New Standard for Considering Requests for Religious Accommodations
If you are an employer with 15 or more employees, you can add the recent U.S. Supreme Court’s decision in Groff v. DeJoy, 2023 U.S. LEXIS 2790 to the long list of legal updates from 2023 that you absolutely, positively must be made aware of. If you’ve ever heard the phrase “reasonable accommodation” or “undue hardship” at your workplace, you really can’t afford to sleep on this one.
The Groff ruling concerns your obligation as an employer to provide “reasonable accommodations” to employees under Title VII – and, by extension, the Florida Civil Rights Act (“FCRA”), and similar civil rights legislation – for medical, disability, and religious reasons. Specifically: the U.S. Supreme Court just made it more difficult for employers to deny requests for workplace accommodations due to “undue hardship.”
Since 1977, U.S. employers have been allowed to deny workplace accommodations which would impose an “undue hardship” upon the employer. The Equal Employment Opportunity Commission (“EEOC”) stubbornly refused to define “undue hardship,” so this standard was established in TWA v. Hardison, 432 U.S. 63, 97 S. Ct. 2264, 53 L. Ed. 2d 113, 1977 U.S. LEXIS 115, 14 Fair Empl. Prac. Cas. (BNA) 1697, 14 Empl. Prac. Dec. (CCH) P7620, where the U.S. Supreme Court defined “undue hardship” as anything which imposed “more than a de minimus cost” upon the employer.
The facts in TWA and Groff were nigh-identical, with each case concerning an employee who, citing religious prohibitions, refused to work on Sundays. The facts themselves may not have changed at all between these two cases, but the U.S. Supreme Court’s composition certainly has, with the Court proving themselves more willing than ever to simply overturn precedent. Hence, despite TWA and Groff presenting a nearly identical same set of facts and legal theories, the outcome this time around was dramatically different.
In TWA, the Court ruled that accommodating an employee’s religious prohibition against working on Sundays was a bridge too far for employers, stating that the employee’s proffered accommodations – i.e. placing the employee (“Employee”) on a four-day workweek, substituting another employee for Employee’s Sunday shifts as they arose, or permanently swapping Employer’s Sunday shifts with another employee – each would have imposed an undue hardship upon the employer (“Employer”), in the first case by requiring Employer to either breach the seniority provisions of its collective bargaining agreement, or in the latter cases by requiring Employer to incur otherwise-unnecessary overtime expenses. The Supreme Court declared both of these solutions represented more than a de minimus cost to Employer, and therefore constituted an undue hardship which Employer was not required to accommodate.
Apparently things have changed since 1977, because as of June 29, 2023, Gerald Groff (“Plaintiff”), an Evangelical Christian who, in his own words, “believe[ed] for religious reasons that Sunday should be devoted to worship and rest, not ‘secular labor’ and the ‘transport[ation]” of worldly ‘goods,’” proposed two of the very same accommodations to his employer, the U.S. Postal Service (“Defendant”), as the employee in TWA – i.e. substituting another employee for Plaintiff’s Sunday shifts as they arose, or permanently swapping Plaintiff’s Sunday shifts with another employee – and this time around, the Court sided with Plaintiff 9 – 0.
The Court, to its credit, at least acknowledged the de minimus standard established in TWA prior to essentially overturning it. In its analysis, the Court declared that the de minimus language utilized in TWA was never meant to become the governing standard. We’re a bit incredulous as to this point, as were this the case, it shouldn’t have taken the Court some 45+ years to clarify as much. Whatever the actual reason, the Court ultimately declared: “We hold that showing ‘more than a de minimis cost, as that phrase is used in common parlance, does not suffice to establish ‘undue hardship’ under Title VII.”
So, what is the new standard? To start answering that question, the Court broke out the dictionaries:
Hardship:
“something hard to bear;”
Random House Dictionary of the English Language 646 (1966).
“something that causes or entails suffering or privation;”
Webster’s Third New International Dictionary 1033 (1971).
“[e]xtreme privation; adversity; suffering;”
American Heritage Dictionary 601 (1969).
“privation, suffering, adversity.”
Black’s Law Dictionary, at 646.
Undue:
“excessive” or “unjustifiable;”
Random House 1547.
“inappropriate,” “unsuited,” or “exceeding or violating propriety or fitness;”
Webster’s Third 2492.
“excessive.”
American Heritage 1398.
Taken together, the Court now defines “undue hardship” as something which would impose “substantial additional costs” or “substantial expenditures.” Unfortunately, the Court declined to define “substantial” in any meaningful fashion, even with all those dictionaries on-hand. Instead, the Court indicated that the new standard for denying an accommodation demands that an employer demonstrate that “granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” Relevant factors for such demonstration must include, at a minimum: “the particular accommodations at issue and their practical impact in light of the nature, ‘size and operating cost of [an] employer.’” Thus, an accommodation that might represent an undue hardship for a small employer may very well be required of a larger employer.
Whether due to the facts of the case, or due to the privileged position religion tends to hold in the United States, the Court really went the extra mile when it comes to religious accommodations. The Court clarified that any hint of “religious hostility” against a particular religion or religious practice will instantly cast doubt upon an employer’s undue hardship defense. “Adverse customer reaction[s]” are also specifically identified as an invalid basis upon which to claim undue hardship. We – and, no doubt, many of you – are exceedingly grateful that this new undue hardship standard did not arise during the COVID-19 pandemic. Under Groff, an anti-vaccination employee’s rambling narrative as to their personal interpretation of random Biblical passages might suddenly be sufficient to entitle an employee to an accommodation.
As if Florida employers didn’t have enough to deal with between Florida’s new mandatory E-Verification and driver’s license review requirements, it is no overstatement to say that Groff just drastically altered the landscape and context of workplace reasonable religious accommodations from top to bottom. The standard for who is entitled to an accommodation and for what, what accommodation(s) might be available, and to what extent an employer must work to provide such accommodations, have all shifted dramatically in favor of the accommodation-seeking employees. Before Groff, it was sufficient for an employer to demonstrate that the proposed accommodation would cost the employer so much as $1/day, or mildly inconvenience another employee; under Groff, an employer may be required not only to pony-up “reasonable” expenses, but rearrange coworkers’ schedules to accommodate an employee, especially an employee citing a religious basis for their proposed accommodation.
The worst part is that, since the Court glossed over exactly what “substantial” means in relation to “substantial additional costs” or “substantial expenditures,” each and every discussion surrounding reasonable workplace accommodations will necessarily involve a certain amount of risk-taking. Since there will be no caselaw meaningfully discussing what is or isn’t a “substantial” cost for at least 6 – 12 months, employers faced with requests for workplace accommodations under Title VII in the meantime will be compelled engage in a certain amount of gambling. Until caselaw develops, nobody can say for certain whether any given accommodation would impose “substantial” costs, meaning that – unless we tread extremely carefully – nearly any given demand for a workplace accommodation might very well survive the pleading stage, and be sufficient to drag an employer into court, or compel a nuisance-value settlement. Employers should document the impact of any requests on specific business operations, with a focus on the costs.
Requests for reasonable accommodations were always grounds for a consult. The “interactive process” required under Title VII was always full of traps, even at its best, but thanks to Groff, there are more pitfalls surrounding workplace accommodations than ever. If you receive a request for a religious workplace accommodation from an employee, you can no longer afford to just go with your gut or declare a request “too expensive” and move along. Reach out to an experienced labor and employment attorney before you receive an outrageous demand letter, because an ounce of prevention is always worth a pound of cure.