Employee: "I can't work Sundays. It's against my religion."
Employer (before yesterday's Supreme Court decision in Groff v. DeJoy): "I'm sorry, but it's an undue hardship for us to redo our entire schedule and require another employee to work in your place. Unless you can find a volunteer co-worker to cover your shift, we can't accommodate you. In that case, any absences are unexcused and will be treated as such under our attendance policy."
Employer (after yesterday's Supreme Court decision in Groff v. DeJoy): "Let's talk."
Groff examined the standard for an employer to assert an undue hardship defense to an employee's religious accommodation request under Title VII. Until yesterday's opinion, an employer could reject an employee's request for a religious reasonable accommodation request if it would impose "more than a de minimis cost." Groff, however, rejected the long-applied de minimus standard. The Supreme Court held:
Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.
This is a paradigm shift for how employers must consider reasonable accommodations for employees' sincerely held religious observance or practices. Ultimately, an employer will have to evaluate, and a court may have to make a common-sense determination, whether the impact of a potential accommodation is too great for an employer to bear — something akin to a "substantial additional cost" or a "substantial expenditure." It's still a case-by-case factual determination, but it's one that now has some teeth behind it for the employee seeking a religious accommodation.
The Court went on to add to this undue hardship is not the same undue hardship test as courts apply under the ADA ("significant difficulty or expense"). Further, because much of existing EEOC guidance on Title VII religious accommodations focus the accommodation itself, and not the undue hardship test, it's likely mostly still good guidance on which employers, employees, and courts can rely.
Still, we shouldn't downplay the significance of this decision, especially coming off the heels of a pandemic's workplace vaccine mandates that forced many employers to confront the issue of religious accommodations for the very first time.
Employers, your job in evaluating religious accommodation requests just became that much more rigorous. The good news, however, is that even though the hardship standard is not quite the same as under the ADA, we should all at least be used to the rigors of the interactive process from years of handling myriad disability accommodations.
Here's what I read this week that you should read, too.
Italian teacher delivers master class on avoiding work, is absent 20 of 24 years — via Cleveland.com
Top Ten Myths About Unions — via HR Defense
Unions Can Still Strike — Even After Supreme Court Ruling — via Workplace Fairness
NLRB Says Employee Outbursts Regarding Working Conditions Are Protected — via Screw You Guys, I'm Going Home
Is Civility in the Workplace Dead? — via BeLabor The Point
My new employee is the parent of my child's bully — via Ask a Manager
Tapped Out — The Problematic Culture of Overdrinking When You Work in Alcohol — via Good Beer Hunting
Wage and Hour Law: Designed for the 1920s, Applied in the 21st Century — via HR Hero Line
What if Everything You Knew…? DOL Targets Fall 2023 for New Independent Contractor Test — via Who Is My Employee?
How to Manage Your Team's Workload After Layoffs — via Harvard Business Review
There is No "Floor" for "Garden-Variety" Emotional Distress Arising from Discrimination Says Court — via Dan Schwartz's Connecticut Employment Law Blog
Even in one of the most employee-friendly states, COVID-19 isn't necessarily a disability — via Eric Meyer's The Employer Handbook Blog