In the past 30 days the U.S. Supreme Court unanimously agreed that denial of a religious accommodation requires proof of a real “undue hardship,” Sen. Bill Cassidy (R-La.) sent a letter to the EEOC asking how it intended to comply with the new “undue hardship” standard, and the U.S. Senate confirmed the appointment of Kalpana Kotagal to the Equal Employment Opportunity Commission, giving the EEOC a Democratic majority.
Not a winning trifecta for employers.
The new standard
It has long been the law under Title VII of the Civil Rights Act that an employer cannot deny a religious accommodation unless granting the accommodation would be an “undue hardship.” Until this summer, the standard for “undue hardship” in the religious context was fairly lenient for employers.
In Groff v DeJoy, the Supreme Court adopted a tougher standard for employers to meet, but it provided few specifics. It explained that a “hardship” is something “more severe than a burden” and that an “undue hardship” means a burden or adversity that rises to an “excessive” or “unjustifiable” level. According to the Court, this is a fact-specific inquiry that considers all relevant factors, including the accommodation at issue and its practical impact considering the nature, size, and operating cost of the employer.
As for the missing details, the Court recognized that many are likely to be included in the EEOC’s existing guidance on religious accommodation. However, since the EEOC had not had the opportunity to...
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