Whenever law and religion cross paths, there is a tricky dance that must be done. The U.S. Constitution guarantees that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” (First Amendment). So, to prevent discrimination based on religion without violating the Establishment Clause, Congress requires accommodations for an employee’s religious observance or practice unless the employer cannot do so “without undue hardship on the conduct of the employer’s business.” (Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e(j)).
However, until last month, some courts allowed employers to deny accommodations where an employer could show it required any effort or cost that was more than de minimis. This interpretation gutted the law in many ways and had a particularly negative impact on members of minority faiths. In its June 29, 2023 Groff v. DeJoy opinion, the Court clarified that de minimus impact is not the standard. Rather, the Court unanimously held that an “undue hardship” exists when “a burden is substantial in the overall context of an employer’s business.” The Court emphasized that employer’s must look at the situation as a whole to determine what is “undue,” taking into account “the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of an employer.”
Interestingly, the case brought up the question of what happens when an accommodation of one employee’s religion may impact another employee. For example, if one employee observes the Sabbath every Saturday, accommodating this practice means the other employees must cover all Saturday shifts. The Court recognized that there are circumstances where hardship on a business’s employees can create an undue hardship on the employer’s business. However, the Court adamantly denounced anti-religious sentiments, stating, “[A] hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered ‘undue.’ If bias or hostility to a religious practice or a religious accommodation provided a defense to a reasonable accommodation claim, Title VII would be at war with itself.”
The Court also reminded employers that the duty is to accommodate an employee’s religious practice, not necessarily to just grant or deny a particular requested accommodation. This echoes the way accommodation has been discussed in relation to the Americans with Disabilities Act. If an employee is seeking accommodation under the ADA, the employer must engage in an interactive process with the employee to determine if a reasonable accommodation can be had. If the accommodation the employee requested is not feasible but there is another option that accomplishes the accommodation goal, then the employer must explore this. Likewise, businesses must consider options for viable accommodation of religious practices even if that varies from the employee’s original request.
With the Groff decision, the unanimous Court brings accommodation requirements for religion closer to those of the ADA, where guidance and case law favor providing accommodations whenever possible. Employers will need to give more serious consideration to requests to accommodate religious practices going forward.