Last summer, in Groff v. DeJoy, the U.S. Supreme Court upended the analysis used to determine whether and how employers must accommodate an employee’s religious beliefs. In the year since, there have been some applications of Groff’s reasoning in lower court cases, and here are some takeaways you can apply when working through an employee’s religious accommodation request.
What Changed with Groff?
As you know, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on religion. When faced with a religious accommodation request, employers were able to cite any accommodation that would impose more than a de minimus (minimal) cost as an “undue hardship.”
However, the Court in Groff held that to establish an undue hardship, employers must now show that granting the accommodation would result in substantial increased costs in relation to the conduct of their business. Impacts on coworkers (like reassigning shifts) are only relevant to the extent that those impacts affect the conduct of the business.
Where Are We Now?
The Groff decision didn’t wipe away all previous guidance from the Equal Employment Opportunity Commission (EEOC) on these issues, but it does require employers to conduct a more in-depth analysis of what can be done to accommodate employees’ religious beliefs.
For instance, with regard to time off for religious reasons, some examples of accommodations include voluntary shift-swapping between employees, occasionally paying overtime to coworkers who cover employees’ absences, job reassignments, transfers, or unpaid time off. The courts have insisted that multiple forms of accommodation can be considered before denying an employee’s request.
If a denial is safety-related, the employer will have to show it doesn’t grant other exceptions for other reasons. For example, if an employee requests an accommodation related to facial hair or length of hair, the employer will need to determine if it grants exceptions to other employees for non-religious reasons. In other words, if long hair is permitted for female employees in the same position, there will be little justification to prohibit male employees from having long hair to conform to their religious practice.
Several cases have also determined that if facial hair is permitted for some reasons—medical or otherwise—employers can’t establish an undue burden to accommodating facial hair related to an employee’s religious tenets.
Most employers have legitimate concerns that accommodating one employee on a religious basis will open the floodgates for many employees to request the same accommodation. Courts both before and after Groff have been fairly clear, however: Hypothetical consequences of an accommodation won’t constitute an undue burden.
So, what do courts consider an undue burden? Accommodations that would create an undue burden include those that would violate a seniority system, a collective bargaining agreement, or the law. (This has been applied several times in the context of refusal to receive vaccinations in violation of state law.)
The “undue burden” analysis can also consider whether the employer requirement or prohibition actually conflicts with an employee’s religious practice. For instance, the EEOC recently determined that training related to antidiscrimination policies (including references to LGBTQ+ issues) didn’t burden employees’ religious observances when the training wasn’t intended to modify their religious beliefs.
The courts have noted that this inquiry is very fact-specific, so there are many more scenarios that could constitute an undue burden. This area of the law is still developing, so while we wait on more clarity, make sure that when religious accommodations are requested, you make efforts to determine if there’s a reasonable way to accommodate employees.
Christi R.B. Stover is an attorney at Steptoe & Johnson PLLC in Morgantown, West Virginia. She can be reached at christi.stover@steptoe-johnson.com.