Title VII requires an employer to reasonably accommodate an employee's religious beliefs and practices unless doing so would cause an "undue hardship." SCOTUS delimited the boundaries of "undue hardship" in this context some 50 years ago in its Hardison decision. Over the past five decades, the vast majority of courts interpreting Hardison have held that "undue hardship" means anything more than a de minimis or trifling inconvenience will defeat an employee's request for religious accommodation. Today, SCOTUS revisited the meaning of "undue hardship" in Groff v. DeJoy. As you may remember, back in April of this year we predicted that the Court might not overrule Hardison at all, notwithstanding the Court's recent emphasis on religious liberty. Well, we were right. But, we were wrong.
In today's decision (read it here), SCOTUS held that Hardison is still good law, but it also held that the vast majority of courts interpreting Hardison over the past 50 years simply got it wrong. According to SCOTUS, undue hardship means more than a de minimis burden on an employer. An employer may only deny a religious accommodation request when the accommodation would result in "substantial additional costs" or "substantial expenditures" in "relation to the conduct of its particular business." In reaching this holding, the Court purposefully sheds next to no light on its interpretation of Hardison other than to note that the test must take into account all of the relevant factors of the particular case, including the particular accommodations and their practical impact taking into account the size and the operating cost of the employer. (Query, why would an employee's religious rights turn on the relative size of the employer if it's a religious right? But I digress.)
Some takeaways are key here.
- First, despite repeatedly discussing the test in the context of substantial costs, there is unfortunate and unnecessary language in the build-up to the Groff holding that point to dictionary definitions of "hardship" as meaning "extreme privation" or "suffering." Plaintiffs will undoubtedly seize upon this language to argue that "undue hardship" must be truly extreme to defeat a religious accommodation claim. However, when taken in the context of the rest of the Court's analysis, it is clear that the Court is not creating such an extraordinarily high burden to prove "undue hardship."
- Second, and as proof of our first point, the Court rejected both Groff's attempt to engraft the ADA's rigid "undue hardship" test onto Title VII, and the Government's attempt to adopt wholesale the EEOC's long-standing analysis of religious accommodation duties.
- Third, the Court noted that "undue hardship" analysis may, but will not always, include consideration of the accommodation's effect on co-workers, while mere co-worker hostility toward an accommodation will never suffice.
- Fourth, the Court notes that an employer is duty-bound not just to consider the requested accommodation but to also consider other possible options when the requested accommodation would impose an undue hardship. While this does not rise to the level of the so-called "interactive process" under the ADA, it's not all that far off, and employers are wise to engage in the interactive process when dealing with religious accommodation requests.
So, after 50 years, Hardison lives on, but we have been given little guidance from SCOTUS on "undue hardship" other than the death of the de minimis standard. It will now take years to fully develop and understand the "substantial additional costs" standard. Stay tuned.