February 8, 2000

Dear Human Resource Professionals, Managers, and Employees:

The United States Fifth Circuit Court of Appeal has just issued a decision on a subject that doesn't arise very often in Human Resources Management, but is one about which we should all be familiar. It involves a right fixed by the Civil Rights Act of 1964. Before discussing that case, however, I would like to call to your attention an opinion of the Civil Service Commission which interpreted the enforced annual leave rule. The opinion is in the Appeal of Clary, Docket No. 13189 issued November 4, 1999.

Civil Service Rule 11.9 allows an appointing authority to require an employee to "take annual leave" when the appointing authority believes in his "administrative judgment such action would be in the best interest of the department." That rule does not define what is in the "best interest of the department" nor does it require the appointing authority to tell the employee the reasons for the forcing of annual leave. The Civil Service Commission addressed both issues.

The Referee considered appellant's appeal without a hearing and dismissed for failing to allege a right of appeal, i.e. discrimination or a rule violation. The Civil Service Commission considered the matter on application for review and had only the allegations of appellant's appeal. For purposes of addressing the case, the Commission considered those allegations of fact as true. The appellant alleged that he was a long-term employee in a senior management position who had been forced out on annual leave for a period of five months. He alleged that no investigation was taking place regarding him or his work and that the appointing authority had declined to tell him of the reason for the forced annual leave. He further stated that the appointing authority had refused to hear his grievance.

The Commission recognized the obvious value of an employee's annual leave balance. It also recognized that the goal of its rules was to achieve an effective and efficient workforce for the people of Louisiana. The Commission further recognized that its rules give a great deal of discretion to appointing authorities to use in managing their employees. It also recognized that inherent in those rules is the requirement of good faith and fair dealing with those employees. Without such inherent requirement, the goal of an efficient and effective workforce would be thwarted. It concluded in regard to enforced annual leave, that these inherent requirements dictated that the reasons for the requirement of annual leave be communicated to an employee where a "substantial amount" of an employee's leave was forced to be used. This "substantial amount" was defined as a period extending beyond thirty days. The Commission used Rule 12.20 regarding suspensions pending investigation as a guide in reaching this thirty-day limit. The Commission specifically recognized that it was not dictating that either the detailed reasons or the notice requirements of Chapter 12 be met, but "only that the appointing authority share its reasons for its actions with the employee" where the leave extends beyond thirty days. Additionally, it did not mandate that the communication be in writing.

The jurisprudence recognizes that an interpretation by an administrative body of one of its own rules becomes a part of the rule itself. Consequently, failure to communicate the reasons to the employee where enforced annual leave extends beyond thirty days will arguably constitute a rule violation and, consequently, be appealable to the Civil Service Commission.

Additionally, the Civil Service Commission interpreted the phrase "best interest of the department" as constituting that which is rationally related to a governmental interest. This is a low standard. That is, the communicated reason must meet this standard of being rationally related to a governmental interest. Likewise, because this standard is now a part of the rule an employee arguably has a right to appeal to the Commission a violation of this standard, but such appeal must meet the strict pleading requirements of Rule 13.10 (d). If there truly is a rational basis related to a governmental interest for the extended and enforced annual leave, and if such reason is actually expressed in a writing delivered to the employee, getting past a motion for summary judgment by an appointing authority will be very difficult for an employee. For these reasons, it is my recommendation that the reasons for the extended annual leave be communicated to the employee in writing. Again, the Civil Service Commission specifically recognized that it was not requiring the "detailed reasons" of Chapter 12. Further, there is no requirement of notice prior to the running of the thirty days. What is sought to be achieved in both of these requirements is openness and fair-dealing with subordinate employees when exercising discretion to take something of value.

The Fifth Circuit case mentioned above addresses the concept of religious discrimination. The Civil Rights Act of 1964 at 42 U.S.C. 2000 e-2 (a)(1) states that it is an unlawful employment practice for an employer "to fail to refuse to hire or discharge an individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, national origin." I will not analyze the Fifth Circuit case specifically, nor any others, but I present below a general summary of the case law. Legal citations which support this summary are in the last paragraph of this newsletter.

The jurisprudence recognizes that a plaintiff's burden is to establish that he had a bona fide religious belief that conflicted with an employment requirement, that he told his employer of this belief, and that he was discharged for failing to comply with a conflicting employment requirement. The term "religion" is broadly defined by the Civil Rights Act, and has been recognized to include the "old Catholic religion, the Black Muslim Faith, and atheism. The Ku Klux Klan, has been found not to constitute a "religion", even though their meetings are often full of "religious pomp and ceremony", because the organization is more social and political than religious. Also, decorating a church for a play is not the practice of religious belief, but is a voluntary social function. Polygamy, also, has been found not to be a covered religious practice, as was a pilgrimage at any one particular time. Additionally, bona fide religious beliefs need not be deemed practices formally required under the tenets of a church, so long as they are sincerely motivated by religious belief. Attendance at a wife's conversion ceremony, and the teaching of weekly bible study classes have both been found to be bona fide religious beliefs.

The jurisprudence further teaches us that once the plaintiff has established the above items of his case, the burden shifts to the employer to show that it could not accommodate the religious beliefs and/or practices without "undue burden." The accommodation required of an employer here, however, is not that to the extent required by the Americans with Disabilities Act for covered disabilities, and is defined in terms of what is an "undue hardship." An undue hardship exists in the concept of religious discrimination "when an employer is required to bear more than a de minimus cost." The Latin phrase de minimus is appropriately translated here as "minimal".

The reason for the de minimus test is that the accommodation of religious practices and beliefs in the work place very often presents itself as working a hardship on other employees solely because of their lack of the religious belief that is accommodated. That is, just like the ADA as discussed in my newsletter of August 19, 1999, affirmative action in favor of religious practices is not required. This concept is well demonstrated by the facts almost universally presented to courts considering claims of religious discrimination, i.e. failure to give time off from work. When an employer gives an employee time off in order to honor that employee's religious beliefs or practices, one of two things happens to the remaining employees. They either must carry a heavier burden of performing the job during the absence of their fellow employee, or shifts must be changed. The result of this latter is often a violation of either collective bargaining agreements, a seniority system of shift preferences, or personal preferences. The jurisprudence has recognized that violation of this latter concept of personal preferences can often result in morale problems which constitutes more than a de minimus cost to the employer. What also may happen when an employee is allowed time off is a lowering of the efficiency of the service or business provided by the employer. The jurisprudence also makes it clear that each case turns on its own facts.

While the obligation to make an accommodation for the observance of a bona fide religious belief is a low one, this does not mean that the employer does not have to make an attempt to accommodate the religious belief or practice. The employer must ask itself whether, in fact, its efficiency and service will be impaired and/or whether remaining employees will have to a carry a heavier load. If this can be effectively demonstrated as likely to occur, then accommodation should not be required. In regard to shift changes, the employer should encourage the employee to seek voluntary changes of shifts and/or ask co-employees about voluntarily changing with the subject employee. In one reported case this was done among a group of pharmacists at a hospital, but the charm of the voluntary accommodations wore off on the other pharmacists who then begin to complain. The court addressing this issue recognized that this morale problem among employees constituted more than a de minimus cost. The jurisprudence also recognizes that an employer need not wait until such problems actually manifest themselves, but an employer may show that an accommodation will likely have an unduly burdensome result.

In case you are wondering about the accommodation for the atheist mentioned above, the problem there was that she worked at a bank which had periodic staff meetings which began with a short address and prayer by a Protestant minister. While the senior managers of the bank knew that the bank would accommodate an employee who did not desire to hear such presentation and prayer by allowing them to come in at the conclusion, the employee's manager who told her that she had to attend did not know of this concept. The employee quit and was deemed to have been constructively discharged because of her religious belief in violation of the above quoted statutory provision.

This brief overview of religious discrimination should provide a good framework and basic understanding for the resolution of workplace problems. Religious beliefs and practices are often sincerely and deeply held by employees, and any issues in this area should be addressed with the employee with request for their beliefs.

The legal citations which support the above concepts are: Weber vs. Roadway Express, Inc., U.S. 5th Cir., 98-11468, Jan. 7, 2000 and numerous citations therein; Turben vs. Missouri-Kansas-Texas R. Co., 736 F. 2nd 1022 (C.A. 5 (Tex) 1984); Young vs. Southwestern Savings and Loan Association, 509 F. 2nd 140 (5th Cir. (Tex) 1975); Ansonia Board of Education vs. Philbrook, 107 S. Ct. 367 (1986); Bellamy vs. Mason Stores Inc., 508 F. 2nd 504 (4th Cir. 1974); Redmond vs. GAF Corp, 574 F. 2nd 897 (7th Cir., 1978); Heller vs. Ebb Auto Co., 8 F. 3rd 1433 (9th Cir. 1993); Tiano vs. Dillard Dept. Store Inc., 139 F. 3rd 679 (9th Cir. 1998); Minkus vs. Metropolitan Sanitary District of Greater Chicago, 600 F. 2nd 80 (7th Cir., 1979); Cook vs. Chrysler Corp., 981 F. 2nd 336 (8th Cir. 1992).

Sincerely,

Robert B. Boland, Jr.

General Counsel