When Susan Abeles asked her superior at the Metropolitan Washington Airports Authority for permission to take time off for the last days of Pesach, she did not expect her request to result in a legal battle that some have touted as having broad importance for laws protecting shomrei Shabbos in the workplace.
After returning to work following the Yom Tov in March of 2013, she was informed that her time off had not been requested in a manner consistent with company procedures, and that she was being suspended for five days as a punitive measure for being “AWOL [absent without leave].” Abeles claims that the steps she followed were consistent with how she had requested time off for all of her 26 years at MWAA and that she was essentially refused her legal right to religious accommodation. Ultimately, the alleged violation was used to force her into early retirement.
When a district judge dismissed Abeles’s suit, on grounds that no evidence existed to prove MWAA’s actions were driven by anti-Semitic animus, several religious-liberty advocates raised alarms claiming the ruling was a complete misunderstanding of the law.
“It’s very important to realize that you don’t need to prove someone is an anti-Semite to force them to make an accommodation,” said noted attorney Nathan Lewin, who is representing Mrs. Abeles in her appeal to the Fourth Circuit.
Aside from his extensive experience in such cases, Mr. Lewin was the author of the provision of the Civil Rights Act of 1964 protecting Sabbath observers in the workplace, the basis of his client’s suit.
“An employer can say ‘I love Jews and I love Pesach,’ but he still needs to show a solid reason why he can’t make the accommodation,” said Lewin.
Mrs. Abeles’s suit asks for her record to be cleared, as well as the option of reinstatement to her original position, and payment for lost income and pension, as well as compensation for pain and suffering.
The federal court decision has elicited amicus briefs in Abeles’s favor from the National Jewish Commission on Law and Public Affairs and the Becket Fund for Religious Liberty.
Eric Rassbach, deputy general counsel at Becket, told Hamodia that the issue at hand goes beyond protecting shomrei Shabbos and could have far-reaching effects on the obligation of employers to make reasonable accommodations for all types of religious practice.
“If proving discrimination is the standard for deciding cases of protecting the practices of minority groups, no one will get an accommodation,” he said. “This certainly sounds like it was a reasonable request, if they were able to let her take off Jewish holidays for 26 years.”
Another key point with which the Becket brief takes issue is MWAA’s claim that its unique status as an agency partially under federal control absolves it from the regulations of the Religious Freedom Restorations Act, as well as the state version enacted by Virginia, where it is based.
“If you back up from the ‘he said, she said’ here and look at the case, you have someone getting fired for observing Passover. If the government can’t find a way to let its employees do that, that’s a pretty bad sign,” Rassbach said. “That didn’t work out so well for Pharaoh.”
In an unusual move, MWAA has made a motion to block the additional briefs from being accepted by the appeals court. However, sources connected to the filings presumed that the Fourth Circuit would allow the submissions.
A spokesman for MWAA told Hamodia that it would not comment on the case and merely reiterated the district judge’s ruling that “claims of religious discrimination lacked merit.”
“They [MWAA] are claiming that the briefs should not be allowed, since the case doesn’t have precedential value, but this case could be a death blow to frum Jews in a lot of professions,” Dennis Rapps, Director of COLPA, told Hamodia. “Our brief comes with experience and shows what this ruling could mean in the real world.”
Mr. Rapps was dismissive of MWAA’s claims that its actions were spurred in part by past lapses in Mrs. Abeles’s job performance.
“I have seen so many times in 40 years of dealing with cases like this that there is always some after-the-fact justification. After 26 years, they suddenly decided she was incompetent?”
The court has yet to set a date for oral arguments, but they are likely to take place this coming fall.