Articles

Supreme Court Toughens Standard in Religious Accommodation Cases

Date: September 25, 2023
This past June, the Supreme Court issued a decision “clarifying” the test applied to determine when an employer would be justified in refusing a requested religious accommodation. Under Title VII, an employer may not discriminate against an employee or applicant on account of their religion. In regulations issued not long thereafter, the EEOC added its interpretation that this non-discrimination provision also required an employer to “make reasonable accommodations to the religious needs of employees” whenever those accommodations would not work an “undue hardship on the conduct of the employer’s business.” This interpretation was then adopted by Congress when it amended the statute in 1972. The term “religion” was also further defined to include “all aspects of religious observance and practice, as well as belief.” 
 
Two years after the statute was amended, the case of Hardison v. Trans World Airlines, set the standard for determining undue hardship in a religious accommodation case. That case involved a requested religious accommodation that was inconsistent with a unionized employee seniority system. In rejecting the claim under the particular facts of the case, the Hardison court stated:  “To require TWA to bear more than a "de minimis" cost in order to give [the employee] Saturday’s off is an undue hardship.” This low threshold for showing undue hardship came to be viewed as the applicable standard for evaluating an employer’s undue hardship defense. 
 
In a unanimous decision, the full court agreed that the “de minimis” standard was not the correct standard for assessing whether an employee’s religious accommodation request imposed an undue hardship. Instead, the Court concluded that “undue hardship” would be established where an employer could show that the burden imposed by the accommodation was “substantial in the overall context of an employer’s business.” In a concurring opinion, Justice Sotomayor, joined by Justice Jackson, sought to further clarify the kind of evidence the Court considered appropriate in considering the scope of evidence that could satisfy this standard.
 
Precisely how this new standard will be applied is an open question. The Court rejected the argument that undue burden means “significant difficulty or expense.” Yet they noted that an accommodation must be more than a “mere burden,” or “entail suffering or privation.” Just showing that an accommodation imposes additional costs, however, will not be sufficient. “Undue,” in the opinion of the Court, means that the burden must be “excessive” or “unjustifiable” on some level. From this, the Court concludes, with slightly different wording, that the employer must show that “the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of the particular business.” In short, every case will be heavily fact based, with the lower level courts sorting through what factors are most relevant to the inquiry. 
 
From the point of view of the opinion of the court, the analysis would require taking into account all “relevant factors” including the accommodations at issue and their practical impact in light of the nature, size and operating costs of the employer. Not all impacts on coworkers, however, would be “relevant.” Only those impacts that affect the operation of the business would be relevant to assessing undue hardship. Still, the burden is on the employer to accommodate, which means it must look at all options and not just a singular cost or rejecting mandated overtime costs. In a situation such as Groff’s, where he was unable to work Sundays, voluntary shift swapping may be an option.
 
The concurring opinion focused on the scope of the phrase “conduct of a business.” In Justice Sotomayor’s view, this term would include “the management and performance of the business’s employees, and, therefore, the hardship determination must also focus on the employees and their respective rights in the workplace.” While some labor costs incurred by an accommodation may be too insubstantial, a hardship on employees may be sufficient to meet the required showing. 
 
There are other defenses to a claim of religious accommodation, including the introduction of evidence which may call into question the sincerity of an employee’s clamed religious beliefs. Proof of this defense requires evidence that would undermine what is essentially an employee’s subjective belief.  The “de minimis” standard was a more effective tool for employers to reject accommodations that were inconvenient or sufficiently costly that the employer did not want to bear the obligation to grant the request. Under the new “clarified” standard put forward in Groff, employers will need to more carefully consider all factors bearing on an accommodation request, and carefully weigh any additional costs or obligations before it rejects an employee’s request.    
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.