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And You knew it was Porn, How?

Religious workplace accommodations are most times not so difficult to accomplish.  An employee needs a quiet place to pray at work.  No problem.  Another worker wants to change his work day by one hour on Friday during the winter months so he can make it home by sun down.  That’s doable.  The rule under Title VII is that an employer must make a reasonable accommodation to permit an employee to observe the tenets of his or her religious beliefs, unless the requested accommodation would cause an undue hardship to the employer’s operations.

In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977), the Supreme Court held that an employer may assert undue hardship to justify a refusal to accommodate an employee’s requested accommodation if the employer can demonstrate that the accommodation would require “more than a de minimis cost.”  A recent complaint filed, pro se, by a magazine delivery driver in Kansas may address that issue. Scott v. Cowley Distrib., Inc., No. 2:16-cv-02831 (D. Kan. Complaint filed Dec. 23, 2016).

According to the complaint, Scott worked for Anderson News, and since 2004 had an agreement that relieved him of any requirement to “touch pornographic material.”  Cowley Distributing took over the Anderson operations in 2009, however, and Scott was told that “no touching porn” deal was “null and void.”

When he objected to Cowley’s change, Scott claims that he was told he “needed to meet them half way.”  The company’s owner refused to meet with him to discuss his concerns.  Scott also alleges that he was unable to attend a religious convention and was threatened with discharge if he went. And, he claims that he was unfairly disciplined when his truck’s GPS system showed he had, on another occasion, attended another religious ceremony.  The complaint does not identify the religion to which Scott belongs.

Reading Scott’s complaint reminded me of Al-Jabery v. ConAgra Foods, Inc., 2007 U.S. Dist. LEXIS 79080 (D. Neb. 2007).  That case involved a Muslim employee who applied for “[s]anitation/or any” job at ConAgra’s ham processing plant in Lincoln, Nebraska. He got the job.  However, when he was later ordered to work on the pork processing line, he refused to follow his supervisor’s direction to report to the line and was fired.

Al-Jabery alleged he was discriminated against on the basis of his religion and his national origin. Among other things, he claimed that he had a firmly and sincerely held religious belief that precluded him from even touching pork products. At a pork processing plant. Right.  The court granted ConAgra’s motion for summary judgment.

In Al-Jabery’s case, the court found that it was an undue hardship to expect an employer at a pork processing plant to ensure that an employee at the plant would never come into contact with pork.  In Scott’s case, one wonders how he even knew what was in the plain brown wrappers he had on the mail delivery truck.

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