Patterson v. Walgreen, No. 18-349, 549 U.S. ____ (cert. denied February 24, 2020).
A decades-old Supreme Court case offhandedly announced that the “undue burden” that would relieve employers of any obligation to accommodate an employee’s religion need only be more than de minimus. Joining in denial of certiorari of an employee’s case against Walgreen, Justices Alito and Thomas would like to revisit the standing precept, particularly where the old decision relied not on the civil rights statute but on federal agency guidance which predated statutory refinements of the definition of ‘religion’.
The Solicitor General suggested that other issues are of concern that need review, but the Court does not consider this case to be the proper vehicle. The Solicitor General has asked whether an employer must offer a partial accommodation where a full accommodation would pose an undue hardship, or whether speculative harm can establish undue harm.
Patterson alleged that Walgreen’s discriminated against him because his religion forbade working on his sabbath. Walgreen’s routinely accommodated him in scheduling his work but declined to do so when an urgent need arose and it was thought that accommodation would work an unairmness to another employee.
Patterson failed to appear for the requested Saturday work, which precipitated a delay in training Walgreen employees. Discussion with Patterson was not fruitful. Patterson wanted a guarantee that he would never be asked to work on his sabbath. He declined consideration of other positions where the issue would not arise. Walgreen’s suspended and later terminated Patterson.
The 11th Circuit observed that Patterson had established a prima facie case, leaving for decision on whether Walgreen failed to offer a reasonable accommodation or that Walgreen’s could not offer a reasonable accommodation which would not pose an undue hardship, which hardship can embrace both direct and indirect costs.
An accommodation need not be the one requested by an employee, nor need the employer offer an array of accommodations from which to choose. The duty to accommodate his match by a countervailing duty on the employee’s part to work with the employers as the employer suggests.
The 11th Circuit declined to address in depth the issue of undue hardwhip because Walgrehaten’s had offered Patterson the opportunity to change schedules when practicable or to obtain another position. Even if undue hardship were considered, however, Patterson would not prevail because Walgreens would have incurred undue hardship had it been forced to rearrange its business schedule and that of other employees’ to accommodate Patterson.
The 11th Circuit also affirmed the trial court’s rejection of Patterson’s retaliation claim. It cannot be said, the appellate court observed, that Patterson’s termination subsequent to his rejection of all reasonable accommodations was retaliatory. An employee cannot both reject proffered reasonable accommodations and then claim retaliatory termination.
Although the case will not be heard by the Supreme Court, the opinion accompanying denial of certiorari establishes that at least some of the associate justices are not at ease with the low standard that applies to employers concerning religious accommodations nor are they pleased with the continued existence of outdated definitions of religion. The denial of certiorari means that the 11th Circuit’s view that an employee must cooperate with an employer concerning accommodations stands. As the 11th Circuit sees it, an employee seeking a religious accommodation cannot insist on the employee’s choice of accommodation, nor can the employee complain of retaliation where reasonable accommodations were offered and the employee rejected them.
JustLawful prognostication: This case was continued on conference lists for nearly a year, indicating its significance to the Court was not insubstantial but, as the concurring justices noted, the case did not present squarely the open issues that ought, in their views, to be addressed. With the opinion below undisturbed, the balance of power in employer – employee relations in religious accommodations, at least in the 11th Circuit, rests with the employer. An employer may terminate an employee who refuses a reasonable accommodation, and may demonstrate that accommodation presents an ‘undue burden’ by offering only that the accommodation would cause more than slight harm.
These issues will not diminish but only expand as the nation moves toward embracing a more expansive notion of religion and religious observances, and as the population of the United States grows ever more diverse in its demographics and in its religious practices. The push and pull of employer and employee needs will likely not abate any time soon, making the hope for an apt case to serve as a vehicle to review will be presented sooner rather than later. Of course, there is nothing that stands in the way of legislative correction or executive and/or administrative refinement, perhaps obviating judicial intervention, should the coordinate branches’ respective spirits be so inclined.