Earlier this year, the U.S Supreme Court, in Groff v. DeJoy, Postmaster General (600 U.S ______ 2023), redefined the requirements of “undue hardship” in a religious discrimination context and held that it means more than just a “de minimis” burden on the employer. Using the term de-minimis cost is “substantial in the overall context of an employer’s business.”
This has left businesses and courts in a conundrum. They both have to determine what would satisfy this new standard for religious accommodation. Factors such as company size and the cost monetarily of accommodating a religious accommodation will have to be considered more particularly. The fact that employees are requesting off on, for example, a weekend, because of a religious belief, does not.
In a recent case from the U.S. 5th Circuit Court of Appeals, Hebrew v. TDCJ, No. 22-20517 (5th Circuit Court of Appeals, September 15, 2023), the Texas Department of Criminal Justice (TDCJ) fired Elimelech Shmi Hebrew after he refused to cut his hair and beard in violation of his religious vow. Hebrew is a devout follower of the Hebrew Nation religion. As part of his religion, he has taken a Nazarite vow to keep his hair and beard long—a vow he has kept for over two decades.
Hebrew was hired to be a TDCJ officer. To be an officer, he had to go through training. Hebrew reported for duty to the TDCJ training academy. TDCJ officers quickly singled him out among the 40 trainees. The officers told Hebrew that he could not stay at the academy unless he cut his hair and shaved his beard in compliance with TDCJ’s grooming policy. At the time, TDCJ’s grooming policy forbade male officers from having beards unless they had a medical skin condition. The policy also prohibited male officers—but not female officers—from having long hair. The officers then gave him an ultimatum: break his vow and cut his hair or leave the academy without pay while his accommodation request was pending. Hebrew chose the latter option. His request was denied, and he was terminated.
The District Court ruled in favor of TDCJ. The 5th Circuit overturned the ruling.
The 5th Circuit stated that TDCJ failed to accommodate one of Hebrew’s fundamental religious practices by requiring him to cut his long hair and long beard in violation of his religious vow. They then stated that the only question is whether TDCJ has met its burden to show that granting Hebrew’s requested accommodation—to keep his hair and beard—would place an undue hardship on TDCJ.
The 5th Circuit then reviewed the hardship question. First the court stated that the hardship must affect “the conduct of the employer’s business,” and evidence of “impacts on coworkers is off the table for consideration” unless such impacts place a substantial strain on the employer’s business. Next the court stated that even if an impact on coworkers places a substantial strain on the employer’s business, that impact “cannot be considered ‘undue’” if it is attributable to religious bias or animosity.
The 5th Circuit then analyzed the arguments of TDCJ and did not buy the arguments. The court stated that TDCJ nowhere identified any actual costs it will face—much less “substantial increased costs” affecting its entire business—if it grants this one accommodation to Hebrew. Per the court, TDCJ simply identifies its security and safety concerns without regard to costs. Likewise, the court discounted TDCJ’s reference to possible additional work for Hebrew’s coworkers. It was not sufficient to show an undue hardship. Finally, the court recognized that no interactive discussion was made because TDCJ did not present any evidence that it considered other possible accommodations.
The takeaway from this case is that “courts will struggle with defining what would be substantial increased costs,” Darryl McCallum, a Shawe Rosenthal attorney, said. “But needless to say, just the possibility that it may create work for other employees … is not going to be enough.”
Under Groff, it’s not yet clear if effects on co-workers that are “hypothetical in nature” will rise to the level of creating an undue hardship on the business, Clark Hill attorney Paul Starkman said, “You may have co-workers resent the fact that this person has been given a religious accommodation or there may be co-workers who develop animosity towards that person or that person’s religion. Creating conflicts in the workplace because of that, in and of itself, may not be enough to refuse a religious accommodation.”
One major issue that is still active is the vaccine cases. “One subset of religious accommodation cases, of which there are many, is vaccine cases: people who were denied a religious exemption to vaccination policies,” Seyfarth Shaw partner Dawn Solowey said. “That has been an area of intense focus, so there are many of those cases pending around the country. I think that’s one area where you are likely to see applications of Groff.”
DEI training could take a hit. An HR employee of Compass asked to take on job duties other than the diversity program because of her Christian beliefs that all people are equal. After she requested a reasonable accommodation based on her religion, her supervisor fired her on November 2, 2022, for failing to perform her duties. She filed two complaints with the EEOC and then a lawsuit against Compass.
For HR professionals, it will be important to contact legal counsel when these situations arise. Unfortunately, it is a new, grey area of law and a minefield for all.
Source: Law.com 10/9/23, Hall Benefits Law 10/11/23