In the

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 20-1419 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 

Plaintiff-Appellant, 

v.

WALMART STORES EAST, L.P., and WAL-MART STORES, INC., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court

for the Western District of Wisconsin. 

No. 18-cv-804-bbc — Barbara B. Crabb, Judge. 

____________________ 

ARGUED DECEMBER 2, 2020 — DECIDED MARCH 31, 2021 

____________________ 

Before EASTERBROOK, RIPPLE, and ROVNER, Circuit Judges. 

EASTERBROOK, Circuit Judge. The Walmart store in Hayward, Wisconsin, is open 24 hours a day, 7 days a week. It is 

especially busy on Fridays and Saturdays from late May to 

late August, the peak tourism season. Assistant managers 

help the manager run the store, which tries to have assistant 

managers on hand all the time. The store also hires additional managers and supervisors who work by the hour. In April 

2016 Walmart offered Edward Hedican a job as one of eight 
2 No. 20-1419 

full-time assistant managers. After receiving the offer, Hedican revealed that, as a Seventh-day Adventist, he cannot 

work between sundown Friday and sundown Saturday. 

That disclosure led to a reevaluation of the offer and to this 

suit under Title VII of the Civil Rights Act of 1964. 

Lori Ahern, the store’s human resources manager, assessed whether Walmart could accommodate Hedican’s religious practices. She concluded that doing so would require 

assigning the other seven assistant managers to additional 

Friday night and Saturday shifts, even though they prefer to 

have weekends off. With eight assistant managers available, 

any given assistant manager works (on average) six weekend shifts out of every ten weeks. (The historical range has 

been 48% to 82% of Saturdays, in particular.) If one of the 

assistant managers could not work from Friday sundown to 

Saturday sundown, six would rise to seven. And it would 

disrupt the work schedule. Six of the eight assistant managers work five days in a row, ten hours a day (for 50-hour 

weeks); the other two work four days in a row, 12 hours a 

day (for 48-hour weeks). That system could be preserved if, 

for example, Hedican were assigned permanently to one of 

the 4-day-12-hour slots, and his days never included weekends. But then other assistant managers would need to work 

even more weekend days, and the store’s practice of rotating 

all eight assistant managers through all eight of the schedules would end. The store’s manager believes that each assistant manager should have experience with all available 

schedules, which (because of how these were arranged) also 

requires each to work in all of the store’s departments—for 

although the store is open all the time, many of its departments (including liquor and firearms) are closed some of the 

time. The manager thinks that each assistant manager 
No. 20-1419 3 

should be able to handle every department, something that 

could be especially important if because of illness, vacation, 

resignation, or retirement the store has fewer than eight assistant managers available. 

Ahern concluded that accommodating Hedican would 

leave the store short-handed at some times, or would require 

it to hire a ninth assistant manager, or would compel the 

other seven assistant managers to cover extra weekend shifts 

despite their preference to have weekends off. She therefore 

raised with Hedican the possibility that he apply for an 

hourly management position, which would not be subject to 

the rotation schedule for the eight assistant managers. Hedican did not do so. Instead he filed a charge with the Equal 

Employment Opportunity Commission, which decided to 

prosecute a failure-to-accommodate suit on its own behalf. 

See EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). 

Title VII forbids employment discrimination on account 

of religion. 42 U.S.C. §2000e–2(a)(1). Section 2000e(j) adds: 

The term “religion” includes all aspects of religious observance 

and practice, as well as belief, unless an employer demonstrates 

that he is unable to reasonably accommodate to an employee’s or 

prospective employee’s religious observance or practice without 

undue hardship on the conduct of the employer’s business.

Walmart contends that its invitation to Hedican to apply for 

an hourly management position satisfies its duty to accommodate his religious practice and that any greater obligation 

would yield an “undue hardship” as that term was understood in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 

(1977): “To require [an employer] to bear more than a de minimis cost in order to give [an employee] Saturdays off is an 

undue hardship.” (From now on, we’ll use the phrase “slight 
4 No. 20-1419 

burden” to avoid the Latin.) On motion for summary judgment, the district judge sided with Walmart. 2020 U.S. Dist. 

LEXIS 8596 (W.D. Wis. Jan. 16, 2020). The judge thought that 

an hourly management job would have been a reasonable 

accommodation, even though the entry-level pay of that position is lower than the entry-level pay of an assistant manager. And the judge believed that interference with the 

store’s rotation system would exceed a slight burden. 

The EEOC’s appeal observes that an opportunity to apply to be an hourly manager is not necessarily an accommodation; after all, an applicant may be turned down, and the 

need to apply seems a gratuitous insult to someone who has 

already been offered a managerial job. Walmart responds 

that Ahern’s invitation to Hedican to apply for an hourly position meant no more than a request that he fill out some papers different from the documents required to assume the 

position of assistant manager. Cf. Wright v. Runyon, 2 F.3d 

214 (7th Cir. 1993). We shall never know what would have 

happened if Hedican had used this opportunity, because he 

was not interested in it. Ahern testified by deposition that “I 

did communicate to [Hedican] what [hourly] positions were 

open at the Hayward store and directed him on how to apply if those were of interest to him. He said those were not.” 

Given an opportunity in his own deposition to contradict 

Ahern, Hedican did not say that an hourly position would 

have been accepted. The difference between an offer of an 

hourly management job, and an opportunity to apply for an 

hourly management job, therefore does not maqer to the 

outcome of this suit. Walmart made an offer that could have 

put Hedican in a management job without working on the 

Sabbath, but he wanted to be an assistant manager and noth-
No. 20-1419 5 

ing less. Unless Title VII entitles Hedican to that position, 

Walmart must prevail. 

According to the EEOC, Walmart could have offered 

Hedican several accommodations that would have enabled 

him to be an assistant manager. One would have been to 

give him that job and let him trade shifts with other assistant 

managers. But that would not be an accommodation by the 

employer, as Title VII contemplates. This proposal would 

thrust on other workers the need to accommodate Hedican’s 

religious beliefs. That’s not what the statute requires. Hardison addressed and rejected the sort of shift-trading system 

that the EEOC now proposes. 432 U.S. at 78–79. The Supreme Court held that Title VII does not require an employer to offer an “accommodation” that comes at the expense of 

other workers. 

There’s a further problem: What would Walmart do if 

other workers balked, as they did in Hardison? (The union in 

Hardison refused to modify the rules to require workers with 

more seniority to take less-desirable shifts.) If, say, four of 

the seven other assistant managers declined to take extra 

weekend shifts, that would consign the remaining three to 

work, not six Saturdays out of ten, but nine or ten Saturdays 

out of ten. In Hardison, which dealt with workers at a large 

repair and maintenance facility, there were many potential 

trading partners; at the Walmart store in Hayward, there are 

only seven (fewer if vacations, vacancies, or sick leave reduce the staff). 

Another possibility, according to the EEOC, would have 

been to assign Hedican permanently to the 4-day-12-hour 

shift and ensure that it never included Fridays or Saturdays. 

Once again this is a proposal to require more weekend work 
6 No. 20-1419 

by the other assistant managers—and without their approval, as a shift-trading system entails. We repeat that the burden of accommodation is supposed to fall on the employer, 

not on other workers. See also Porter v. Chicago, 700 F.3d 944, 

951–53 (7th Cir. 2012) (holding that Title VII does not require 

an accommodation that would require other workers to 

work extra weekend shifts); Baz v. Walters, 782 F.2d 701, 707 

(7th Cir. 1986) (“An employer need not disturb the job preferences of other employees to accommodate an employee’s 

religious observance.”). The EEOC’s approach also would 

make it difficult for Walmart to maintain its rotation system, 

designed to ensure that all of the assistant managers can 

handle all of the departments. If Hedican became a specialist 

in some departments, Walmart would encounter more than a 

slight burden when he went on vacation or sick leave. 

And all of the EEOC’s other proposals also would require 

Walmart to bear more than a slight burden when vacations, 

illnesses, and vacancies reduced the number of other assistant managers available. These proposals need not be discussed in detail, though it is appropriate to note that the 

EEOC’s suggestion that Walmart simply accept the presence 

of fewer assistant managers on weekends is a parallel to the 

argument, which Hardison rejected, that Title VII requires 

employers to hire workers for four-day rather than five-day 

weeks and accept that some days will be short-staffed. 432 

U.S. at 80, 84–85. 

Three Justices believe that Hardison’s definition of undue 

hardship as a slight burden should be changed. See PaJerson 

v. Walgreen Co., 140 S. Ct. 685 (2020) (Alito, J., concurring, 

joined by Thomas & Gorsuch, JJ.). See also Small v. Memphis 

Light, Gas & Water, 952 F.3d 821, 826–29 (6th Cir. 2020) 
No. 20-1419 7 

(Thapar, J., concurring). Our task, however, is to apply Hardison unless the Justices themselves discard it. See, e.g., State 

Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (“it is this Court’s prerogative alone to overrule one of its precedents”). Because 

accommodating Hedican’s religious practices would require 

Walmart to bear more than a slight burden (if he became one 

of the eight assistant managers), and because Title VII does 

not place the burden of accommodation on fellow workers, 

the district court’s judgment is 

AFFIRMED. 
8 No. 20‐1419

ROVNER, Circuit Judge, dissenting. I respectfully part ways

with my colleagues because I think there is a question of fact

as to whether Walmart did enough to explore ways of accom‐

modating Hedican’s religion. I would therefore reverse and

remand for a trial.

Although Ahern considered whether it might be feasible

to adjust other assistant managers’ schedules in some manner

(including voluntary shift‐trades) so that Hedican would

never have to work on a Friday night or Saturday, one thing

she did not do is consult with the other managers in making

her assessment. I agree with my colleagues that accommodat‐

ing Hedican in this way posed a challenge, given the store’s

24‐hour schedule, busy weekends, and the demand among

staff  for time off  on Fridays, Saturdays, and Sundays. Yet

Hedican was available to work on Fridays, Saturday nights

and Sundays, and if he were willing to disproportionately ac‐

cept shift assignments during the 48 of 72 weekend hours out‐

side of his observed Sabbath, then other managers might have

been willing to pick up the slack on Friday nights and Satur‐

days. Ahern could not know for certain unless she asked, and

yet she did not. See Walmart Br. at 48‐49 n.5. I appreciate the

store’s need for predictability in scheduling, but had Ahern

convened the managerial staff to discuss the possibilities, she

might have discovered that it was in fact feasible to accommo‐

date both Hedican and the other managers. Cf. Opuku‐Boateng

v. California, 95 F.3d 1461, 1471‐72 (9th Cir. 1996) (flawed, in‐

formal poll of other workers insufficient to demonstrate that

shift‐trades were not a feasible means of accommodating

plaintiff’s inability to work on Sabbath).

Discussion of the difficulty of accommodating Hedican

brings to mind the sorts of excuses employers long trotted out
No. 20‐1419 9

for why it was impractical to hire women of child‐bearing age:

that employers could not afford to waste resources training

employees who would quit as soon as they were pregnant;

that projects and deadlines could not accommodate the gaps

of maternity leave and the vagaries of daycare and school

schedules; that client needs could not be met on a nine to five,

Monday through Friday schedule. Indeed, child‐bearing and

parenting did pose challenges for working women and their

employers, but accommodations that were a long time in

coming—flexible hours, remote work, job‐sharing, family

leave time—have shown why work and motherhood were

never as incompatible as employers once thought.  

That a business historically has been run in a certain way

does not mean that is the only or best way in which it can be

run. I grant that Walmart’s scheduling needs are genuine. But

the duty to reasonably accommodate entails an obligation to

look at matters with fresh eyes and to separate what is neces‐

sary from what, to date, has been customary. I think there is a

jury question as to whether Walmart went far enough in con‐

sidering whether Hedican’s religious scheduling needs could

be accommodated.

Ahern did suggest that Hedican might instead apply for

an hourly supervisory position. Setting aside any differences

between the two positions (including starting pay), I am not

convinced that inviting Hedican to apply for a different posi‐

tion for which he was obviously qualified constitutes a mean‐

ingful accommodation. After all, the company had already of‐

fered Hedican an ostensibly superior job. Now it was treating

him as a near‐stranger who needed to start over. The com‐

pany’s counsel suggested at argument that application for an

hourly position was simply a matter of paperwork, but its
10 No. 20‐1419

brief suggests otherwise,1 and in any case it does not appear

that this was ever communicated to Hedican. It was not Hedi‐

can’s responsibility to ferret this out.

The record shows that Walmart gave serious thought to

whether it could accommodate Hedican and I commend the

company for the efforts it did make. But a jury could nonethe‐

less conclude that more was required to discharge its duty of

reasonable accommodation.

I respectfully dissent.

1 See, e.g., Walmart Br. at 9 (noting that with Ahern’s help, Hedican

would have a “leg up” in applying for other positions, as Ahern was in‐

volved with the interviewing), and 24 (faulting Hedican for not asking

Walmart to bypass the usual application process for other positions).