PHILADELPHIA (CN) — Poised to deepen a circuit split on religious accommodations in the workplace, the Third Circuit heard Tuesday from a postal worker who calls it discriminatory that he must find his own sub for Sunday shifts.
While the Civil Rights Act gives favorable treatment to religion, U.S. Circuit Judge Thomas Hardiman pressed the worker's attorney Christopher Tutunjian on what he considers to be “reasonable.”
“Isn’t it true that the word ‘reasonable’ needs to do some work,” asked Hardiman, a George W. Bush appointee.
Tutunjian agreed, though he said the word “reasonable” in Title VII of the act benefits both the employee and the employer.
“It gives employers discretion and it gives protection to employees from draconian measures,” said Tutunjian.
U.S. Circuit Judge Patty Shwartz pressed Tutunjian on the statutory language as well. “Your position is that ‘accommodation’ requires a total elimination of the conflict, and ‘reasonable’ is the method in which it is handled,” asked Shwartz, an Obama appointee.
The Baker Botts attorney agreed.
Tutunjian represents Gerald Groff, a Sabbatarian Christian who worked without issue for the U.S. Postal Service until March 2017 when the rural section of Pennsylvania that employed him began doing what many others had been doing since 2013: offering Amazon package delivery service in a bid to recoup decades of financial loss.
While the job of Sunday deliveries would usually fall to those like Groff who serve as rural carrier associates, or RCAs, Groff refused to work on Sundays given his religious beliefs.
Short-staffed and bound by a collective bargaining agreement that required RCAs to work in a Sunday rotation, Groff’s boss provided him with an accommodation that would let him be off on Sunday so long as he found someone to cover his shift.
After missing over two dozen of his assigned Sunday shifts, Groff resigned from his position in 2019 and sued that same year, arguing failure to properly accommodate his religious needs.
Last April a federal judge ruled in favor of the Postal Service, finding that shift swapping was a reasonable accommodation for Groff and the agency would suffer an undue burden if they let him skip his Sunday shifts.
Assistant U.S. Attorney Veronica Finkelstein said the Postal Service did give Groff a reasonable accommodation.
“An employer who has offered shift swapping has offered reasonable accommodation,” said Finkelstein.
Hardiman asked Finkelstein why it was not as simple as not scheduling Groff for a Sunday shift.
Finkelstein referenced the labor deal that required employees like Groff to work every other Sunday, and giving him those days off was not an option.
“Accommodating him by giving him off every other Sunday gives the USPS an undue burden,” Finkelstein said.
Driving home her undue-burden argument, Finkelstein noted that, during peak seasons, there was often only one other employee to take the Sunday shift if Groff could not work. This meant that the postmaster would have to deliver packages himself, violating the collective bargaining agreement, she added.
On rebuttal, U.S. Circuit Judge Julio Fuentes questioned Tutunjian on his client's faith.
“Is there a Christian requirement that says all Christians can’t work on Sundays?” asked Fuentes, a Clinton appointee.
Tutunjian conceded that there was no religious requirement, only a preference for how Groff practices his religion.
After arguments, Tutunjian stressed the importance of the debate that occurred.
“We appreciated the panel’s thorough examination of this case, with probing questions for both advocates,” Tutunjian said in an email. “As the panel’s questioning highlighted, this case raises important, circuit-splitting issues that will ultimately need to be resolved by the Supreme Court.”
Indeed half of the circuit courts across the country have interpreted Title VII to require a “total elimination” of an issue when provided an accommodation, the other half has not, putting this circuit in a tie-breaking position.
Finkelstein did not immediately respond to email seeking comment.
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