A new test makes it more difficult for US employers to deny religious accommodation requests.
- In its Groff v. Dejoy decision of June 29, 2023, the US Supreme Court put an end to its old interpretation of “undue hardship”.
- Instead of showing that the requested religious accommodation would impose more than a de minimis cost on the business (old test), a US employer will now need to show that “the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business” (new test).
Excessive or unjustifiable costs
- To establish “undue hardship,” employers must now show that the increased costs would constitute a hardship rising to an “excessive” or “unjustifiable” level.
- Previously, employers could easily deny religious accommodation requests under the old “de minimis” test, for example by showing it would cause minor inconveniences such as administrative costs. Employers can’t do this anymore.
- For context: Under Title VII of the US Civil Rights Act, employers must “reasonably accommodate…an employee’s or prospective employee’s religious observance or practice” unless the employer is “unable” to do so “without undue hardship on the conduct of the employer’s business.”
Case by case analysis
- Religious accommodations require a case-by-case basis analysis. The Court provided guidance:
- Courts “must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, “size and operating cost of [an] employer.””
- Impact on coworkers, such as having them work overtime, is not sufficient to deny the request – what matters is the impact on the conduct of the business.
- Co-workers’ animosity toward a religion or religions is not a sufficient reason to deny a religious accommodation.
What can in-house counsel do?
- Monitor how courts will apply the new test.
- Monitor guidance from the Equal Employment Opportunity Commission (EEOC).
- Educate managers about the new test.
- Liaise with HR to update accommodation review policies and procedures.
Learn More and Connect
Read A Unanimous Supreme Court Rules of Undue Hardship in Religious Accommodation: De Minimis Is Out, "Substantial Increased Costs" Is In, by Dawn Solowey, Lynn Kappelman, and Darien Harris, of Seyfarth Shaw LLP (June 29, 2023)
Read Groff Takes DeJoy: U.S. Supreme Court Changes Standard in Religious Accommodation Case, by Patricia Anderson Pryor, Katharine C. Weber, Andrew F. Maunz & Tara K. Burke, of Jackson Lewis P.C. (June 29, 2023)
Read Supreme Court Redefines “Undue Hardship” when Addressing Religious Accommodation Requests under Title VII, by Brooke C. Bahlinger, William N. Lawther, Pauline R. Wizig, of Foley & Lardner LLP (July 2, 2023)
Read Supreme Court Decision in Groff v. DeJoy Increases Burden on Employers Under Title VII for Denying Religious Accommodations, John E. Pueschel and Ashley Kutz Kelley, of Womble Bond Dickinson LLP (July 7, 2023)
Attend the webinar Groff Takes DeJoy: The Substantial Burden of Religious Accommodation, by Jackson Lewis P.C. (July 12, 2023)
Attend employment law sessions the 2023 ACC Annual Meeting