Business owners and managers will need to more carefully consider religious accommodation requests from employees — and it could get complicated.
The Supreme Court on Thursday issued a unanimous opinion in favor of an evangelical Christian worker at the Postal Service who refused to work on Sunday because of his religious beliefs and said he was disciplined because of it.
The court ruled federal law requires employers to show the burden of an accommodation must result in “substantial” increases costs or expenditures in order not to grant one.
But the lack of specifics in the ruling and the likelihood that additional court cases will be needed to figure out the new standards creates a complicated minefield for businesses, legal experts say.
It also means employers will need to consider religious requests in areas such as scheduling, dress codes, workplace breaks and even paid days off.
“Employers are going to have to readjust their thinking to be more sensitive or have the red flags go off sooner,” said David Miller, an employment attorney at Bryant Miller Olive. “If somebody asks for a religious accommodation, then they need to pick up their phone and call their lawyer and let their lawyer figure it out — don't do it on your own you are bound to get it wrong.”
Previously, the governing standard had been whether employers incurred a cost that was more than “de minimis” or minimal, in denying a religious accommodation — a standard the Supreme Court said had been misapplied for decades.
That typically meant that if an employer had to do things like incur overtime or make people change shifts, they did not have to make an accommodation. Now, employers will have to judge the accommodation within the context of whether it incurs a burden — and it could be different for every company, Miller said.
“This is something that needs to be judged within context on a very fact-specific basis.,” Miller said. “Whether something is an undue hardship it has to be judged within the business operations of the defendant”
In Gerald Groff’s case, according to the opinion, he took a Postal Service delivery job in 2012 that did not involve Sunday work, but eventually the Postal Service started delivering more on Sundays to assist in Amazon deliveries. He transferred to a rural Postal Service station that did not deliver on Sundays but eventually that location did too.
Groff refused to work Sundays, and his Sunday shifts were assigned to others instead, and he received “progressive discipline.” Eventually, he resigned before suing the agency under Title VII of the Civil Rights Act of 1964.
The Supreme Court also, in its opinion, pointed to a previous court ruling based on the de minimis standard that it would be an undue hardship on Wal-Mart Stores Inc. to be required to facilitate voluntary shift-trading to accommodate a prospective assistant manager’s observance of the Sabbath.
“We think it is enough to say that an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business,” the Supreme Court stated in its opinion.
That doesn't lead to specific standards or guardrails, Miller said. What is likely is there will be additional litigation as workers sue over other specific situations and lower courts work to translate the Supreme Court's ruling and apply it to future cases, he added.
For now, businesses of all sizes should make sure any requests for accommodations are dealt with in the specific context of the request and what that request might mean in terms of costs. A 15-employee company will be different than a 5,000-employee company.
"What's one person’s burden is going to be another person’s mosquito bite," Miller said. "This is going to be the struggle of interpretation that the lower courts are going to face."
Paul Lopez, a labor and employment attorney with South Florida-based Tripp Scott, said employers can no longer just dismiss requests out of hand — they will have to do some real analysis on whether they can make it happen, instead. And it's not just schedules either, but a potentially wide range of religious accommodations that span the workplace, including how employees dress, wear their hair or even paid days off.
"There is a host of issues that may have to be addressed by employers. You’ve got schedules, dress, traditions — you have certain things that employees may want to do during the workday," Lopez said. "I think what this does is dramatically requires employers to revisit this issue."
Employers also cannot factor into their decision whether that accommodation would make other employees unhappy or uncomfortable.
"If there are any questions about it and it's a close call, go talk to an employment lawyer," Lopez said. "Don't just try to wing it and do it on the fly."
Lopez also said employers should go back to old requests for accommodations on religious grounds and see if they can or should accommodate those requests. Those same employees could come back and ask again, or feel like they should be accommodated now.
"You were supposed to have considered my request I made six months ago. You didn’t accommodate. You can’t bury your head in the sand and think this doesn’t apply to you because a request came in six months ago or three months ago," Lopez said.
Employers should also document the analysis they do on any accommodation request and how and when it was made, just in case, he said.
The Supreme Court decision is just the latest in a series of shifting standards and rules for employers the workplace. The National Labor Relations Board recently narrowed the definition of independent contractors.
NLRB General Counsel Jennifer Abruzzo also recently sent a memo throughout the agency saying noncompete agreements — which typically prevent a former employee from seeking employment in a similar industry for a certain amount of time and within a certain geographic distance — infringe upon employee rights to take collective action to improve their working conditions.
As we've written about before, federal regulators and state governments are looking to ban or limit noncompetes, arguing they limit employees' mobility.