School employees sometimes request a waiver of school policy due to their sincere religious beliefs. For example, there have been a number of cases involving the wearing of religious garb at school. Recently we have seen a few cases of teachers who refuse to refer to transgender students by their preferred pronouns, citing a religious belief as the reason for this refusal. How to respond to such requests?
Groff v. DeJoy is not about pronouns, but it does provide guidance as to how employers should respond when an employee asks for an accommodation based on a religious belief. It’s a unanimous Supreme Court ruling issued on June 29, 2023. So let’s see what we can learn from this case.
Mr. Groff was a postal worker who wanted to have Sundays off due to his observance of the Sabbath. I know what you are thinking: since when do postal workers work on Sunday? They do when the local USPS has a contract with Amazon for Sunday deliveries. So in the small, rural P.O. where Mr. Groff worked in Indiana, employees were required to occasionally work on Sunday. Groff refused to do so and alleged he was fired for this.
The Court held that Title VII requires employers to “reasonably accommodate” an employee’s religious practices unless doing so would create an “undue hardship on the conduct of the employer’s business.” This is not a new standard, but the Court felt that it needed clarification. Due to a single line from a 1977 SCOTUS case many lower courts had been viewing “undue hardship” as not much of a hardship. In fact, some had concluded that anything more than a “de minimis” burden was an “undue hardship.”
Not anymore. The Court emphasized a few things that principals, superintendents and board members should take into consideration. For example:
- The fact that some of your employees resent the accommodation afforded to a co-worker is not going to be enough of an “undue hardship.” In this case, for example, some of Mr. Groff’s co-workers complained about him getting Sundays off when they had to work. That might be a burden to the employer. It might even be a “hardship.” But it’s not an “undue hardship.” Key Quote:
An employer who fails to provide an accommodation has a defense only if the hardship is “undue,” and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered “undue.”
- You have to be creative in responding to a request for accommodation. Key Quote:
Faced with an accommodation request like Groff’s, it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary.
- The size of your district matters. The Court notes that all relevant factors have to be considered “including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of an employer.”
In many of these cases it comes down to money. How much will it cost the employer to accommodate the request? Another major factor is the impact on seniority rights protected by a collective bargaining agreement. In public schools, however, there is another critical factor. Does the granting of the accommodation negatively impact students? In at least one case involving preferred pronouns, this was a critical factor. We told you about the 7th Circuit’s decision on this issue on May 4, 2023. It’s Kluge v. Brownsburg Community School Corporation, decided by the 7th Circuit on April 7, 2023. It’s cited at 64 F.4th 861.
DAWG BONE: EMPLOYEE REQUESTS RELIGIOUS ACCOMMODATION? CONSIDER IT CAREFULLY, CREATIVELY, AND WITH LEGAL REVIEW.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.