A new day has dawned: what employers need to know about religious accommodations

November 9, 2023

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A recent Supreme Court case will have wide-ranging implications for employers as it relates to religious accommodations. The ruling established a new standard for employers to meet if claiming that a requested religious accommodation would unduly burden the organisation if granted. 

Out with the old

Under Title VII of the Civil Rights Act of 1964, an employer must provide a reasonable accommodation for an employee’s sincere religious practices unless that accommodation would pose “an undue hardship” on the employer. In 1977, in TransWorld Airlines v. Hardison, the Supreme Court clarified “undue hardship” in this context, ruling that employers could avoid having to provide an accommodation if doing so would impose “more than a de minimis cost” — defined (by dictionary) as something trifling or of little importance — or burden.

So began the adoption of the “de minimis cost” test as a burden, the valuative meaning of which has long been argued over and speculated about. In practice, the de minimis cost test as burden proved easy for employers to overcome; any minimal cost claimed as an undue hardship generally sufficed. Between 1977 and a recent ruling, employees were rarely granted religious accommodation requests due to the low burden. 

But in the 2023 case of Groff v. DeJoy, the Supreme Court, in a unanimous decision, struck down the de minimis standard. Instead, the court said, Title VII requires employers who deny such religious accommodation request to demonstrate that the accommodation would result in “substantial increased costs in relation to the conduct of its particular business.” Under this heightened standard, it will be significantly more difficult for employers to deny religious accommodation requests. 

In with the new 

According to the U.S. Equal Employment Opportunity Commission (EEOC), 2,111 individuals filed charges in 2021 alleging religious discrimination. In 2022, that number jumped to 13,814. Much of this 600% increase can likely be attributed to employees challenging their employers COVID-19 vaccine mandates. Regardless, the increase, in addition to this transformative Groff ruling, leads to the question: what will this new landscape look like? How will it affect employers?

Employers, as well as absence management professionals, must grapple with the reality that religious accommodations may be requested more often. And unlike before, those requests may now be exceedingly difficult to deny. 

For one, how can an employer confirm if a religious accommodation stems from a sincerely held belief? Employers who argue against this are in for a tall task – how do you prove such a thing? 

Another possibility: an employer may assert that the accommodation will put unduly burdensome financial constraints (“substantial cost”) on the organisation. However, this approach should be taken cautiously because, in doing so, an employer will have to demonstrate a significant expense regarding its business – and this will vary greatly from organisation to organisation depending upon the size, structure and operational workings of each business. For example, allowing an employee to miss work for a religious observation might pose a significant expense to an employer with 17 employees. However, a multi-billion-dollar corporation with thousands of employees might struggle to prove that a similar request would be significant for them. 

One thing that most likely won’t be different for both of those organizations: neither will want to will subject its financial books to inspection. But arguing that the request is cost-preclusive will do just that should the litigation continue. 

Title VII is not ADA

While “undue burden” is a term used in both employee disability (under the Americans with Disability Act (ADA) ) and employee religion (Title VII ) contexts, the laws are different and provide different thresholds for employers to meet when asserting that an employee’s request can’t be granted. As discussed earlier, religious accommodations under Title VII must cause substantial increased costs in relation to the conduct of its particular business to be unduly burdensome. 

Compare this to undue burden in the disability accommodation context. The ADA requires employers to show not only financial difficulty, but also that the request would be “substantial, or disruptive, or would fundamentally alter the nature or operation of the business.”

Thus, while it will be years before we know how courts will interpret the meaning of substantial increased costs in the Title VII context, the wording appears to indicate that it will still be a less daunting challenge than in the ADA context. Therefore, employers must be careful not to discriminate against an employee’s religious beliefs by approaching religious accommodations through an ADA lens. There must be a separate standard for each type. 

Tips for employers 

Looking ahead to 2024, employers should review their existing accommodation policies and/or consider updating them to ensure compliance with the new standard. Upon receiving a religious accommodation request, it’s advisable to consult with legal counsel throughout the process. Education and training can help ensure that human resource professionals and front-line managers and supervisors are aware of the heightened burden and how to respond to employees appropriately. 

And, as with all accommodation requests , documentation of interactions surrounding religious accommodation requests is of utmost importance. And, in the end, due to the sensitive nature of such requests, employers should treat each case individually – as well as approaching each case with curiosity rather than judgment.