On June 29, 2023, amid a flurry of other newsworthy opinions, the Supreme Court issued a unanimous ruling in Groff v. DeJoy, modifying the legal standard which courts now must use to determine when an employer has to grant a religious accommodation. This change has the potential to expand the universe of accommodations that employers will have to consider and agree to, potentially making this complex issue even more challenging.
While it remains to be seen how the lower courts apply Groff, for employers in healthcare and transportation and hospitality with 24/7 scheduling needs, Groff could make staffing on weekends a bigger challenge than it already is.
Background
Title VII (along with all state and many local laws) has long-required employers to provide applicants and employees with a "reasonable accommodation" from any employment obligations that may conflict with their religious beliefs or practices. The key word here is "reasonable." Employers do not need to provide accommodation if doing so creates an undue hardship for the business.
Courts, lawyers, and businesses have grappled with the meaning of these terms for decades, especially when it comes to the issue of accommodating Sabbath observance, which generally entails requests for weekend days off. Up until Groff, the Supreme Court's decision in Trans World Airlines (TWA) v. Hardison, 432 U.S. 63 (1977) had set the standard. Hardison concerned an employee's request for Saturdays off from work to accommodate his religious observance, which conflicted with seniority rules and other employees who also wanted that day. In Hardison, thecourt found in favor of TWA, ruling that the employer did not have to grant the accommodation, because it would have borne "more than a de minimis cost."
Since Hardison, courts have repeatedly clashed over the definition of "undue hardship" and the threshold an employer must demonstrate in order to reject an employee's request for religious accommodation. Many courts took this decision to mean that any religious accommodation that produces a "more than a de minimis cost" would not need to be granted. By that definition it is a relatively low bar for employers to prove, allowing more employers to deny religious accommodation so long as it they can prove minimal impact on operations. Additionally, it was generally recognized that employers did not have to violate seniority rules or a union contract in order to grant religious accommodation.
This may all now change due to the Groff decision.
Groff v. DeJoy
Groff also arose out of a dispute over time off, and concerned a U.S. Postal Service employee (Groff) who requested Sundays off from his job at a small rural Post Office to accommodate his Evangelical faith. This was not an issue until his branch partnered with Amazon and began delivering packages on Sundays. Groff then requested and received a transfer to a different branch that did not deliver on Sundays. When the second branch also partnered with Amazon Groff remained unwilling to make deliveries on Sundays. For a time the Post Office did attempt to accommodate Groff, staffing other employees to cover his shifts. Eventually however, Groff was disciplined for failing to work on Sundays, and ultimately resigned. Groff then sued the Post Office for religious discrimination on account of its unwillingness to accommodate his religious beliefs.
The lower court applied the Hardison standard and sided with the Post Office, finding that granting Groff's accommodation would have presented more than a de minimis cost to the Post Office. The Supreme Court however, found that the lower court applied the wrong standard, and sent the case back to the lower courts to apply the new standard adopted in its opinion.
Groff's New "Undue Hardship" Standard
Although the Supreme Court claimed that it was not directly overruling Hardison, it came very, very close, and certainly implied that 'de minimis,' as defined under Hardison, was no longer the operative test.
The Supreme Court criticized the way Hardison had been applied over the years, and held that many courts applying Hardison failed to invoke the fact-specific analysis and consideration of alternatives, that is required under Title VII, to evaluate a request for a religious accommodation. Implicit in the criticism was an undertone that more accommodations should have been granted.
The Court stated that in order to deny a religious accommodation (or defend any claim for failure to accommodate), the "employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business." As part of this analysis, the Supreme Court stated that employers must consider: (i) the particular accommodations at issue, (ii) their practical impact in light of the nature, size and operating cost of an employer, and (iii) the availability of alternative means of accommodating the employee's religious beliefs.
Interestingly, the Court stated that it did not believe that the EEOC would need to change its guidance. The Court also did not "foreclose the possibility that the (Postal Service) would prevail" under this new standard.
It will be interesting to see how the lower courts treat Mr. Groff's claim the second time around. And whether showing the effects of Mr. Groff's accommodation on other employees, and slowed delivery of mail in the area will be enough to show an undue hardship.
What Should Employers Do Now?
Right now – nothing is required. Assuming that you have a policy that provides for individual consideration of requests for religious accommodation, you do not need to change that policy.
However, in applying that policy, we suggest that you keep the following guidelines in mind:
- Be more careful how you apply your religious accommodation policy, and be more cautious when denying a request for religious accommodation.
- The standard announced by the Supreme Court is context-specific, so be sure to look at the facts of every situation. Avoid blanket rules such as 'we never do that.' Consider each request independently, and document your decision.
- Be wary of questioning the bona fides of an employee's religious belief. This is a very loose standard. You can ask for some explanation, and if appropriate, a letter from the clergy. The EEOC's definition of a 'sincerely held' religious belief is quite liberal – tread carefully.
- Be sure to train front-line managers about these issues so they do not inadvertently say yes or no to a request without knowing the legal standards. Make sure they know to contact HR when religion is raised.
- In considering what is an 'undue hardship' look beyond dollars. Especially for a large employer, you may have to consider not just the total amount that an accommodation will cost, as this may not be enough to appear 'significant.' Consider other soft costs that may not be measurable in dollars, such as the cost to your operations, your ability to provide service, your ability to staff, etc. Document all hard and soft costs. You may not be able to deny an accommodation based on revenue lost, but there may be other costs you can cite to.
- Engage in an interactive process of communication with every employee who makes a request, and respond to each request in writing, especially if it is a denial. Documentation is key, and may well become essential to your defense to a charge or lawsuit.
In the wake of Groff, many employers may see more requests for religious accommodations. Employers dealing with religious accommodation requests should tread cautiously, evaluating the totality of the circumstances behind the request, including the direct financial cost (if any), and the availability of alternatives such as voluntary schedule swaps, "floating" holidays, and flexible scheduling. Employers do not have to entirely upend practices to the detriment of other employees.
Importantly, the Supreme Court expressly avoided determining if existing EEOC regulations complied with its new standard, and directed the agency to review and revise its regulations as appropriate. Employers should watch for potential EEOC updates regarding its interpretation and enforcement efforts on this issue. Employers should also keep in mind that state and local laws are often more liberal than the federal law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
