In the midst of the COVID-19 pandemic in 2020, many employers received more religious accommodation requests than ever before, with employees citing religious beliefs in support of requests to be excused from mandatory vaccination requirements. Once such requirements ended, religious accommodation issues largely faded into the background for most employers, and accommodation requests under the Americans with Disabilities Act and the Pregnant Workers Fairness Act have dominated the discourse in the area of workplace accommodations. However, employer religious accommodation requirements have actually broadened since 2020, thanks to the U.S. Supreme Court, and employers should not forget these requirements simply because they are no longer at the forefront.
The Supreme Court Narrows Employer Discretion
Under Title VII, employers are required to provide reasonable accommodation to employees whose sincerely held religious beliefs conflict with work requirements, unless doing so would create an “undue hardship” for the employer. In 1977, the Supreme Court held in TWA v. Hardison that, in the context of religious accommodation, requiring an employer to bear more than a de minimis cost is an undue hardship.
The Supreme Court reconsidered its position in 2023, in the case of Groff v. DeJoy. Gerald Groff wasa United States Postal Service (USPS) mail carrier who requested not to work on Sundays for religious reasons. USPS could not find other employees to cover Groff’s shifts and thus declined his request. Groff began to receive progressive discipline for refusing to work on Sundays, resigned, and ultimately sued under Title VII, claiming USPS could have accommodated his request without undue hardship. The trial court granted summary judgment to USPS and dismissed Groff’s claim, and the appellate court affirmed the dismissal. Both the trial court and the appellate court found that USPS had shown that accommodating Groff’s request would have required USPS to incur more than de minimis cost.
In a unanimous opinion, the Supreme Court rejected the de minimis standard that had stood for 46 years and held that in order to establish undue hardship in the religious accommodation context, an employer must show that a requested accommodation would impose a hardship that is “substantial in the context of [its] business” (emphasis added). In making this determination, the Court suggested that factors such as the employer’s size, its operating costs, and the nature of the accommodation requested should be considered.
The difference between “de minimis” and “substantial” is, of course, impossible to quantify. However, it seems safe to say that requiring an employer to demonstrate a substantial burden leaves significantly less room for employer discretion in accommodation decisions than the de minimis standard permitted.
Practical Steps for Employers
To reduce risk when faced with religious accommodation requests, employers should:
- On a proactive basis, revisit accommodation policies and training to ensure the standard set forth in Groff is the one articulated.
- Document the analysis behind any denial of a particular accommodation request, including a detailed explanation why the request would pose a substantial burden.
- Document the consideration of alternative accommodations, if applicable, and include an analysis of the burden imposed by each.
- Avoid assumptions based on employee preference, coworker resentment, or minor scheduling challenges. The law makes clear that coworker resentment is an insufficient basis to deny an accommodation request.
- Ensure thorough HR and legal review of “close calls,” particularly if the result of a denial is likely to be a termination of employment.
Final Word
The courts’ application of the new Groff standard is still in its infancy, so there remains uncertainty over what courts will, and will not, consider a substantial burden. Employers should not overlook the risk denials of religious accommodation requests may entail, and employers should document their careful consideration of such requests as thoroughly as they document requests for other types of accommodation.
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