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Walmart Says EEOC Trying to Rewrite Worker Religious Rights Law

Dec. 1, 2020, 11:56 AM

A Walmart in a Wisconsin resort town violated a newly hired Seventh-day Adventist worker’s rights when it merely offered to help him find another position after he disclosed his Sabbath needs, the EEOC is expected to tell the Seventh Circuit on Wednesday—an argument the retailer says will expand federal law if accepted.

During the oral argument, Walmart Stores Inc. will argue that a ruling for the Equal Employment Opportunity Commission would “re-write the law” to broaden the scope of an employer’s obligation to accommodate workers’ religious practices under Title VII of the 1964 Civil Rights Act.

But the job accommodation Andrew Hedican was offered also didn’t measure up because it was limited to lesser-paying, lower-ranking jobs than the assistant store manager position he was hired for, the EEOC said in pre-argument briefing filed with the Chicago-based appeals court. And it wouldn’t have actually placed him in another job—Hedican would have had to re-apply, the EEOC said.

A religious accommodation is only reasonable under Title VII if it preserves the pay, privileges, and other terms and conditions of a worker’s job “to the maximum extent possible without causing an employer undue hardship,” the EEOC said.

The law’s text, agency regulations and other guidance interpreting it, and case law all support that conclusion, the EEOC said.

Staffing Tailored to Store Needs

Walmart will counter that it did all it needed to under Title VII when human resources manager Lori Ahern told Hedican he could apply for non-salaried managerial or other jobs at the Hayward, Wis., store.

The location is open 24 hours a day to serve local residents and the many visitors who flock to the vacation town, especially during the long summer months, the company said. Round-the-clock staffing with salaried managers is crucial to assist the high number of new and transitory associates the store requires, Walmart said in its brief to the U.S. Court of Appeals for the Seventh Circuit.

Several hourly manager jobs were open when Ahern suggested Hedican try for one of those positions, Walmart said. Hourly managers initially make less than their salaried counterparts, but they can make up the difference through credit for pre-Walmart supervisory experience and by working overtime, the retailer said.

Ahern’s offer “was particularly meaningful” because she was intimately involved in the store’s hiring process and had already vetted Hedican, giving him a leg up, the company said.

A lower court was correct when it found Jan. 16 that the company acted reasonably, Walmart said.

Title VII only requires an accommodation offer that eliminates the conflict between a work rule and an employee’s or applicant’s faith, not one the worker or the EEOC prefers, the retailer said.

Changing or modestly reducing a worker’s pay is reasonable when they can’t keep the same schedule as their co-workers, Walmart said.

Other Accommodations Available

Walmart could and should have accommodated Hedican in other ways, the EEOC said.

It could have assigned him to a straight overnight shift of Saturdays through Tuesdays or Sundays through Wednesdays, or a day shift running either Sunday to Thursday, or Monday to Friday, the agency said. The retailer could have then slightly adjusted Hedican’s start and end times on Fridays and Saturdays during the time of year when days are longer, the EEOC said.

Walmart also could have offered to reassign Hedican to the available job most comparable to the salaried manager position, the agency said. Or Hedican’s schedule could have been left as it was and Walmart could have let him swap shifts with other managers or use leave time to cover his Sabbath needs, the agency said.

The retailer didn’t fairly explore those possibilities before dismissing them as unworkable, the EEOC said.

The EEOC’s Title VII regulations require an employer to offer the accommodation that “least disadvantages” a worker’s employment opportunities when two or more potential accommodations exist, the agency said.

And its compliance manual provides that a worker should be accommodated in their current job when that can be done without creating an undue hardship for the employer, the EEOC said.

Business Decision for Employer Alone

Most of the EEOC’s suggestions would have disadvantaged the other salaried assistant managers by forcing them to work more Saturdays, a coveted day off, the company said.

And just working nights would have hurt Hedican because it would have prevented him from rotating to all of the different areas of responsibility in which assistant managers are trained, Walmart said.

None of the EEOC’s suggestions accounted for the store’s undisputed business needs and “Congress has not required employers to accommodate religious practices ‘at all costs,’” Walmart said.

The agency’s suggested accommodations would have forced Walmart to redefine the assistant manager job, but such business decisions are the company’s to make, not the EEOC’s, the retailer said.

However, whether other accommodations would have imposed an undue business hardship on Walmart is a question for a jury, the EEOC said.

EEOC attorneys in Washington represent the commission. King & Spalding LLP represents Walmart.

The case is EEOC v. Walmart Stores E. LP, 7th Cir., No. 20-01419, oral argument 12/2/20.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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