Labor, Employment, & Immigration I AUGUST 8, 2023

Supreme Court Revamps Requirements of Religious Accommodation in the Workplace

For the past fifty years, federal law required an employer to accommodate an employee’s religious observances or practices unless to do so presented “undue hardship” on the employer’s business.

Federal law has long interpreted “undue hardship” as any burden that presented more than a minimal cost or inconvenience to the employer. The bar was set low for employers as even a small burden which was more than minimal relieved the employer from the accommodation burden. For example, in 1975 the Supreme Court held that an employer was not required to disregard a bona fide seniority plan to accommodate religious based requests for time off. There the law remained until the Court’s recent decision in Groff v DeJoy, Postmaster General.

The Court erased the de minimis standard in Groff, a case involving an Evangelical Christian postal worker who refused to work Sundays. The Court redefined undue hardship to require a burden “substantial in the overall context of an employer’s business.” The Court went on to explain that courts needed to consider “all relevant factors . . . including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost” of an employer. The inquiry requires consideration of the requested accommodation’s effect on the conduct of the business, the employer’s options to require other employees to work overtime, and the possibility of voluntary shift swapping. A hardship is not undue if it is rooted in other employees' animosity toward a particular religion, religion in general, or the idea of accommodating religious based requests.

Employers should now apply an analysis similar to that used under disability law. Religious accommodations now impose a higher burden on the employer, and indirectly the co-workers who are called upon to cover the work shifts for which the accommodation relieves the employee of the obligation to work.