Since 1977, employers evaluating whether an employee’s religious accommodation request would cause undue hardship on their business had a low burden to meet. A denial of a religious accommodation could likely be justified if the proposed accommodation involved more than de minimis cost or inconvenience to the employer.
Recently, the U.S. Supreme Court changed that by “clarifying” the religious accommodation standard under Title VII of the Civil Rights Act of 1964 and ruling that to justify the denial of a religious accommodation, an employer must show “substantial increased costs in relation to the conduct of its particular business.”
Background
Under Title VII, covered employers must reasonably accommodate an employee’s sincerely held religious beliefs or observances that conflict with work requirements, unless the employer demonstrates that doing so would create an “undue hardship on the conduct of the employer’s business.”
With no statutory definition of undue hardship to guide them, employers have long relied on the Supreme Court case Trans World Airlines v. Hardison, which found that an undue hardship existed if the proposed religious accommodation caused an employer to “bear more than a de minimis cost.”
Gerald Groff was a rural mail carrier employed by the United States Postal Service (USPS). Groff observed the sabbath on Sunday and requested all Sundays off work for religious reasons.
Although the USPS made some attempts to accommodate Groff (offering to find employees to cover his shifts), ultimately it proved too difficult to cover all of Groff’s shifts due to a shortage of rural mail carriers. Groff refused to work any shifts that couldn’t be covered, and as a result, he was disciplined by the USPS.
Groff resigned and sued the USPS under Title VII, which prohibits religious discrimination. The district court agreed with the USPS, concluding the de minimis standard was easily met because exempting Groff from working on Sundays would impose on Groff’s coworkers, disrupt workflow, and diminish morale.
Supreme Court Decision
The outcome changed, however, when this dispute reached the Supreme Court. In a unanimous decision, the Supreme Court clarified Hardison without overturning the decision, and ruled that showing “more than a de minimis cost” isn’t enough to establish undue hardship under Title VII.
Explaining that Hardison couldn’t be reduced just to the de minimis phrase, Justice Samuel Alito noted that even Hardison referred to “substantial burdens,” and so, the Court understood “Hardison to mean that ‘undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business.”
Justice Alito also noted that “courts must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of the employer.”
The Court declined to determine what facts would meet this new test, which appears to lie somewhere between the de minimis standard under the old interpretation of Hardison and the significant difficulty and expense standard that applies to reasonable accommodations under the Americans with Disabilities Act (ADA). Instead, the case was sent back to the lower court to apply the clarified standard. Groff v. DeJoy, No. 22-174 (June 29, 2023).
Practical Advice for Employers
With the Supreme Court leaving it to the lower courts to apply the newly “clarified” standard, only time will tell which religious accommodations should be granted and which will appropriately be deemed too burdensome. In the meantime, businesses are wise to consider the following.
It’s time to update your policies. With a newly clarified standard in play, many companies’ written policies on religious accommodations may now be out of date. Businesses are encouraged to update their policies now, not only to ensure conformance to the Groff standard but also to put employees on notice of how to request a religious accommodation. Ideally, the policies should instruct employees to direct such requests to HR. This will ensure a uniform and appropriate response companywide.
Now is the time to reevaluate recent accommodation denials. For those businesses who have recently received (and denied) employee requests for religious accommodations, now may be a good time to revisit those requests. Rather than waiting for the employee to resubmit their request, proactively reevaluating whether the requested accommodation would meet the newly clarified standard may lessen the risk of new charges from the Equal Employment Opportunity Commission (EEOC) about disputes that predated the Groff decision.
When in doubt, call counsel. If the Groff decision has taught us anything, it’s that context will matter in resolving employee requests for religious accommodations. If the proposed accommodation causes companies to be severely understaffed, creates a health or safety concern, or otherwise creates a substantial hindrance to the operation of the employer’s business, then perhaps it will satisfy the Groff test. Lesser accommodations, such as granting relaxed dress and grooming standards in circumstances where mandatory PPE isn’t an issue, or granting an employee a certain day of the week off of work because other employees are equally available to work that day, may be tougher to deny.
As each circumstance is unique, consulting with employment counsel will be an important step as employers try to navigate the newly “clarified,” but still factually complex, standard.
Elise O’Brien and Shannon S. Pierce are attorneys for Fennemore Law. Elise can be reached at eobrien@fennemorelaw.com, and Shannon can be reached at spierce@fennemorelaw.com.