Takeaway: An employer is generally advised to try to make an accommodation that would wholly eliminate the conflict between its requirement and an employee’s religious belief. If there are no reasonable means to do so, the employer should document why. If there are reasonable means to eliminate the conflict, but the accommodation would impose an undue hardship on the employer, the employer should document what the actual burden is.
The undue hardship standard is easier to meet with regard to religion under Title VII of the Civil Rights Act of 1964 than with regard to disabilities under the Americans with Disabilities Act. Check state law, too, as some states impose a heavier burden than under Title VII for an employer to establish an undue hardship with regard to religious reasonable accommodation claims.
?An employer provides a reasonable accommodation only if it wholly eliminates the conflicts between the employee’s religious belief and the employer requirement, according to the 3rd U.S. Circuit Court of Appeals.
The plaintiff requested every Sunday off as an accommodation for his religious beliefs. While the U.S. Postal Service (USPS) accommodated him by assigning other employees to cover most Sundays, it concluded it could not relieve him entirely of work on any Sunday. Faced with progressive discipline for failing to work on some Sundays when there was no coverage for him, the plaintiff resigned and later sued USPS for allegedly not going far enough in accommodating him.
The federal district held that, in order for an employer to offer a reasonable accommodation, the accommodation does not need to eliminate wholly a conflict between the employee’s religious belief and the employer’s requirement. More specifically, the district court held the voluntary swap program offered by USPS was a reasonable accommodation, even though the plaintiff still had to work some, albeit fewer, Sundays.
Acknowledging a split among the circuit courts, the 3rd Circuit overturned the district court, holding that an accommodation is reasonable only if it eliminates wholly the conflict between the religious belief and the employer requirement. This interpretation comports with Equal Employment Opportunity Commission guidance on the issue.
In so holding, the 3rd Circuit focused on the meaning of the word “reasonable” in relation to the word “accommodate.” The 3rd Circuit rejected the argument that “reasonable” limits the scope of what must be achieved for an accommodation to be reasonable. Instead, the word “reasonable” informs or limits only the means that an employer must consider in order to eliminate wholly the conflict between the employee’s religious belief and the employer’s requirement.
The 3rd Circuit said offering the employee a less desirable shift or even an alternative but lower-paying position could be a reasonable means to eliminate the conflict. However, offering the employee unpaid time off when other employees were offered paid time off to accommodate personal purposes likely would not be reasonable. Indeed, it likely would be discriminatory.
If there is a reasonable accommodation that would wholly eliminate the conflict, the employer still has available to it the argument that it does not have to make such accommodation because it would impose an undue hardship on the employer. In this case, the 3rd Circuit held that while USPS had failed to make a reasonable accommodation, it had established that it would be an undue hardship to excuse the plaintiff from any work on Sundays.
By way of background, the Supreme Court held in Trans World Airlines Inc. v. Hardison that a reasonable accommodation imposes an undue hardship if it requires the employer to “bear more than a de minimis cost” to provide a religious accommodation. In this case, the 3rd Circuit held USPS met the undue hardship standard, relying on, among other factors, the negative impact on workers who had to cover for the plaintiff without volunteering and the negative impact on morale. The court also noted the accommodation disrupted the workflow, but focused mostly on the impact on the employees in the workplace.
Dissenting in part, Judge Thomas Hardiman agreed with the majority that an employer provides a reasonable accommodation only if it eliminates wholly the conflict between the employee’s religious beliefs and the employer’s requirement. However, the dissenting judge disagreed that undue hardship could be based on the impact of the accommodation on co-workers. Rather, per Judge Hardiman, an undue hardship could be met only by establishing more than a de minimis cost on the business, a burden Judge Hardiman concluded USPS did not meet.
Groff v. DeJoy, Postmaster General of the United States Postal Service, 3rd Cir., No. 21-1900 (May 25, 2022).
Jonathan A. Segal is a partner at Duane Morris in Philadelphia and a SHRM columnist. Follow him on Twitter @Jonathan_HR_Law.
