About 50 years ago, Congress tweaked Title VII, a federal law that makes it unlawful to discriminate against workers based on their religion. It clarified that employers must “reasonably accommodate. . . an employee’s or prospective employee’s religious observance or practice” unless the employer is “unable” to do so “without undue hardship on the conduct of the employer’s business.”
But what does that mean?
Ever since the Supreme Court decided this case last century, many courts understood that the duty to accommodate an employee’s sincerely-held religious beliefs ended when an employer could demonstrate that doing so would result in something more than a minimal cost or expense to the business. Even the U.S. Equal Employment Opportunity Commission took this position.
As it turns out, they were wrong.
Yesterday, the Supreme Court unanimously agreed that Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.
The statutory term “hardship” refers to a minimum. Therefore, an employer denying a religious accommodation must establish something more severe than a mere burden. But since we’re talking about “undue hardship,” the Court reasoned that the requisite burden or adversity must rise to an “excessive” or “unjustifiable” level. Thus, we get this standard closer to “substantial additional costs” or “substantial expenditures.”
What does “substantial increased costs” mean?
Since I said I would refrain from using legalese in this post, I’ll stick with “it depends.”
But, I’ll offer you some contours from yesterday’s decision. Although the Court resisted invitations from both sides to establish a clearly-defined test, it noted that “what an employer must show is that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” (my emphasis). This requires businesses and courts to account for “all relevant factors,” such as “the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of an employer.”
In other words, a single-location operation with 15 employees may face substantial increased costs accommodating the same employee whom a Fortune 500 company could enable to practice their religion and perform their job too.
The Supreme Court hinted that this is a lower standard than establishing undue hardship under the Americans with Disabilities Act. But is it, though? Under the ADA, undue hardship means that an accommodation would be unduly costly, extensive, substantial, disruptive, or fundamentally alter the nature or operation of the employer’s business.
That will be up to the lower courts to decide.
But we know now that employers must do more than simply assess the reasonableness of a particular possible accommodation. For example, an employer must do more than conclude that forcing other employees to work overtime would constitute an undue hardship. It must also consider other options.
The business may consider the impact of religious accommodations on coworkers (think: productivity, morale) if they affect the conduct of the business. Bias or hostility to a religious practice or accommodation cannot supply a defense.