Defendants Walmart Stores East, L.P., and Walmart, Inc. (collectively, Walmart), offer a cramped view of the religious-accommodation mandate under T itle VII of the Civil Rights Act of 1964, see 42 U.S.C. §§ 2000e et seq. Walmart asks this Court to hold that an employer necessarily satisfies its reasonable-accommodation obligation by offering an accommodation that diminishes an individual’s employment status, even when it lacks justification for doing so. As explained below, that is not the law.

Here, after Edward Hedican sought a religious accommodation in the assistant-manager position Walmart had offered him, Walmart rescinded the offer and told him he could apply for lower-paying and lower-ranking jobs. On the facts of this case, a reasonable jury could find that Walmart’s invitation to Hedican to apply for such jobs was not a reasonable accommodation because it unjustifiably diminished Hedican’s employment status in several independent ways. First, it forced him to apply for alternative positions that Walmart could easily have offered him. Second, the alternative jobs would have been a demotion and involved lower pay as compared to the assistant-manager position in which Walmart could have accommodated Hedican.

Walmart also urges this Court to hold that any reasonable jury would be required to find that Walmart satisfied its burden of proof on the undue-hardship affirmative defense. According to Walmart, the evidence is so one-sided that any reasonable factfinder would be compelled to conclude that undue hardship would result from each and every accommodation the Equal Employment Opportunity Commission (EEOC or Commission) proposed to let Hedican practice his religion as an assistant manager. But a reasonable jury would be entitled to find that Walmart’s claims about the consequences that would flow from the accommodations are exaggerated or unsupported by the record, and that they fall short of rising to the level of undue hardship. For example, the EEOC proposed that Hedican be allowed to seek to swap any of his Saturday shifts with other assistant managers. A reasonable jury could find that Walmart did not present enough evidence to support its claim that Hedican would have been unable to find willing volunteers. A jury could find it particularly significant that Walmart never asked Hedican’s prospective co-workers whether they would willingly cover his Saturday shifts so they could avoid work on days they found less desirable, such as Sundays, one of the days assistant managers most frequently sought to take off.

ARGUMENT

I. Walmart is not entitled to summary judgment on the ground that it offered Edward Hedican a reasonable accommodation.

The EEOC argued in its opening brief that a reasonable jury could conclude that Walmart did not provide Hedican a reasonable accommodation for his religious practices when it offered him minimal assistance in applying for alternative jobs that paid less and ranked lower than the assistant-manager position he had previously been offered. As the Commission explained, Walmart’s offer was not “reasonable” under Title VII because it unnecessarily diminished Hedican’s pay and employment opportunities. See EEOC Br. 14-27. Walmart’s arguments in response misapprehend the relevant legal standard and seek to rewrite the facts.

A. Walmart incorrectly interprets Title VII’s reasonable-accommodation provision.

The EEOC and Walmart offer starkly different views on what religious accommodations may be deemed “reasonabl[e]” under 4 2 U.S.C. § 2000e(j). At its core, Walmart’s position is that an employer’s accommodation must be deemed reasonable regardless of whether it negatively affects an individual’s employment status (including his compensation, terms, conditions, and privileges of employment), and regardless of whether an accommodation that preserves his employment status is readily available. See Walmart Br. 25-27, 32. On Walmart’s theory, for example, if a would-be assistant manager requested one day off for religious reasons, it would be perfectly appropriate for Walmart to rescind his job offer and instead offer him limited assistance in applying for a position as a Walmart cashier. According to Walmart, it would be permitted to take this action diminishing the individual’s compensation and rank even if Walmart could have granted the requested day off without incurring undue hardship, and even if there were no barriers to offering the individual an alternative position. Walmart’s extreme interpretation would read out the word “reasonable” from the “reasonabl[e] accommodat[ion]” duty in 42 U.S.C. § 2000e(j).

Contrary to Walmart’s view, Title VII’s text, as well as decisions from this Court and others, compel the conclusion that to qualify as “reasonable,” an accommodation must not unjustifiably diminish an individual’s employment status. See EEOC Br. 16-20, 21 (collecting authorities). Walmart does not challenge the EEOC’s analysis of the statutory text. Nor does it dispute that Porter v. City of Chicago, 700 F.3d 944 (7th Cir. 2012), Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998), and Wright v. Runyon, 2 F.3d 214 (7th Cir. 1993), as well as decisions of other courts of appeals, confirm that an accommodation is unreasonable if, without justification, it forces a worker to incur a loss in pay, employment opportunities, or benefits.

Instead of challenging the foundation of the EEOC’s arguments, Walmart misconstrues the EEOC’s position and spends much of its brief attacking a straw man. Walmart’s contentions in support of its hard-line view do not undermine the EEOC’s well-grounded position on Title VII’s proper interpretation.

1. Walmart is mistaken that the EEOC is insisting that Title VII requires employers “to accept the [accommodation] the employee prefers unless that accommodation causes undue hardship.” Walmart Br. 26 (citation omitted). Walmart’s extended arguments against that position, see id. at 15-16, 25-29, thus are beside the point.

The EEOC’s view is that an accommodation is not “reasonable” under Title VII if it unnecessarily diminishes an individual’s compensation or other aspects of his employment status. See EEOC Br. 16-21. Thus, when an employer has multiple accommodations available to it, it must offer one that “least disadvantages the individual with respect to his or her employment opportunities,” assuming it “would not cause undue hardship.” 29 C.F.R. § 1605.2(c)(2)(ii) (EEOC guideline).

The difference between the position Walmart ascribes to the Commission and the Commission’s actual position is illustrated by Porter, Rodriguez, and Wright. In each, this Court held that the employer offered reasonable accommodations because the accommodations would have eliminated the religious conflict, and preserved the plaintiffs’ pay, benefits, and employment opportunities. See Porter, 700 F.3d at 952; Rodriguez, 156 F.3d at 775; Wright, 2 F.3d at 217. At the same time, this Court rejected the plaintiffs’ argument that what the employers offered was not reasonable because there were alternative accommodations the plaintiffs found more advantageous, reasoning that—because the offered accommodations maintained the plaintiffs’ pay and employment status—it was irrelevant that the plaintiffs preferred different accommodations. See Porter, 700 F.3d at 952-53; Rodriguez, 156 F.3d at 776; Wright, 2 F.3d at 217; see also Am. Postal Workers Union v. Postmaster Gen., 781 F.2d 772, 775-77 (9th Cir. 1986) (rejecting argument that employer had to offer plaintiffs’ preferred accommodations, but establishing that, to be reasonable, an accommodation must “reasonably preserve [an] employee’s employment status”). Consistent with the EEOC’s view, these decisions reflect the fundamental principle that although employers need not offer a worker his preferred accommodation, they are obligated to offer accommodations that reasonably preserve his pay and job opportunities.

Walmart is also incorrect that 29 C.F.R. § 1605.2 is invalid under Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986). See Walmart Br. 26. In rejecting the view that an employer must offer an individual his preferred accommodation, short of undue hardship, Ansonia explained that 29 C.F.R. § 1605.2(c)(2)(ii) would be invalid if it were interpreted to require that result. 479 U.S. at 69 n.6. But, the Court noted, the guideline “contains a significant limitation not found” in such a standard—it “requir[es] the employer to choose the [accommodation] that least disadvantages [the] individual’s employment opportunities.” Id. Ansonia thus made clear that the guideline is consistent with its holding, given this “significant limitation.” Id.; see also EEOC Compliance Manual § 12-IV(A)(3) & n.133, 2008 WL 3862099 (2008) (citing post-Ansonia decisions analyzing whether “accommodations had a negative impact on the individual’s employment opportunities”).

2. Walmart further criticizes the Commission for suggesting accommodations that would have burdened Hedican, such as overnight shifts. Walmart Br. 27-28. Seeking again to characterize the Commission as advocating for the position rejected in Ansonia, Walmart argues that “it is only [] Hedican’s, and the Commission’s, subjective preferences that separate these proposals from the accommodation Walmart offered.” Id. at 28.

Not so. As explained above, when evaluating whether an accommodation is unreasonable because of a burden it places on an employee, a two-part inquiry is required: (1) the burden must be sufficiently serious that it affects an employee’s terms, conditions, and privileges of employment, or other aspects of his employment status; and (2) the burden must be unnecessary because, e.g., another readily available accommodation would not diminish that status. When that standard is applied to the facts of a given case, accommodations like overnight shifts could easily be deemed reasonable. Under no circumstances, however, does a plaintiff’s subjective objection to an accommodation control.

3. Walmart also incorrectly maintains that “courts have been clear that the undue hardship inquiry is irrelevant to the reasonableness question.” Walmart Br. 16. As the Fourth Circuit explained in EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008), “the failure to consider alternative accommodations that pose no undue hardship may, generally speaking, influence the determination of whether an employer’s offered accommodation was reasonable.” Id.

Walmart quotes Cosme v. Henderson, 287 F.3d 152, 161 (2d Cir. 2002), for the proposition that “the issue of undue hardship is irrelevant . . . when considering whether a proposed accommodation is reasonable.” Walmart Br. 13. To be sure, Cosme included this language in dictum, and Ansonia also contained dictum saying, “[U]ndue hardship . . . is at issue only where the employer claims that it is unable to offer any reasonable accommodation without such hardship.” 479 U.S. at 68-69. Neither Ansonia nor Cosme, however, involved a situation where, as here, a plaintiff argues that an accommodation is unreasonable because alternative accommodations available to the employer would have better preserved his employment status. See Ansonia, 479 U.S. at 68-69 (making statement in context of concluding that if employer offered a reasonable accommodation, there was no need to address undue hardship); Cosme, 287 F.3d at 160-61 (making statement in context of addressing claim that employer acted with discriminatory animus). Where a plaintiff bases a reasonableness argument on the availability of alternatives that maintain his employment status, his claim necessarily fails if the alternatives pose an undue hardship. In this narrow context, the undue-hardship inquiry is relevant to assessing reasonableness.

B. Walmart’s accommodation was unreasonable because it unnecessarily diminished Hedican’s employment status.

The EEOC’s opening brief argued that a jury could reasonably conclude that Walmart’s offer to “assist” Hedican in applying for jobs that paid less and ranked lower than the assistant-manager position was not a reasonable accommodation. We explained that a jury could reach that conclusion because there were at least two other options available to Walmart that would have better preserved Hedican’s pay and employment opportunities. See EEOC Br. 22-27.

First, because any alternative job would have involved a reduction in pay and rank and because a jury could reasonably find that accommodating Hedican in the assistant-manager position would have posed no undue hardship, Walmart should have accommodated him in that position. See id. at 22-25; see also Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 519-520 (6th Cir. 1975) (if transfer involves lower pay or inferior skills, employer should try to accommodate plaintiff in his current job). Second, a jury could reasonably find that Walmart should have, at a minimum, offered Hedican an hourly supervisor position. Although any such job involved lower pay and a lower rank than the salaried assistant-manager position, it was the most comparable position available. And Walmart offered no explanation for demanding that Hedican apply for such a subordinate position rather than simply assigning him to one. See EEOC Br. 25-27.

Walmart depicts its offer to help Hedican apply for lower-paying and lower-ranking jobs as a mere “shift” in duties with a “modest reduction[]” in pay. Walmart Br. 18, 19. This characterization, however, defies the principle that, at summary judgment, reasonable inferences must be drawn in favor of the nonmoving party—here, the EEOC. See, e.g., Tolan v. Cotton, 572 U.S. 650, 660 (2014). Contrary to Walmart’s arguments, case law does not sanction the diminishment in Hedican’s employment status that occurred here.

1. Walmart’s attempts to characterize its accommodation as tantamount to reassignment are unavailing.

Despite Walmart’s efforts to describe its accommodation as a “shift” in duties, the record establishes that Walmart offered Hedican no other job but instead only “assist[ance]” in applying for inferior positions. R .52-10 at 2; R.47 at 12. Although Walmart accuses the EEOC of “downplay[ing] the assistance” it offered Hedican, Walmart Br. 30, Walmart exaggerates that “assistance.” A jury could reasonably determine that the proffered assistance was minimal. Indeed, human resources official Lori Ahern testified that her efforts at “assist[ing]” Hedican were limited to viewing open positions listed on a Walmart website, which she acknowledged anyone else also could have done, and “direct[ing] him on how to apply if” he was interested. R.24 at 37.

Now, for the first time on appeal, Walmart claims Ahern’s “assistance” was “particularly meaningful” and “would have given [] Hedican a substantial leg up” because Ahern was “involved in the hiring process.” Walmart Br. 9, 18. But a reasonable jury could conclude that Ahern’s involvement in the hiring process did not transform her willingness to search Walmart’s website for open positions and inform Hedican how to apply into any kind of “meaningful” help, much less the functional equivalent of a job offer. Walmart also cites no evidence that Hedican would have received priority treatment in seeking other positions. Regardless, not even Walmart claims that it told Hedican that Ahern’s “assistance” afforded him any advantage, so he was left with the understandable belief that if he wanted even an inferior job, he would need to start over and compete for it. See EEOC v. United Parcel Serv., 94 F.3d 314, 320 (7th Cir. 1996) (whether reasonable accommodation was offered depends on what employer told employee about accommodation).

In Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444 (7th Cir. 2013), this Court addressed whether offering an employee the right to reapply for a job he held was a reasonable accommodation. Id. at 456. The Court “strain[ed] to imagine a situation” in which offering the mere “possibility of being rehired” “could be considered an accommodation,” and it held that it was certainly not a reasonable accommodation. Id. Walmart ignores this holding and thus fails to explain why that principle should not also govern here.

Rather, Walmart compares its accommodation to those in other decisions where employers discharged their reasonable-accommodation duty through, inter alia, offering a “shift in job duties.” Walmart Br. 18-19. But none of those decisions sanction offering merely the opportunity to apply for other positions. Rather, the employers in those cases offered various accommodations far exceeding Walmart’s offer here. See Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1320, 1323-24 & n.6 (11th Cir. 2007) (employer reasonably accommodated where it (1) tolerated the plaintiff’s Sabbath-related absences for a significant period; (2) encouraged her to swap shifts; and (3) offered to transfer her); Sanchez-Rodriguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 5-6, 12-13 (1st Cir. 2012) (similar); Cook v. Lindsay Olive Growers, 911 F.2d 233, 236, 241 (9th Cir. 1990) (similar); Eversley v. MBank Dallas, 843 F.2d 172, 176 (5th Cir. 1988) (similar).

To be sure, Walmart attempts to defend its insistence that Hedican reapply, asserting, based on Rodriguez and Porter, that “the need to apply . . . is often a component of a reasonable accommodation.” Walmart Br. 31. But neither Rodriguez nor Porter supports Walmart’s argument. In Rodriguez, this Court held that the employer reasonably accommodated the plaintiff by offering him a reassignment to a different district that eliminated the religious conflict and preserved his pay and benefits. 156 F.3d at 775-76. Although the district court decision under review there had noted that, as another potential accommodation, the plaintiff could have “appl[ied] for” different assignments, id. at 774-75, this Court never addressed whether that would have constituted a reasonable accommodation.

In Porter, this Court held that an employer’s “offer of a [schedule] change,” which would have maintained the plaintiff’s employment status, constituted a reasonable accommodation. 700 F.3d at 952. Seizing on Porter’s observation that the plaintiff had to request such a change, id. at 952-53, Walmart casts Porter as a case where the opportunity to “apply” was deemed reasonable even though “there was no guarantee the application would be granted,” Walmart Br. 22, 31. But nothing in Porter suggests this Court doubted that the employer would have granted the plaintiff’s request had she submitted one. Rather, this Court characterized the accommodation as an “offer of a [schedule] change” and concluded that it “would have eliminated” the religious conflict. Id. at 952.

2. Walmart’s attempts to characterize the alternative jobs as involving nothing more than a minimal decrease in pay are unavailing.

Walmart also argues that the hourly supervisor positions to which it invited Hedican to apply would have involved nothing more than “a small pay differential,” which Walmart contends did not render its offer unreasonable. Walmart Br. 18. A key problem with Walmart’s argument is that its accommodation not only required Hedican to incur a pay cut, it stripped him of employment entirely and required him to compete for another job. See supra at pp. 9-10. Because Walmart has provided no explanation for not offering Hedican another job, its accommodation is unreasonable for that independent reason. Also, Walmart’s argument ignores that assignment to an hourly supervisor position would have amounted to a demotion. See, e.g., R.41 at 11-12; R.52-11 at 2 (job description stating that assistant managers “supervis[e] and develop[]” hourly employees). Given that Walmart could have accommodated Hedican in the assistant-manager position, the EEOC argued that this reduction in rank also rendered Walmart’s accommodation unreasonable. EEOC Br. 22. Walmart offers no rebuttal to those arguments.

Even if this Court reaches Walmart’s arguments about the pay differential, it bears emphasis that Walmart conceded in district court that hourly supervisors earned less than assistant managers. R.42 at 17. And Ahern testified that she “got the impression” that Hedican’s lack of interest in other jobs was “due to money.” R.47 at 12.

Walmart argues that courts have recognized that “modest reductions” in compensation are reasonable “when an employee cannot keep the same schedule as his coworkers.” Walmart Br. 19-20 (emphasis added). Walmart’s qualifying language is important and dooms its argument here: as explained, Walmart could have accommodated Hedican in the assistant-manager job without incurring undue hardship, and thus a reduction in Hedican’s pay was unnecessary.

To be sure, an accommodation is not necessarily unreasonable merely because it involves some cost to the plaintiff. EEOC Br. 22. For instance, a reduction in pay may be justified where any accommodation that would preserve an individual’s compensation would impose undue hardship. See, e.g., Eversley, 843 F.2d at 176. In addition, the Supreme Court has opined that offering a few days of unpaid leave for religious holidays is generally reasonable, emphasizing that such an accommodation only “requires [an employee] to give up compensation for a day that he did not in fact work” and “has no direct effect upon either employment opportunities or job status.” A nsonia, 479 U.S. at 70-71 (citation omitted); cf. Morrissette-Brown, 506 F.3d at 1324 n.6 (“not decid[ing] whether, and to what extent, an employer’s reasonable accommodation may impose costs on the employee”). This case does not present similar circumstances.

In a last-ditch effort to rehabilitate its accommodation, Walmart makes much of the EEOC’s so-called “conce[ssion]” that hourly manager roles were “sufficiently similar to the assistant manager position.” Walmart Br. 2, 17. But Walmart takes this quotation from the EEOC’s brief out of context: the EEOC described the jobs as “sufficiently similar” only in arguing that Walmart had no basis for insisting that Hedican apply for hourly supervisor positions rather than simply offering him that job. See EEOC Br. 31 n.4. There is no “contradict[ion],” Walmart Br. 32, between the EEOC’s positions that (1) the two jobs were similar enough that it was unnecessary for Hedican to compete for the hourly position; and (2) the hourly position would have involved a loss in pay and rank.

C. Walmart’s claim that the EEOC cannot prevail because Hedican did not explore and apply for the inferior jobs it suggested is unavailing.

Next focusing on Hedican’s “bilateral cooperation” duty, Walmart submits that it cannot be liable because Hedican did not explore the inferior jobs to which Ahern said he could apply. Walmart Br. 2, 11-12, 14, 21-25. In its opening brief, the EEOC recognized that employees are sometimes under a duty to cooperate with employers in the search for an accommodation. See EEOC Br. 31-32. But, the EEOC argued, except in certain limited circumstances that are undisputedly not present here, an employer must offer a reasonable accommodation to trigger the employee’s duty to cooperate in carrying it out. Id. at 32-35. Walmart fails to rebut that legal principle.

Citing this Court’s decision in Rodriguez, Walmart asserts that it “open[ed] a dialogue” with Hedican about finding alternative roles and that Hedican therefore had a duty to explore and apply for those jobs. Walmart Br. 11-12, 22, 25, 30. But Rodriguez discussed bilateral-cooperation obligations only in the context of addressing whether an employer neglected its duty. See 156 F.3d at 777-78. Rodriguez is therefore uninformative on the relevant question before this Court, which is the scope of an employee’s bilateral-cooperation duty.

The answer to that question lies not in Rodriguez but in the decisions discussed in the EEOC’s opening brief. See EEOC Br. 32-36. The takeaway from those is that if an employer offers a reasonable accommodation, an employee must try it. But, as we explained, no court of appeals has ever held that an employee or applicant must try an accommodation deemed by the court to be unreasonable. Id. (citing cases).

Walmart offers no rebuttal, instead invoking decisions reflecting these very principles. Walmart Br. 14, 31-32. For example, Walmart cites this Court’s decision in Porter and the Fifth Circuit’s decision in Bruff v. North Mississippi Health Services, Inc., 244 F.3d 495 (5th Cir. 2001), but each deemed an employer’s accommodation reasonable and only then faulted the employee for not exploring it. See Porter, 700 F.3d at 952-53; Bruff, 244 F.3d at 502-03. Similarly, Chrysler Corp. v. Mann, 561 F.2d 1282 (8th Cir. 1977), held that an employee did not adequately cooperate with his employer where, unlike here, he “did little to acquaint [his employer] with . . . [the] potential impact [of his religion]” on his job, and refused to use paid and unpaid leave to cover absences due to his religion. Id. at 1283-86.

Under the principles discussed above, because Walmart’s offer to Hedican to apply for lower-paying and lower-ranking jobs was unreasonable, Hedican was under no duty to explore those positions. It bears emphasizing that although Walmart characterizes its offer as “open[ing] a dialogue” with Hedican about possible accommodations, Walmart Br. 12, Hedican cannot be faulted for interpreting the “offer” differently. Walmart mentioned to Hedican the possibility of applying for lower-paying and lower-ranking jobs only after unequivocally informing him that it was “den[ying]” his accommodation request and “rescinding” his offer for the assistant-manager position. R.52-10 at 2; R.45 at 39. On at least two occasions, Walmart told Hedican that he would need to apply for any alternative positions. See R.52-10 at 2; R.45 at 38-39. Under these circumstances, Walmart’s suggestion that Hedican should have “ask[ed] to bypass the normal application process,” Walmart Br. 24, is plainly without merit. Regardless, Walmart forfeited any such argument by not pressing it in district court, and it cites no precedent involving remotely similar facts that would support rejecting the Commission’s claim on that basis.

Although not relevant to the bilateral-cooperation issue, Walmart is incorrect in casting aspersions on Hedican for not informing the company of his need for a religious accommodation until after receiving a job offer. Walmart Br. 6, 50. Contrary to Walmart’s assertions, no record evidence shows that Hedican knew during the interview process that work from Friday sundown to Saturday sundown was a requirement, let alone an inflexible requirement that would not be waived for religious reasons. In any event, nothing in Title VII requires applicants to inform prospective employers of their religious practices prior to receiving a job offer. Cf. 29 C.F.R. § 1605.3(b). As Walmart’s reaction to the timing of Hedican’s request here reveals, a contrary rule would thwart Title VII’s purposes: under such a rule, employers wishing to avoid accommodating an applicant’s religion could more easily evade scrutiny by not extending an offer to that applicant in the first place.

II. Walmart is not entitled to summary judgment on the undue-hardship affirmative defense.

Walmart next maintains that even if it did not offer Hedican a reasonable accommodation, it is still entitled to summary judgment because accommodating Hedican in the assistant-manager position would have posed an undue hardship. See Walmart Br. 33-50. The EEOC proposed two principal ways in which Walmart could have accommodated Hedican in that position. The EEOC suggested that Walmart could have assigned Hedican to an indefinite shift that either did not conflict, or only minimally conflicted, with his Sabbath, and made scheduling adjustments as necessary to eliminate any minor conflicts that arose. EEOC Br. 38-44. Also, even if Walmart assigned Hedican to a schedule involving regular Sabbath shifts, the EEOC argued that Walmart could have allowed him to seek to swap those shifts with other assistant managers and use his accrued leave to avoid work on his Sabbath. Id. at 44-48.

Walmart has not shown, as it must at summary judgment, that any reasonable jury would have to find that “any and all” of the EEOC’s proposed accommodations would have posed an undue hardship. Adeyeye, 721 F.3d at 455. For instance, Walmart never asked any other assistant managers if they might be willing to cover Hedican’s Saturday shifts in exchange for Hedican covering shifts they found undesirable, such as Sunday shifts. Walmart offers nothing other than Ahern’s speculation to support its assertion that Hedican would have been unable to find any willing volunteers. This Court should thus reverse the grant of summary judgment for Walmart on this affirmative defense.

A. A jury could reasonably disagree with Walmart that assigning Hedican to shifts that did not conflict, or only minimally conflicted, with his Sabbath would have been an undue hardship.

As the Commission explained in its opening brief, Walmart could have, without incurring undue hardship, assigned Hedican to shifts that did not conflict, or only minimally conflicted, with his Sabbath (sundown Friday to sundown Saturday). If Walmart opted to assign Hedican to daytime shifts on Fridays or overnight shifts on Saturdays, it could have made minor adjustments to his starting and ending times on those days to account for the time of sunset. See EEOC Br. 23-24, 38-39 (describing potential adjustments of no more than one or two hours). Walmart offers various objections to these proposals, but a jury could reasonably find that none amount to undue hardship.

1. A reasonable jury would not be required to find that adjusting Hedican’s schedule based on sunset times, if needed, constitutes an undue hardship.

Walmart first complains that making minor scheduling adjustments would impose an “ongoing” obligation on store manager Dale Buck to “research sundown times” and might require him to adjust other assistant managers’ schedules. Walmart Br. 38-39 (emphasis omitted). This argument, however, ignores that Walmart could have avoided the need to make any scheduling adjustments by assigning Hedican to established shifts that did not involve work on a Friday or Saturday, such as a shift involving four or five consecutive days of work commencing on a Sunday. R.42 at 8.

Even if, however, Walmart chose to assign Hedican to a daytime shift on Friday or an overnight shift on Saturday, any minor scheduling adjustments needed to account for the time of sunset would not impose an undue hardship on Walmart. Contrary to Walmart’s contentions, store manager Buck would not need to conduct burdensome “research” on sunset times, Walmart Br. 38, because that information is readily available on the internet, as the record here shows. See R.52-15 at 2-19. Nor would a jury be required to determine that Walmart would need to undertake that research each week, as Walmart intimates. See Walmart Br. 39. If Walmart deemed it too challenging continually to adjust Hedican’s schedule based on shifting sunset times, as it claims, it could have adjusted his schedule for an entire year in such a way that would never interfere with his Sabbath. For example, Hedican’s 12-hour overnight shift could have begun at 9:15 p.m. instead of 8:00 p.m. year-round. EEOC Br. 40. Walmart does not contend that such an approach would have burdened Buck.

Walmart raises the concern that if it made minor adjustments to Hedican’s schedule, it might also need to adjust another assistant manager’s schedule. See Walmart Br. 38. But Walmart points to no record evidence that would compel a jury to reach that conclusion. To the contrary, as the EEOC already observed, see EEOC Br. 39, a reasonable jury could find that Walmart would not need to adjust the schedules of other assistant managers based on slight modifications to Hedican’s schedule, a conclusion supported by the facts that (1) assistant managers are generally assigned to cover separate areas of the store (such as apparel or entertainment), and (2) Walmart already lets its assistant managers work many different and partially overlapping shifts (8 p.m. to 8 a.m.; 7 a.m. to 5 p.m.; 8 a.m. to 6 p.m.; or 11 a.m. to 9 p.m.). R.42 at 8. In any event, Walmart has cited no legal authority even suggesting that minor schedule adjustments of the kind at issue here amount to undue hardship.

2. A reasonable jury would not be required to find that letting Hedican rotate shifts in a manner that did not require Sabbath shifts, or not rotate at all, constitutes an undue hardship.

Walmart contends that it would incur undue hardship if it gave Hedican a permanent assignment to one area of responsibility (such as apparel or overnights), or if it rotated him through different areas in a manner that avoided Sabbath shifts. Walmart Br. 37. A reasonable jury would be entitled to disagree.

For one thing, despite having the burden of proof, Walmart has never explained why Hedican’s need to avoid work on his Sabbath is incompatible with its general practice of annually rotating assistant managers to new areas of responsibility. Buck stated that when assistant managers rotate, “they also rotate to a new schedule designed to maximize their efficiency and impact in that new area.” R.38 at 3. But that evidence does not prevent a reasonable jury from finding that Hedican could have rotated from one assignment that did not conflict with his Sabbath, e.g., working overnights Saturday to Tuesday, to another assignment that likewise did not conflict with his Sabbath, e.g., working a daytime shift Sunday through Thursday. Thus, a reasonable jury could conclude that Walmart did not prove that it would have been precluded from rotating Hedican through different areas.

Moreover, even assuming that accommodating Hedican would have prevented Walmart from rotating him, the EEOC proposed a solution to Walmart’s concerns, to which Walmart has not responded. Specifically, the EEOC observed that Walmart could have assigned Hedican indefinitely to work in the overnight area of responsibility. See EEOC Br. 42. As the EEOC observed, see id. at 42-43, this area has two assistant managers assigned to it at any given time, see R.38 at 2, and they oversee “literally anything that happens” in the store during the overnight hours, R.23 at 24. Thus, a jury could reasonably find that excusing Hedican from rotating would neither “slow[] his . . . development” nor “inhibit[] other assistant managers,” as Walmart claims, Walmart Br. 40, because, under the EEOC’s proposal, Hedican would have experience running the entire store, and other managers could rotate through all areas, including overnights, and thus cover for each other as necessary.

Indeed, as the EEOC pointed out, EEOC Br. 43, undisputed evidence shows that Walmart assigned one assistant manager in the Hayward store, Tammy Casler, to an overnight schedule for more than two years. See R.52-13 at 2-14; R.44 at 33-34. Walmart criticizes our reliance on Casler’s schedule, stating that it “clearly required Friday night shifts that [] Hedican would have had to refuse.” Walmart Br. 42. But we cited Casler’s schedule not to demonstrate that she had avoided work on Hedican’s Sabbath, but rather to prove that Walmart permitted another assistant manager to work in one area for multiple years. EEOC Br. 43. This evidence—together with Walmart’s admission that some assistant managers in other stores worked in the same area for “up to six years,” R.23 at 25—would let a jury reasonably conclude that Walmart would not incur undue hardship if it had similarly exempted Hedican from its practice of annually rotating assistant managers.

Walmart contends that its treatment of comparable assistant managers is not probative because there is “an important distinction between an employee who receives a certain schedule because of business demands and one whose scheduling restrictions . . . exempt him from [certain] job duties despite business demands.” Walmart Br. 42 (citation omitted). But, at most, this creates a jury question. Walmart claimed in district court that its “operational needs” depended on assistant managers rotating approximately once a year, R.38 at 3, and that it would be an undue hardship if Hedican were exempted from this practice, R.41 at 18. Because Walmart has not adhered to this practice in some situations, a reasonable jury would not be required to agree that it was truly so important.

B. A jury could reasonably disagree with Walmart that it would have been infeasible to let Hedican arrange voluntary shift swaps and use his accrued leave to avoid Sabbath work.

Even if Walmart eventually would have needed to rotate Hedican to a shift that entailed substantial work on his Sabbath, a jury could reasonably conclude that Walmart would not have incurred undue hardship if it had let Hedican avoid Sabbath shifts by combining voluntary shift swaps with accrued leave. The district court’s undue-hardship ruling may be reversed on this additional, independent ground.

Although Walmart expresses no concerns with allowing assistant managers to swap shifts with one another, it contends that Hedican would have been unable to secure willing volunteers. But Walmart does not dispute that if Hedican were scheduled to work on a Saturday, there typically would have been three or four assistant managers with whom he could have potentially traded shifts. R.38 at 2, 4, 5. A reasonable jury could rely on this evidence in concluding that if Hedican volunteered to work, for instance, every Sunday in lieu of Saturday, at least one other manager would exchange a Sunday shift for Hedican’s Saturday shift. See Opuku-Boateng v. California, 95 F.3d 1461, 1471 (9th Cir. 1996). Moreover, Walmart bears the burden of proof on this issue. And despite its conclusory proclamation that this “plainly would not have worked,” Walmart Br. 48, Walmart has pointed to no evidence that would compel a reasonable jury to reach that conclusion. To the contrary, a jury could find it significant that Walmart did not bother to ask Hedican’s co-workers whether they might agree to swap shifts and instead relied solely on Ahern’s speculation that other assistant managers “may” not want to do so. R.47 at 14;^{^[1]} cf. EEOC Br. 46 (citing authorities establishing that employers may not rely on hypothetical hardships unsupported by objective evidence).

Furthermore, the EEOC discussed this potential accommodation as “combining voluntary shift swaps with accrued leave,” the latter of which Walmart virtually ignores in its brief. EEOC Br. 44 (emphasis added). Significantly, Walmart does not dispute that Hedican would have been eligible for 21 days of paid time off per year. EEOC Br. 47-48. Nor does Walmart offer any reason why it would have been problematic for Hedican to use this leave to avoid work on his Sabbath.

Walmart emphasizes that “the assistant manager who worked the fewest Saturdays in 2016 still worked nearly half of all Saturdays—shift swaps and vacation time notwithstanding.” Walmart Br. 48. According to Walmart, no reasonable juror could think that Hedican would be able to avoid roughly twenty-five more Saturday shifts than his “next-most-fortunate colleague.” Id. But this evidence would hardly compel a jury to agree with Walmart on this point, particularly because there is no indication that this “next-most-fortunate colleague” attempted to avoid Saturday shifts through shift swaps and accrued leave.

C. Walmart’s remaining arguments are unpersuasive.

1. Walmart is also not entitled to summary judgment based on its contention that accommodating Hedican in the manner suggested by the Commission would have unlawfully discriminated against his co-workers. See Walmart Br. 43-46. Walmart’s argument confuses mere differential treatment of individuals based on religion with differential treatment that burdens individual rights. Cf., e.g., Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 80-81, 84-85 (1977) (employer unlawfully favors religion, and thus incurs undue hardship, if it accommodates employee observing Sabbath by depriving other employees of shifts they are entitled to under a collective bargaining agreement).

Courts have recognized that Title VII’s religious-accommodation provision often requires that employers treat employees differently based on religion. This is because, as courts have recognized, a contrary rule “would preclude all forms of accommodation and defeat the very purpose behind [42 U.S.C. §] 2000e(j).” Brown v. Gen. Motors Corp., 601 F.2d 956, 962 (8th Cir. 1979); cf. EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 135 S. Ct. 2028, 2034 (2015) (explaining that “Title VII does not demand mere neutrality with regard to religious practices”).

That is not to say, however, that all accommodations resulting in such differential treatment are permissible under the statute. In Opuku-Boateng, for example, the district court decision under review had held that granting the plaintiff’s request for Sabbaths off would have been unfair to his co-workers and thus would have resulted in undue hardship. 95 F.3d at 1469-70. Reversing, the Ninth Circuit wrote that “[s]o long as” the plaintiff worked an “equal number of ‘undesirable shifts,’” and was “assigned a holiday, Sunday, or night shift for every shift he missed to observe the Sabbath, he would not have been granted any preferential treatment, nor would any cognizable burden have been imposed on other[s] who simply were assigned one undesirable shift instead of another.” Id. at 1470. That reasoning applies here.

Indeed, there is no evidence that accommodating Hedican in the ways the EEOC suggested would in fact deprive his co-workers of their shift preferences. For instance, even assuming minor adjustments to Hedican’s schedule on Fridays or Saturdays would affect another assistant manager’s schedule, as Walmart claims, Walmart Br. 38, there is nothing in the record to support Walmart’s assumption that other managers would have objected to these minor changes.

Walmart emphasizes that accommodating Hedican would have required that it fill all Saturday daytime slots with other assistant managers, and that his co-workers would have “fewer opportunities to avoid Saturday work and fewer viable options for trading their own Saturday shifts.” Walmart Br. 43-47. But even so, Walmart presupposes that other assistant managers invariably preferred taking Saturdays off—a premise not borne out by the record. Buck testified, for instance, that employees in the Hayward store most frequently sought Fridays, Saturdays, and Sundays off. R.44 at 28. And, as the EEOC noted in its opening brief, Hedican was available to work 48 of the 72 hours most requested off. See EEOC Br. 45. Hedican could therefore be expected to work regularly, for example, on Sundays and Fridays during the daytime (as well as popular holidays such as Thanksgiving) to compensate for his inability to work on his Sabbath. In that scenario, like the plaintiff in Opuku-Boateng, Hedican would not be receiving less burdensome work but rather would be “assigned one undesirable shift instead of another.” 95 F.3d at 1470.

2. Finally, a jury could reasonably reject Walmart’s arguments that it would face undue hardship in accommodating Hedican because there might have been instances in which Hedican would need to work unexpectedly on his Sabbath to address an emergency. See Walmart Br. 36-39.

Despite having the burden of proof, Walmart has described only one hypothetical situation in which an assistant manager like Hedican would have needed to come into work unexpectedly on a Saturday. See EEOC Br. 49 (discussing corporate representative’s testimony). Walmart has not identified an actual “emergency” that ever arose in similar circumstances. And, even if hypotheticals unsupported by objective evidence were enough, which they are not, see EEOC Br. 46, Walmart has cited no legal authority for the proposition that an isolated instance of an individual’s inability to come into work for religious reasons would pose an undue hardship, particularly for an employer as large as Walmart. Cf. 29 C.F.R. § 1605.2(e)(1) (EEOC guideline stating that assessing undue hardship depends on, inter alia, “the identifiable cost in relation to the size and operating cost of the employer”). Regardless, Walmart has not shown that Hedican would have been unable to arrange for another assistant manager to cover for him in such emergencies in exchange for Hedican assuming some of that manager’s workload.

CONCLUSION

For the foregoing reasons and for the reasons identified in our opening brief, the judgment of the district court should be reversed.

Respectfully submitted,

sharon fast gustafson

General Counsel

JENNIfer s. goldstein

Associate General Counsel

SYDNEY A.R. FOSTER

Assistant General Counsel

/s/ Philip M. Kovnat

PHILIP M. KOVNAT

Attorney, Appellate Litigation Services

Office of General Counsel

Equal Employment Opportunity Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 663-4769

philip.kovnat@eeoc.gov

October 23, 2020

[1] Walmart is incorrect that “[a]ll evidence” supports its assertion that Ahern discussed this potential accommodation with store manager Buck—and thus that a reasonable jury would have to reach that conclusion. Walmart Br. 7 n.1. Rather, Buck testified that he never discussed “voluntary shift swaps” with Ahern. R.44 at 24.