Joel Dillard & Associates

Representing Working People

Religious practice must be accommodated at work

In a blog post back in 2020 entitled The Future of Religious Accommodation and Discrimination, I predicted that the Supreme Court will unanimously or near-unanimously expand the protections against religious discrimination in Title VII by changing the interpretation of undue hardship for religious accommodation.

Then, in January 2023, the Court took up a case on exactly that issue. Groff v. DeJoy. Argument was held in April and the decision was issued at the end of June.

As I had predicted, the Court unanimously decided that the longstanding view of the circuit courts was wrong. It adopted a far more protective view of religious accommodation.

The plaintiff in the case, Mr. Groff, was a rural carrier associate for the post office and was an observant Christian who did not work on Sunday. Then, when Amazon made USPS start Sunday delivery, Groff's bosses tried to make him run Sunday routes. After a number of disciplinary actions because of this, Groff was forced out of the job.

The statute is clear that religious accommodations must be provided unless they are an undue hardship. The question was what that means. Prior decisions had suggested that even a de minimis (latin for itty-bitty) inconvenience was enough to justify refusing to accommodate. Some courts have even allowed bigoted customer or coworker feelings to qualify as a so-called undue hardship.

The unanimous Court said that undue hardship means what it says, and that is a real hardship: i.e. privation, suffering, adversity which is undue: i.e. excessive or unjustifiable.

In practice, this means substantial increased costs in relation to [the employer's] particular business, including the practical impact in light of the nature, size and operating cost of an employer. And even if the requested accommodation is too burdensome, the employer is also required to consider if there are any other alternatives that might work.

This was a complete transformation of the existing law, and its effects were felt immediately. For example, in September 2023, the Fifth Circuit reversed a decision that it was an undue hardship for a prison to accommodate a nazarite's uncut hair and beard. Hebrew v. Tex. Dept. Crim. Justice. The prison cited three safety concerns: that contraband could be smuggled in the hair, that gas masks would not fit, and that offenders might use the hair to grab and attack the guard. The Court rejected all three, noting that searching the hair for contraband is not an undue hardship under the Groff test, that medical (but not religious) exceptions were allowed for beards, and that women were allowed long hair. By giving exceptions for disabilities and women but not for religion, the prison was not only giving the lie to its stated safety concerns, it was was also discriminating based on religion.

In short, the door has been opened for real religious accommodations in the workplace. And it's about time, too.


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