By Michael J. Cederoth, Rachel Duboff *, and Erin Dougherty Foley
Seyfarth Synopsis: Accommodation requests continue to vex employers as they attempt to balance an employee’s religious beliefs with the overall needs of the business operations. But try they must.
Notwithstanding the mangled Yoda quote above, As more employees return to in-person work, it is important to remember an employer’s obligations to accommodate its employees. Chief among them: accommodations for religious beliefs. The Third Circuit’s recent opinion in Groff v DeJoy presents a thorough outline of an employer’s obligation to attempt to accommodate employee’s religious beliefs. Plaintiff Gerald E. Groff was a postal worker with the US Postal Service (“USPS”) and was expected to work Sundays. The USPS had entered into a contract with Amazon, which required the delivery of packages on Sundays and the success of the Sunday delivery was critical to USPS. After Groff alerted USPS that he could not work on Sundays in accordance with his religious beliefs, USPS attempted to accommodate Groff by allowing him to voluntarily switch shifts. While his supervisor undertook time consuming efforts to find coverage, there were still a number of Sundays in which Groff’s shift was not covered, impacting service standards. [??], and which resulted in progressive discipline to Groff. Ultimately, other USPS employees were forced to bear the burden of Groff’s Sunday shift through increased workload and assignment to Sunday shifts. This impacted productivity and moral and bred resentment among the employees who were forced to pick up the slack. While Groff requested an accommodation that completely excused him from Sunday work, there was no other position to which Groff could transfer that did not require Sunday work. After receiving discipline for refusing to work, Groff resigned. He sued alleging disparate treatment and a failure to accommodate his religious beliefs.
The Third Circuit ultimately upheld a grant of summary judgment in favor of USPS finding that accommodating Groff by excusing him from Sunday work created an undue burden by increasing the workload on his co-workers, disrupting the workplace and workflow, and diminishing employee morale. The important takeaways from the decision for employers are as follows:
A Successful Accommodation Must Eliminate the Conflict Between Job Requirements and Religious Practices
A good-faith reasonable accommodation goes beyond taking a neutral stance toward employees both religious and non-religious accommodation requests. Instead, the employer has an affirmative obligation to attempt to eliminate the conflict between job requirements and religious practices. This means that the employer must proactively modify its conduct to allow the employee to maintain their full religious practice. Put simply, an accommodation that in theory would eliminate this conflict is not enough.
While shift-swapping can otherwise be considered a reasonable accommodation to allow an employee to observe the Sabbath, the Third Circuit found here it was not reasonable because USPS could not find coverage for Graff at least two dozen times. In other words, because the conflict between his request to be off work and the need for daily delivery was not eliminated, the accommodation was not successful.
Reasonableness is Considered on a Case-by-Case Basis
There is no perfect answer to ensure the reasonableness of the accommodation for the employee’s sincerely held religious belief. Indeed, eliminating the conflict does not mean the accommodation is necessarily reasonable. However, attempting to eliminate that conflict is a minimum threshold in the reasonableness analysis.
There is No Failure to Provide a Religious Accommodation If Employers Can Show Undue Hardship
Examples of undue hardship are case specific and require showing more than a de minimis cost to the employer and its business. The Equal Employment Opportunity Commission in particular states that evidence must exist that the accommodation would cause disruptions to the workplace or infringe on the rights of other employees. Groff demonstrates that such workplace disruptions and negative impacts upon workplace morale can be sufficient evidence to show undue hardship.
What Qualifies as Undue Hardship? These negative costs can be both economic and non-economic, such as:
- The time consuming process of finding coverage;
- Increasing workload on other employees;
- Paying overtime to ensure coverage;
- Creating a tense atmosphere among remaining employees;
- Morale problems resulting among remaining employees; and
- Providing exemption which might otherwise violate state law.
Requests for religious accommodations are not new inquiries, but they have also become more prevalent with the continued recommendation of COVID-19 vaccines by the CDC. Thus, it is important to consider the main points of the Groff decision and thoughtfully interact and craft accommodations for employees (and applied consistently as to all employees). When accommodations cannot be made, the employee should be notified as to why and those reasons should be contemporaneously documented.
* Rachel Duboff is a Senior Fellow with the Firm and the additional authors thank her for her assistance in drafting this post.