Religious accommodation historically

Employers are quite familiar with the concept of “accommodation;” however, for the last 46 years they have not had to spend much time or effort dealing with an employee’s request to accommodate his religious needs. As of June 29, this changed – rather dramatically.

Title VII of the Civil Rights Act of 1964 requires employers to accommodate the religious practice of their employees unless doing so would impose an “undue hardship on the conduct of the employer’s business.” This definition begs the question: what is an “undue hardship” under the statute?

Since 1977, courts interpreted the statute to mean that a requested religious accommodation created an“undue hardship” if the employer had to engage in virtually any effort or incur a cost that is “more than . . . de minimis.” This proved to be a very low hurdle for employers to clear.

Employer’s accommodation requirement “clarified” by Supreme Court

 In Groff v. DeJoy, a unanimous United States Supreme Court held that this low standard is improper. Declaring that its decision was a “clarification” of what “undue hardship” means, the Supreme Court specifically held that “showing ‘more than a de minimis cost,’ as that phrase is used in common parlance, does not suffice to establish “undue hardship” under Title VII.”

What is the new standard? Stated differently, what is necessary to constitute “undue hardship”? Employers looking for a bright line standard are out of luck. 

The Supreme Court said that “‘undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business.” (emphasis added). The Supreme Court expressly identified the inquiry as “fact-specific.”

Despite the lack of a bright line standard, the Court noted that “hardship” has been defined:

• “at a minimum, [as] something hard to bear”;
• “something that causes or entails suffering or privation”
• “extreme privation; adversity; suffering”

The Court bluntly said that “under any definition, a hardship is more severe than a mere burden.” Regarding the costs an employer may incur, the Court said that “costs would have to rise to the level of hardship, and adding the modifier ‘undue’ means that the requisite burden, privation, or adversity must rise to an ‘excessive’ or ‘unjustifiable’ level.”

What does this mean for my business?

So, what does this mean for employers? At a minimum, employers should alert all management – especially front-line supervisors – to be aware of an employee’s requests for religious accommodations (e.g., working on Sabbath; wearing religious garb; taking time off to attend non-Sabbath religious obligations). Employers should also review their policies and written materials to make any necessary adjustments.

 While praised by both so-called conservatives and progressives, this Supreme Court decision is almost certainly going to result in additional requests for accommodation and, concomitantly, unlawful discrimination claims. Employers should be proactive in thinking how it will address these issues, both with employees making the requests and with co-workers impacted by accommodations.