After last week’s Supreme Court decision in Groff v. DeJoy, employers should prepare to seriously entertain, and grant, more employee requests for religious accommodation.
Gerald Groff, an Evangelical Christian postal worker in Pennsylvania, requested not to work at all on Sundays for religious reasons. (The post office was making Sunday deliveries for Amazon.) Mr. Groff's bosses made some attempts at accommodation, but the attempts were not successful. Either Mr. Groff was left on the Sunday schedule and disciplined for not working, or his co-workers were overworked trying to cover for him. Mr. Groff eventually resigned, and then he sued and lost, and lost again on appeal. The Supreme Court agreed to review the case, and on Thursday unanimously agreed on a tougher standard for employers claiming that religious accommodations present an “undue hardship.”
“De minimis”
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on, among other things, religion and since 1972 has required employers to make reasonable accommodations for employees' religious beliefs or practices unless doing so would be an “undue hardship.” In the 1977 case of Trans World Airlines v. Hardison, the Supreme Court said that undue hardship would be found -- and the employer excused from accommodation -- if the proposed religious accommodation would involve more than a de minimis cost or inconvenience. (In other words, arguably even a mere inconvenience or minimal additional cost could qualify as an “undue hardship” in this context.)
Read today, the Hardison majority opinion (written by Justice Byron "Whizzer" White) seems dated, and even quaint. The Court expressed concern that a robust reasonable accommodation obligation would result in "preferential treatment" for religious adherents, which was unfair to their co-workers. The dissent -- by Justice Thurgood Marshall, joined by Justice William Brennan -- took a much more "modern" view of the reasonable accommodation obligation. Their view did not prevail.
But a lot changed after 1977.
In 1990, Congress enacted the Americans with Disabilities Act (the ADA first took effect in 1992), which required reasonable accommodation for individuals with disabilities. The ADA had a reasonable accommodation standard much like that espoused by Justices Marshall and Brennan, including a requirement that "undue hardship" involve a "significant difficulty or expense," taking into account the size of the employer, its financial resources, the nature of the business, and the like. In other words, the hardship had to be significantly more than "de minimis" to be "undue." Reasonable accommodation requirements in the Uniformed Services Employment and Reemployment Rights Act (1994), and the Affordable Care Act (2010) had the same undue hardship standard as the ADA.
For religion, “de minimis” no more
In Thursday’s unanimous decision (opinion by Justice Samuel Alito), the Supreme Court did not overrule Hardison, but it clarified that “undue hardship” means what it says. “Hardship” means more than a mere inconvenience, and “undue hardship” means significantly more.
Under the standard announced by the Court, “undue hardship” will be found only if the accommodation “would result in substantial increased costs; in relation to the conduct of the particular business.” (Emphasis added.) As a practical matter, this means that larger employers may have a difficult time prevailing on an undue hardship defense because they can presumably absorb more of the cost of accommodation. However, the Court did not adopt the even more demanding standard that applies to disability accommodations under the Americans with Disabilities Act and other, newer, federal statutes.
The Court also made clear that the impact on co-workers will not be an “undue hardship” if the co-worker objections are based on objections to religious accommodation in principle, or based on religious-based prejudice. However, the Court did leave open the possibility that certain other impacts on co-workers could affect “the conduct of the particular business” and therefore could create an undue hardship. This point was emphasized in a concurring opinion by Justice Sonia Sotomayor and joined by Justice Ketanji Jackson.
It will be interesting to see how the Court’s decision affects certain current “hot issues” in employment law. Two that immediately come to mind are religious-based objections to employer vaccine mandates, and issues arising from the conflict between traditional religious beliefs and LGBTQ+ rights and employers’ diversity efforts in that regard.
Practical tips for employers
In light of the Groff decision, employers should be ready to field and seriously consider many more requests for religious accommodation. Here are some suggestions.
- 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 received “religious” accommodation requests that were not based on religion but on politics or fear about the safety of the vaccines. Those may be legitimate concerns, but they are not “religious” in nature.
- 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 before making an “undue hardship” determination.
The Court declined to adopt the current guidance on religious accommodation from the U.S. Equal Employment Opportunity Commission, saying that it wanted to allow the agency to amend its current guidance (or not) in light of the Groff decision. Thus, more or amended guidance should be on the way.