Question: After reading and digesting the material in Religious Discrimination, please provide one (1) to two (2) questions that remain or arose while going over the material in that chapter.

VI. Employees Duty to Cooperate in Accommodation

The U.S. Supreme Court has held that, in attempting to accommodate the employee, all that is required is that the employer attempt to make any reasonable accommodation. If one can be made, then any reasonable accommodation will do and it need not necessarily be the most reasonable accommodation or the one the employee wants. The employee also must be reasonable in considering accommodation alternatives. The protection Title VII provides for employment discrimination on the basis of religion does not mean that the employer must resolve the conflict in the way the employee wants.

The employers only alternative may involve demoting or even terminating the employee, depending on the circumstances. This is not forbidden if all other alternatives present the employer with an undue hardship. The EEOC and the courts will look to the following factors in determining whether the employer has successfully borne the burden of reasonably accommodating the employees religious conflict:

• Whether the employer made an attempt at accommodation
• The size of the employers workforce
• The type of job in which the conflict is present
• The employers checking with other employees to see if anyone was willing to assist in the accommodation
• The cost of accommodation
• The administrative aspects of accommodation

VII. What Constitutes Undue Hardship?

Learning Objective Five: Define undue hardship as it allows an employer defense to religious discrimination claims.

Just as reasonable accommodation varies from situation to situation, so, too, does what constitutes undue hardship. There are no set rules as to what constitutes undue hardship since each employer operates under different circumstances.

The EEOC has provided employers with guidelines as to what factors it will consider in deciding whether the employers accommodation would cause undue hardship. Such factors include:

• The nature of the employers workplace
• The type of job needing accommodation
• The cost of the accommodation
• The willingness of other employees to assist in the accommodation
• The possibility of transfer of the employee and its effects
• What is done by similarly situated employers
• The number of employees available for accommodation
• The burden of accommodation upon the union (if any)

Generally, the EEOCs interpretation of what constitutes undue hardship and reasonable accommodation has been more stringent than the interpretation of undue hardship by the courts. Since the EEOCs guidelines are simply guidelines and thus not binding, and court decisions are, employers must look to the interpretation by courts in their own jurisdictions.

Courts have found, among other things, that it would be an undue hardship if an employer had to violate the seniority provision of a valid collective bargaining agreement, to pay out more than a de minimis cost (in terms of money or efficiency) to replace a worker who has religious conflicts, or to force other employees who do not wish to do so to trade places with the employee who has a religious conflict.

The U.S. Supreme Courts determination of what constitutes undue hardship was established in Trans World Airlines v. Hardison, which still stands today. This Court did not place an unduly heavy burden on the employer.