommodation” and a “hardship” in the area of religious discrimination, it is not a valid guide to look to the law regarding “hardship” and “reasonable accommodation” under the area of handicap discrimination. The scope for the accommodation of a handicap is much greater than the accommodation of religion because it is not unlawful to discriminate in favor of the handicapped or against the non-handicapped. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

Where an employee temporarily tolerated employment requirements inconsistent with the employee’s religious beliefs, she is still entitled to reasonable accommodation at a later date as though the employee had insisted on full accommodation from the beginning of her employment. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

The Respondent did not violate the Wisconsin Fair Employment Act by failing to provide the Complainant, an adherent of the Christian Science religious faith, with health insurance coverage encompassing payment for treatments administered by Christian Science practitioners. The Respondent’s failure to grant a religiously-motivated request for a fringe benefit not provided for by its personnel and management procedures to any employee does not create a conflict between an employee’s religious practices and the employer’s personnel and management procedures. Lazarus v. DETS (Wis. Pers. Comm’n, 09/21/92).

A collective bargaining agreement in force at the Respondent’s place of business provided that employees who were willing to accept work assignments on any hours on any days were paid more than employees who restricted their availability for work. The Complainant, a member of Jehovah’s Witnesses, attended church meetings on Tuesday and Thursday nights and Sunday mornings. She was not willing to take work assignments on those days and she was, therefore, placed in a lower salary scale than she would have been had she not placed these restrictions on the times when she was available for work. This did not constitute discrimination on the basis of religion. The policy that employees who will not make themselves available for work assignments at particular times will be paid less than employees who will make themselves available is completely neutral in terms of religion. Green v. Woodman’s Food Mkts. (LIRC, 01/30/91).

The Wisconsin Fair Employment Act does not require accommodation of employees’ religious practices. AMC v. DILHR (Bartell), 101 Wis. 2d 337, 305 N.W.2d 62 (1981). [Ed. note: The Fair Employment Act was amended in 1982 to specifically provide that employers have a duty of reasonable accommodation.]

Ed. note: The following cases were decided under the theory, then prevailing, that the pre-amended Act did impose a duty of accommodation of religious practices.

The employer reasonably accommodated Jewish teachers by permitting them to use unpaid personal leave days for their religious observances. To expect the employer to provide paid leave days would cause undue hardship to the school district and would give an unlawful preference to Jewish teachers over others whose holidays occur during unpaid vacations. Meltzer v. LIRC (Kenosha Co. Cir. Ct., 01/08/81).

It was the responsibility of employees to inform the employer of their religious creed so that the employer could carry out its responsibility to accommodate them. Godfried v. Parts Mart (DILHR, 03/05/76).

When an employee advised his employer that he could not work after sundown on Fridays because of his religion, and there was no question that the employer could have accommodated the employee’s religious need without hardship, his discharge for leaving work before sundown on two consecutive Fridays after nine months of consistent attempts to get his employer’s permission to start a half hour earlier was religious discrimination. Liberty Trucking v. DILHR (Carnahan) (Dane Co. Cir. Ct., 09/24/75).

It was not reasonable to require a union to excuse a member from Sunday morning union meetings so that he could attend church services where such an accommodation would have created an undue hardship on the conduct of the union’s functions. Rau v. Int’l Ass’n of Machinists (DILHR, 01/25/74).