The Equal Employment Opportunity Commission (EEOC)
petitions for rehearing or rehearing en banc on two related questions of
exceptional importance decided by the panel majority. This case concerns an
employer’s obligations under Title VII of
the Civil Rights Act of 1964 to “reasonably accommodate” an employee’s
religious practices absent “undue hardship,” 42
U.S.C. § 2000e(j). The employer here—Walmart Stores East, L.P., and
Walmart, Inc. (collectively, Walmart)—offered Edward Hedican a position as an
assistant manager but then rescinded the offer when he sought an accommodation
to avoid working on his Sabbath. As relevant here, the panel majority ruled
that, based on the summary-judgment record, a reasonable jury would be
compelled to find that Walmart showed that it would have incurred “undue
hardship” if it had accommodated Hedican by allowing him to swap any shifts
falling on his Sabbath with other assistant managers who agreed to such a
trade.
The panel majority offered two reasons for ruling for
Walmart on this issue, each of which warrants rehearing and rehearing en banc. First,
the majority held that Title VII never requires
an employer to allow voluntary shift swaps as a means of accommodating
an employee’s religious practices. That ruling is incorrect and squarely conflicts
with decisions of the Fifth, Sixth, and Ninth Circuits, all of which have held
that, at least in some circumstances, voluntary shift swaps pose no undue
hardship and must be offered as accommodations. See Davis v. Fort Bend Cnty., 765 F.3d 480,
488-89 (5th Cir. 2014); Opuku-Boateng
v. California, 95 F.3d 1461, 1471-73 (9th Cir. 1996); Smith v. Pyro Mining Co., 827 F.2d 1081,
1089 (6th Cir. 1987). The panel’s conclusion is also contrary to EEOC v. Ithaca Industries, Inc., 849 F.2d
116, 119 & n.4 (4th Cir. 1988) (en banc), which concluded that an employer
violated Title VII because it made no
efforts to accommodate an employee through, inter alia, voluntary shift
swaps. And the majority’s opinion is in tension with other appellate decisions
recognizing that voluntary shift swaps constitute reasonable accommodations in
some circumstances, including Tabura v.
Kellogg USA, 880 F.3d 544, 556-57 (10th Cir. 2018).
Second, the majority concluded that voluntary shift
swaps here would have posed an undue hardship as a matter of law because it
speculated that there might not have been enough willing volunteers. That
holding conflicts with decisions of at least four other courts of appeals forbidding
reliance on such speculation. See Opuku-Boateng,
95 F.3d at 1471-73 (9th Cir.); Brown v.
Polk Cnty., 61 F.3d 650, 657 (8th Cir. 1995) (en banc); Toledo v. Nobel-Sysco, Inc., 892 F.2d
1481, 1492 (10th Cir. 1989); Smith,
827 F.2d at 1085-86 (6th Cir.). The majority’s reliance on speculation is also incompatible
with this Court’s longstanding precedent that employers bear the burden
of proving undue hardship. E.g., EEOC
v. Ilona of Hungary, Inc., 108 F.3d 1569, 1576 (7th Cir. 1997).
1. Walmart offered Edward Hedican a salaried assistant-manager
position at one of its stores. R.52-3 at 2.
When Hedican, a Seventh-day Adventist, sought an accommodation to avoid work on
his Sabbath (Friday sundown to Saturday sundown), Walmart rescinded this offer.
R.52-2 at 2-3; R.52-10 at 2. The EEOC sued, alleging that
Walmart violated Title VII because it failed
to reasonably accommodate Hedican’s Sabbath observance, and it did not prove
that accommodating Hedican in the assistant-manager role posed an undue
hardship.
One accommodation Walmart considered was letting Hedican
swap any shifts conflicting with his Sabbath with volunteers from the pool of
seven other assistant managers. See R.47
at 13-14. Walmart’s human resources manager, Lori Ahern, unilaterally rejected
this option, however. Id. She did
not ask any of the other assistant managers whether they would willingly swap
shifts with Hedican. Id. at 14; see
also R.44 at 24 (store manager’s
testimony that Ahern also did not speak to him about shift swaps). Instead, Ahern
assumed the other assistant managers “may have plans and may not want to do” so.
R.47 at 13. Ultimately, Walmart did not try
to accommodate Hedican in the assistant-manager job, but Ahern said she would “assist
[him] in [applying]” for certain lower-paying and lower-ranking jobs. R.52-10 at 2; R.47
at 12. Hedican did not apply for those other jobs.
2. The district court granted Walmart summary judgment.
The court held that Walmart provided Hedican a reasonable accommodation by
offering him limited assistance in applying for lower-paying and lower-ranking
jobs. R.64 at 13-18. The court also concluded
that, in any event, a reasonable jury would be compelled to find that Walmart demonstrated
that accommodating Hedican in the assistant-manager position posed an undue
hardship. Id. at 18-20.
A divided panel of this Court affirmed solely on
undue-hardship grounds. Op. at 4-7. As
relevant here, the majority categorically rejected voluntary shift swaps as an
accommodation. The majority reasoned that “[t]his proposal would thrust” the
“need to accommodate” “on other workers” rather than on the
employer, which it stated is “not what the statute requires.” Op. at 5. According to the majority, the
Supreme Court in Trans World Airlines,
Inc. v. Hardison, 432 U.S. 63 (1977), “addressed and rejected the sort of
shift-trading system that the EEOC now proposes.” Op. at 5.
The majority stated there was a “further problem: What
would Walmart do if other workers balked . . . ?” Id. The majority posited that “[i]f, say,
four of the seven other assistant managers declined to take extra weekend
shifts,” then those who agreed to swap shifts with Hedican would need to work
“nine or ten Saturdays out of ten.” Id.
The majority did not explain the basis for its calculations or why the posited
result would be problematic. It also did not identify any evidence in the
record compelling the conclusion that an insufficient number of assistant
managers would have volunteered to trade shifts.
Judge Rovner dissented. She observed that “Hedican was
available to work on Fridays, Saturday nights and Sundays,” and she explained
that “if he were willing to disproportionately accept shift assignments during
the 48 of 72 weekend hours outside of his observed Sabbath, then other managers
might have been willing to pick up the slack on Friday nights and Saturdays.” Op. at 8 (Rovner, J., dissenting). She noted that
Walmart “could not know for certain unless [it] asked” the other assistant
managers, “and yet [it] did not.” Id.
Had Walmart done so, it “might have discovered that it was in fact feasible to
accommodate both Hedican and the other managers.” Id. Because Judge Rovner believed there
was a genuine question “as to whether Walmart did enough to explore ways of
accommodating Hedican[],” she would have reversed and remanded for a trial. Id.
The majority’s affirmance of summary judgment for Walmart
on the question whether voluntary shift swaps constituted an undue hardship is
incorrect and conflicts with decisions of other courts of appeals.
In analyzing whether a reasonable jury would be
compelled to find that Walmart demonstrated that voluntary shift swaps would
have imposed an undue hardship, the majority reached two erroneous conclusions,
each of which conflicts with decisions of multiple other courts of appeals.
First, in holding that voluntary shift swaps are never required under Title VII, the majority created a categorical rule
in this Circuit that is at odds with precedent in at least four other circuits.
Also, although the majority said that Hardison
“rejected the sort of shift-trading system that the EEOC now proposes,” Op. at 5, Hardison
supports the opposite conclusion—that voluntary shift swaps are a critical way
of effectuating Congress’s goal of accommodating employees’ religious beliefs.
Second, in adopting Walmart’s unsupported assumption that
there would have been an insufficient number of volunteers to swap shifts with
Hedican, the majority let Walmart predicate its undue-hardship defense on speculation.
That conclusion is inconsistent with the rule in at least four other circuits that
such a defense must be based on objective facts, not speculation. More broadly,
the majority’s holding is irreconcilable with the fundamental principle recognized
by this Court that employers bear the burden of proving undue hardship. E.g.,
Ilona of Hungary, 108 F.3d at 1576.
In effect, the majority required the EEOC to disprove undue hardship by showing
that enough of Hedican’s colleagues would have willingly swapped shifts with
him, instead of requiring Walmart to prove its defense by demonstrating that
they would not have done so. This is not the law.
A. The majority’s holding
that Title VII never requires
voluntary shift swaps as an accommodation is incorrect and conflicts with decisions
of other courts of appeals.
The panel majority categorically rejected voluntary
shift swaps as an accommodation that employers must sometimes offer. Op. at 5. Letting Hedican “trade shifts with
other assistant managers,” the majority reasoned, would be an accommodation by
“other workers,” not “by the employer, as Title VII contemplates.” Op. at 5. The majority’s conclusion that Title VII never requires employers to offer
voluntary shift swaps as an accommodation is incorrect, conflicts with
decisions from at least four other circuits, and would seriously undermine congressional
intent.
1. The majority’s categorical rejection of voluntary
shift swaps as an accommodation that Title
VII sometimes requires conflicts with precedent in at least four other courts
of appeals.
Three other courts of appeals have squarely held that,
at least in some circumstances, voluntary shift swaps do not impose an undue
hardship on employers and thus must be offered as a reasonable accommodation
under Title VII. In Davis, the Fifth Circuit considered the
very concern expressed by the majority here regarding the potential of shift
swaps to burden other employees. 765 F.3d
at 488. Davis concluded, however,
that although “requiring an employee to substitute” for a plaintiff may impose
an undue hardship as a matter of law, “[s]ubstituting a volunteer does not
necessarily impose the same hardship on the employer, if any.” Id. at 488-89. Because in Davis the plaintiff arranged for a voluntary
replacement on a day she wished to miss work for religious reasons, the Fifth
Circuit reversed a grant of summary judgment for the employer on the
undue-hardship issue. Id. at 489.
Similarly, in Opuku-Boateng,
the Ninth Circuit reversed judgment in the employer’s favor—and directed entry
of judgment in the plaintiff’s favor—because the employer did not prove that
voluntary shift swaps, among other accommodations, posed an undue hardship. See
95 F.3d at 1469, 1471-73, 1475. And, in Smith, the Sixth Circuit affirmed a
judgment in the plaintiff’s favor on the ground that facilitating voluntary
shift swaps did not impose an undue hardship and thus was required. 827 F.2d at 1089; see also EEOC v. Arlington Transit Mix, Inc., 957
F.2d 219, 222 (6th Cir. 1991) (employer did not explore a voluntary shift-swap
arrangement and thus was “in no position to argue” that doing so posed an undue
hardship).
In addition, the majority’s conclusion that voluntary
shift swaps categorically constitute undue hardship conflicts with the en banc Fourth
Circuit’s decision in Ithaca Industries.
There, the court noted evidence that several employees would have been willing
to substitute for the Sabbath-observant employee. 849 F.2d at 118. Because the employer neither
explored this option nor attempted to accommodate the worker by other means, Ithaca Industries held that it
violated Title VII. Id. at 119 & nn.4-5.
The majority’s conclusion that voluntary shift swaps are
not “an accommodation by the employer, as Title VII contemplates,” Op. at 5, is also in tension with decisions by
other circuits holding that voluntary shift swaps can constitute a reasonable
accommodation and, in some circumstances, must be offered as such. In Tabura, for instance, the Tenth Circuit reversed
summary judgment for an employer because, on the facts presented, a reasonable
jury could determine that the employer “had to take a more active role in
helping arrange [voluntary shift] swaps in order for that to be a reasonable accommodation
of Plaintiffs’ Sabbath observance.” 880
F.3d at 556-57. Similarly, in stark contrast to the majority’s
conclusion here, the First and Eleventh Circuits have made clear that voluntary
shift swaps can qualify as a reasonable accommodation for Sabbatarians. See
Sanchez-Rodriguez v. AT&T Mobility
P.R., Inc., 673 F.3d 1, 12-13 (1st Cir. 2012); Beadle v. Hillsborough Cnty. Sheriff’s Dep’t,
29 F.3d 589, 593 (11th Cir. 1994).
2. The majority opined that Hardison “rejected the sort of shift-trading
system that the EEOC now proposes.” Op. at
5. That is incorrect. In Hardison, unlike
here, the employer went to considerable lengths to pursue shift swaps as an
accommodation. 432 U.S. at 68, 77, 78. The
employer determined, however, that “[t]here were no volunteers to relieve [the
plaintiff]”; instead, accommodating the plaintiff through a shift swap would mean
“depriv[ing] another employee of his shift preference[s].” Id. at 81. Moreover, the relevant union “was
unwilling to entertain a variance [from the governing seniority system] over
the objections of” other workers. Id. at
78-79.
Thus, what Hardison
“rejected” (Op. at 5) was not a voluntary
shift-trading system of the sort the EEOC here proposes, but rather the
argument that Title VII requires employers
to “compel[]” other employees “to work involuntarily[]” in a Sabbath-observant
employee’s place in violation of a seniority system. 432 U.S. at 84-85; see also id. at 78-79, 81; accord, e.g., Davis, 765 F.3d at 489 (adopting similar reading
of Hardison); Beadle, 29 F.3d at 593 (similar). Significantly,
Hardison reasoned that such an
involuntary shift-trading system would pose undue hardship because it would
result in “unequal treatment” of employees—employers would be required to “deny
the shift and job preference of some employees” to “prefer the religious needs
of others.” 432 U.S. at 81. That
reasoning is inapplicable where, as proposed here, other employees agree
to swap shifts with someone who must miss work for religious reasons.
3. The majority offered no other basis for holding that
voluntary shift swaps always impose an undue hardship, and there is none. As
this Court has explained, “Title VII
requires proof not of minor inconveniences but of hardship, and ‘undue’
hardship at that.” Adeyeye v. Heartland
Sweeteners, LLC, 721 F.3d 444, 455-56 (7th Cir. 2013) (quoting 42 U.S.C. § 2000e(j) and recognizing that,
under Hardison, “anything more than
a ‘de minimis cost’ creates undue hardship” (citation omitted)). In a
typical case, voluntary shift swaps burden employers only insofar as they may incur
costs in “rearranging schedules and recording substitutions for payroll
purposes,” which this Court and the EEOC’s guidelines recognize do not amount
to undue hardship. Id. at 456
(relying on 29 C.F.R. § 1605.2(e)(1)).
It follows that “[r]easonable accommodation without undue hardship is generally
possible where a voluntary substitute with substantially similar qualifications
is available.” 29 C.F.R.
§ 1605.2(d)(i) (explaining that “[o]ne means of substitution is the
voluntary swap”).
4. The majority’s decision seriously undermines
congressional intent. When Congress amended Title
VII in 1972 to require that employers reasonably accommodate religious
practices absent undue hardship, its “stated purpose” was “to protect Sabbath
observers whose employers fail to adjust work schedules to fit their needs.” Ithaca
Indus., 849 F.2d at 119; see also 118 Cong. Rec. 705, 705-06 (1972) (Senator
sponsoring the amendment stating that he aimed to protect those who believe in “a
steadfast observance of the Sabbath”).
Courts and employers have recognized that a critical way
to effectuate Congress’s goal of accommodating Sabbath-observant workers is
through voluntary shift-trading arrangements. See supra pp. 7-9 (discussing
cases); Smith, 827 F.2d at 1088
(“Undoubtedly, one means of accommodating an employee who is unable to work on
a particular day due to religious convictions is to allow the employee to trade
work shifts with another qualified employee.”). Indeed, it is highly unusual
for employers to take the position that voluntary shift swaps are never
required. Cf. Hardison, 432 U.S. at
77 (employer’s “normal procedure” was to authorize voluntary shift swaps as a
religious accommodation (citation omitted)). In this litigation, for instance,
Walmart did not take that view. Nor could it, given that the company maintains
a nationwide policy recognizing that “[v]oluntary swaps” are an accommodation
that “may be necessary,” and that “[e]ncourage[s]” employees to “swap shifts”
for “religious reasons.” R.52-9 at 2, 4.
In the span of a single paragraph, however, the majority
here did away with this vital and well-recognized form of accommodation,
declaring that voluntary shift swaps are never required because they are not an
accommodation “by the employer.” Op.
at 5. Rehearing or rehearing en banc is required to bring this Court’s case law
into conformity with precedent in other courts of appeals—and to ensure that
one of the most critical tools for effectuating Congress’s goal of
accommodating Sabbath-observing employees remains available in this Circuit.
B. The majority’s reliance
on speculation to conclude that voluntary shift swaps were infeasible defies this
Court’s precedent holding that employers bear the burden of proving undue
hardship, and conflicts with decisions of other courts of appeals.
The majority stated that there was a “further problem”
with the shift-swap accommodation: “What would Walmart do if other workers
balked . . . ?” Op. at
5. The majority hypothesized that “[i]f, say, four of the seven other assistant
managers declined to take extra weekend shifts” at Hedican’s behest, the ones
who agreed to shift swaps would need to work “nine or ten Saturdays out of ten.”
Id. Even assuming the mathematical
accuracy of that hypothetical,
however, it merely underscores the EEOC’s point: it describes a scenario in
which Hedican could have avoided working on his Sabbath, and other willing
assistant managers could have covered all shifts falling on that day.
It appears that the majority ruled for Walmart based on
its broader concern about what Walmart would do “if other workers balked,” Op. at 5, but that ruling also warrants
rehearing and rehearing en banc. As the majority’s use of the word “if” makes
clear, such a concern is based on the speculative argument—unsupported by
record evidence—that there would have been an insufficient number of volunteers
to swap shifts with Hedican. There are two closely related problems with the
majority’s reliance on this speculation.
First, it is well established in this Court that undue
hardship is an affirmative defense on which Walmart bears the burden of proof. E.g.,
Adeyeye, 721 F.3d at 448, 455. That
rule is rooted in 42 U.S.C.
§ 2000e(j)’s text, which specifies that “employer[s] [must] demonstrate[]”
an inability to reasonably accommodate “without undue hardship.” The majority’s
reliance on speculation is incompatible with this precedent.
Second, contrary to the majority’s opinion, at least
four other courts of appeals have held that an employer does not satisfy its
burden of proving undue hardship unless it produces objective evidence, as
distinct from speculative hypotheses, to support its defense. For instance, in Opuku-Boateng, the Ninth Circuit applied this
principle to the very defense advanced by Walmart here: the claim that not enough
volunteers would agree to shift swaps. 95
F.3d at 1471-73. In that case, unlike here, the employer had polled the
plaintiff’s co-workers regarding their willingness to trade shifts. Id. at 1471. But because the poll was
“vague and ambiguous” and thus incapable “of producing reliable results,” the
Ninth Circuit held that the employer “failed to offer any probative evidence
that would demonstrate that a system of voluntary shift trades was infeasible,”
and thus did not “carry its burden” of proving undue hardship. Id. at 1471-72.
Several other circuits have reached the same conclusion
in similar circumstances. See Smith,
827 F.2d at 1085-86, 1089 (6th Cir.) (affirming determination that employer did
not prove that asking co-workers to swap shifts posed an undue hardship and
explaining that, although an employer may “establish undue hardship without
actually putting an accommodation into effect,” it “cannot rely merely on
speculation”); see also Brown, 61
F.3d at 655, 656-57 (8th Cir.) (employer’s contention that accommodating
plaintiff would cause workplace “polarization” lacked foundation because “[a]ny
hardship . . . must be ‘real’ rather than ‘speculative’” (citation
omitted)); Toledo, 892 F.2d at 1492
(10th Cir.) (rejecting employer’s argument that accommodation would expose it
to increased tort liability because it relied on speculation).
Here, Walmart argued that a reasonable jury would be
compelled to find that it demonstrated that a shift-swap system would have
lacked a sufficient number of willing volunteers. Walmart Br. at 48. But Walmart’s human
resources manager did not ask other assistant managers whether they would willingly
swap shifts with Hedican; instead, she theorized that they “may have plans” and
“may not want to” do so. R.47 at 13-14.
That is too speculative a basis to support an undue-hardship defense. Moreover,
evidence in the record shows that: (1) the days assistant managers most often
requested off were Fridays, Saturdays, and Sundays, and Hedican was available
to work 48 of those 72 hours, R.44 at 28;
and (2) on any given Saturday, there typically would have been three or four
assistant managers available to swap shifts with Hedican. R.38 at 1, 4 (explaining that approximately
half of the eight assistant managers worked each Saturday). As Judge Rovner
explained in her dissent, it follows that Hedican’s co-workers may have been open
to trading shifts with him. Op. at 8
(Rovner, J., dissenting); cf. Opuku-Boateng,
95 F.3d at 1471 (reasoning, on similar facts, that “[i]t is not unreasonable to
assume that other employees would have been willing to trade [shifts]”).
Ultimately, here, the record
does not answer the question whether there would have been enough willing
volunteers to swap shifts with Hedican, and this is for one reason: Walmart’s
human resources manager never asked the others if they would participate in
such an arrangement. Because Walmart bore the burden of proving undue hardship,
see, e.g., Adeyeye,
721 F.3d at 455, and that burden cannot be met with speculation, this gap in
the record must inure to Walmart’s detriment, not the EEOC’s. Accord Op. at 9 (Rovner, J., dissenting) (“[T]here is
a jury question as to whether Walmart went far enough in considering whether
Hedican’s religious scheduling needs could be accommodated.”).
For the foregoing reasons, this Court should grant rehearing
or rehearing en banc.
Respectfully
submitted,
GWENDOLYN YOUNG REAMS
Acting
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) 921-2702
philip.kovnat@eeoc.gov
May 17, 2021
