(Insert Noah joke here.)

On Tuesday, the U.S. Supreme Court heard oral argument in Groff v. DeJoy, a case I blogged about in January. The case is about what standard of "undue hardship" should apply in religious accommodation cases.

Under every federal law that requires reasonable accommodation, the employer can defend its refusal to accommodate on the ground that the accommodation would be an "undue hardship."

The Americans with Disabilities Act and most federal laws that require reasonable accommodation define "undue hardship" as involving "significant difficulty or expense," taking into account the size of the employer, its financial resources, and other considerations.

But that isn't the "undue hardship" standard for religious accommodations. A 1977 Supreme Court decision held that, for religious accommodation purposes, an "undue hardship" exists if the accommodation would require the employer to bear more than a "de minimis" cost or inconvenience.

(For those of you who are not Latin scholars, "de minimis" means "the bare minimum.")

"Bare minimum"? De minimis? I'm sorry. I couldn't resist.

Anyway, guidance on religious accommodation from the Equal Employment Opportunity Commission indicates that "de minimis" doesn't really mean "de minimis." In other words, the EEOC says that the undue hardship standard actually requires more accommodation than the 1977 case would indicate. But it's still more difficult for a plaintiff to prevail in a refusal-to-accommodate-religion case than in a refusal-to-accommodate-disability case.

The petitioner in Groff worked for the U.S. Postal Service and had a religious objection to working on Sundays. That was dandy until the Postal Service started making deliveries for Amazon on Sundays. Accommodations were attempted, worked for a while, and then became increasingly difficult. Mr. Groff ultimately quit after he was told he'd have to work on Sundays, in violation of his beliefs.

Back to Noah

I listened to this week's oral argument. It was very interesting, well argued by both sides, and worthwhile if you are interested in this subject. The SCOTUS website has the audio recording as well as a transcript so you can read along while you listen.

One problem with Mr. Groff's position is that the more accommodation-friendly undue hardship standard was literally written into the ADA and the other, newer laws, including the Uniformed Services Employment and Reemployment Rights Act. For whatever reason, that never happened with Title VII and religious accommodation, even though Congress has had roughly 46 years to do it.

Another problem with Mr. Groff's position is that this Supreme Court precedent interpreting what "undue hardship" means for religious accommodation has been around for . . . well, for 46 years. 

But an interesting question was raised by Justice Amy Coney Barrett, who I expected to be all in with Mr. Groff. She asked Mr. Groff's attorney whether Congress might have wanted to treat accommodation differently under the ADA and Title VII out of a fear of opening the accommodation floodgates. To put it another way, a relatively limited portion of the working population needs disability-related accommodations, while just about everybody has a religion that could arguably require some sort of accommodation.

Justice Barrett's question takes me back to a true story that I have told a few times in the past. A client I worked with who had a manufacturing facility in North Carolina that was going to 24/7 operations. Before that, it was closed on Sundays. For those of you who aren't familiar with our state, we have a lot of Baptists. I would guess that 80 percent of the workforce at this facility was Baptist. Six or seven devout Baptist employees believed that performing any work on Sunday was a sin, so they asked to have Sundays off. The plant manager had no problem accommodating the six, but he was afraid of -- the floodgates. After much cajoling, we persuaded him to give it a try. He did. As it turned out, no one else in that heavily Baptist plant cared about having Sundays off. A few additional Baptists wanted to be off for church, but they were fine with coming to work after church. So, the floodgates never opened, and everyone lived happily ever after.

On the other hand, allow me to talk about a more recent religious accommodation issue. Who remembers COVID-19? (Ooh! Ooh! Pick me! Pick me!) Remember when the first vaccines came out? And a lot of employers were requiring their employees to be vaccinated? Some, as in health care, had no choice. And some employees didn't want to get the vaxx? And the EEOC and all the applicable vaxx mandates said that employers had to make accommodations for disabilities and religion?

In my experience, employers had no difficulty handling requests for disability-based vaccine exemptions. But some employers had an unprecedented volume of requests for religious exemptions. Quite a few that I will call "religious" in quotation marks, because they really weren't. It was as if -- floodgates! -- had opened.

Employers, get ready to accommodate more religion

If the Supreme Court rules that an "ADA" standard of undue hardship should apply in cases of religious accommodation, employers may indeed have to be ready to field many more requests for religious accommodation. Thanks to COVID (I may never say that again), most employers have had some practice already. Here is what I'd suggest you do:

• Require requests for religious accommodation to be made in writing, with exceptions for employees who are not fluent in English or who have literacy issues. The request should contain a brief explanation as to how the employer's policy or practice conflicts with the employee's religious beliefs.
• Review the requests, and make sure they are really religious in nature. With COVID vaccines, many employers got "religious" accommodation requests that were not based on religion but on politics or fear of what mRNA would do to the body. Politics and effects of mRNA are not religious concerns.
• If the request is religious in nature, assess whether the employee's belief is sincerely held. When in doubt, assume that the belief is sincere.
• If the request is religious in nature, and if the employee's belief appears to be sincere, then either grant the accommodation request or go through the ADA "interactive process" with the employee unless accommodating would be an "undue hardship." 

Once we know what an "undue hardship" is.

P.S. Some commentators have said this week that the Court seemed reluctant to expand the reasonable accommodation obligation for religion. I'm not so sure. I am confident that Justices Kagan and Sotomayor, and probably Justice Jackson, will vote to keep things the way they are. I am also confident that Justices Alito and Thomas will vote to impose a more demanding, ADA-like, requirement on employers. But I thought it was hard to tell what the others were thinking. Even Justice Gorsuch, who blasted the "de minimis" standard in 2021, seemed pretty mellow. If I had to predict, I'd say we'll get a 6-3 or 5-4 vote for a more accommodation-friendly standard than de minimis. I'm not sure it will go quite as far as the ADA does, though. 

Image Credits: YouTube clip from the immortal Office Space (1999). COVID image from flickr, Creative Commons license, by Mike Finn. All others from Adobe Stock.