How might the Supreme Court’s decision to reexamine religious accommodations impact employers?


Last May, I wrote about this religious discrimination case involving an employer’s duty to accommodate a plaintiff who needed Sundays off to observe his religion. The court decided the case in favor of the employer, which led to this appeal to the U.S. Supreme Court in August, asking that it revisit its 1977 decision in Trans World Airlines, Inc. v. HardisonIn Hardison, the Court concluded that Title VII of the Civil Rights act of 1964 does not require a religious accommodation if it results in more than a de minimis cost to the employer, i.e., an undue hardship.

Last week, the Supreme Court agreed to hear the case.

The Supreme Court will decide two issues.

The first is whether an employer may demonstrate “undue hardship on the conduct of the employer’s business” under Title VII merely by showing that the requested accommodation burdens the employee’s coworkers rather than the business itself.

The second issue is whether Hardison’s “more-than-de-minimis-cost” test for refusing Title VII religious accommodations should give way to something like the higher Americans with Disabilities Act undue hardship standard. Undue hardship under the ADA means significant difficulty or expense. It focuses on the resources and circumstances of the particular employer in relation to the cost or difficulty of providing a specific accommodation.

There are six “conservative” Justices and three “progressives.” But, as I noted when I blogged about the appeal in August, don’t be surprised if the Justices come together on this one to raise the bar for Title VII religious accommodations.

The late Justice Thurgood Marshall declared that Hardison dealt “a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices,” calling it “a mockery” that created a Hobson’s choice for many employees with sincerely held beliefs “to give up either the religious practice or the job.”

So, don’t be surprised if your business needs to update its employee handbook by the end of the year. (Your state and local law may already raise the bar for religious accommodations.)

On the Employer Handbook Zoom Happy Hour this Friday, January 20, 2023, at Noon ET, we’ll talk about religious accommodations with special guest EEOC Commissioner Andrea Lucas. We’ll also explore some of the EEOC’s other enforcement priorities and do some Q&A.

As always, attendance is free. Click here (–rqjkiH9bfR3tsk6OUWYt6eAga8r2Wto register.

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