In a striking break from its recent steady stream of divided opinions, last week the United States Supreme Court issued a unanimous opinion making a dramatic change in the level of hardship an employer must show to justify denial of a workplace accommodation request based on religion. In Groff v. DeJoy,[1] the Court held that an employer must grant a workplace accommodation for an employee’s religious practices unless it can show that the burden imposed by the accommodation is substantial in the overall context of the employer’s business.
Prior to Groff, the law for almost 50 years had allowed employers to deny a workplace accommodation based on the employee’s religion if it imposed more than a de minimis burden. As an example, Wal-Mart successfully argued in a prior case that it should not be required to undertake the administrative burden to support voluntary shift trading to accommodate an applicant’s observance of the Sabbath.[2] In Groff, the Court pointedly stated that “no undue hardship is posed by temporary costs, voluntary shift swapping, occasional shift swapping or administrative costs.” Instead, to justify denial of a religious accommodation, the employer must demonstrate that the “burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”
What does this mean for employers? Prudent employers should do the following:
- Ensure that managers and HR staff are aware of this decision and its implications.
- Review policies and handbooks to ensure that any religious accommodation policy does not incorporate the prior standard.
- Consider whether to formalize the religious accommodation process with new documentation: one form that employees complete to explain what they seek and why their religion necessitates their request, and a separate form that HR staff can complete to document their analysis of the request and any burden it imposes.
- Watch for new EEOC guidance providing more clarity on the new standard.
During the pandemic, many employers experienced a surge in religious accommodation requests from employees seeking to avoid vaccine mandates. With employees generally more aware of their right to seek an accommodation, we may see substantially more requests for religious accommodations in light of this new employee friendly standard.
[2] EEOC v. Walmart Stores East, L.P., 992 F 3d 656 (7th Cir 2021).
