After the Supreme Court raised the bar for religious accommodations, an appellate court smacked a defendant with it


I’m speaking figuratively, of course. Taxpayer dollars do not support judges bruising and battering litigants who appear in court.

However, the defendant is probably still smarting from this recent Fifth Circuit decision, in which the court overturned a lower court ruling dismissing the plaintiff’s claims that the defendant failed to accommodate his religious beliefs.

The plaintiff took a religious vow to keep his hair and beard long. After getting hired as a corrections officer, the plaintiff received an ultimatum: cut your hair and shave your beard, or request an accommodation and take leave without pay pending a decision. The plaintiff chose the latter.

Eventually, the defendant denied the accommodation, citing safety concerns (e.g., being unable to wear a gas mask properly, getting his long hair yanked by an inmate, and hiding contraband in his hair and beard).

So, the plaintiff sued for religious discrimination and failure to accommodate under Title VII.

The trial court rejected the plaintiff’s claims, reasoning that the accommodation would impose an undue hardship on the defendant, which would have to bear more than a de minimis cost because coworkers would have to “perform extra work to accommodate” the plaintiff’s religious practice.

Then, the Supreme Court revamped religious accommodations at work, concluding 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 to conduct its particular business.

Based on the Supreme Court’s earlier decision, the Fifth Circuit reversed the lower court’s ruling. It concluded that the defendant could not satisfy the clarified undue hardship standard for four reasons:

  1. A de minimis burden no longer qualifies as an undue hardship.
  2. The defendant never quantified the cost it would face — much less “substantial increased costs” affecting its entire business.
  3. Citing possible additional work for coworkers is insufficient to show an undue hardship.
  4. The defendant seemingly didn’t consider other possible accommodations.

But what about the safety concerns? Yeah, what about them? The defendant permitted men to have shorter beards, and gas masks don’t seal well with any facial hair. Also, female employees were allowed to keep their hair long. So, yanking hair wasn’t a problem unique to the plaintiff.

As for the hiding contraband, yes, it might take a few extra minutes to search the plaintiff, but would that pose a “substantial” or “undue hardship” “in the overall context” of the defendant’s $2.4 billion FY2022 budget? No.

Employers, the days of claiming that a religious accommodation would result in more than a de minimis cost to the business are long gone. Be prepared to quantify the undue hardship, much as you would for a disability accommodation. Even then, employers should explore possible alternative accommodations to eliminate undue hardship.

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