Key Takeaways:

• Employees routinely seek religious accommodations, and employers must now be cognizant that the previous de minimis standard for denying such requests is no longer lawful.
• Employers must be able to prove that the burden of granting a religious accommodation would result in “substantial increased costs in relation to the conduct of its particular business.”
• With this heightened standard to demonstrate undue hardship, employers should proactively engage with counsel to ensure compliance when assessing requests to accommodate an employee’s religious beliefs.

The Supreme Court’s unanimous decision in Groff v. DeJoy has curtailed an employer’s ability to demonstrate an “undue hardship” when assessing an employee’s request for a religious accommodation under Title VII of the Civil Rights Act of 1964. Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges [of] employment, because of such individual’s … religion.” 42 U.S.C. § 20003-2(a)(1). As the Equal Employment Opportunity’s (EEOC) interpretative regulations explain, Title VII obligates employers “to make reasonable accommodations to the religious needs of employees” whenever doing so would not create “undue hardship on the conduct of the employer’s business.” 29 C.F.R. § 1605.1 (1968).

For the past 45 years, courts throughout the country have interpreted the Supreme Court’s 1977 decision in Trans World Airlines v. Hardison to mean that an “undue hardship” would be found, i.e., an employer need not grant the requested religious accommodation if the proposed accommodation would involve more than a de minimis cost or inconvenience to the employer. However, the Supreme Court in Groff clarified what Title VII’s “undue hardship” standard should be when assessing religious accommodation requests. Specifically, the Groff Court confirmed that Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in “substantial increased costs in relation to the conduct of its particular business.” This is a significantly higher burden than the courts previously required when relying upon the Supreme Court’s reasoning in Hardison.

The Supreme Court explained that when applying the undue burden test in the religious accommodation context, courts must consider all relevant factors in the case at hand, including the particular accommodations at issue and their practical impacts in light of the nature, size, and operating costs of the employer. This means that there is no one-size-fits-all approach and that courts will be required to analyze all accommodation requests and denials thereof on a fact-specific, case-by-case basis.

Although the Supreme Court declined to adopt the proposed applicable standards suggested by the parties in the Groff case, i.e., either to incorporate Americans with Disabilities Act case law or opine that the EEOC’s construction of the Hardison standard has been basically correct, the Supreme Court did state that a “good deal of the EEOC’s guidance in this area is sensible and will, in all likelihood, be unaffected by the Court’s clarifying decision.”

The Supreme Court confirmed that what is paramount when undertaking the undue hardship analysis is determining whether such hardship would be “substantial” in the context of an employer’s specific business in a “commonsense” manner. This means that the lower courts will be tasked with the context-specific application of the “substantial increased costs in relation to the conduct of [the employer’s] particular business” standard when determining whether an employee’s religious beliefs must be accommodated.

Additionally, the Supreme Court took the opportunity to clarify what it referred to as “several recurring issues.”

• First, keep in mind that Title VII requires an assessment of a possible accommodation’s effect on the “conduct of the employer’s business.” Therefore, impacts on co-workers are relevant only to the extent those impacts go on to affect the conduct of the business, and a court must analyze whether that further logical step is shown. Additionally, and likely an evident point, a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered “undue.” This is so because hostility and bias toward a religious practice or accommodation cannot supply a defense.
• Second, Title VII requires that an employer “reasonably accommodate” an employee’s practice of religion and not merely assess the reasonableness of a particular accommodation. For example, when presented with an employee’s request for a religious accommodation of not working on Sundays, an employer must do more than simply conclude that requiring other employees to work overtime would constitute an undue hardship. The Supreme Court made clear that the employer must consider other options to accommodate the employee’s religious beliefs, such as voluntary shift swapping, so that the employee’s religious beliefs can be accommodated without an undue burden.

Based on this decision from the Supreme Court and the corresponding media coverage thereof, we anticipate that employers will begin to receive an influx of requests for religious accommodations. 

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