Employer May Inquire About Sincerity of Employee's Religious Belief, Not About Whether Belief Is Religious: Fifth Circuit | Practical Law

Employer May Inquire About Sincerity of Employee's Religious Belief, Not About Whether Belief Is Religious: Fifth Circuit | Practical Law

In Davis v. Fort Bend County, the US Court of Appeals for the Fifth Circuit reversed the district court's grant of summary judgment to the employer in a Title VII of the Civil Rights Act of 1964 (Title VII) religious discrimination case. The Fifth Circuit held that an employer's inquiry into religious accommodation should be limited to the sincerity of the employer's belief, not the religious nature of the activity. The court affirmed the district court's grant of summary judgment to the employer on the employee's retaliation claim because the employee could not rebut the employer's legitimate business reason for terminating her employment.

Employer May Inquire About Sincerity of Employee's Religious Belief, Not About Whether Belief Is Religious: Fifth Circuit

by Practical Law Labor & Employment
Published on 03 Sep 2014 • USA (National/Federal)
In Davis v. Fort Bend County, the US Court of Appeals for the Fifth Circuit reversed the district court's grant of summary judgment to the employer in a Title VII of the Civil Rights Act of 1964 (Title VII) religious discrimination case. The Fifth Circuit held that an employer's inquiry into religious accommodation should be limited to the sincerity of the employer's belief, not the religious nature of the activity. The court affirmed the district court's grant of summary judgment to the employer on the employee's retaliation claim because the employee could not rebut the employer's legitimate business reason for terminating her employment.
On August 26, 2014, in a 2-1 decision in Davis v. Fort Bend County, the US Court of Appeals for the Fifth Circuit reversed the district court's grant of summary judgment to the employer in a Title VII religious discrimination case. The court held that an employer's inquiry into religious accommodation should be limited to the sincerity of the employer's belief, not the religious nature of the activity. The court affirmed the district court's grant of summary judgment to the employer on the employee's retaliation claim because the employee could not rebut the employer's legitimate business reason for terminating her employment. (No. 13-20610, (5th Cir. Aug. 26, 2014).)

Background

Lois Davis worked as a Desktop Support Supervisor for Fort Bend County, supervising 15 IT technicians. In March 2011, Fort Bend began a large technological installation project which required employees to be available to work on July 4th weekend. On June 28, 2014, Davis told her superior that she would not be able to come to work on July 3rd, because of a previous religious commitment. Her superior did not approve her absence and stated that the absence would be grounds for write-up or termination, even though Davis:
  • Offered to come to work after the religious event.
  • Arranged for a replacement during her absence from work.
When Davis attended the event instead of going to work, her employment was terminated. Davis sued Fort Bend, alleging:
  • Religious discrimination under Title VII.
  • Retaliation under Title VII.
  • Intentional infliction of emotional distress.
The district court dismissed Davis' action and granted Fort Bend's motion for summary judgment on all claims. In granting summary judgment on the religious discrimination claim, the district court held that:
  • Being an avid, active member of a church does not turn every activity associated with the church into legally protectable religious practice.
  • Davis' work absence was for a personal, rather than religious, commitment, evidenced by the fact that:
    • the pastor requested that all members participate in the event; and
    • it was considered a community service event.
Davis appealed.

Outcome

The Fifth Circuit:
  • Reversed the district court's grant of summary judgment to Fort Bend on Davis' Title VII religious discrimination claim.
  • Affirmed the district court's grant of summary judgment to Fort Bend on Davis' Title VII retaliation claim.
Reversing summary judgment on Davis' religious discrimination claim, the Fifth Circuit observed that:
  • An employer must make reasonable accommodations for its employees' religious observances, but is not required to incur undue hardship (Weber v. Roadway Express, Inc., 199 F.3d 270, 273 (5th Cir. 2000)).
  • To establish a prima facie case of religious discrimination, a plaintiff must present evidence that:
    • she held a bona fide religious belief;
    • her belief conflicted with a requirement of employment;
    • the employer was informed of the plaintiff's belief; and
    • she suffered an adverse employment action for failure to comply with the employment requirement.
    (Tagore v. United States, 735 F.3d 324, 329 (5th Cir. 2013).)
  • The dispute was whether Davis held a bona fide religious belief (religious in her own scheme of things). When examining an employee's religious belief and need for accommodation, a court:
    • may not question whether the employee's belief is actually central to a religion; and
    • may only inquire about the individual's motivation and whether the belief is truly religious to that individual.
    (United Stated v. Seeger, 380 U.S. 163 (1965).)
  • The sincerity of a person's religious belief is:
    • a question of fact unique to each case; and
    • centered around the credibility of the person with the belief.
  • The district court improperly focused on whether Davis' Sunday event was religious, rather than focusing on whether Davis' belief was sincere.
  • Showing sincerity does not require proof that the event was religious, just that she believed it to be religious.
  • Davis' prima facie case regarding the sincerity of her belief survives summary judgment, because:
    • she testified about her devotion to church;
    • she attended up to three religious services per day;
    • she testified that she needed to be at a special July 3rd church service; and
    • in her complaint, Davis referred to the July 3rd event as a previous religious commitment.
Finding that Fort Bend failed to present evidence that it could not reasonably accommodate Davis' religious absence without undue hardship, the Fifth Circuit noted that:
  • Davis' absence was to be brief and she planned to come to work after the event.
  • Davis arranged for a substitute to fill in at work while she was out.
  • Fort Bend permitted another employee to miss work that weekend to attend a parade.
  • The district court should have compared Davis to similarly situated employees outside the protected group of individuals with religious observances, rather than with those in the protected group.
  • Cases cited by Fort Bend, holding that requiring an employee to substitute for another is an undue hardship, are distinguishable because:
    • they dealt with situations in which the employer had to force employees to sacrifice their personal time to substitute for a fellow employee;
    • Davis had a volunteer to substitute for her while she was out;
    • substituting a volunteer to fill in for another employee who is exercising religious observation does not impose as great a hardship on an employer as placing a requirement on an (non-volunteer) employee to fill in as a substitute;
    • given the availability of a volunteer, Fort Bend would not suffer the financial burden of requiring an employee to substitute for Davis; and
    • other circuits have found that an employer seeking employees willing to switch shifts is a reasonable accommodation under Title VII.
Affirming the district court's grant of summary judgment to Fort Bend in Davis' retaliation claim, the Fifth Circuit found that:
  • Davis could not rebut Fort Bend's legitimate non-retaliatory reason for terminating her employment, that she failed to report to work, because she could not provide evidence that the reason was pretextual for retaliation.
  • Davis argued that Fort Bend's reason was pretextual for religious discrimination, but not that it was pretextual for retaliation.
The dissent observed that:
  • The majority erred in holding that courts may not consider the religious nature of an employee's alleged belief and may only inquire about the sincerity of an employee's alleged religious belief.
  • Title VII protects employees from discrimination based on their religion, not all strongly held beliefs.
  • The majority failed to follow the precedent of the Fifth Circuit and sister circuits, which have held that when a religious belief is in dispute, courts must consider both the religious nature of the belief and whether the belief is sincerely held.
  • The majority opinion missed the meaning of the Supreme Court case, United States v. Seeger, which held that courts must find that the individual's belief is both religious and sincerely held (380 U.S. 163, 184-185 (1965)).
  • A religious belief must not be just a personal preference, but one of religious conviction, including ethical beliefs regarding what is right and wrong (29 C.F.R. §1605.1).
  • An assessment of whether an activity is religious must focus on the motivation behind that particular activity, rather than the nature of the activity.
  • An employee cannot simply define a personal preference as a religious belief without producing evidence of the motivation behind the practice.
The dissent concluded that:
  • Davis attended the service project because of a personal commitment she made to the pastor, not because of her personal religious belief.
  • Davis' claim that her faith required her to feed the community should be unsuccessful because she was not required to feed the community at this particular event at the specific time which conflicted with her employment requirement.
  • While the majority held that Fort Bend did not face undue hardship because Davis provided a volunteer:
    • the majority failed to account for the qualifications of the volunteer to adequately fill in for Davis; and
    • Davis did not provide evidence that the volunteer was qualified to fill in for a supervisor on a complicated project that required all supervisors to attend work.

Practical Implications

Employers should approach religious accommodation requests with caution. Following Davis v. Fort Bend County, employers in the Fifth Circuit should be particularly careful to avoid inquiring into the religious nature of an employee's belief and focus instead on the sincerity of that belief. Employers should also monitor Davis for future developments, including a possible en banc decision.