Thursday, November 12, 2015

The employer "had the good sense to relegate this argument to a footnote."

Today, in my employment law class, we cover the case of Adeyeye v. Heartland Sweeteners. The employee sought a religious accommodation of unpaid leave to return to Nigeria for his father's funeral. While there, he would lead his father's burial rites, stay with his mother during her mandatory one-month seclusion, and sacrifice goats so "death will not come or take away any of the children's life."

As lawyers, we often have to make tough choices about which arguments to make on appeal. On the one hand, if you don't make an argument, you waive it. So, there exists some incentive to throw every argument possible in there. However, on the other hand, sometimes we need to recognize when an argument is a loser and keep it out so as not to draw attention away from the possible winners.

In Adeyeye, there were quite a few losers that the employer could probably have done without. First, the employer argued that it did not have notice that the employee needed a religious accommodation. Really? The request for leave mentioned burial "rites" and sacrificing goats to ward off death... that seems pretty clearly religious to me (in fairness, part of the employer's argument was that the employee was merely respecting his father's wishes and obeying his father's religious beliefs, not his own).

After Adeyeye attended the funeral, he was fired for his absence. The employer then argued that there was no evidence that "the religious observance . . . was the basis for [his] discharge." The Court rightly derided this as "sophistry." Employers have an obligation to reasonably accommodate religious beliefs that conflict with the employer's policy - obviously, the absence was caused by the employer refusing to grant leave to attend a religious ceremony.

The argument that drew the comment in the headline was perhaps the worst of all. The employer argued that it did afford the employee a reasonable accommodation. Brace yourself, because this is a doozy . . . "Finally, we consider Heartland's argument that it did provide Adeyeye with a reasonable accommodation in the form of voluntary self-termination with the possibility of being rehired." Ummmm, no.

The employer did raise one pretty decent argument, which it ultimately lost on, but it was far better than the other arguments outlined above. Allowing an employee to take leave for several weeks may impose an undue hardship. The Court ruled that the employer was not entitled to summary judgment on that issue, but it sounds a lot more plausible than the other arguments.

I don't mean to Monday-morning quarterback the case - and I'm only going off of the Court's opinion; I'm sure there was a lot going on behind the scenes that I'm not privy to. I'm just pointing out that sometimes, it's better to waive an argument than to clutter your brief with it.