SCOTUS increases employers’ burden for denying religious accommodations
Employers will now have to show a higher degree of hardship to deny employee requests for religious accommodation. Under Title VII of the Civil Rights Act of 1964 and 29 C.F.R. § 1605.2(b)(1), employers are required to grant employee requests for religious accommodation “unless the employer demonstrates that [the requested] accommodation would result in undue hardship on the conduct of its business.”
On June 29, 2023, the U.S. Supreme Court unanimously clarified that a religious accommodation only results in undue hardship when “the burden of granting [the] accommodation would result in substantial increased costs in relation to the conduct of its particular business.”
Raising the standard
The “substantial increased cost” standard is a departure from the lower “more than a de minimis cost” standard that has prevailed since 1975. For the last 48 years, employers could deny religious accommodations for causing “undue hardship” if the accommodation would impose “more than a de minimis cost” on the employer. Under this standard, employers denied accommodations for causing very small or trifling hardships, including minor administrative costs and incentive pay.
In practice, the “more than a de minimis cost” standard allowed employers to deny religious accommodations virtually any time they were inconvenienced. In fact, employers could historically deny religious accommodation requests when the accommodation would inconvenience or displease the requesting employee’s coworkers. The U.S. 3rd Circuit Court of Appeals—in the decision that was the source of the Supreme Court’s recent ruling—described that standard as “not a difficult threshold to pass.”
By contrast, the new “substantial increased cost” standard raises the threshold for denying religious accommodation requests.
Sundays for delivering sermons, not packages
The case at issue involved Gerald Groff, an evangelical Christian employed by the United States Postal Service (USPS) who was affected when it instituted a policy requiring employees to deliver packages on Sundays. He requested a religious exemption from the new policy because he believes Sundays should be devoted to worship and not work.
After applying the previous “more than a de minimis cost” standard and finding Groff’s request would have imposed a burden on his coworkers, both the district court and 3rd Circuit ruled for the USPS. The Supreme Court disagreed.
Under the new “substantial increased cost” standard, employers must show the requested religious accommodation would create an excessive burden. The Court explained that an excessive burden occurs when the accommodation substantially interferes with the employer’s ability to conduct business.
While the Supreme Court didn’t issue a clear-cut rule for when an accommodation significantly interferes with the employer’s ability to conduct business, it explained employers and reviewing courts must “take into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of an employer.” The Court reversed the 3rd Circuit’s judgment and sent the case back to the lower courts to apply their “context-specific standard.”
Further, the Court explained that “a good deal of the [Equal Employment Opportunity Commission’s (EEOC)] guidance in this area is sensible and will, in all likelihood, be unaffected.” For example, religious accommodations that interfere with bona fide seniority systems will constitute an undue hardship, unless employees with greater seniority voluntarily swap shifts with the employee requesting religious accommodation.
The Court declined to ratify all previous EEOC guidance, however, before the agency had an opportunity to adjust its guidance to align with the new ruling. Because of this, you should expect to see updated guidance issued by the EEOC in the future that incorporates the new “substantial increased cost” standard.
The Court also issued explicit guidance on how employers and reviewing courts should treat the impact on the requesting employee’s coworkers. Under the “substantial increased cost” standard, an undue hardship can’t be “attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice.”
Without more, you can’t deny a religious accommodation merely because it inconveniences or displeases the employee’s coworkers. The Court implied, however, that employee animosity could rise to the level of undue hardship if the unrest manages to substantially interfere with your ability to conduct business, such as decreased efficiency because of employee protest. Groff v. DeJoy.
Bottom line
It remains to be seen exactly how this new standard will play out in workplaces and courtrooms around the country. But it’s clear the decision increases your Title VII burden and exposes you to increased liability when denying requests for religious accommodations. Considering the new standard for evaluating employee requests for religious accommodation, you should consider the following actions:
Review your accommodation process to ensure those responsible for granting or denying requests are aware of the change in the law.
Review and update employee handbooks and policies if needed, particularly any mandatory vaccination policies or any policies that reference the prior “more than a de minimis cost” standard.
You may wish to review any recently denied requests for religious accommodations and consider whether the denied request might be viewed differently under the new “substantial increased cost” standard (and if so, you may wish to talk to your employment counsel about whether revisiting the request is advisable).
Be on the lookout for updated EEOC guidance regarding what constitutes an “undue hardship” in religious accommodation cases.
