Labor & Employment Newsletter

On November 9, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) voted 3-2 to publish a proposed update to its Compliance Manual Section on Religious Discrimination for public comment. The current Compliance Manual Section has not been updated since 2008. Although the proposed update will not be available until after it has undergone review by the Office of Management and Budget, the EEOC has announced that the update will, among other things, address legal developments and emerging issues in two key areas: (1) the scope of an employer’s duty to provide reasonable accommodation to employees’ religious beliefs and practices, and (2) the defenses available to religious employers to employment claims arising under Title VII and other statutes enforced by the EEOC. This article will address only the potential changes likely to impact employers who are not “religious institutions.” To that end, some recent case law that addresses a secular employer’s duty to make religious accommodation and that is likely to be reflected in the EEOC’s update is summarized below.

Reasonable Accommodation

In addition to prohibiting employers from engaging in discrimination, harassment, or retaliation on the basis of religion, Title VII requires employers to provide “reasonable accommodation” of an employee’s sincerely held religious beliefs, observances, and practices, when requested. Accommodation issues typically arise in connection with work schedules, dress and grooming policies, or religious expression or practice in the workplace. Title VII provides that the employer must provide a reasonable accommodation unless the employer can demonstrate that it is unable to do so without “undue hardship on the conduct of the employer’s business.”

The “Undue Hardship” Test

In a seminal 1977 case construing “undue hardship,” the U.S. Supreme Court held that Title VII requires only that an employer establish that making religious accommodation for an employee would require more than a de minimis cost. As a result, in the ensuing decades, the courts regularly held that even a trivial financial or operational burden constitutes sufficient grounds for an employer to deny a request for religious accommodation. In keeping with this relatively light burden, the courts frequently have given significant weight to employers’ own assessments of the financial costs or operational burden or harm posed by a requested accommodation. The existing, 2008 EEOC Guidance aspires to set a higher bar for establishing “undue hardship,” providing that “an accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.” Trends in case law decided since 2008 suggest that the courts have been moving in a similar direction as the EEOC by narrowing the range of economic or operational “costs” deemed to meet the “undue hardship” test. Such decisions likely offer a preview of enforcement positions the EEOC can be expected to take in its update. A few pertinent decisions relating to the increasingly heightened compliance burden placed on employers are discussed below.

Recent Decisional Law

In the case of a Muslim employee, whose religious beliefs required her to wear modest clothing and a headscarf (hijab), a federal court held that retailer Abercrombie and Fitch violated Title VII by failing to accommodate the employee’s religious practice by insisting that the employee remove her headscarf and otherwise dress in compliance with the employer’s “Look Policy.” In that case, the court found that the employer failed to establish an “undue hardship” defense, despite the employer’s testimony and declarations that its “Look Policy” went “to the heart of its business model.” The decision indicates that some courts are looking for an employer to establish more concrete evidence of the operational cost of an accommodation, i.e., beyond the employer’s declaration that the accommodation would have an adverse impact on its brand.

A recent EEOC determination of a case involving federal agency employees likewise reflects a trend towards heightening the requirements for establishing “undue hardship.” There, the commission held that the U.S. Post Office had violated the religious protections of Title VII by failing to accommodate an employee’s requests for Sundays off to observe her religion, despite that employer’s representations that it would not otherwise have enough staff to operate efficiently on Sundays as the result of an established seniority policy that gave other employees Sundays off. In that case, the commission declined to give dispositive weight to the employer’s testimony that granting the employee’s requested accommodation would pose more than a de minimis operational burden because the employer had not put forth evidence that it had asked other employees if they would be willing to change their schedules.

In evaluating the “undue hardship” issue, courts have also recently been requiring more evidence of the financial costs posed by a requested religious accommodation. By way of example, a federal court held that a trucking company violated Title VII by failing to provide reasonable accommodation, when it denied an employee’s religiously based request not to be scheduled for deliveries from sunset on Friday to sunset on Saturday, in observance of his church’s Sabbath (Seventh Day Adventist). Although the employer argued that it was entitled to an “undue hardship” defense because Friday nights and Saturdays were the busiest delivery times on the employee’s assigned client account and that it would have had to hire an extra driver to meet its contractual obligations to the client, the court nonetheless held that the employer had not established “undue hardship” because the employer had failed to offer such evidence that it had considered assigning the employee to a different client account and transferring another employee to service the client account.

Direct Challenges to the De Minimis Standard for “Undue Hardship”

A petition currently pending before the U.S. Supreme Court holds even greater potential for the expansion of secular employers’ obligations under Title VII to provide religious accommodation. There the petitioner is asking the Supreme Court to reconsider the very “de minimis” test for “undue hardship” developed in its , find that Hardison was wrongly decided, and set forth a new, more stringent test that would better reflect and effectuate Congress’ intent to protect religious minorities from employment discrimination. The petitioner argues that the test for the “undue hardship” defense in religious accommodation cases should be more in line with the test for “undue hardship” in other employment law, such as the Americans With Disabilities Act (ADA), which requires an employer to meet the much higher test to demonstrate an “undue burden,” namely to show that providing an employee with reasonable accommodation for a disability would be unduly costly in light of the employer’s size and financial wherewithal, would be unduly extensive, substantial, disruptive to operations, or would fundamentally alter the nature or operation of the employer’s business. The Supreme Court’s recent rulings in Little Sisters of the Poor and Our Lady of Guadeloupe, which provide expanded protection for employers’ religious beliefs, may herald a similar inclination to provide expanded protection for employees’ religious beliefs and practices, including, perhaps, the rejection of the current de minimis test for “undue hardship” in making workplace accommodations for an employee’s religious beliefs or practices.

The Takeaway

Recent case law reflects a trend towards increasing the burden on employers to show that a religious accommodation poses an “undue hardship.” Thus, in making decisions regarding religious accommodation, employers should already be prepared to look beyond the immediate financial or operational cost of a requested accommodation and explore operational modifications that might alleviate or offset the cost. Further, significant changes to employers’ compliance obligations appear to be in the wings. Accordingly, employers will want to keep an eye out for the enforcement guidance forthcoming in the EEOC’s update and for how the Supreme Court rules in Delbariste.