Courts Develop Hardship Test for Worker Religious Accommodations

Federal courts have started to shape what factors enable employers to sidestep religious accommodation requests considered burdensome as they assess the bounds of the US Supreme Court’s stronger standard protecting religiously observant workers.

The high court’s 2023 Groff v. DeJoy decision changed the legal landscape for employees objecting to workplace policies on religious grounds. Employers can’t deny a religious accommodation because it’s an undue hardship unless they show that a requested accommodation “would result in substantial increased costs” to the business, the justices unanimously held.

Since then, at least four federal appellate courts have revived cases to explore that issue in the fact-finding “discovery” phase of litigation, according to a Bloomberg Law docket analysis.

The new test under Title VII of the 1964 Civil Rights Act took hold as workers began to lodge faith-based objections to workplace policies such as Covid-19 vaccine rules, the use of pronouns, and anti-bias training. Groff opens the door for lower courts to clarify the economic and non-economic factors that add to an employer’s burden.

“Because the Supreme Court’s new doctrine sets a standard rather than a hard and fast rule, it will inevitably take some time to work out what exactly  counts as an undue hardship,” said Caroline Mala Corbin, a law professor at the University of Miami School of Law. “Perhaps once there is a significant circuit split, the Supreme Court will revisit the issue and provide more guidelines.”

That split could be on the horizon. The Ninth and Third circuits are set to rule on the merits of religious accommodation challenges that reached the pre-trial summary judgment stage.

“Employers are on alert when it comes to accommodation requests,” said Margo Wolf O’Donnell, a partner and co-chair of Benesch’s labor and employment practice group.

“Undue hardship is pretty self-evident” in some instances, but there “may be cases where judges sometimes need to send these issues to the jury,” she said.

Not So Fast

Before Groff, lower courts followed the Supreme Court’s 1977 Trans World Airlines Inc. v. Hardison decision, which said employers can reject a worker’s request if it would impose a minimal burden or cost.

Those courts got it wrong because they “latched” on to the minimal language as the governing standard, Justice Samuel Alito wrote for the high court last year.

Subsequent rulings from the Tenth, Ninth, Eighth, and First circuits overturned district court orders tossing religious accommodation lawsuits at the motion to dismiss stage, allowing the cases to proceed. Undue hardship under Groff requires further fact development in discovery, the courts said.

It requires courts to take “into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of an employer,” the First Circuit said.

So far, these rulings suggest it’s foreseeable that more litigation on the hardship issue will come, attorneys said.

“This is a trend we are seeing,” said Stephanie Taub, senior counsel for the conservative legal group First Liberty Institute, which brought the Groff case. “I expect to see, more often than prior to the Groff decision, these cases being decided by juries rather than at the motion to dismiss or motion for summary judgment stage,” she said.

Looming Decisions

The Ninth Circuit will eventually rule in a case involving an actress who claims Lions Gate Entertainment Inc. and the production company of the TV series “Run the World” unlawfully terminated her after she refused a Covid vaccine for religious reasons.

At December oral arguments, a three-judge panel grappled with whether a district judge correctly calculated the financial impact of Andrea Bordeaux’s request for a vaccine exemption. The judge accepted the company’s argument that accommodating Bordeaux would cost an extra $300,000 daily over the 10-week production, amounting to 175 times the average Covid-related costs for other cast or crew members.

Bordeaux’s attorney insisted that revenue from all corporate entities under the Lionsgate umbrella must be considered, not just the costs the production company would incur to accommodate her, as the district court did. The circuit panel expressed skepticism, suggesting that Groff directed lower courts to focus their cost analysis only on the entity where the worker is employed.

Meanwhile, the Third Circuit is considering a challenge to the Atlantic City Fire Department’s denial of a Christian air mask technician’s request to be exempted from a policy banning facial hair for safety reasons. The court may clarify when non-economic costs, such as safety or security concerns and violations of a labor contract, constitute undue hardship.

The First Liberty Institute, representing Alexander Smith, argued his beard doesn’t impact his job fitting masks and refilling air tanks for firefighters. Smith asserted his faith requires him to wear a beard, and his job doesn’t require him to wear a mask.

Separately, the Second Circuit and some district courts have recognized an undue hardship where a requested accommodation would require an employer to violate the law.

Pre-litigation Impact

One immediate implication of Groff is that it forces employers to find compromise with workers, attorneys said.

Employers are focusing more on what would be a reasonable accommodation because it’s unlikely to “have a good outcome if it goes to an enforcement agency or a court,” Jay Zweig, a partner at management-side firm Ballard Spahr LLP, said.

Companies considering accommodation requests under the Americans with Disabilities Act similarly have to show undue hardship. However, the ADA defines “undue hardship” as an “action requiring significant difficulty or expense” and provides factors for courts to consider in making that determination.

Although the justices in Groff chose not to adopt the ADA’s strict hardship standard, Zweig said employers should handle requests for religious accommodations “with the same level of expediency and seriousness” as they do medical or other exemption requests.

“There’s guidance from disability discrimination case law that says employers having to spend money doesn’t make it substantial,” he said.