That time when an employee argued that taking vacation days was “discipline.”

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I’m gonna let you in on a little secret — an easy-peasy way to accommodate an employee who needs a day off from work as a religious accommodation…

Let the employee use a vacation day.

Yeah, I know. That’s not so novel. Yet, here I am blogging about a NY federal court’s recent decision (here) in Chavis v. Wal-Mart Stores, Inc. 

Plaintiff Cory Chavis, an Asset Protection Manager at the Walmart store, requested a religious accommodation permitting her not to work on Sundays so she could observe the Sabbath. At first, Wal-Mart allowed her to take Sunday’s off. Then, Wal-Mart changed its policy to require all Asset Protection Managers to work every third Sunday. Ms. Chavis requested a religious accommodation not to work on Sunday; however, Wal-Mart denied it and told Ms. Chavis to use a vacation day or find another position at Wal-Mart that didn’t require Sunday work. So, Ms. Chavis used six vacation days to avoid working on her next six scheduled Sundays.

Now, Ms. Chavis asserted a number of claims against Wal-Mart. And, to her credit, some of them survived summary judgment. But, her failure-to-accommodate claim which I discuss below, fell short.

Way short.

No, using a vacation day is not an adverse employment action.

Under Title VII of the Civil Rights Act of 1964, if an employee with a sincerely-held belief requests a religious accommodation from her employer (e.g., a day off to go to church), the employer must provide it, unless doing so would create an undue hardship. Ms. Chavis, whom the parties agreed had a sincerely-held belief, requested no work on Sundays. Wal-Mart told her that she could avoid working on Sundays if she just used her vacation days, which she did. Still, Ms. Chavis claimed that this constituted “discipline.”

Except, it’s not. Right, Judge Denny Chin?

In a typical failure-to-accommodate case, a plaintiff is disciplined by her employer after she fails to comply with an employment requirement due to her religious belief. Here, Chavis was not disciplined and did not suffer an adverse employment action between April and September 2013 as a result of her religious conflict; as noted above, she complied with her job requirements and experienced no demotion or alteration of job responsibilities as a result of her use of vacation days to avoid Sunday work. The fact that Chavis needed to use vacation days to avoid a religious conflict is not an adverse employment action because she “was not deprived of a material benefit, [but] simply chose to use the benefit in a particular way.”

Unlike the Americans with Disabilities Act, where the employer’s burden of establishing an undue hardship is rather high in the face of an accommodation request, it’s much different under Title VII. That is, all the employer has to do is show that granting the accommodation would create something more than a minimal cost to the employer. But, this is one of those situations in which the employer had already created a bank of vacation time for the employee’s use. So, the cost is nothing. Plus, the employee could use her vacation benefit as she saw fit.

Unfortunately, what should have been a win-win became a costly lawsuit with losers on both sides.

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