When Bereavement Leave Is More Than Just Bereavement

Barran Liebman
Oregon Law Firm

Oregon’s bereavement leave requirements are not yet in effect, but a July 31, 2013 decision of the United States Court of Appeals for the Seventh Circuit approached bereavement from a different perspective in an opinion that permitted an employee’s lawsuit to go forward after his employer denied bereavement leave. The decision features an extensive discussion of Title VII’s prohibition of discrimination in employment on the basis of religion—in particular, the requirement that an employer provide a reasonable accommodation for an employee’s request to participate in a religious observance or practice if the accommodation would not cause the employer undue hardship. In this case, the religious observance happened to be funeral rites. Sikuru Adeyeye v. Heartland Sweeteners, LLC addressed Heartland Sweeteners’ response to a Nigerian employee’s request for unpaid leave so that he could travel to Nigeria to lead his father’s burial rites. The employee, Mr. Adeyeye, had twice sought unpaid leave and had his requests denied, but had traveled to Nigeria anyway to perform the burial rites. Upon his return from Nigeria and his reporting to work, Heartland Sweeteners terminated his employment. He sued, alleging discrimination on the basis of religion. The district court dismissed the case on summary judgment, but Court of Appeals vacated that decision and allowed the case to proceed.

To make out a prima facie case for a Title VII claim alleging failure to accommodate religious belief, an employee must prove three things: (1) that the practice for which the employee seeks accommodation is “religious in nature,” (2) that the employee called the practice to the employer’s attention, and (3) that the religious practice was the basis for the employee’s discharge (or other adverse employment action suffered). If the employee sets forth the prima facie case, the employer then bears the burden of showing that accommodating the employee’s religious belief would have caused the employer “undue hardship.” Applying this standard to Mr. Adeyeye’s claims, the court held that the district court had first erred in finding that Mr. Adeyeye’s requests could not have put his employer on notice that the unpaid leave he sought was a religious accommodation. Instead, the court held that a jury could have found that Mr. Adeyeye’s two requests did put Heartland Sweeteners on notice that the accommodation he sought was religious in nature. That is an important lesson for employers who might be tempted to see funerals solely as “bereavement leave” and might not be inclined to see funeral rites as religious in nature.

Mr. Adeyeye had first sought “five weeks leave in order to attend funeral ceremony” and “to participate in the funeral rite according to our custom and tradition.” He explained that he would “have to [k]ill five goats” and encourage his mother to emerge from seclusion “so that the death will not come or take away any of the children’s life.” Heartland Sweeteners denied his request, and he made a second request, to take his one week of earned vacation in conjunction with three weeks unpaid leave. In so doing, he referenced his first request, and stated that he had “to be there and involved totally in this burial ceremony being the first child and the only son of the family.” The court reasoned that “Title VII has not been interpreted to require adherence to a rigid script to satisfy the notice requirement.” Rather, an employee need only make his request “reasonably clear,” and the employer “must be alert enough to grasp that the request is religious in nature.” Importantly, the court noted that when an employer is uncertain as to the reason the employee seeks the accommodation, the employer can seek clarification from the employee.

While the Adeyeye court’s discussion is lengthy and focuses on the complex and unusual facts of the case before it, such as the fact that Mr. Adeyeye’s reference to animal sacrifice should have put his employer on notice that the leave he sought arose from his religious beliefs, the opinion provides useful guidance in a variety of contexts. First, employers should note that unpaid leave has been recognized as “a reasonable and generally satisfactory form of accommodation for religious faith and practice.” Second, employers should take care to follow up with an employee as to the reason he or she seeks an unpaid leave—even if the reason is not religious belief, an employee could well seek unpaid leave under other employee-protective statutes, such as the new bereavement leave provision in OFLA. Third and finally, employers should be aware that an after-the-fact demonstration of undue hardship may be costly, because the determination “will depend on close attention to the specific circumstances of the job and the leave schedule the employee” seeks.

Religion is one of the limited protected classes for which employer accommodation is required. Funeral practices can be religious observances and in those cases, employers need to keep accommodation in mind.

The opinion is available here.

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