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Religious Requests at Work Poised for Conservative High Court

Dec. 4, 2020, 11:15 AM

A conservative U.S. Supreme Court could soon take up cases that determine when employers can deny requests from religious workers, such as prayer breaks for Muslims, schedules built around the Sabbath, and dress code exceptions for facial hair or head scarves.

The justices are poised to decide whether to hear arguments over a standard that allows employers to reject religious accommodations if they pose an “undue hardship” on their business. Religious groups say the current rule is overly broad and limits workers’ rights, while employer groups prefer it because it gives them flexibility to protect their bottom line and not disrupt operations.

The high court declined to take up the issue last term, despite urging from the U.S. Solicitor General. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch in February called on the court to revisit decades-old precedent that defines “undue hardship” as “more than de minimis cost,” essentially meaning employers don’t have to accommodate a worker if it would cause more than a trivial burden on them.

The question has reemerged at a time when the Supreme Court has a more powerful conservative majority with the addition of Justice Amy Coney Barrett, and could lean toward a stricter standard, attorneys and academics say. Barrett could be the fourth vote needed to grant review of separate cases involving a Jehovah’s Witness and a Seventh-day Adventist fired when their work schedules conflicted with their Sabbaths.

If the court agrees to hear the cases, the issue presents a potential dilemma for conservative justices, with the business community and religious groups at odds, said Michael Foreman, a law professor at Penn State Law and director of its Civil Rights Appellate Clinic.

“The court could absolutely reconsider this standard with a new and stronger majority. I have no doubt that if you get a more conservative court, they will put a higher burden on the employer,” Foreman said. “Regardless, either now or a later time, the court will revisit this idea of religious freedom.”

Undue Hardship

In the two appeals awaiting consideration by the justices, the U.S. Courts of Appeals for the Sixth Circuit and the Eleventh Circuit each ruled in favor of employers that denied religious accommodations because of hardships on their operations.

The Sixth Circuit case centered on electrician Jason Small who was fired after he asked to change shifts to accommodate his religious practices. As a Jehovah’s Witness, Small must attend services on Wednesday evenings and Sunday, and would sometimes be required to attend some services occasionally on Saturdays.

The appeals court, bound by Supreme Court precedent, ruled that accommodating Small would pose an undue hardship to his employer, Memphis Light, Gas & Water.

Similarly, the Eleventh Circuit summarily upheld a federal judge’s decision that accepted GLE Associates’ justification in not allowing Mitche Dalberiste, a Seventh-day Adventist, to observe his Sabbath from Friday sundown to Saturday sundown. The company provided services on nights and weekends to a nuclear power plant.

At issue in both cases is the Supreme Court’s 1977 decision in Trans World Airlines v. Hardison, which set the “de minimis” standard for religious accommodations under Title VII of the 1964 Civil Rights Act.

Courts and employers will have to take the statute more seriously if the employees win either of these cases, said Douglas Laycock, a law professor at the University of Virginia School of Law, who filed a brief on behalf of legal scholars urging the high court to take the cases. Hardison “took all the teeth” out of the protections for religious workers, he said.

“It has been so under-enforced, and it is so inconsistent with the model on which a lot of employers operate, where they think they can demand anything of their employees—long hours, on call 24/7, or short hours, and irregular schedules—that many supervisors probably never think about it until they get threatened with a lawsuit,” Laycock said.

Religious groups are asking the high court to set religious accommodations requirements that are similar to the standard for granting accommodations to workers with disabilities under the Americans with Disabilities Act.

The ADA’s definiton of “undue hardship” is an “action requiring significant difficulty or expense,” and provides factors to consider. This is opposed to the minimal definition of hardship for religious requests.

Carlton Fields employment attorney Rae Vann said the undue hardship standard currently in place for religious accommodations favors employers.

“It’s reasonable and is a standard that isn’t too complicated to apply,” Vann said. “I don’t know how the court would view this issue. It’s a business case versus religious liberty.”

Potential Impact

The justices’ decision in the undue hardship cases would extend past requests for leave on Sabbaths and apply broadly to all faiths, attorneys said.

Yet the issue often falls on minority faiths, said Kim Colby with the Christian Legal Society, which filed a friend-of-the-court brief in both cases.

The group said that in Title VII cases dealing with religion, Muslims represented almost 19% of the cases, even though they represent less than 1% of the population. Members of non-Christian faiths account for 34.5% of the cases and represented about 6% of the population, it said.

Colby said it’s important to reexamine the issue because there are real-life consequences for those who want to hold a job and observe their faith.

“It’s such a low standard that it basically means that employers don’t have to accommodate practices,” she said.

Most religious accommodations cases fall into three broad categories: holy day accommodations, which include prayer breaks; grooming and dress codes; and workplace expressions, said Todd McFarland, associate general counsel of the General Conference of Seventh-day Adventists, who represents Dalberiste.

The latter category could include refusing to wear insignia that a worker disagrees with that promotes a cause or message that clashes with religious beliefs, he said.

For example, in a lawsuit brought by the Equal Employment Opportunity Commission, the Kroger Co. was accused of unlawfully firing two workers in Arkansas who said they had religious objections to wearing a rainbow logo on their aprons. They said the logo showed advocacy for the LGBT community.

“The stakes are significant when you are talking about people’s jobs and their ability to earn a living,” McFarland said. “Employers may see it as easy to replace workers, particularly those in low-income workforces, rather than take minimum steps to treat their employees with fairness.”

Placing a higher standard on companies would create “absurd and burdensome restrictions,” said Phillip Harris, a partner with Constangy Brooks, Smith & Prophete, who represents GLE Associates.

Harris said his client required employees to work weekends, and Dalberiste didn’t ask for the accommodation in his job interview. He said companies generally try to avoid questions about protected characteristics during interviews.

“If we had to do more, it would have put a lot of pressure on the company to ask a lot more questions than they would normally,” he said. “My fear is that with the gravity of this case on employers, it’s going to really make them have to uncover information during the process in screening interviews.”

Small’s attorney, Steffen Johnson of Wilson Sonsini Goodrich & Rostati, didn’t respond to a request for comment for this story. Memphis Light’s attorney, Rodrick Holmes of Boyle Brasher, also didn’t respond.

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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