Employment LawScene Alert: Religious Accommodation in Employment Will Have Its Day at the High Court

In recent years, the U.S. Supreme Court has made major employment law headlines with its Bostock  decision (holding sexual orientation and gender identity are protected classes under Title VII) and Epic Systems decision (holding class-action waivers are enforceable against employees), among others. It looks like 2023 will be no different. In addition to taking up the rights of employers to sue unions for damages incurred during strikes and asking the Solicitor General to weigh in on what actions can be the basis for a discrimination suit under Title VII, the Supreme Court is also poised to reshape the landscape of religious accommodations.

Under Title VII, employers are prohibited from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. In addition, employers must reasonably accommodate the religious practices of an employee or a potential employee, unless doing so would pose an “undue hardship” to the employer. Such accommodations may include flexible scheduling, voluntary substitutes or swaps, job reassignments, lateral transfers, changes to dress and grooming codes, and protection of workplace religious expression. Currently, under the 1977 Supreme Court decision Trans World Airlines, Inv. v. Hardison, an “undue burden” is defined as “more than de minimis cost” or a minor burden. This definition stands in fairly stark contrast to the Americans with Disability Act definition of “undue burden,” which is “significant difficulty or expense.”

Because employers have had fairly significant leeway when it comes to religious accommodation, this area of law has not seen significant litigation, as religious discrimination claims account for only 3.4% of all EEOC charges in fiscal year 2021. However, the tides may be turning, particularly if Hardison is overruled. In January, the Supreme Court agreed to hear oral arguments in a case that could be poised to change the “undue burden standard” for religious accommodation. In Groff v. DeJoy, a Christian letter carrier objected to delivering packages for Amazon on Sundays and asked for an accommodation that he never be required to work on Sundays due to his religious beliefs. The U.S. Postal Service rejected this request, stating that granting it would be an undue burden because it would cause tension among other employees who would be required to work on Sundays. The U.S. Postal Service did offer to let the employee switch shifts with other employees, if any of them were willing to do so. The District Court and the Court of Appeals for the Third Circuit ruled in favor of the U.S. Postal Service, citing Hardison and the minimal burden the employer needed to show to reject the request for accommodation. Although conventional wisdom would typically indicate that the conservative super-majority on the high court is likely to rule in favor of the corporation, given this Supreme Court’s openness to arguments of religious discrimination in other contexts and both Justice Alito’s and Justice Gorsuch’s prior criticism of Hardison, the current definition of what is a “de minimis” burden in religious accommodation cases is likely to change in favor of the employee. Whether that change brings the religious accommodation definition of “undue burden” closer to the ADA’s definition or creates some newly defined test remains to be seen.

Employers should stay tuned for the outcome of Groff and should, in the meantime, carefully consider any requests for religious accommodation with an eye toward a potentially increased burden on the employer to show that the requested accommodation creates an undue burden. As always, O’Neil Cannon is here for you. We encourage you to reach out with any questions, concerns, or legal issues you may have.