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Undue Hardship Legal Developments

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Employers and courts have long grappled with how best to handle employees’ requests involving personal religious beliefs and medical conditions, particularly to avoid potential unlawful employment discrimination. What should employers do in response to such employee (or applicant) requests?

Of note, three significant 2023 legal developments strengthen employees’ religious and pregnancy-related rights and further shape employers’ “undue hardship” considerations: (1) the U.S. Supreme Court’s landmark Groff decision; (2) a federal appellate court’s Hebrew decision, interpreting Groff; and (3) the newly enacted federal Pregnant Workers Fairness Act.

Legal Backdrop

The Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (covering religion, sex, and other protected classifications), and numerous state and local counterparts of such federal laws afford employees legal protections against discrimination in the workplace. Generally, a similar framework is applied for handling employee needs when a “reasonable accommodation” – for modification of an employees’ job responsibilities or work environment – is requested.

First, employees must request (or otherwise demonstrate) a need for such accommodation so that they can continue working. Second, and in response, employers must allow such accommodation, if “reasonable”. However, if doing so would impose an “undue hardship” on them or if the request is otherwise “unreasonable,” then employers may lawfully refuse the requested accommodation.

The term “undue hardship” has been defined as an "action requiring significant difficulty or expense" when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation.

An undue hardship inquiry focuses on the resulting burdens imposed on an employer, in the context of a particular employer’s operation.[1] An employer must identify undue – that is, significant or costly (as further addressed below) - hardship in order to lawfully deny such employee request.

These employment issues are highly fact-specific and therefore quite challenging in application. Often, the best approach for employers is to take a legally conservative approach and generously provide requested accommodations, not quibbling with whether they are “reasonable” or not and striving to help employees as much as possible. That approach should also be beneficial in quantifiably assessing and determining what may amount to an “undue hardship” for employers, and therefore not legally required for them. Three recent legal developments provide instructive guidance.

Groff v. DeJoy

The U.S. Supreme Court issued its Groff ruling in June 2023, unanimously affirming a postal worker’s religious liberty right to not work on Sundays based on his religious Sabbath practice.[2] In doing so, the Court clarified that the undue hardship standard requires employers to demonstrate more than a de minimus (i.e., very small) burden on them. In order to legally deny a religious accommodation request, an employer must demonstrate that doing so would result in substantial increased costs in relation to the conduct of its business.

This important decision updates the nearly fifty-year-old Trans World Airlines v. Hardison decision, which contained the following sentence: “To require TWA to bear more than a de minimus cost in order to give Hardison Saturdays off is an undue hardship.” Numerous courts had applied this sentence from Hardison, allowing employers to reject religious accommodation requests so long as a hardship existed, whether major or minor – with hardly a nod to employees’ religious concerns.

But in Groff, which likewise involved an employee seeking a weekly day off for religious reasons, the Court corrected course by holding that “showing ‘more than a de minimus cost,’ as that phrase is used in common parlance, does not suffice to establish ‘undue hardship’ under Title VII.” Instead, employers must demonstrate a substantial hardship “in the overall context of an employer’s business.” The Court continued with dictionary definitions for “hardship,” such as “something hard to bear,” concluding that “under any definition, a hardship is more severe than a mere burden.” Additionally, with the adjective modifier “undue,’ the requisite burden must “rise to an ‘excessive’ or ‘unjustifiable’ level. That is quite a high level indeed!

Consequently, as the Court further instructed, an employer that seeks to rely on this “undue hardship” defense should be able to show that granting a religious accommodation would result in substantial additional costs, particularly in light of the employer’s nature, size, and operational aspects. An employee’s requested religious accommodation’s impact on co-workers, as was found significant in Hardison, is now “off the table.” The same holds true for any other employees’ animosity to the employee’s religious beliefs: “If bias or hostility to a religious practice or a religious accommodation provided a defense to a reasonable accommodation claim, Title VII would be at war with itself.”

Hebrew v. Texas Department of Criminal Justice

Applying Groff, the Fifth Circuit Court of Appeals (covering Louisiana, Alabama, and Mississippi) upheld an employee’s religious liberty claim based on his religious vow to keep his hair and beard long in Hebrew v. Texas Department of Criminal Justice.[3] The employee was hired to work as a correctional officer, but the employer’s policy forbade both long hair and long beards for male officers. The employee requested an “accommodation” based on his religious beliefs. In response, the employer claimed an “undue hardship” based on the following: (1) the employee could hide contraband in his hair or beard; (2) his beard could interfere with properly wearing a gas mask, as may be required from time to time within prison conditions; and (3) his long hair could be used by prison inmates against him.

The trial court sided with the employer, rejecting the employee’s claim of religious discrimination. Giving short shrift to the employer’s claims of undue hardship, the appellate court reversed. In doing so, the court insisted that the employer “must sua sponte [i.e., of its own accord] consider other possible accommodations.” In other words, the employer bears the affirmative burden to thoroughly consider other options before claiming “undue hardship.”

As the appellate court concluded, the employer failed to meet its burden. First, the employer could simply search the employee, consistent with its established prison practices: “[the employer] conducts search of everyone who enters a unit, including its own employees.” The court dismissed the employer’s argument about potential policy changes regarding employee searches as only a “hypothetical policy reevaluation.” And in response to the employer’s argument that more time would be needed for searching employees with beards or long hair, the court rejected it since taking “a few extra minutes” would not pose an undue hardship “in the overall context” of the employer’s $2.4 billion annual budget. Second, with respect to gas masks, the court likewise delved into a fact-specific inquiry, noting evidence that “any length of beard can prevent proper sealing,” that employees with medical conditions are allowing to have quarter-inch beards, and the absence of any evidence that any greater safety risk or hardship was raised by this lone shaggy employee. Third, the court similarly rejected the employer’s safety-related argument about longer hair, since female employees were allowed to have longer hair: “[a]gain, [the employer’s] exception for other individuals undermines its stated rationale."

While the Hebrew decision may be limited in binding applicability to the Fifth Circuit, it nevertheless provides fascinating and important employment law guidance in Groff’s wake. Combining the import of these two recent decisions, employers should take heed of the judicial admonition to provide “favorable treatment” to religious observers. They may not rely on general employee handbook prohibitions, such as found in Hebrew, their own internal summary conclusions about safety and other standard protocols, or some minimal degree of imposition on their operations. Rather, employers must be able to show that a specific employee’s request will result in a substantial (i.e., “undue”) hardship – as may be measured in significant costs, extensive operational consequences, and other adverse impact that cannot be accommodated with countervailing measures. Given the favor accorded to employees seeking such religious accommodation, objective proof of undue hardship is necessary.

Taken together, and with potential future decisions following their directives, Groff and Hebrew essentially admonish employers to honor employees’ religious accommodation requests as much as possible, on pain of violating employment discrimination laws. As the Hebrew court concluded:

Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not to fail or refuse to hire or discharge any individual ․ because of such individual's religious observance and practice . . . The decision in Groff enables Americans of all faiths to earn a living without checking their religious beliefs and practices at the door.

The Pregnancy Workers Fairness Act

The federal Pregnant Workers Fairness Act (“PWFA”) became effective as of June 27, 2023. It similarly requires employers to apply the “reasonable accommodation” and “undue hardship” rubric, as per established ADA-related law.[4] The applicable employment context is workers affected by pregnancy, childbirth, or a related medical condition. Notably, other employment laws apply as well, such as Title VII’s prohibition on discriminating against workers on the same basis, the ADA’s prohibition on disabilities related to pregnancy, and analogous state and local laws.

The PWFA applies to employers who have 15 employees or more, including nonprofits. The PFWA benefits covered employees through prohibiting employers from the following:[5]

1. failing to make “reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical condition of a qualified employee,” unless the employer “can demonstrate that the accommodation would impose an undue hardship” on its business operations.
2. requiring such employee to accept an accommodation without an interactive process;
3. denying a job or other employment opportunities to a qualified employee or applicant based on such person’s need for reasonable accommodation, due to her pregnancy condition;
4. requiring an employee to take leave, if another reasonable accommodation could be provided thereby allowing the employee to keep working;
5. retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
6. interfering with an individual’s rights under the PWFA.

The PWFA thus fills in a gap, supplementing existing laws for pregnant women who do not fit the technical requirements for “disability” but otherwise may need some work-related accommodations. As noted above, and applied more specifically within the pregnancy context, reasonable accommodations consist of the following: (1) modifications or adjustments to the work environment that enable a pregnant woman to perform essential functions of the position; and (2) modifications or adjustments that enable a pregnant woman to enjoy equal benefits and privileges of employment as are enjoyed by its similarly situated employees who are not pregnant.

Per this list and according to the EEOC’s published guidance, examples of reasonable accommodations thus may include the following: frequent breaks; varied options for sitting and standing; schedule changes; part-time work; paid and unpaid leave; remote work; parking; light duty; making existing facilities accessible or modifying the work environment; job restructuring; temporarily suspending one or more essential function; acquiring or modifying equipment, uniforms, or devices; and adjusting or modifying employment policies.[6]

In which contexts and to what extent could such health-related accommodations impose an undue hardship on employers? While Groff and Hebrew involve accommodations based on religious liberty protections, not disability or other health-related protections (as per ADA and PWFA requirements), they are nevertheless instructive for this accommodation/undue hardship rubric. Applying this recent direction, prudent and risk-averse employers should similarly provide favorable treatment to workers protected under PWFA. More specifically, employers should strive to provide accommodations to the extent reasonably possible. Additionally, they should well be prepared to defend any refusals, such as by showing a significant burden on their business operations if the requested accommodations were allowed.

Evaluating Accommodations and Identifying Undue Hardship

Related employer questions for addressing these matters further for religious, pregnancy, and other health-related accommodation requests include the following:

1. What has the worker specifically requested? Any clarifications needed?
2. Are the sought-for accommodations actually feasible?
3. Will the accommodations make it possible for the covered worker to carry out the job?
4. What costs or other burdens are associated with such accommodations? Are they significant enough to rise to the level of undue hardship? Can they be quantified or otherwise explained?
5. How long are the accommodations expected to last?
6. How will the accommodations affect business?
7. Who else is available to assist with the covered worker’s responsibilities (e.g., to take over certain functions, or to substitute while a worker is on leave)?
8. To what extent would refusing an accommodation for one person be inconsistent with applying employment standards to others (e.g., allowing long hair for female workers but not for male workers, as in Hebrew)?
9. How well can any resulting employer hardships be documented? What additional information would help for such documentation?
10. Could the employer modify any of its work policies, as a result of evaluating requests for accommodation (e.g., allowing more or less remote work, with accompanying rationale or other explanatory information provided)?

Importantly, an employer cannot ask how an accommodation with affect other employees unless the impact is related to the business’ overall operations. Annoyance, frustrations, and other adverse feelings of co-workers is, as Groff indicated, “off the table” for legally compliant employers. Additionally, it is acceptable and often quite beneficial to ask employees for specific information such as what accommodations they seek, what their physical or other limitations are, and (particularly for health-related situations) for supporting substantiation (e.g., medical provider’s note).

In summary, employers should first evaluate each accommodation request carefully and do not brush any request off summarily. Keep applicable legal constraints in mind when making consequent decisions. And lastly, maintain supporting records showing how each decision clearly satisfied applicable requirements including any undue hardship.

Equipped with this guidance, employers should engage thoughtfully with workers (both applicants and employees) who seek accommodation for religious and health reasons. It is legally possible for an employer to reject such a request as amounting to an undue hardship. But if so, the employer should be ready in turn to face a potential claim of unlawful discrimination; it should be well prepared to defend and explain its legally justifiable rationale. And pragmatically speaking, short of an adverse discrimination claim, wise employers should be able to articulate to their employees how they answer the above considerations to everyone’s mutual satisfaction.

[1] Barth v. Gelb, 2 F.3d 1180 (U.S. App. D.C. 1993).
[2] See Groff ruling.
[3] See Hebrew v. Texas Department of Criminal Justice.
[4] More specifically, “the terms ‘reasonable accommodation’ and ‘undue hardship’ have the meanings given such terms in section 101 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111) and shall be construed as such terms are construed under such Act [42 U.S.C. 12101 et seq.] and as set forth in the regulations required by this chapter, including with regard to the interactive process that will typically be used to determine an appropriate reasonable accommodation.” 42 U.S.C. § 2000gg(7).
[5] See more about the Pregnant Workers Fairness Act here.
[6] See related EEOC published guidance here.

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