Employers have long known of their obligation to allow an employee’s request for a religious accommodation in the workplace under certain circumstances. However, those obligations have now changed, and employers face increased burdens when deciding whether to allow or deny these accommodation requests.
In Groff v. Dejoy, Postmaster General, the Supreme Court of the United States recently “clarified” the nearly 50-year-old precedent concerning the standard for employers to establish an undue hardship sufficient to deny an employee’s request for a religious accommodation. Moving forward, employers may now deny a request for a religious accommodation only when providing the accommodation results in “substantial increased costs in relation to the conduct of its [the business] particular business.” This new standard places an increased burden on employers, which previously only had to show a “de minimis” cost to the employer arising from the accommodation request in order to substantiate a denial of the request.
In Groff, the plaintiff, a former USPS mail carrier and devout Christian, claimed that the USPS unlawfully denied his request for a religious accommodation allowing him not to work on Sundays. Mr. Groff, who observes Sabbath on Sundays, requested his religious accommodation after the USPS began delivering mail on Sundays to fulfill additional Amazon deliveries. USPS attempted to make other arrangements considering Groff’s unavailability. For example, employees other than Mr. Groff (including the postmaster) performed deliveries that Mr. Groff would have performed. During this period, at least one of Mr. Groff’s co-workers submitted an official workplace grievance, claiming the additional shifts conflicted with his contractual rights. Throughout the time Mr. Groff refused to work on Sundays, he received “progressive discipline” and eventually in January 2019, Mr. Groff resigned. A few months later, Mr. Groff sued under Title VII of the Civil Rights Act of 1964, asserting that the USPS could have accommodated his Sunday Sabbath practice “without undue hardship on the conduct of [USPS’s] business.”
Prior to Groff, an employer could properly reject an employee’s request for religious accommodation if the accommodation required the employer to “bear more than a de minimis cost.” In other words, employers could reject a religious accommodation request if it resulted in any type of additional burden for the business (e.g., reworking schedules; infrequent or temporary payment of premium wages for a substitute employee; and facilitating voluntary shift swaps). Naturally, employers could often satisfy this burden if they elected to deny requests for religious accommodations.
The Supreme Court held that the “de minimis” standard is no longer appropriate because it allowed employers to reject religious accommodation requests almost universally. Consequently, when receiving requests for religious accommodations, employers must now focus their decision-making process on whether the requested accommodation creates an “undue hardship on the conduct of the business.” That is to say, does the request result in “substantial increased costs in relation to the conduct of its particular business?” If the answer is yes, only then can an employer deny the request. Employers must bear in mind that identification of a “simple” hardship is no longer likely to support a decision to deny a religious accommodation request.
Unfortunately, the Supreme Court did not further explain what constitutes “substantial increased costs.” However, employers should not implement blanket policies to address these situations because no two requests are identical. Indeed, employers must account for relevant factors in each case, including the particular accommodation requested and the practical impact of the request given the employer’s unique nature, size, and operating costs.
Importantly, an employer should not limit its undue hardship analysis to consider only business costs. Employers may also consider the impact of the religious accommodation on co-workers’ ability to conduct their functions for the employer as part of the overall analysis. However, employers may not consider the impact on co-workers where that impact arises from bias or hostility to a particular religion or accommodation.
In light of the Groff decision, employers must consider whether their existing policies and practices concerning religious accommodations require modification. Employers should review and revise their employee handbooks and related policies regarding requests for religious accommodations. Similarly, employers should train managers, human resources personnel, and supervisors who evaluate and decide upon religious accommodation requests regarding the company’s new policies and expectations. Employers should also equip these employees with revised forms to track and document these requests as needed.
When updating their policies, employers should thoughtfully evaluate their current workforce and the impact of religious accommodations on operations. Of course, employers cannot predict the nature and scope of all religious accommodation requests. However, careful assessment of an employer’s workforce and capabilities when short-staffed (regardless of the reason) may allow employers to better prepare for a potential increase in religious accommodation requests. Employers will also be better positioned to provide some degree of accommodation (perhaps not the exact accommodation requested) with this advanced planning. As this remains an unsettled area of law, pro-active planning may mitigate future risks and serve as evidence of an employer’s good faith efforts to interact with employees’ requests.
We will continue to monitor developments in the wake of the Groff decision. Employers or individuals with questions are encouraged to contact an employment attorney at Kenney & Sams.
Kenney & Sams thanks Law Clerk Zach Sullivan for his assistance with writing this blog.