In light of a U.S. Supreme Court decision last month, employers may need to examine and modify their policies on religious accommodations. The ruling makes it harder for employers to deny employees’ requests for this type of accommodation.
The case involved Gerald Groff, a former postal worker who sued the U.S. Postal Service (USPS) for failing to accommodate his religious practice. Groff is an evangelical Christian who observes a Sunday Sabbath, meaning he doesn’t work on that day. The USPS had scheduled him for some Sunday shifts involving Amazon package delivery.
Under Title VII of the Civil Rights Act of 1964, employers must reasonably accommodate all aspects of an employee’s religious observance or practice that can be accommodated without creating an undue hardship for the business. In Groff v. DeJoy, the Supreme Court ruled that employers can only deny an employee’s request for a religious accommodation under federal law if they can prove it would result in substantially increased costs for the business.
To determine whether there’s an undue hardship, companies must evaluate the practical impact of an accommodation on the conduct of the business, based on the nature, size and operating costs of that particular organization, the court said.
“The court dramatically heightened the standard for religious accommodation in the workforce, despite its statements to the contrary,” said Pamela Moore, an attorney with McCarter & English in Hartford, Conn. “It will result in employers having greater difficulty managing the workplace and denying religious accommodations that are undoubtedly disruptive to an employer’s organization.”
In addition, “[t]he determination of whether an undue burden exists will be highly fact-specific from situation to situation, and employer to employer, given the emphasis on considering the conduct of the employer’s particular business,” said Christopher Durham, an attorney with Duane Morris in Philadelphia.
The court was careful to not adopt the same standard used for disability accommodations under the Americans with Disabilities Act.
The Groff ruling “splits the baby,” said Matt Durham, an attorney with Dorsey & Whitney in Salt Lake City. “It did not adopt the higher disability accommodation standard the plaintiff, and religious rights groups, sought. But it certainly raises the bar from the pre-Groff standard that allowed employers to deny accommodations that imposed more than a de minimis burden.”
The ruling “reaffirms the careful balance necessary to protect religious freedom and enable employers to implement policies necessary to manage their workplaces,” SHRM said in a statement.
Defining Undue Hardship
For now, it may be hard to know where to draw the line between undue hardship and lesser burdens.
The regular payment of premium wages or the hiring of additional employees to provide an accommodation would be more than a de minimis cost, said Patricia Pryor, an attorney with Jackson Lewis in Cincinnati. However, temporary costs, voluntary shift swapping, occasional shift swapping and small administrative costs were found to be less than de minimis.
“Undue hardship can exist if the proposed accommodation would either cause or increase safety risks, or expose an employer to U.S. Occupational Safety and Health Administration (OSHA) fines, workers’ compensation claims or the risk of legal liability for the employer,” Pryor said. “An accommodation that would violate an OSHA safety standard or state or local vaccine requirement would be an undue hardship. Similarly, an accommodation that would put the safety of the employee or others at risk would be an undue hardship.”
If a requested accommodation would violate other employees’ contractual seniority rights, then that accommodation will also pose an undue hardship for an employer’s operations, said Randi Winter, an attorney with Spencer Fane in Minneapolis. Having some colleagues disgruntled about needing to fill in for an employee with a religious accommodation would not be considered a significant cost to the employer, she said.
“It will take decades for case law to develop such that we truly understand what employers must do when an employee requests an accommodation because a job duty conflicts with a sincerely held religious belief. For most employers, this dictates taking a conservative approach to avoid getting involved in litigation that clarifies what the law is,” said Joseph Beachboard, an attorney with Beachboard Consulting Group in Los Angeles.
In recent years, religious accommodation requests have been “on the rise,” said Elaine Turner, an attorney with Hall Estill in Oklahoma City. She urged employers to “revise existing policies and practices which were drafted and implemented under the now-defunct ‘more than de minimis’ standard. Failure to do so could also result in a further drain on company revenues due to litigation costs.”
The Groff case “is part of a trend of the current Supreme Court giving greater weight to religious freedom concerns,” Christopher Durham said.
That trend includes several rulings in recent years, notably one favoring a high school football coach in Washington state who was fired for praying at the 50-yard line after games and another supporting a Colorado baker who refused to make wedding cakes for same-sex couples.
Remember that not every person within the same religious denomination believes the same things and practices their faith the same way, said Steve Guttierez, an attorney with Holland & Hart in Denver.
