“The Strike” – Festivus

After the strike ends and Kramer goes back to work at H & H Bagels, he wants to take off of work on December 23 to celebrate the holiday of Festivus. But when Harry the manager denies Kramer’s request he goes back on strike in protest. Is Kramer legally entitled to take off for Festivus?

While a person does not have the absolute right to celebrate new holidays, an employer is mandated under Title VII of the Civil Rights Act to provide reasonable accommodations for employees with sincerely held religious beliefs. For Kramer, this means that he must prove 1) that Festivus is a religious holiday, 2) he has a sincere belief in celebrating Festivus, and 3) that taking off on December 23 is a reasonable accommodation that H & H can make for him. Let’s investigate each one.

Title VII has a broad definition of what is a religion or religious belief, and does not limit it to traditional organized religions like Christianity, Hinduism, Islam, or Judaism. The Equal Employment Opportunity Commission (EEOC) defines religion as “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views,” and that beliefs that are “new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others” still qualify as religious beliefs. As long as the religion examines questions about life, purpose, death, etc. then it is likely going to be considered legally as a religion for the purposes of Title VII. Under these standards, it certainly seems like Festivus is actually a religious holiday. It can be best characterized as a non-commercial holiday grounded in the central, universal humanitarian tenet of “for the rest of us.” The “Airing of the Grievances” is a repentance type ritual that cleanses the aggrieved of all of his or her disappointments with “you people,” and the “Feats of Strength” is a closing ritual. Additionally, Festivus is symbolized by the Festivus Pole, which requires neither decoration nor distracting tinsel, and instead celebrates “very high strength-to-weight ratio.” Frank even describes Festivus as being part of George’s heritage. Needless to say, any court would certainly find that Festivus is in fact a religious holiday.

I find your belief system fascinating.

The next question is whether Kramer’s belief in Festivus is sincerely held. While Kramer’s belief in Festivus is certainly new, that does not necessarily mean it is not sincere. Demonstrating sincerity is really a fact finding mission, but certainly holding on to your beliefs even when being expelled from community – “They drove my family out of Bayside, Sir!” – would would suffice. For Kramer, he twice proclaims that there has been a “Festivus Miracle!” However, once Kramer actually celebrates the holiday, he finds it to be odd. While Kramer does demonstrate some sincerity during “The Strike,” it’s likely that a court would say moving forward Kramer doesn’t really believe in Festivus given his…

Frank, no offense, but this holiday's a little...

The final question is whether letting Kramer take off for Festivus is a reasonable accommodation H & H Bagels can make for him. Typically, flexible scheduling, allowing for shift changes, and providing space to pray are the kinds of accommodations that courts are going to find to be reasonable for an employer to make. Here, letting Kramer take off for Festivus would certainly qualify as the kind of reasonable accommodation that Title VII protects. However,  H & H is not obligated to make every accommodation Kramer requests, as it is not mandated to grant those accommodations that would create an undue hardship for the store. The Supreme Court has interpreted this to mean anything more than minimal costs or ordinary costs. While asking to take a day off is certainly a minimal cost, Harry the Manager specifically hired Kramer to work during the holidays. The entire reason Kramer is working at H & H is to fill up the Holiday shifts that other employees are taking off for. Had Kramer tried to make these arrangements in advance then that would have mitigated the costs. But now, allowing Kramer to take off during this time, especially on such short notice, would likely cause the kind of undue hardship that Title VII does not mandate.

The jurisprudence surrounding Title VII is designed to protect employees from losing employment because they wish to practice their religion, but to also ensure that employers can properly plan in advance for their businesses or organizations. The best Kramer could have done was let H & H know in advance that he wanted to take off for Festivus. Since he did not, Kramer will have one more thing to say at his airing of the grievances.

A Festivus for the rest of us.

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