Increased Obligation for Religious Accommodation

By Rick Alaniz, Alaniz Law & Associates
Increased Obligation for Religious Accommodation
In a recent unanimous decision, Geoff v. DeJoy, involving a USPS letter carrier's request for Sundays off to observe the Sabbath, the U. S. Supreme Court substantially increased employers' obligation to reasonably accommodate employees' sincerely held religious beliefs. The obligation of reasonable accommodation unless it creates an “undue hardship” comes from the protections of the Civil Rights Act of 1964, which applies to employers with 15 or more employees. Employers with fewer employees are generally covered by state human rights laws which impose a similar obligation.

Since the 1977 Supreme Court decision in Trans World Airlines v. Hardison, an employer has been able to show “undue hardship,” and therefore deny a requested religious accommodation if the employer had to “bear more than a de minimize cost.” Having to pay overtime to an employee to permit the requesting employee to be absent for a religious observance was sufficient “undue hardship.” Under the new higher standard “an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to conduct of the particular business.” The court further noted that in applying this new standard, lower courts should consider “all relevant factors in the case at hand, including the particular accommodation at issue, and its practical impact in light of the nature, size and operating cost of an employer.” In this regard, the obligation of reasonable accommodation will be similar to that historically applied to the accommodation of disabilities under the American with Disabilities Act (ADA). In general, the larger the employer and the deeper its pockets, the more accommodation will be required.

Workplace Schedules and Religious Observances
Workplace claims of failure to grant a religious accommodation have been relatively infrequent over the years. When they have arisen, most have involved a conflict between an employee's work schedule and their need to observe their Sabbath. Cases have been few primarily because employers are generally willing to adjust an employee's work schedule, permit voluntary shift swapping, or grant time off to resolve the conflict. It is when such solutions are unavailing, such as when the employee's skills are unique or critical, or other employees are unavailable to fill in that the issue of undue hardship arises. As noted, a more than minimal cost in granting the request has been sufficient undue hardship. In the future, not only will the operational impact and cost of the accommodation be at issue, but also the nature, size, and financial ability of the employer will be part of the analysis of whether granting the accommodation creates an undue hardship.

Personal Appearance and Workplace Prayer
The obligation of reasonable accommodation applies equally to dress and grooming requirements that reflect religious beliefs. Issues relating to grooming, personal appearance and dress have been largely settled since 2015. That year, the Supreme Court ruled that clothing retailer Abercrombie and Fitch discriminated on the basis of religion when it failed to hire a Muslim sales job applicant who wore a hijab (headscarf) as part of her religious obligations. The company's desire for a certain “look” for its sales personnel could not trump her right to religious accommodation. That same principle has been applied to the wearing of turbans by men of the Sikh religion, except where it could compromise employee safety. Other than where it involves safety concerns, all employer attempts to limit the wearing of religious apparel have been struck down by the courts. The Geoff decisions further reinforces the limits on employer preferences if employee religious beliefs are involved.

In the few instances where prayer in the workplace has become a legal issue in recent times, it has mostly involved conflicts between the Muslim obligation of daily prayer and the employer's strict production schedule. In most work settings Muslim employees have effectively utilized scheduled work breaks to satisfy prayer obligations. However, in a few instances during the Muslim holy month of Ramadan some Muslim employees have insisted on additional time to pray. When they continued to pray and refused to return to the production line, management took disciplinary action. The company viewed any impact on production to be an undue hardship. Whether the employer was correct or not, the public relations backlash that ensued was costly indeed.

Proactive Action
The new standard for showing undue hardship where an accommodation for religious purposes is requested will require that managers and supervisors be adequately trained on the employer's obligation. They should also know how to properly document a request for religious accommodation, especially if the request is denied due to undue hardship. It must be emphasized that although such requests are not frequent occurrences in most workplaces, employees' religious beliefs are usually sensitive and strongly felt. They must be addressed thoughtfully and respectfully if employee goodwill is to be maintained.