Following the Supreme Court’s decision on religious accommodations, more requests have found their way into the courts

HR Brew speaks with an employment attorney about best practices under the clarified standard.
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Amelia Kinsinger

· 4 min read

The Supreme Court last summer made it harder for employers to reject religious accommodation requests. The court clarified the legal standards needed to reject accommodation requests based on religion and ruled that the previous application of the law for an “undue hardship” was incorrect.

“For almost 50 years, when it came to determining whether a reasonable accommodation was an ‘undue hardship’ with regard to religion, the courts have applied a de minimis test: If it was more than an increase in de minimis cost, it was an undue hardship. That’s different from the test under the ADA [Americans with Disabilities Act],” said Jonathan Segal, an employment attorney with Duane Morris.

HR Brew reported on the case last year. In Groff v. DeJoy, Gerald Groff, a Christian former Postal Service worker, filed a discrimination lawsuit against the USPS after he left the agency because it required him to work on Sundays, when he observes the Sabbath.

“Over the years, there’s been conversation on both sides of the political aisle—a rarity—that something needed to be done because the de minimis cost [test]…meant that undue hardship could be met almost in every case,” Segal said.

In a unanimous decision, the court found that the standard more than a de minimis cost was too generous to employers and incorrectly applied to Title VII of the Civil Rights Act of 1964.

Rather than a de minimis cost, 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” in such cases, Justice Samuel Alito wrote in the opinion, HR Brew reported last summer. The courts “clarified” the definition, seeming to imply it had been incorrectly applied for the last half-century, according to Segal.

Now, accommodation requests for religious reasons should be granted unless doing so would result in “substantial increased costs” to the business. This standard is more in line with the ADA.

Now what?

The ruling has changed the employment law landscape on the issue. Segal said there’s been an uptick in religious discrimination questions within his firm, though he noted that it’s too early to tell if the increase is due to a rise in claims.

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“With a Supreme Court case and the public discussion of it, we already are seeing again an increase in religious accommodation claims,” Segal told HR Brew. “Before—and I’ve talked with plaintiffs lawyers—they wouldn’t want to take religious discrimination cases when the issue is failure to accommodate, because they thought they were going to lose on the undue hardship defense. Now that the undue hardship defense is a real defense, the victory on the part of employers is less sure, so there’s more claims.”

What’s HR to do?

For some employers, the court’s decision hasn’t changed much in practice, but for others there’s work to do to stay compliant.

“I think a lot of employers…have understood that you really don’t want to treat ADA differently from Title VII,” he said. “I’ve been advising clients for a long time that…not to give the same deference to a reasonable accommodation for religion as you do for disability sends a cultural message, even if you can legally justify it.”

Segal advises clients to include in employee handbooks a procedure for how employees can request an accommodation based on religion. HR teams should maintain control over the process for handling requests.

“An accommodation policy should address disabilities, physical or mental, pregnancy, childbirth and related conditions, even if not a disability, and then three issues: religious beliefs, practices, or observances,” Segal said.

Religious accommodation requests should also use a separate form, he noted. And while some ADA-related policies might require a note from a doctor to grant, Segal said it can be problematic to mandate a similar requirement for religious requests because an employee doesn’t need to be a member of an organized religion or could hold beliefs different from the organized religion.

Segal recommended HR departments review the accommodation process. Look at previous accommodation requests granted to employees on the grounds of disability, or even secular reasons (i.e., childcare needs), and make sure any application to religious accommodations is fulfilled—or rejected—along the same lines.

Segal also suggested management training. Managers should tell employees, “Thanks for telling me, let me consult with HR and get back to you,” to avoid running afoul of discrimination laws.

Quick-to-read HR news & insights

From recruiting and retention to company culture and the latest in HR tech, HR Brew delivers up-to-date industry news and tips to help HR pros stay nimble in today’s fast-changing business environment.