The New Year serves as a time to take note of some significant employment law changes in the past year to longstanding rules and requirements regarding employer accommodation obligations. This article addresses a U.S. Supreme Court decision increasing protections for accommodation of employee religious beliefs. A follow-up article will cover Congress increasing employer pregnancy accommodation requirements, on which the U.S. Equal Employment Opportunity Commission is overdue in finalizing regulations.

Religious Accommodation

Court decisions for many decades held that an employer’s obligation to accommodate employee religious practices (under Title VII of the 1964 Civil Rights Act) required less of employers than the accommodation requirements legal required for employees with medical conditions (under the Americans with Disability Act). The prior standard for religious accommodation was that an employer was not required to implement an accommodation involving more than a modest or minor cost. This came from a 1977 Supreme Court decision in Trans World Airlines v. Hardison, 432 U.S. 63, holding that an employer toned not alter seniority rules to accommodate an employee’s religious practice of not working on the Sabbath. Title VII and regulations under its religious discrimination provisions require employers to accommodate an employee’s sincerely held religious principles and practices unless doing so would create an “undue hardship on the conduct of the employer's business.” 42 U.S.C. § 2000e(j), 29 CFR §1605.2(b & c). The Supreme Court’s 1977 decision stated that “[t]o require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” This wording was the basis upon which most courts since then said that an employer is not required to incur more than a small (i.e., “de minimis”) cost to accommodate an employee’s religious beliefs.

That precedent contrasts with employers’ obligations under the Americans with Disabilities Act (“ADA”) to accommodate employees with qualifying medical impairments (physical and mental). Accommodations under the ADA are required unless the employer “can demonstrate that the accommodation would impose an undue hardship on the operation of the [organization].” 42 U.S.C. § 12112(b)(5)(A). While Title VII did not define “undue hardship,” the ADA, since its enactment in 1990, has defined it as “an action requiring significant difficulty or expense.” 42 U.S.C. § 12111(10)(A). This is a much greater requirement on employer disability accommodation requirements than the de minimis limit courts applied in religious accommodation cases.

Thus, for over forty-five years employers have had a much lower obligation to accommodate religious practices than medical impairments. During this time Congress never modified Title VII to add a definition of undue hardship and the EEOC’s regulations under Title VII followed the de minimis wording in Hardison (while in other areas, such as other aspects of the ADA, Congress enacted amendments to increase employee protections in response to Supreme Court decisions with which Congress disagreed). The accommodation standards are now similar for disability and religion. The Supreme Court, in Groff v. DeJoy, 600 U.S. 447 (2023), reversed the Court of Appeals for the Third Circuit (whose jurisdiction includes Pennsylvania) that applied the Hardison decision’s de minimis cost standard in this recent litigation. The Supreme Court stated that the one mention in Hardison of de minimis cost was misunderstood and taken out of context, as that 1977 decision also stated three times that a “substantial cost” was the limit on an employer’s religious accommodation obligation. Further, the primary basis of the Hardison decision was that it involved a seniority system for selecting work schedules and Title VII gave deference to seniority rules (i.e., cost was not the primary basis for the decision that TWA was not required to force a more senior employee to accommodate a Hardison’s religious practice against working on the Sabbath).

Last year’s Groff case also involved an employee whose religious practices called for not working on a Sabbath. The Supreme Court specifically declined to say whether giving Mr. Groff Sundays off constitutes an undue hardship for the employer (which was the U.S. Postal Service) and instead referred the case back to the lower federal courts to address this issue. In so doing, the Supreme Court said that it was not necessarily adopting the case law under the ADA as to what amounts to an undue hardship, leaving this analysis to future decisions involving religious accommodations in employment.

Mr. Groff, like Mr. Hardison, was covered by a union agreement with seniority provisions on which employees would be assigned weekend work. It remains to be seen how the upcoming court decisions will balance seniority rights and undue burden issues. In this regard, the wording of Title VII does not limit consideration of seniority to union represented employees (e.g., where the seniority rights are a contractual entitlement under a collective bargaining agreement). The statute only refers to a “bona fide seniority or merit system.” 42 U.S.C. § 2000e-2(h).[1] Thus, the rulings should be the same regardless whether the employee involved is covered by a labor agreement, as long as a bona fide seniority or merit system concerning scheduling/work assignment is in place.

The bottom line is the longstanding lenient requirements on employers for religious accommodation in the workplace are out. More is required before an employer can establish an undue hardship defense. The parameters of this will be worked out in future cases. Past lower court decisions addressing religious discrimination not only permitted employer defenses of more than modest costs but often (though not always) also held that employers need not abandon or disrupt their efficiency or stylistic practices (e.g., required uniforms) in light of religious accommodation requests. It appears likely that less deference will now be given to such employer standards in the religious accommodation analysis. Employers should take care to be ready for these situations and get good advice when they arise. Employees whose past religious accommodation requests were denied have added rights/protections that may call for a different result now.

A couple other points bear noting on the subject of religious discrimination. While not changing, the rules on these are less well known. One is that courts have held that the prohibitions against religious discrimination in employment cover not only the precepts of a recognized religion but also strongly held personal moral beliefs. This has provided protection to employees whose strongly held beliefs against dishonesty caused them to refuse to go along with adopting an employer’s false statement, such as an employee discharged for refusing to sign an employer’s form that included a statement the employee knows to be false. This issue can sometimes be handled by employers stating, such as with a disciplinary form, that the employee’s signature denotes receipt (rather than agreement). Many employers do not realize the scope of beliefs covered by the prohibitions against religious discrimination. And, the parameters of what personal beliefs qualify for this protection are hard to define and have been a difficult subject for courts (as is also the situation with the below topic).

The issue of what constitutes a sincerely held religious belief was a hot button item during the COVID-19 pandemic when it came to employees seeking exemptions from vaccination requirements. The Supreme Court recently dismissed cases on vaccination mandates for federal employees on the basis that, with the end of those mandates, this issue is moot (Payne v. Biden, U.S., No. 22-1225, Biden v. Feds for Medical Freedom, U.S., No. 23-60, and Kendall v. Doster, U.S., No. 23-154). But for future issues regarding employer requirements for immunization or other medical treatment, employers should take care in navigating the difficult to parse subjective legal guidelines. What is a religious (rather than political or scientific) belief and what beliefs are sincerely held (rather than conveniently adopted) are key and controversial issues. There is a somewhat pro-employer decision, also by the U.S. Court of Appeals for the Third Circuit (covering Pennsylvania), prior to the COVID-19 pandemic, dealing with an employee’s religious accommodation request to avoid an employer’s immunization requirement. The appeals court held that an employee’s personal belief, though strongly held, that a flu vaccine would do more harm than good to him did not qualify as religious in nature, thus his termination for refusing to get vaccinated was not a violation of Title VII. Fallon v Mercy Catholic Med. Ctr. of Southeastern Pa., 877 F.3d 487 (3d Cir. 2017). Future health risks, particularly in the health care or other specialty employment fields, will likely raise these issues.

[1] The specific wording of Title VII is “it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin ….” 42 U.S.C. § 2000e-2(h).