Table of Contents

Table of Authorities.......................................................................................... ii

Statement of Interest......................................................................................... 1

Statement of the Issues..................................................................................... 2

Statement of the Case....................................................................................... 2

A. Statement of Facts................................................................................... 2

B. District Court Opinion............................................................................ 7

Summary of Argument..................................................................................... 9

Argument........................................................................................................ 10

A. Kellogg failed to provide a reasonable accommodation for religion under Title VII because it did not eliminate the conflict between its generally applicable rule that all employees must work every other Saturday and the plaintiffs’ religious practice of not working on Saturdays........................................................................... 10

B. Kellogg failed to establish undue hardship because it routinely hires more people than necessary for the express purpose of covering employee absences....... 19

Conclusion...................................................................................................... 22

Certificate of Compliance

Certificate of Digital Compliance

Certificate of Service

Table of Authorities

Cases

Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986).................................. 14

Baker v. Home Depot, 445 F.3d 541 (2d Cir. 2006)................................... 12-13

Cooper v. Oak Rubber Co., 15 F.3d 1375 (6th Cir. 1994).............................. 13

EEOC v. Abercrombie & Fitch, 135 S. Ct. 2028 (2015). 8, 10, 11-12, 14, 15, 16

EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008).... 14-15

EEOC v. Ilona of Hung., Inc., 108 F.3d 1569 (7th Cir. 1997)........................ 13

EEOC v. Universal Mfg. Corp., 914 F.2d 71 (5th Cir. 1990).................... 13, 15

Ellington v. Murray Energy, No. 2:07-cv-766-DAK,

2010 WL 3855277 (D. Utah Sept. 30, 2010) (unpublished)........................... 17

Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008)................................... 11

Getz v. Penn. Dep’t of Pub. Welfare, 802 F.2d 72 (3d Cir. 1986).................... 12

Lee v. ABF Freight Sys., Inc., 22 F.3d 1019 (10th Cir. 1994).......................... 16

Opuku-Boateng v. State of Calif., 95 F.3d 1461 (9th Cir. 1996).......... 13, 20-21

Pinsker v. Joint Dist. No. 28J of Adams & Arapahoe Ctys.,

735 F.2d 388 (10th Cir. 1984).................................................................. 12, 14

Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024 (8th Cir. 2008).......... 14, 15

Thomas v. Nat’l Ass’n of Letter Carriers, 225 F.3d 1149

(10th Cir. 2000)......................................................................... 7, 16-17, 18, 21

Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481 (10th Cir. 1989).............. 16, 20, 22

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). 7, 16-17, 19, 20, 21

United States v. City of Albuquerque, 545 F.2d 110 (10th Cir. 1976).......... 7, 17

Statute and Rule

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.................. 1

§ 2000e-2(a)(1).................................................................................. 1, 10

§ 2000e(j).................................................................................... 1, 10, 19

Fed. R. App. P. 29(a)........................................................................................ 2

Other Authority

EEOC Compl. Man., Section 12: Religious Discrimination (July 22, 2008), https://www.eeoc.gov/policy/docs/religion.html ..................... 11, 19-20, 21, 22

EEOC Guidelines on Discrimination Because of Religion: Reasonable

Accommodation Without Undue Hardship as Required by Section 701(j)

of Title VII, 29 C.F.R. § 1605.2.............................................. 18, 19, 20, 21, 22

§ 1605.2(c)............................................................................................ 19

§ 1605.2(d)(1)............................................................................. 7, 18, 21

§ 1605.2(e)(1)............................................................................ 19, 20, 22

§ 1605.2(e)(2)........................................................................................ 20

Statement of Interest

The Equal Employment Opportunity Commission (“EEOC”) is charged by Congress with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Title VII prohibits employers from discriminating on the basis of religion and requires them to provide a reasonable accommodation for the religious beliefs and practices of their employees where they can do so without undue hardship. Id. §§ 2000e-2(a)(1), 2000e(j).

The district court held that Kellogg reasonably accommodated Tabura’s and Diaz’s religious objection to working on Saturdays by allowing them to use the same options available to all other employees who needed a day off -- taking paid leave and arranging shift swaps with other employees -- even though Kellogg ultimately fired them when they ran out of leave and could not find other employees willing to swap shifts. AA 352-53.[1] The court’s holding misunderstands the fundamental purpose of a religious accommodation, which is to enable employees to exercise their religion notwithstanding an employer’s generally applicable rules. In the absence of undue hardship, an employer must eliminate, not merely reduce, the conflict between a neutral work rule and an employee’s religious belief or practice. Because the EEOC has a strong interest in seeing that courts interpret Title VII correctly, it offers its views to the Court. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.

Statement of the Issues

1. Does an employer satisfy its Title VII obligation to provide a reasonable accommodation for the religious beliefs of its employees when it can eliminate the conflict between those beliefs and a neutral work rule without suffering undue hardship but nevertheless offers only a partial accommodation?

2. Would Kellogg have suffered undue hardship by excusing Tabura and Diaz from all Saturday shifts when it routinely hires more people than necessary for the express purpose of covering employee absences?

Statement of the Case

A. Statement of Facts

Tabura and Diaz worked at Kellogg’s plant in Clearfield, Utah. AA 402, 595. Tabura was a processing operator in the spice room, where he weighed spices for Kellogg’s veggie burgers, and Diaz was an operations technician in the packaging area, where she took patties from the end of a machine line and bagged them. AA 404-05, 588. Both Tabura and Diaz are Seventh Day Adventists who strictly observe Sabbath from sundown Friday until sundown Saturday. Their religion bars them from working during this time. AA 398, 401, 579, 582.

Depending on the demand for product and the availability of labor, the Clearfield plant runs one to three processing lines and at least seven packaging lines daily. AA 914. There is no union at the Clearfield facility. AA 924. Recognizing that employee absences are inevitable, Kellogg builds some redundancy into its system, cross-training employees on various jobs and hiring more people than necessary for each shift so that there will almost always be “relief people” available “to ensure that people could use their [leave] and that we could continue to run the line.” AA 920, 994. When someone was absent, it was “likely that there would be a relief person who could fill in.” AA 994. At times, a supervisor would call another shift to find someone to fill in for an absent employee, and sometimes Kellogg used overtime. AA 920-21, 994. In the past, Kellogg frequently hired temporary workers to fill in for absent employees, but after finding an adverse effect on product quality, it limited temporary workers to filling menial jobs. AA 920, 940.

Until the end of 2010, Kellogg scheduled its employees on fixed ten-hour shifts that allowed Tabura and Diaz to avoid Saturday work. AA 419, 587. In early 2011, Kellogg switched to a “continuous crewing” schedule, under which employees were divided into four teams, each working twelve-hour shifts on a rotating schedule. All employees were required to work every other Saturday. AA 911-12, 943. The A and B teams worked during the day, and the C and D teams worked at night. AA 911. Tabura and Diaz were both on the A team. AA 1059.

Kellogg maintained an attendance policy under which employees accumulated points for unauthorized absences. A specified number of points within a twelve-month period triggered a progressive discipline system, beginning with verbal warnings and culminating in termination. AA 942, 984, 1057-58. Employees could use vacation and sick leave without penalty if they requested the leave twenty-four hours in advance; failure to provide adequate notice resulted in points. AA 980-81. Kellogg allowed leave without pay only for periods of at least seven consecutive days. AA 982.

The attendance policy also authorized voluntary shift swaps, which required twenty-four hours’ notice plus the approval of both supervisors. AA 981-82. Employees were allowed to swap shifts only if they were trained to perform one another’s job. AA 650. Employees on the day shift could not switch with the night shift employees who relieved them, because Kellogg would not permit any individual to work twenty-four hours straight. AA 880, 893-95, 971. Thus, Kellogg and Tabura could not seek swaps from the C team, which relieved the A team. Tabura understood that that he could not seek swaps from the D team either. AA 899. Human Resources team president Rebecca Serr testified that swapping with someone on the D team “would be challenging, based on the fact that they would be having to switch from a night sleep schedule to a day, and then back to a night.” AA 971.

When Kellogg switched to the continuous crewing schedule, Tabura notified his supervisor that he was unable to work on Saturdays and requested an accommodation. AA 695-99. His supervisor, Dean Shirra, told him that he had to use vacation leave, sick leave, and voluntary swaps. AA 703-04, 773, 927. The Human Resources Department confirmed this policy. AA 647-48, 819. Even if Tabura applied all of his vacation leave and sick leave to Saturdays, this would cover only 13 of the 26 Saturdays that he was required to work. AA 628, 638-39.

Tabura barely knew the employees on Team B (the other day shift) because they worked on different days from him. Moreover, to ask employees if they were willing to swap shifts with him, he had to go to the plant on his days off. AA 593, 597, 787. Shirra gave Tabura a list of individuals on Team B who were trained to work in the spice room but neither he nor anyone in the Human Resources Department did anything more to help, neither asking the Team B supervisor to mention Tabura’s request nor posting a notice in the break room seeking volunteers to work on Saturdays. AA 821-22, 939, 968. Tabura asked some employees on Team B to switch shifts with him but he was able to schedule swaps only three times. AA 774, 788-800.

Diaz initially had more luck swapping shifts. When Kellogg adopted the continuous crewing schedule, Diaz connected with another employee whose Sabbath fell on Sunday and they arranged a regular swap. This arrangement lasted 10-11 months until Diaz’s coworker left the plant. AA 422-25, 442-43. Shirra gave Diaz the name of one employee on Team B who might be willing to swap with her, and Diaz reached out to other employees as well. AA 445, 547. She was able to arrange only one swap. AA 427-28, 951. Diaz used all of her vacation time to visit her ailing sister in Mexico under the belief that her sister might die, and she chose to save her sick leave for times when she was actually sick. AA 455, 471, 534, 545. Even if she had used all of her vacation and sick time to cover her Saturday absences, however, Diaz would have been able to cover only 13 of the required 26 Saturday shifts. AA 1020.

In the absence of other options, Tabura and Diaz repeatedly took unauthorized leave on Saturdays. AA 1068-74. Production was unaffected because Shirra moved employees around to cover their jobs. He testified that he was able to use people from his own shift to fill in for Tabura and that he did not recall whether he ever needed someone from another shift to fill in for Diaz. AA 923.

When Tabura and Diaz accumulated sufficient points under the attendance policy, Kellogg terminated them. AA 536, 948.

B. District Court Opinion

Tabura and Diaz sued under Title VII, alleging in part that Kellogg failed to provide a reasonable accommodation for their religious practice of not working on Saturdays. AA 10-11. The parties cross-moved for summary judgment on this claim. AA 66, 105. The district court granted summary judgment to Kellogg, ruling that Kellogg had provided a reasonable accommodation and that, even if it had not, requiring it to do more than it had done would have imposed an undue hardship. AA 381-83.

The court observed that the EEOC encourages employers to allow voluntary shift-swapping and that courts likewise recognize shift swapping as a reasonable accommodation. AA 378 (citing 29 C.F.R. § 1605.2(d)(1); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 77 (1977); United States v. City of Albuquerque, 545 F.2d 110, 113-15 (10th Cir. 1976)). Moreover, the court said, in Thomas v. National Association of Letter Carriers, 225 F.3d 1149, 1153 (10th Cir. 2000), this Court held that the employer had satisfied its reasonable accommodation obligation by allowing the employee to use vacation time and swap shifts with coworkers, asking the union to exempt him from the requirement that he work on Saturdays, and recommending that he apply for another job. Both Thomas and City of Albuquerque, the court said, specifically rejected the argument that the employer had any obligation to attempt to arrange shift swaps. AA 379.

The court acknowledged that Title VII requires employers to make reasonable accommodations for religion, and it observed that Kellogg had not eliminated the conflict between its requirement that Tabura and Diaz work on Saturdays and their religious conviction that they could not do so. AA 354, 381. Nevertheless, the court held, Kellogg had satisfied its reasonable accommodation obligation by relying on its “religion-neutral absence policy that allowed employees to use paid time off and to swap schedules.” AA 352. In EEOC v. Abercrombie & Fitch, 135 S. Ct. 2028, 2034 (2015), the court said, the Supreme Court “stated that a neutral policy can ‘make sense’ in certain contexts.” AA 381. Here, the court said, Kellogg’s neutral policy “include[d] a reasonable accommodation to religious employees – giving the religious and the nonreligious the opportunity to participate in the accommodation.” AA 381.

Even if Kellogg had not reasonably accommodated Tabura and Diaz, the court concluded, requiring it to do anything more would have imposed an undue hardship. “The employer need not ‘bear more than de minimis cost’ or deny the shift preferences of some employees to accommodate the religious needs of others.” AA 382 (citation omitted). Excusing Tabura and Diaz from the absence policy, the court said, “would have placed an undue hardship on Kellogg because it would have gone understaffed, hired replacement workers, or denied other employees their preferred shifts.” AA 382. Requiring Kellogg to arrange shift swaps, the court added, “would border on coercing nonreligious employees to swap.” AA 383.

Summary of Argument

The district court erred in concluding that Kellogg had provided a reasonable accommodation despite its failure to eliminate the conflict between the plaintiffs’ religious practice and Kellogg’s neutral work rule. The purpose of a reasonable accommodation is to allow an employee to practice his or her religion notwithstanding an employer’s generally applicable rules. Kellogg’s solution did not achieve this goal. Once Tabura and Diaz had exhausted their paid leave, on the days when they could not arrange a swap they had no option but to take unauthorized leave and accumulate attendance points. Eventually, Kellogg terminated them based, at least in part, on their Saturday absences. An “accommodation” that leads to termination is, ipso facto, not reasonable.

Kellogg could escape liability for its failure to provide a reasonable accommodation if it could show that eliminating the conflict would have caused an undue hardship, but it has not and cannot make this showing. Kellogg routinely hires more people than it needs per shift for the express purpose of filling in for absent employees. Tabura’s supervisor was able to cover all of Tabura’s unauthorized absences with another employee from the same shift, and he could not remember needing to go outside that shift to cover for Diaz’s absences. Even if Kellogg occasionally had to hire a replacement or pay overtime, such infrequent expenses would not amount to undue hardship.

Argument

Title VII prohibits employers from discriminating on the basis of religion, and defines religion to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s . . . religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. §§ 2000e-2(a)(1), 2000e(j). The employee bears the initial burden of showing that the employer failed to provide a reasonable accommodation and that “his need for an accommodation was a motivating factor in the employer’s decision.” Abercrombie, 135 S. Ct. at 2032 & n.2. The burden then shifts to the employer to show that accommodating the employee would have imposed an undue hardship. 42 U.S.C. § 2000e(j).

Kellogg failed to provide a reasonable accommodation for Tabura’s and Diaz’s religion because it did not eliminate the conflict between their religious practice and Kellogg’s rule requiring them to work on Saturdays. The EEOC states that an “[e]mployer violates Title VII if it offers only partial accommodation where full accommodation would not pose an undue hardship.” EEOC Compl. Man., Section 12: Religious Discrimination (July 22, 2008), https://www.eeoc.gov/policy/docs/religion.html [hereinafter “EEOC Compl. Man.”], at § 12-IV(A), Ex. 32; see also id. at nn.129 &130 and accompanying text. This interpretation is entitled to deference because the EEOC, which Congress charged with interpreting and enforcing Title VII, relies on “‘a body of experience and informed judgment to which courts and litigants may properly resort for guidance.’” Fed. Express Corp. v. Holowecki, 552 U.S. 389, 399 (2008) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944)).

The Supreme Court has explained that accommodation “means nothing more than allowing the plaintiff to engage in her religious practice despite the employer’s normal rules to the contrary.” Abercrombie, 135 S. Ct. at 2032 n.2 (emphasis added). This is because “Title VII does not demand mere neutrality with regard to religious practices – that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual . . . because of such individual’s’ ‘religious observance and practice.’” Id. at 2034 (citation omitted); see also id. at 2036 (Alito, J., concurring) (“If neutral work rules . . . precluded liability, there would be no need to provide that defense, which allows an employer to escape liability for refusing to make an exception to a neutral work rule if doing so would impose an undue hardship.”).

This Court has suggested but not specifically held that a reasonable accommodation must eliminate the conflict between an employee’s religion and his job. In Pinsker v. Joint District No. 28J of Adams & Arapahoe Counties, 735 F.2d 388 (10th Cir. 1984), this Court held that the employer had provided a reasonable accommodation by requiring the employee to take unpaid leave, even though this was not the employee’s preferred accommodation. Notably, the Court observed that the employer’s “policy and practices jeopardized neither Pinsker’s job nor his observation of religious holidays.” Id. at 391. The Third Circuit cited Pinsker and adopted its reasoning in Getz v. Pennsylvania Department of Public Welfare, 802 F.2d 72, 73 (3d Cir. 1986). There, the Third Circuit held that it was reasonable to require the employee to use her vacation days for religious holidays because there was “no evidence that she [was] required to comply with an employment condition that conflicts with her religious beliefs and practices.”

The Second, Fifth, Sixth, Seventh, and Ninth Circuits expressly agree with the EEOC that a reasonable accommodation must eliminate the religious conflict. See Baker v. Home Depot, 445 F.3d 541, 547-48 (2d Cir. 2006) (“[T]he shift change offered to Baker was no accommodation at all because, although it would allow him to attend morning church services, it would not permit him to observe his religious requirement to abstain from work totally on Sundays.”) (emphasis in original); EEOC v. Ilona of Hung., Inc., 108 F.3d 1569, 1576 (7th Cir. 1997) (offering employees a day off from work other than Yom Kippur “cannot be considered reasonable . . . because it does not eliminate the conflict between the employment requirement and the religious practice”); Opuku-Boateng v. State of Calif., 95 F.3d 1461, 1467 (9th Cir. 1996) (if negotiations between employer and employee “do not produce a proposal by the employer that would eliminate the religious conflict, the employer must either accept the employee’s proposal or demonstrate that it would cause undue hardship were it to do so”); Cooper v. Oak Rubber Co., 15 F.3d 1375, 1378 (6th Cir. 1994) (“If the employer’s efforts fail to eliminate the employee’s religious conflict, the burden remains on the employer to establish that it is unable to reasonably accommodate the employee’s beliefs without incurring undue hardship.”); EEOC v. Universal Mfg. Corp., 914 F.2d 71, 72 (5th Cir. 1990) (district court “erred in ruling that, absent a showing of undue hardship by an employer, accommodating only one of the two practices of the employee’s religion, both of which conflicted with the employee’s work duties, satisfied as a matter of law the duty of ‘reasonable accommodation’”).

Only the Fourth and Eighth Circuits have said that a reasonable accommodation need not eliminate a religious conflict. Importantly, they each reached this conclusion without benefit of the Supreme Court’s analysis in Abercrombie. See EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008); Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024 (8th Cir. 2008).

The Fourth Circuit in Firestone held that a “reasonable” accommodation is, linguistically, less than a “complete” accommodation, and that to hold otherwise would ignore the plain text of Title VII. 515 F.3d at 313. Abercrombie, of course, clarified that an accommodation “allow[s] the plaintiff to engage in her religious practice despite the employer’s normal rules to the contrary.” Abercrombie, 135 S. Ct. at 2032 n.2 (emphasis added). The sweeping language in Abercrombie suggests that rather than diluting the accommodation obligation, the word “reasonable” simply allows an employer to choose among various possibilities for eliminating the work/religion conflict – a proposition that the Supreme Court previously endorsed in Ansonia Board of Education v. Philbrook, 479 U.S. 60, 70 (1986) (although employee would prefer paid leave, unpaid leave is generally a reasonable accommodation because it “eliminates the conflict between employment requirements and religious practices by allowing the individual to observe fully religious holy days and requires him only to give up compensation for a day that he did not in fact work”) (emphasis added); see also Pinsker, 735 F.2d at 390 (“Title VII requires reasonable accommodation. It does not require employers to accommodate the religious practices of an employee in exactly the way the employee would like to be accommodated.”). “The Ansonia Court did not leave the employer free to choose an unreasonable form of accommodation over a reasonable one.” Universal Mfg. Corp., 914 F.2d at 74.

The Eighth Circuit in Sturgill, meanwhile, reasoned that “the intended purpose of Title VII’s reasonable accommodation provision [is] to foster ‘bilateral cooperation’ in resolving an employee’s religion-work conflict,” and that it would be “inconsistent with this purpose to hold that an accommodation, to be reasonable, must wholly eliminate the conflict between work and religious requirements in all situations.” 512 F.3d at 1031 (emphasis in original; citation omitted). Abercrombie has eviscerated this analysis by making clear that, while cooperation is important, the central purpose of the reasonable accommodation provision is not to foster bilateral cooperation, but to require employers to modify neutral rules that conflict with an employee’s religious beliefs or practices when they can do so without undue hardship. Abercrombie, 135 S. Ct. at 2034. Indeed, Abercrombie held that an employer may be liable for failure to provide a reasonable accommodation even when the employee has not expressly revealed the need for one. Id. at 2033.

Even prior to Abercrombie, this Court had already rejected Sturgill’s analysis, noting that “ʻ[t]he statutory burden to accommodate rests with the employer,’ and the employee’s ‘duty to make a good faith attempt to satisfy his needs through means offered by the employer’ is irrelevant until the employer satisfies its initial obligation under the statute.” Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1488-89 (10th Cir. 1989) (citation omitted); see also Lee v. ABF Freight Sys., Inc., 22 F.3d 1019, 1022-23 (10th Cir. 1994) (where employer’s proposed accommodation might have eliminated conflict but also might have been insufficient, employee had obligation to cooperate with employer’s proposal).

The district court in the instant case disagreed that a reasonable accommodation must eliminate the conflict between religion and a work requirement. Perversely, the district court held that Kellogg’s neutral work rule was itself a reasonable accommodation. AA 381. However, the unwavering application of neutral rules is, by definition, a violation of Title VII’s reasonable accommodation requirement. The district court cited Abercrombie for the proposition that neutral rules “can ‘make sense’ in certain contexts.” AA 381. Abercrombie, however, said plainly that neutral rules “may make sense in other contexts,” not in the context of reasonable accommodation for religion. Abercrombie, 135 S. Ct. at 2034 (emphasis added).

The district court compounded its error by refusing to consider this case on its own facts, instead treating other cases as setting bright-line rules regarding reasonable accommodations. Precedents, the court said, have held that paid leave and voluntary shift swaps are sufficient to establish a reasonable accommodation. AA 378-79 (citing Hardison, 432 U.S. at 77; Thomas, 225 F.3d at 1153; City of Albuquerque, 545 F.2d at 113-15; Ellington v. Murray Energy, No. 2:07-cv-766-DAK, 2010 WL 3855277 (D. Utah Sept. 30, 2010) (unpublished)). Although this is true, this Court has instructed that “each case has to be looked at on its own facts.” Thomas, 225 F.3d at 1157 n.8; see also City of Albuquerque, 545 F.2d at 114 (“Each case necessarily depends upon its own facts and circumstances . . . .”).

Factually, the cases that the district court deemed instructive are all distinguishable from this one. Hardison and Thomas were both decided on the grounds of undue hardship in workplaces governed by collectively bargained seniority systems. Hardison, 432 U.S. at 83-84; Thomas, 225 F.3d at 1156. Neither case would have needed to consider the statutory defense of undue hardship if the voluntary swap arrangements had satisfied Title VII on their own. Moreover, there is no collective bargaining agreement in Kellogg’s Clearfield plant. AA 924. The employers in City of Albuquerque and Ellington both allowed voluntary swaps but also allowed their employees to take unlimited leave without pay, thus eliminating the religious conflicts. City of Albuquerque, 545 F.2d at 114; Ellington, 2010 WL 3855277, at *11. Kellogg, in contrast, did not offer leave without pay for fewer than seven consecutive days and did not eliminate Tabura’s and Diaz’s religious need not to work on Saturdays. AA 982.

Neither Tabura nor Diaz had enough leave to cover all of the Saturdays that they were required to work, and they were able to arrange only a handful of voluntary swaps on their own. AA 427-28, 628, 638-39, 774, 788-800, 1020. Their ability to arrange swaps was hampered because they did not know the people on Team B and had to go to the plant on their days off in order to speak with them. AA 593, 597, 787. Apart from providing a list of qualified individuals on Team B, Kellogg did nothing to facilitate the voluntary swaps, not even posting a notice in the break room or reaching out to the Team B supervisors. AA 821-22, 939, 968. The EEOC disagrees that employees should be required to find their own substitutes without employer assistance, particularly when an employer would not violate a collective bargaining agreement by reaching out to other employees. EEOC Guidelines on Discrimination Because of Religion: Reasonable Accommodation Without Undue Hardship as Required by Section 701(j) of Title VII [hereinafter “EEOC Guidelines”], 29 C.F.R. § 1605.2(d)(1)(i) (obligation to accommodate requires employers to “facilitate” securing a swap); see also Thomas, 225 F.3d at 1157 n.8 (“Other factors, not present in this case, could require an employer to take a more active role in securing a voluntary swap for the employee.”).

Apart from the few days when they were able to arrange swaps, once Tabura and Diaz had exhausted their vacation and sick days, they had no choice but to take unauthorized leave to avoid working on their Sabbath. AA 1068-74. Kellogg assessed attendance points for these absences and refused to consider leave without pay. AA 982, 1068-74. As the attendance points mounted, Tabura and Diaz were swept into Kellogg’s progressive disciplinary system. AA 1068-74. Ultimately, Kellogg terminated them for exercising their religious beliefs. AA 536, 948.

Kellogg’s failure to eliminate the religious conflict is, by definition, a failure to provide a reasonable accommodation under Title VII. The burden thus shifts to Kellogg to show that providing a reasonable accommodation would have imposed an undue hardship. 42 U.S.C. § 2000e(j).

B. Kellogg failed to establish undue hardship because it routinely hires more people than necessary for the express purpose of covering employee absences.

“A refusal to accommodate is justified only when an employer . . . can demonstrate that an undue hardship would in fact result from each available alternative method of accommodation.” EEOC Guidelines, 29 C.F.R. § 1605.2(c). An employer experiences an undue hardship when it is “require[d] . . . to bear more than a de minimis cost.” Hardison, 432 U.S. at 84. Thus, Title VII may require an employer occasionally to pay overtime wages to a substitute worker to enable an employee with a religious conflict to avoid Saturday shifts, but it does not require the employer to do so on a regular basis. EEOC Guidelines, 29 C.F.R. § 1605.2(e)(1); EEOC Compl. Man. § 12-IV(B)(2), at text accompanying notes 150-51. Undue hardship may also include non-monetary costs including lost efficiency, infringement on coworkers’ rights or benefits, or safety concerns. EEOC Compl. Man. § 12-IV(B)(2), at text accompanying notes 152-55. However, “ʻ[e]ven proof that employees would grumble about a particular accommodation is not enough to establish undue hardship.’” Opuku-Boateng, 95 F.3d at 1473 (citation omitted).

An accommodation that might cause undue hardship for one employer might not do so for another. For example, what constitutes a “de minimis cost” may vary depending on the size and operating costs of the employer, or on the number of individuals who may need a particular accommodation. EEOC Guidelines, 29 C.F.R. § 1605.2(e)(1). Similarly, while requiring an employer to obtain a variance from a bona fide seniority system would constitute an undue hardship if the variance would deprive another employee of seniority rights, Hardison, 432 U.S. at 83; EEOC Guidelines, 29 C.F.R. § 1605.2(e)(2), not all employers are constrained by bona fide seniority systems or collective bargaining agreements.

An employer seeking to establish undue hardship must rely on “objective information” rather than hypothetical harms. EEOC Compl. Man. § 12-IV(B)(1). This Court has explained that an employer “ʻis on stronger ground when he has attempted various methods of accommodation and can point to hardships that actually resulted.’” Toledo, 892 F.2d at 1490 (citation omitted). “Any proffered hardship . . . must be actual; ‘an employer . . . cannot rely merely on speculation.’” Id. at 1492 (citation omitted); see also Opuku-Boateng, 95 F.3d at 1473 (“[H]ypothetical morale problems are clearly insufficient to establish undue hardship.”).

The EEOC offers a non-exclusive list of potential accommodations to religious scheduling conflicts, some of which could have been appropriate alone or in combination here. EEOC Guidelines, 29 C.F.R. § 1605.2(d)(1). Kellogg could have helped Tabura and Diaz arrange voluntary swaps by posting notices in the break room and contacting the Team B supervisor to seek volunteers. Additionally, because the Clearfield plant was not unionized and there was no collective bargaining agreement to limit Kellogg’s options, AA 924, Kellogg could have allowed Tabura and Diaz to take leave without pay without assigning attendance points for missed Saturdays. EEOC Compl. Man. § 12-IV, at n.132 (“In cases involving requests for schedule changes or leave as an accommodation, an employer does not have to provide paid leave as an accommodation beyond that otherwise available to the employee, but may have to provide unpaid leave as an accommodation if it would not pose an undue hardship.”); cf. Hardison, 432 U.S. at 81-83 (duty to accommodate does not require employer to violate collective bargaining agreement); Thomas, 225 F.3d at 1156 (same).

The district court agreed with Kellogg’s assertion that these options would have imposed an undue hardship because they would have left the plant understaffed, required Kellogg to hire replacement workers, or “border[ed] on coercing nonreligious employees to swap.” AA 382-83. But the undisputed facts show otherwise. Kellogg builds redundancy into its staffing with the specific purpose of covering employee absences. Kellogg cross-trains employees to perform various jobs, and it hires more people than necessary for each shift so that there will almost always be “relief people” available to cover breaks and leave. AA 917, 920, 994. Indeed, Shirra testified that he was always able to cover Tabura’s unauthorized absences with employees from his own shift, and that he could not remember whether he ever had to look outside his own shift to cover Diaz’s absences. AA 923. Even if Kellogg occasionally had to hire a replacement or pay overtime, such infrequent expenses do not amount to undue hardship. EEOC Guidelines, 29 C.F.R. § 1605.2(e)(1); EEOC Compl. Man. § 12-IV(B)(2), at text accompanying notes 150-51.

In light of the undisputed facts, fears of undue hardship are speculative at best. Such fears are insufficient to carry Kellogg’s burden of proof. Toledo, 892 F.2d at 1492.

Conclusion

Kellogg failed to provide a reasonable accommodation under Title VII because it did not eliminate the conflict between its generally applicable rule that all employees must work every other Saturday and the plaintiffs’ religious conviction that they could not do so. Because it failed to provide a reasonable accommodation, Kellogg had the burden of proving that it could not have done so without undue hardship. It has not satisfied that burden.

This Court should grant Tabura and Diaz summary judgment on their claim that they were unlawfully denied a reasonable accommodation. In the alternative, this Court should remand for trial on undue hardship.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

MARGO PAVE

Assistant General Counsel

/s/ Gail S. Coleman

Attorney

U.S. EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, NE, Room 5SW24L

Washington, DC 20507

(202) 663-4055

gail.coleman@eeoc.gov

[1] “AA” refers to the Appellant’s Appendix filed with this Court.