Two years ago, the long dormant duty to accommodate employees’ religious beliefs and practices was awakened by the U.S. Supreme Court in Groff v. Dejoy.
Gone were the days when an employer could justify the denial of a religious accommodation by showing that it would have had more than a de minimis impact on the business. Many religious organizations (rightfully) lamented that this resulted in the routine denial of most accommodation requests.
Groff eviscerated that standard. According to the Supreme Court, the denial of a religious accommodation requires proof that it would have caused “substantial increased costs in relation to the conduct of [the employer’s] particular business.”
As the Supreme Court often does, it provided few details about the meaning of that requirement. Leaving them instead to be developed by the lower federal courts, on a case-by-case basis.
Now, with two years of hindsight, that development is beginning to take shape.
The good news: It may not only be about dollars and cents
When the Groff decision was announced, there was much handwringing by employers about whether “substantial increased costs” was limited to financial harm or could include other harmful impacts on a business.
In June, the U.S. Court of Appeals for the Third Circuit held in Smith v. City of Atlantic City that “we may still evaluate economic and non-economic costs as a source of undue hardship” on a business.
A few months later, in Kluge v. Brownsburg Community School Corporation, the Court of Appeals for the Seventh Circuit tacitly acknowledged that non-economic disruptions to an employer’s business can create undue hardships sufficient to deny a religious accommodation request.
And in Hebrew v. Texas Department of Criminal Justice, the Court of Appeals for the Fifth Circuit focused on the economic cost of the accommodation denied, but it did not explicitly state that non-economic costs were irrelevant.
The federal appellate courts appear so far to acknowledge that non-economic costs like safety, efficiency, and productivity are relevant to evaluating whether a requested accommodation would create an undue hardship.
The not-so-good news: Getting religious accommodation cases dismissed before trial will be much more difficult.
In the three federal appeals court decisions discussed above, the courts reversed summary judgment wins for the employer and sent the cases back to the district courts for further proceedings, including jury trials.
Trust me. In the pre-Groff era, it was tough to find a two-year stretch in which three appeals courts reversed summary judgment dismissals of religious accommodation cases.
Although the reversals in Smith and Hebrew are not surprising considering the facts offered to show undue hardship, Kluge is another story and may be a harbinger of what lies ahead.
In Kluge, a teacher asserted religious objections to calling on his students with names that conflicted with their biological sex. The school initially allowed him to call on all of his students by their last names, but later rescinded that accommodation.
The decision to revoke the “last name” accommodation was made, in part, because several students, teachers, and parents complained that it was causing psychological harm to transgender students, disrupting the learning environment, and interfering with the school’s mission of fostering a safe, inclusive learning environment for all students.
Despite the undisputed nature of these complaints, and the lack of evidence showing a discriminatory motive, the court said that the school had failed to establish an undue hardship.
In reaching that conclusion, the court considered, among other things, (1) the absence of a written mission statement; (2) testimony from other teachers and students that they did not perceive any disruptions from the “last name” policy; (3) the lack of evidence showing that the “last name” policy actually caused the emotional distress allegedly experienced by transgender students; and (4) the lack of evidence showing that the emotional distress claimed by the students was objectively reasonable.
In a 38-page dissent, Judge Ilana Rovner concluded that “today, the court invites a jury to do what we have always said a federal court will not do, which is sit as a super personnel department and second guess the employer’s good faith reasoning.”
Although my crystal ball may be a bit smudged, Judge Rovner may have accurately predicted that juries will now be asked to second-guess employer denials of religious accommodation requests.
Buckle up for turbulence: The need to accommodate religious beliefs, practices, and expressions may spike in the coming years.
Requests for religious accommodations take various forms, but they typically fall into one of three buckets – scheduling/attendance, garb, and expression.
As for expression, on July 28 the Trump Administration issued its “Protecting Religious Expression in the Federal Workplace” policy. The policy is limited to federal government employees, but it may cause the U.S. Equal Employment Opportunity Commission and religious advocacy groups to prioritize the protection of similar activities by private sector employees.
The policy (1) specifies that employees should be permitted to display religious items “on their desks, on their person and in their assigned workspaces”; (2) allows employees to “engage in individual or communal religious expressions in both formal and informal settings alone or with fellow employees … during off-duty time”; and (3) allows employees to “attempt to persuade others of the correctness of their own religious views,” as long as those attempts are not harassing.
Let that settle in. Think about your workforce. Think about how some employees may react to the religious expressions of others.
Now that you have, understand that your efforts to regulate or prohibit such activities will be subjected to the same type of rigorous analysis described above for Kluge.
The bottom line
Should you be inclined to deny a religious accommodation request, or to prohibit religious expressions in your workplace, it is imperative that you do a careful analysis of every reason for the denial, both economic and non-economic, and the proof you can muster to support them.
It also may help to have your employment counsel on speed dial and a bottle of scotch (or other libation) handy.
