Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of religion, drawing at least part of its authority from the First Amendment. Title VII requires employers to make “reasonable accommodations” for an employee’s religious practices or beliefs if they conflict with the employee’s job responsibilities. Generally speaking, employers are not required by law to make these reasonable accommodations if the employer would, in turn, suffer an “undue hardship” from doing so. The Courts have generally held that an accommodation imposes an undue hardship if it is excessively costly, extensive, or disruptive, or is one that fundamentally alters the nature or operation of the business.
Now, these are not new concepts. The reasonable accommodations and undue hardship standards are commonly seen in the employment context with respect to the Americans with Disabilities Act (“ADA”). Regarding the ADA, employers may not discriminate against their employees based on their disabilities under the same guidance from Title VII.
In this term, the U.S. Supreme Court will consider an appeal from the U.S. Court of Appeals for the Third Circuit by an employee who claims his employer, the United States Postal Service (the “USPS”), failed to reasonably accommodate his religious belief that he could not work on Sundays, and thus unlawfully discriminated against him on the basis of his religion. The case, Groff v. DeJoy, arose in Pennsylvania, where Mr. Groff was employed by the USPS as a Rural Carrier Associate.
One’s first thought regarding this case might be that postal carriers may work in the snow, heat, rain, and gloom of night, but never on a Sunday. That changed when, in 2013, the USPS entered into an agreement to deliver Amazon packages seven days a week. Subsequent to that agreement, the USPS and the National Rural Letter Carriers’ Association, the union representing letter carriers such as Mr. Groff, entered into a Memorandum of Understanding to provide rules for Sunday deliveries and allocation of workloads. During peak periods, each post office was responsible for Sunday deliveries of Amazon packages. In non-peak periods, Sunday deliveries were scheduled out of a regional hub, with letter carriers from each post office in the region sharing the responsibility of Sunday deliveries.
Mr. Groff joined the USPS in 2012. The post office tried a number of ways to accommodate Mr. Groff’s religious practice, including not assigning him to make Sunday deliveries until after Sunday worship services and offering to allow him to select another day on which he could observe the Sabbath. Neither were acceptable within the strictures of his religious practice. As the volume of Sunday deliveries continued to grow while Mr. Groff was employed, continued attempts to work around Mr. Groff’s schedule became more complicated as other local letter carriers grew resentful of the burden that was shifted onto them. Ultimately, the USPS began a program of progressive discipline for Mr. Groff’s failure to satisfy his job requirements. Mr. Groff later resigned.
The elements required for showing that religious discrimination that would violate Title VII has occurred are: (1) the employee demonstrated a sincere religious belief that conflicts with a job requirement; (2) the employer was informed of the conflict, providing the employer an opportunity to make accommodation; and, (3) disciplinary action was taken for failure to perform the job requirement which conflicted with the religious belief or practice. The Third Circuit articulated the test for whether an accommodation is reasonable as whether it eliminates the conflict between the job requirement and the religious belief or practice. If a reasonable accommodation cannot successfully be reached, the second inquiry is whether a reasonable accommodation presents an undue hardship on the employer. To show undue hardship, an employer must show they made a good faith effort to reasonably accommodate the employee and any such reasonable accommodation did or would exceed a de minimis cost to the employer, in either an economic sense (cost) or a non-economic sense (negative impact on morale, productivity, or product quality).
Interestingly, the Third Circuit in Groff v. DeJoy did not explore that first element–sincere religiosity. A religious belief can be highly individual. There is no requirement that the religious belief be supported by the doctrine or tenets of any religion. In fact, no actual faith need be cited as the support for a belief or practice. How does one test the sincerity of the claimed religious belief? To what degree can the religious practice for which an employee seeks accommodation diverge from their teachings of their faith?
The first element, this threshold inquiry of sincerity, must be approached delicately because determining what is and is not religious is a treacherous water to navigate. Is it not the threshold issue of genuineness and sincerity that should be the minefield? How likely is it that the Supreme Court will wrestle with that issue in its review? And if the Justices care to do so, how likely is it that a test providing clarity will be produced? How does an employer navigate the issue? But ultimately, how does the Court ensure everyone’s rights under the First Amendment are protected? Employers should hope for a bright line test that is easy to implement and follow, and ideally one that strikes the right balance between protecting religious liberties and the ability of an employer to run a business.
Because the Court took the case, at least four members of the Court have some idea of how they want it to be decided. The question remains, however, whether any one of them can attract four more to their point of view. We should know the answer to that by next summer.
NC Chamber Legal Institute