In light of a recent United States Supreme Court opinion, your burdens as an employer to accommodate your employee’s religious beliefs and practices have increased. It is now much harder for a business with at least 15 employees to deny a religious employee whatever changes to their job duties, schedule or conditions that the employee wants.
The Groff case
In Groff v. DeJoy, decided on June 29, 2023, the Court adopted a higher bar for businesses to meet before they can deny a requested religious accommodation. Gerald Groff, a postal worker, wanted Sundays off to observe his religious beliefs. But postal workers deliver Amazon packages on Sundays on a rotating basis. He refused to ever work on Sundays, and other employees had to deliver his packages on his designated Sundays. He received progressive discipline over a long period of time for his continuing refusal to perform that job duty and eventually resigned.
Groff claimed in his lawsuit that the postal service could have accommodated his religious request to not work Sundays “without undue hardship to the business.” For 50 years, that term “without undue hardship” has meant that the employer didn’t have to change its practices to accommodate a religious request if the request required more than a de minimis or trifling inconvenience for the business.
The 2023 Supreme Court overruled 50 years of precedent and now defines “undue hardship” as a financial determination. According to the Supreme Court, you as an employer may only deny a religious accommodation request if you can show that the request would result in substantial additional costs to the company, taking into account to the size and operating costs of your business. So hardship on other employees, inconvenience, disruption to the smooth running of your business and other challenges are not important. And the Court also said that if one accommodation costs too much, the employer still has to look for other, less expensive accommodations that would satisfy the religious employee.
The Equal Employment Opportunity Commission (“EEOC”) has always made it clear that infrequent payment of overtime to employees who cover shifts not worked by the religious employee is not considered an undue hardship. It appears that now even frequent overtime payments may not be enough to rise to the level of undue hardship for certain successful businesses.
The Court also said that co-worker hostility to the requested accommodation is insufficient to deny the change that the religious employee wants. So those coworkers of Mr. Groff’s who resented him not taking his turn in the Sunday delivery rotation were not an excuse for the employer to deny Groff’s demand that he never work on a Sunday.
If this sounds like you as an employer are required to give preferential treatment to religious employees, you have correctly interpreted the current Supreme Court, the same court that vehemently decreed that even considering race in college admissions, much less preferential admission on the basis of race, is illegal.
What Religious Claims are Protected?
And despite the Supreme Court’s favoritism towards Christianity, U.S. businesses have to accommodate all religions this way—Islam, Buddhism, Judaism, Native American tribal religions, Voodoo, Druidism, Scientology, the Jedi religion, Rastafarianism . . . . The law protects all religious beliefs, including those that are new, uncommon, not part of a formal church or sect, or only held by a small number of people. An employee’s belief or practice can be “religious” even if the employee is affiliated with a religious group that does not espouse or recognize that employee’s particular belief or practice. And it is up to you as an employer to now maneuver around all of the obstacles that this heightened religious accommodation requirement demands.
How do you even know if a request is sincerely religious? Can you as an employer question whether the employee is sincere in their religious request? The EEOC has identified four factors that an employer can consider as to the sincerity of the employee’s belief. They include:
- Whether the employee has acted in a way that is inconsistent with the claimed belief;
- Whether the employee is seeking a benefit or an exception that is likely to be sought for nonreligious reasons;
- Whether the timing of the request is questionable (for example, because it follows closely on the heels of the same employee’s request for the same benefit for different reasons); and
- Whether the employer has other reasons to believe that the employee is seeking the benefit for secular reasons.
Although it can be difficult to determine motivations, as an employer you do not have to accommodate an employee’s political, social, economic, conspiratorial, prejudicial or other non-religious beliefs. Ask the employee to be more specific about their belief system. Religious beliefs generally include a belief in a deity, but also non-theistic moral or ethical beliefs as to what is right and wrong if sincerely held with the strength of traditional religious views. Although courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held. Rather, religion typically concerns ultimate ideas about life, purpose, and death.
If you have serious doubts about whether your employee’s belief is religious, you may want to ask for a letter from the employee’s faith leader explaining the belief and the necessity of the accommodation. But never attempt this without consulting your employment attorney first.
Be careful that your skepticism of the employee’s beliefs doesn’t go beyond a well-meaning effort to determine if the employee is sincere in his/her request for accommodation. Your approach should always be business-like, neutral and respectful of the employee’s beliefs, even when he claims that his new religion requires him to sit on his couch on Sunday mornings and surf the televangelists (actual facts of a religious accommodation case) rather than reporting to work his assigned shift.
What Religious Accommodations Will You Need to Provide?
We can’t even anticipate what accommodation requests you may now face. Common requests in the past have included:
- Changes to the dress code to accommodate yarmulkes, hijabs, completely covered limbs, not shaving, wearing religious jewelry, tattoos, etc.;
- Scheduling changes regarding refusal to work on any religious holy day, or every Sunday, or every Saturday, or several breaks a day for prayer, or myriad other shift modifications;
- Transfers to a job position that does not require performance of duties that are abhorrent to religious beliefs, such as pacifist refusing to perform duties related to war or a Muslim caterer refusing to cook something that violates his dietary laws; and
- Technology work arounds, such as adoption of a different way to clock in and out when an evangelical Christian employee believed that a biometric hand scanner involved technology that was the “Mark of the Beast” from Revelations. I’ve also had this “Mark of the Beast” rationale presented with an employee’s refusal to provide a Social Security number (which was really just an attempt to avoid taxation).
What Should an Employer Do Now?
What can an employer do to prepare? Add a written religious accommodation policy to your handbook so that you’ll at least be alerted when religion has become a workplace issue for one of your employees. Then put your employment lawyer on speed dial because you do not want to wade through this quagmire alone.
You’ll have lots to consider. For example, what if the request creates a safety issue, like making a business that requires a certain number of people to safely work a shift short-handed on certain days? Although the Supreme Court did not address this in Groff, prior case law held that an employer could refuse the requested accommodation and look for a safer alternative. Until the Supreme Court tells us differently, safety still trumps a particular accommodation.
Finally, it is very important to understand that an employee’s religious beliefs do not allow that employee to refuse to work with any person, including a gay or transgender employee. Even though the Supreme Court has said that religious business owners don’t have to bake cakes or create websites for same-sex marriages on the basis of free speech, your employees have no free speech rights in your private business.
Also, the great majority of businesses are bound by Title VII not to discriminate against LGBTQ or other employees. Everyone on your staff must still work with employees who have different beliefs, lifestyles, genders, backgrounds, ages, ethnicities, etc., or your business may face the undue hardship of significant legal bills and extensive discrimination litigation.