On November 17, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) published for public comment a proposed update to its Compliance Manual Section on Religious Discrimination for public comment, which has not been updated since 2008. As relates to employers who are not “religious institutions,” many of the significant changes proposed relate to the scope of a secular employer’s duty to provide reasonable accommodation to employees’ religious beliefs and practices. The update signals that, in enforcing Title VII, the EEOC proposes to apply a more stringent test for an employer to establish that an employee’s requested religious accommodation is an undue burden. As briefly noted below, the EEOC’s proposed new enforcement guidance is consistent with trends emerging in applicable case law. In other words, change has been in the works for some time now, and employers should be ready.

Reasonable Accommodation

In addition to prohibiting employers from engaging in discrimination, harassment, or retaliation on the basis of religion, Title VII requires employers to provide “reasonable accommodation” of an employee’s sincerely held religious beliefs, observances, and practices. Accommodation issues typically arise in connection with work schedules, dress and grooming policies, or religious expression or practice in the workplace. Title VII provides that the employer must provide a reasonable accommodation unless the employer can demonstrate that it is unable to do so without “undue hardship on the conduct of the employer’s business.” An accommodation may cause undue hardship if it is financially costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.

The Developing “Undue Hardship” Test

In Hardison, the seminal 1977 case construing “undue hardship,” the U.S. Supreme Court held that Title VII requires only that an employer establish that making religious accommodation for an employee would require more than a de minimis cost. As a result, for decades, courts regularly held that even a trivial financial or operational burden could constitute sufficient grounds for an employer to deny a request for religious accommodation. Thus, older decisions regularly afforded significant weight to employers’ own assessments of the financial costs or operational harm posed by a requested religious accommodation, with a focus on evidence of costs directly associated with the requested accommodation and without much scrutiny of whether such costs could have been mitigated by making alternative work arrangements or by providing an effective, alternative accommodation. Many older cases were decided in favor of the employer when the employee had not explicitly notified the employer of the need for a religious accommodation.

However, beginning as early as the dissenting opinion in Hardison, courts have questioned whether the de minimis standard is consonant with the plain language of Title VII, which requires an employer to show that a requested religious accommodation would cause “undue hardship,” i.e., something greater than hardship. Over the years, some courts, while taking note of the de minimis standard, have effectively required employers to meet the higher standard implicit in “‘greater than hardship.” A currently pending petition asks the Supreme Court to reconsider the very “de minimis” test for “undue hardship” developed in Hardison, to find that Hardison was wrongly decided, and to set forth a new, more stringent test that would better reflect and effectuate Congress’ intent to protect religious minorities from employment discrimination. There, the petitioner argues that the test for the “undue hardship” defense in religious accommodation cases should be more in line with the test for “undue hardship” under the Americans with Disabilities Act (ADA), which requires an employer to show that providing an employee with reasonable accommodation for a disability would be unduly costly in light of the employer’s size and financial wherewithal, would be unduly extensive, substantial, or disruptive to operations, or would fundamentally alter the nature or operation of the employer’s business.

The EEOC’s Proposed “Undue Hardship” Test

The EEOC’s proposed analytic framework for investigating claims for failure to provide religious accommodation reflects that growing body of case law, effectively narrows the range of costs that may be deemed to meet the “undue hardship” test, and, thereby, places that higher “greater than hardship” burden of proof on an employer seeking to establish a defense. To meet the proposed test, an employer is generally required to expend more time and resources in evaluating requested accommodations. Specifically, an employer is expected to do more than merely identifying any associated costs or disruption posed by the requested accommodation. Rather, in evaluating whether an employer has improperly denied a request for religious accommodation, the EEOC considers whether the employer has taken proactive measures to identify an employee’s need for accommodation; whether it has made fact-based determinations of actual costs or disruption caused by a requested accommodation rather than simply relying on assumptions or stereotypes; whether the employer has taken steps to mitigate costs; whether the employer has been flexible in providing a requested accommodation or has considered alternative effective accommodations; and, where accommodation has been determined to pose an undue hardship after exploration of available alternatives, whether the employer has explored the viability of a temporary or partial accommodation. Moreover, even when an employer has identified actual costs, the proposed EEOC test analyzes “undue burden” in relative, not absolute, terms -- namely in light of the employer’s size, financial wherewithal, operating costs, and the nature of its business. 

As before, a requested accommodation that conflicts with a health or safety requirement or with the employer’s obligations under other law poses an inherently “undue burden.” However, when it comes to conflict between a requested accommodation and an employer’s uniform, neutral policies, brand or image concerns, or concerns for employee or customer satisfaction, formerly bright lines have been blurred. For example, under the case law informing the EEOC’s proposed test, even where an employer’s neutral seniority policy or a collective bargaining agreement restricts the employer’s ability to make schedule changes to accommodate religious observance, the employer may be expected to explore and facilitate the possibility that coworkers might voluntarily change their schedules or waive seniority rights. Likewise, even where an employee’s religious garb is inconsistent with the employer’s branding or “image,” the employer may be expected to make an exception to its dress code or uniform policies, provided the exception does not impose actual disruption to work routines, such as allowing an employee to wear a headscarf in the same color scheme as the work uniform. Accommodation of an employee’s religious expression that results in disgruntlement or discontent among coworkers may not be deemed to constitute an “undue hardship” if it arises merely from coworkers’ bias against an unpopular or unfamiliar religion; however, religious expression in the workplace that actually infringes on coworkers’ rights or subjects them to a hostile work environment is an “undue burden.” Likewise, even when an employee’s religious expression to customers is inconsistent with the employer’s “message,” accommodation may not be an “undue burden,” except as to customers who complain or to the extent it might interfere with the employer’s provision of services. Below are a just a couple of the recent cases cited by the EEOC in its proposed update.

Recent Decisional Law

In a case involving an employer’s branding efforts and brought by a Muslim employee whose religious beliefs required her to wear modest clothing and a headscarf (hijab), a federal court held that the retailer violated its duty to accommodate by insisting that the employee remove her headscarf and otherwise dress in compliance with the employer’s “Look Policy.” In that case, the court found that the employer failed to establish an “undue hardship” defense, despite the employer’s testimony and declarations that its “Look Policy” went “to the heart of its business model.” Rather, the court was looking for the employer to establish more concrete evidence of the operational costs of an accommodation, i.e., beyond its own mere declaration that the accommodation would have an adverse impact on its brand. 

In a case involving client satisfaction and potential loss of revenue, a federal court held that a trucking company violated Title VII by failing to provide reasonable accommodation when it denied an employee’s request not to be scheduled for deliveries from sunset on Friday to sunset on Saturday in observance of his church’s Sabbath (Seventh Day Adventist).Although the employer argued that it was entitled to an “undue hardship” defense because Friday nights and Saturdays were the busiest delivery times on the employee’s assigned client account and it would have had to hire an extra driver to meet its contractual obligations to the client, the court nonetheless held that the employer had not established “undue hardship” because the employer had failed to show that it had considered assigning the employee to a different client account and transferring another coworker to service the affected client account.

The Takeaway

The EEOC’s proposed compliance update reflects the ongoing shift towards heightened compliance requirements in connection with employee requests for religious accommodation. In evaluating and updating their policies, employers should, therefore, consider incorporating the kinds of “best practices” suggested by the EEOC’s analysis, including the following: 

• Employers may want to train managers to proactively recognize an employee’s need for religious accommodation, instead of acting only upon explicit requests.
• Once on notice of an employee’s need for religious accommodation, employers should engage in, and document, an interactive dialogue, similar to that under the ADA, to determine an effective and mutually agreeable accommodation.
• The employer’s analysis should not end if the requested accommodation poses an undue financial or operational hardship; rather, the employer should consider whether there is an alternative accommodation that would not pose such hardship, including available means for mitigating any costs.
• Employers should not rely on their assumptions regarding the cost or disruption posed by a requested accommodation; rather, employers should assume that if their decision to deny an accommodation request is challenged, they may be required to put forth concrete evidence of associated disruption or costs, beyond a mere declaration of impact of the requested religious accommodation, i.e., costs identified through financial analysis, other consultation with internal or external experts, or related, documented coworker or customer issues.