RANDI FEILER, Complainant

MIDWEST EXPRESS AIRLINES INC, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed June 6, 2003
feilera . rsd : 115 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The complainant argues that: (1) respondent's excused absence without pay policy was administered in a discriminatory manner; and (2) respondent failed to reasonably accommodate her practice or observation of her religion by denying her request to take excused absences without pay for the shifts she was scheduled to work on Rosh Hashanah and Yom Kippur.

Religious accommodation under the Wisconsin Fair Employment Act (WFEA) is one of the areas in which it is clearly appropriate to seek guidance from federal case law under Title VII. See, Marquardt v. Wal-Mart Stores, Inc., ERD Case No. 9001660 (LIRC June 14, 1993).

The complainant first argues, citing Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986), that the respondent engaged in discrimination by withholding an employment benefit (the granting of an excused absence without pay) simply because it was requested for a religious purpose. The complainant is correct that "a benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion even if the employer would be free not.to provide the benefit at all." Hishon v. King & Spalding, 467 U.S. 69 (1984). In his decision, the administrative law judge correctly points out, however, that the respondent denied requests for excused absences without pay for many reasons in addition to religious ones, e.g., birthday and anniversary celebrations, visits from family members, and children's school events, and the standard for denying such requests related not to the fact that the event was a religious one but instead to the fact that the event was of the employee's choosing and was known to the employee relatively far in advance. In the absence of a showing that religion was the sole reason for denying such requests, the weight of authority supports the conclusion that the complainant failed to sustain her burden to show an intent by the respondent to discriminate on the basis of religion in the administration of its excused absence without pay policy. The fact that the employer indicated in its employee handbook that permanent, full time employees may be accommodated through vacation time, excused absences without pay, or shift-trading in order to observe religious obligations, but in practice did not approve excused absences without pay for this purpose, although potentially confusing and misleading to these employees (not including the complainant, who was a part-time employee), does not establish that the employer discriminated on the basis of religion.

The complainant also argues that the respondent's requirement that she use a significant percentage (30%) of her paid annual vacation time was not a reasonable accommodation, i.e., it impermissibly required her to choose between sacrificing a portion of her salary and her religious beliefs. First, it is important to keep in mind that an employee is not entitled to her accommodation of choice as long as the employer offers an accommodation that is sufficient to eliminate the conflict between the employee's duties and religious needs. Ansonia, supra. Permitting an employee to use a portion of her accrued paid vacation time for religious observances has been held to be a reasonable accommodation. Getz v. Pennsylvania Department of Public Welfare, 802 F.2d 72 (3rd Cir. 1986); Cooper v. Oak Rubber Company, 15 F.3d 1375 (6th Cir. 1994); Pinsker v. Joint District 28J of Adams and Arapahoe Counties, 735 F.2d 388 (10th Cir. 1984). Moreover, in this context, the courts have not equated use of accrued paid vacation time with loss of salary. See, Getz, supra. Here, the respondent employer allowed the complainant to take 12 of her 40 hours of accrued paid vacation time to observe the Jewish high holy days. This permitted the employee to fulfill her obligations both to her employer and to her religion, i.e., it successfully eliminated the conflict between her duties and her religious needs and, as a result, constituted a reasonable accommodation.

It should also be noted that allowing an employee to trade shifts in order to participate in religious observances has been held to be a reasonable accommodation even if the employee is unable to locate anyone willing to trade. Marquardt, supra. Here, the respondent employer maintained such a shift-trading system which the complainant utilized although unsuccessfully. In addition, the use of a seniority bidding system for shift scheduling has been held to constitute a reasonable accommodation. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). Here, the respondent maintained such a system but the complainant failed to utilize it for the subject dates because she assumed, based on the language of the handbook, that she would be able to obtain excused absences without pay. The existence of the employer's shift-trading and shift bidding systems strengthens the conclusion that the employer's policies and practices provided reasonable means for accommodating an employee's religious observances and practices.

The complainant also argues that the respondent failed to show that allowing her to have excused absences without pay for religious observances would pose an undue hardship on its operation. However, since the record supports a conclusion, as discussed above, that the respondent offered the complainant a reasonable accommodation (use of vacation time to cover her absences), it is not necessary to resolve the undue hardship issue, i.e., this issue arises only when the employer fails to reasonably accommodate the employee.

The commission concludes that the record does not show that the respondent discriminated against the complainant on the basis of religion as alleged.

cc: 
Attorney Walter F. Kelly
Attorney Roxana E. Cook

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uploaded 2003/06/13