Reassignment with reduced hours and pay: “punishment” or “reasonable accommodation”? | Sherman & Howard LLC

It is said that one man’s trash is another man’s treasure. A similar principle applies in employment law, where managers and workers sometimes develop conflicting perceptions about employment decisions. What a manager considers a reasonable accommodation (i.e., of an employee’s religion or disability), the employee may consider punishment or discrimination. The thing is, it’s generally illegal to discriminate against workers because of their religion or disability, so it’s sometimes up to a court (or worse, a jury) to determine which is the correct perception. It is not always an easy task.

A federal district court in Colorado faced such a task when a grocery store clerk sued his employer, Safeway, alleging he disregarded his religious beliefs. The employee, a Jehovah’s Witness, objected to participating in the store’s holiday fundraising efforts, which required her to ask customers in the checkout line to donate “Turkey Bucks or “Santa Bucks”. (Jehovah’s Witnesses do not believe in celebrating certain holidays.) Safeway offered the employee several options, including reassignment to the self-checkout area during the holiday season. But since self-service checkouts closed two hours before the end of the employee’s typical shift, that would have meant reduced hours and pay. The employee declined the offer and instead took unpaid vacation leave.

In her lawsuit, the employee claimed that neither the self-service payment option nor the unpaid leave option was a “reasonable accommodation” under Title VII. Instead, she called Safeway’s proposals “punishment” for her beliefs. The court disagreed, finding the self-checkout option to be reasonable. Consistent with other cases, the court noted that a workplace accommodation may be reasonable even if it entails some reduction in pay or is not the employee’s preference. (Note: things may be different in the context of disability accommodation, where the standard of “reasonable” is higher.) Since Safeway’s self-checkout offer was adequate, the court did not determine whether a leave without pay could constitute a reasonable accommodation, a legal issue debated is currently making its way through several courts.

The case is a reminder that while employers are not always required to provide workers with the accommodations they prefer, they should nonetheless think carefully and seek advice before assuming that a particular offer is “reasonable” under the law.

The deal is Medina v. Safeway 20-cv-03726-NYW (D. Colorado, March 7, 2022).

About Jessica J. Bass

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