In the flurry of controversial U.S. Supreme Court rulings issued at the end of this term, one unanimous opinion flew under the radar which impacts how employers must accommodate religious practices and expressions of their employees. The Court’s June 29, 2023 ruling in Groff v. DeJoy makes it more difficult for employers to show that a religious accommodation is a burden on their business and to defend denials of accommodation requests.
As most employers know, Title VII requires accommodation of employee’s religious practices and expressions unless doing so would be an undue hardship. Since 1977, most lower courts have applied a principle stated by the U.S. Supreme Court in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) that “undue hardship” means anything that imposes more than a de minimis cost on the employer. This was generally not a hard hurdle for employers to clear when defending denials of requests for religious accommodation given that de minimis means something that is minimal or trivial.
Without overturning Hardison, the U.S. Supreme Court clarified that a showing of de minimis cost does not establish an undue hardship defense under Title VII when it comes to religious accommodations. Rather, “an 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.”
The Court does not provide much in terms of specifics about what kinds of accommodations would be an undue burden under this standard. The Court notes that a “hardship” is something hard to bear and is more severe than a mere burden, while the modifier “undue” raises the bar even higher—“the adversity must rise to an ‘excessive’ or ‘unjustifiable’ level.” As is typical in these types of cases, the determination of whether a religious accommodation is an undue burden is highly fact-specific. The Court instructs lower courts to take into account all relevant factors in the case at hand, including the particular accommodations at issue, the nature of the employers’ business, the size and operating cost of the business, and the practical impact that accommodations would have on the business.
The Court did provide details on what should not be included in consideration of undue burden. Specifically, coworkers’ dislike of or animosity towards a religious practice or expression in the workplace, coworkers’ dislike of the accommodations provided to others, or coworkers’ disagreement with the notion of accommodating religion in the workplace should not factor in to whether an accommodation is an undue burden on the employer. Although not mentioned in the opinion, it would not be hard to imagine lower courts extending these prohibitions along similar lines to an employer’s customers, vendors, and independent contractors.
This is not to say that employers cannot factor in other employees when determining whether a religious accommodation an undue hardship. The concurrence clarifies that there can be an undue hardship on “the conduct of the employer’s business” when there is hardship on other employees—“Indeed, for many businesses, labor is more important to the conduct of the business than any other factor.”
Claims of religious discrimination and retaliation are increasing. The U.S. Equal Employment Opportunity Commission (EEOC) reports that charges of discrimination filed on the basis of religion jumped to 13,814 in 2022 from prior years’ ranges of approximately 2,000 to 3,000 charges per year. The EEOC notes that this sharp increase is based largely on vaccine-related charges. Nonetheless, the EEOC’s data reflects a steady increase over recent decades in the percentage of charge filings based on religion—approximately 2% in the 1990s doubling to approximately 4% in the 2010s. Class actions based on failure to accommodate religious practices and expressions are also becoming more common, primarily focused on vaccine mandates, dress codes that do not provide exceptions for religious clothing and grooming, and time off for holiday/Sabbath observance.
Given Groff’s newly-articulated higher standard for employers to show undue burden, employees may become more emboldened to request religious accommodations and challenge denials. Employers should conduct a review of their policies and practices regarding assessment of requests for religious accommodations in light of the new higher standard.
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