Can we require 24-hour availability?

Have you heard about a court case (possibly in 1996) in which someone filed a discrimination claim and won because the potential employer had a statement on the job application that said something like: "You must be available for any 24-hour shift any day of the week." We are trying to determine if it is discriminatory to have such a statement on the application form or if it's legal as long as there is a genuine business reason and it is a BFOQ.

Rita Risser's Response:

Good memory! The case is OPUKU-BOATENG v. STATE OF CALIFORNIA, ___ F.4th ____, 96 C.D.O.S. 7003 (9th Cir.,1996). The case did not hold that such language was illegal, but it did limit how you could use that restriction in practice.

The case involved a member of the Seventh Day Adventist faith who applied for a position where 24-hour availability was required by federal law. After he was hired, he told the employer he could not work from sundown Friday through sundown Saturday each week. The employer took an "informal poll" (undocumented) in which employees reportedly said they might consider occasionally switching schedules with the new employee. The employer thought it over and decided reasonable accommodation was impossible.

As you can imagine, the Ninth Circuit had a field day with this one. Employers are required to allow employees days off for religious observances, unless it would create an undue hardship.

The Court said there were many accommodations that could have been made, including excusing him from Sabbath work and scheduling him instead for other equally undesirable shifts, adopting a system of voluntary or mandatory shift trades, employing a combination of the above procedures, or arranging a transfer to another department (this for a new employee!)

The Court also said, "Hypothetical morale problems are clearly insufficient to establish undue hardship. Even proof that employees would grumble about a particular accommodation is not enough to establish undue hardship. . . . Likewise, the mere possibility that there would be an unfulfillable number of additional requests for similar accommodations by others cannot constitute undue hardship." For more information about this case, go to here.

So, you can have the statement you propose on your application, and legitimately reject any applicant who can't meet that requirement, unless the applicant has a religious reason for not working certain hours. You also may be required to accommodate someone with a disability who can't work all hours. As a precaution, I suggest you include a statement on your application that "If you have a religious or medical reason you cannot meet this requirement, reasonable accommodation will be made as required by law." If you are faced with a request for accommodation, do contact an employment lawyer. Good luck!

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