Heather Fox Vickles and John Melcon

Earlier this month, the U.S. Supreme Court agreed to revisit the threshold for accommodating workers’ religious beliefs or practices that clash with workplace requirements. The current standard doesn’t require employers to accommodate a worker’s faith if doing so would impose more than a slight burden on the employer, but it’s likely the Court’s conservative majority will ratchet up that standard in response to calls for greater religious liberty protections in the workplace.

Under Title VII, employers may be liable for discrimination if they fail to “reasonably accommodate” their employees’ sincerely-held religious beliefs. While an employer may decline to provide an accommodation if the worker’s cited beliefs aren’t actually religious or sincerely-held, assessing these criteria can be fraught with peril for HR professionals. More often, the issue turns on whether accommodating the individual’s faith would impose an “undue hardship” on the employer. If it would, the employer is not obligated to provide the accommodation.

But what counts as an “undue hardship” in the context of religious accommodations? As it turns out, the bar is pretty low. In the early years of Title VII, the Supreme Court ruled that to require an employer “to bear more than a de minimis cost” to accommodate a worker’s religion “is an undue hardship.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). Courts have referred to this rule, which is significantly less demanding than the rule for accommodating workers’ disabilities, as the “slight burden” standard, and they have repeatedly ruled in employers’ favor when the religious accommodation at issue would negatively impact other workers, such as requiring them to swap shifts or absorb an increased workload. In the COVID-19 context, courts have consistently upheld employers’ refusals to grant exemptions to vaccine mandates on the grounds that providing such exemptions would have more than a de minimis impact on workplace health and safety.

Now, it seems probable the Court will overrule its 1977 decision and impose a higher standard on employers. The case at issue arose when the U.S. Postal Service refused to accommodate a rural mail carrier’s request to be exempt from doing Sunday deliveries for Amazon — a request that would have burdened his fellow carriers. The lower courts ruled in favor of the Postal Service, applying the slight burden standard.

A ruling from the Supreme Court is still a long way off, and it remains to be seen what standard the Court might adopt. For now, employers are advised to watch this issue and be prepared to adjust their religious accommodation policies, if necessary, after the decision comes down.

We will continue to monitor this decision and issue advisories as warranted. If you have any questions about this or other workplace accommodations, please contact your Sherman & Howard attorney.