Religious Accommodation Requests May Result in Some Conflicts

​Religious accommodation requests may proliferate following the Supreme Court's more stringent standard for rejecting requests in its Groff v. DeJoy decision. Some of the requests may pit devout employees against LGBTQ+ co-workers, who themselves may be religious. Managers can help keep work relationships civil by directing religious accommodation requests to HR and then cooperating in the religious accommodation process.

"Released at around the same time as Supreme Court decisions on affirmative action in higher education and religious liberty for small-business owners, Groff initially did not generate a huge amount of discussion or controversy," said Matt Durham, an attorney with Dorsey & Whitney in Salt Lake City. "Employers are now beginning to see the implications of the new religious accommodation standards and the complexities of compliance."

For 46 years, the U.S. Equal Employment Opportunity Commission and lower courts have cited the Supreme Court's 1977 decision in Hardison when determining "undue hardship." In that interpretation, an employer had to establish that an accommodation would result in "more than a de minimis cost," said Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City.

In Groff, the Supreme Court concluded Hardison that been misinterpreted. The Groff court held that Hardison established a higher standard for finding undue hardship for religious accommodation requests, one that requires showing a substantial burden for the employer's business.

"This is definitely a higher burden placed on employers, which means employees' religious accommodation requests are more likely to be granted going forward," said Chris Duke, an attorney with Akerman in West Palm Beach, Fla., and Boca Raton, Fla.

In addition, employers are seeing more religious accommodation requests, said Elaine Turner, an attorney with Hall Estill in Oklahoma City.

Potential Conflicts

"It is not difficult to see the potential for conflict between an employer's religious accommodation obligations and its duty to prevent discrimination," Durham said.

He gave the following examples:

• An employee might request a religious accommodation that they not be required to use pronouns that differ from the sex assigned to a co-worker at birth.
• A worker might request exemption from diversity, equity and inclusion training as an accommodation of their religious belief. Already, a large multinational food service company is facing a federal lawsuit after firing a California recruiter who refused to administer the company's diversity program for religious reasons.
• An employee might request latitude to speak out on or criticize the employer's position on legislation relating to marriage equality or gender identification issues.

"When a request for a religious accommodation conflicts or competes with another nondiscrimination requirement, employers can really find themselves in a bind," Duke said.

Train supervisors to understand the fine lines between what is and isn't protected, Durham said. Supervisors should "approach these issues with respect and sensitivity, adhering to and enforcing standards of respectful dialogue," he stated. "Employers should approach these situations with care and seek legal advice if necessary."

Duke said an employee might refuse on religious grounds to work with a co-worker because that person had an abortion or is gender-fluid. "The employer must tread carefully," he cautioned.

"An argument could be made that this type of conflict presents an undue hardship for the employer, but under the new Groff standard, it would still have to be proven that this conflict imposes a substantial burden in the employer's overall business and not just an inconvenience," Duke said.

Segal added that Groff doesn't consider how the accommodation affects co-workers as much as Hardison did. "Groff makes clear that an employer cannot establish an undue hardship by focusing solely on the impact of a proposed accommodation on co-workers," Segal said. "Instead, employers must go one step further and demonstrate how the burden on co-workers substantially burdens the employer's business."

Richard Fanning Jr., SHRM-SCP, an attorney with Clark Hill in Detroit, added that employers still may take into account the seniority rights under a collective bargaining agreement of workers other than the person requesting a religious accommodation.

Action Steps

Employers should revise policies that were drafted under the now-defunct de-minimis standard or risk costly litigation, Turner said.

Make sure accommodation policies specifically address religious beliefs, practices and observances, Segal said. "I am still somewhat surprised by how many accommodation policies address only physical and mental disabilities," he said.

Be ready to grant many more accommodations than in the past. "The accommodation sought in Groff, namely not scheduling a worker on a day of Sabbath, is a classic example of a request that will be more likely to be granted going forward," Duke said. "The same can be said for other requests for religious accommodation, whether they relate to dress code [or] personal appearance."

However, a requested accommodation still might result in an undue hardship and be denied, Turner explained. For example, Occupational Safety and Health Administration (OSHA) regulations require the use of respirators. Suppose an employer has a no-beard policy due to a job requirement to wear a respirator and a worker asks for an exception to the policy due to religious beliefs. "If the accommodation of wearing a beard jeopardizes the safety of the employee or causes the employer to violate OSHA regulations, it is an undue hardship on the employer and the accommodation can be denied," Turner said.

If a requested accommodation cannot be summarily granted, company management—preferably HR—can engage in a conversation with the employee to discuss accommodation options before making a final decision, said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C. One option might be a job transfer, she said.

Have a procedure in place for handling religious accommodation requests and make sure they go to HR, Shea said. HR can consult with the employee's managers and supervisors about whether the requested accommodation is feasible.