In June, the U.S. Supreme Court “clarified” the Title VII standard that covered employers must consider and use when handling employee religious accommodation requests. The decision, in a case called Groff v. DeJoy, will change how courts assess religious accommodation cases. That means employers who want to win in court (and who doesn’t?) need to proactively review their policies and train decisionmakers.
First, a refresher. Employers covered by Title VII must accommodate employees’ religious practices and beliefs unless the accommodation would create “undue hardship” for the employer’s business. But “undue hardship” isn’t the same for every statute. When we consider it in an ADA context, for example, it usually translates to “don’t claim undue hardship unless you’re ready to lose in court.” Title VII is different. For decades, courts nationwide interpreted “undue hardship” to exist whenever it caused more than a trivial, minor, or minimal cost (a.k.a. “de minimis” cost). And under a de minimis standard, employers had a lot of leeway to say “no” to religious accommodation requests. Think voluntary shift-trading to avoid working the Sabbath, or use of vacation time to observe Good Friday.
Groff changes the landscape. Groff was a USPS worker who had to work Sundays, but he had a sabbath observance requirement that conflicted with his work schedule. The long story short is Groff resigned because, after he refused to work Sundays and was disciplined, he believed that the USPS would ultimately terminate his employment. After he quit, he sued the USPS and claimed it failed to accommodate his religious practice.
USPS won in the lower courts because they applied the de minimis standard. They said, and courts agreed, that Groff’s accommodation would impose on Groff’s coworkers, disrupt the workplace and workflow, and hurt employee morale. But Groff won at the Supreme Court. The Court said the de minimis standard had been an incorrect application of the law. Instead, to deny a religious accommodation, the employer must show that the accommodation would create a burden “substantial in the overall context” of its business to meet Title VII’s undue-hardship defense. Clear as mud, right? In other words, the employer must show that the accommodation would cause substantial increased costs to the business.
Legal mumbo jumbo aside, the practical takeaway from Groff is that employee religious accommodation requests must be handled carefully. Employers must use fact-specific processes and should not impose blanket rules. If an employee requests a religious accommodation, the employer must weigh all relevant factors, including the practical impact of the accommodation given the employer’s business, size, and operating costs. Some things – negative impact on customer satisfaction, production efficiency, and revenue – are legitimate factors to consider. Other factors that are not directly related to the employer’s business – such as whether other employees will feel treated unfairly – are not fair game. The analysis can be tricky because, of course, employee morale does still impact a business even if it is not a direct impact on the bottom line.
Regardless, employers should train managers and human resources professionals now about the revised religious accommodation standard. Employers should additionally review and revise any applicable policies and procedures to reflect the “substantial cost” standard now. Last, managers and HR professionals should be taught to proactively seek solutions. The Supreme Court’s standard will require employers to consider all available accommodations, even if the employee does not propose them – an unrealistic ask, but employers will be well-positioned by showing their work on this point.
By implementing these measures, employers can and should have a relatively painless transition to the new standard. Just don’t implement them on a Sunday.
Contact the author Adam Walker.