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 consider the impact of Groff on that guidance, the Court thought it prudent to leave the development of those details to the EEOC and the lower courts.

The bottom line is that rejection of a requested religious accommodation can no longer be justified by showing that it imposes more than a de minimis burden on the business. Instead, it requires proof of an undue burden that rises to an “excessive” or “unjustifiable” level.

Request for details

On July 13, after the Groff decision was issued, Sen. Cassidy – ranking member of the Senate Health, Education, Labor & Pensions Committee – sent a letter to the EEOC asking it to answer the following questions by July 27:

  • Does the EEOC plan to issue updated technical assistance, policy guidance, or other types of memoranda for employers?
    • If so, please produce copies of any and all such documents to the Committee.
    • Will these be subject to a vote by EEOC commissioners?
    • If not, why not? If so, when does the EEOC plan to schedule this vote?
  • How does the EEOC plan to comply with the standard in pending or future cases regarding religious accommodation?
  • When will the Commission be updating its public facing Section 12 document, entitled Religious Discrimination and Questions and Answers: Religious Discrimination in the Workplace?
  • How does the EEOC plan to equally enforce this ruling and ensure employees requesting religious accommodations are protected?

When and how the EEOC responds to these questions remains to be seen.

EEOC gets a Democratic majority

Also on July 13, the Senate confirmed along party lines attorney Kalpana Kotagal to serve on the EEOC. The 49-47 confirmation vote gives Democrats the majority at the five-seat Commission for the first time under the Biden Administration.

Before her confirmation, Ms. Kotagal was a partner at Cohen Milstein Sellers & Toll, PLLC, representing plaintiffs in a wide range of employment-related cases. Here’s what my law partner, Robin Shea, wrote about Ms. Kotagal in April 2022, when she was nominated to succeed Republican former chair Janet Dhillon (Ms. Kotagal was not confirmed):

According to her law firm bio, Ms. Kotagal is co-author of the Inclusion Rider. According to Wikipedia, an inclusion rider is

a provision in an actor's or filmmaker's contract that provides for a certain level of diversity in casting and production staff. For example, the rider might require a certain proportion of actors or staff to be women, people of color, LGBT people or people with disabilities. Prominent actors or filmmakers may use their negotiating power to insist on such provisions.

In addition, Ms. Kotagal has been involved in a number of class action lawsuits brought against employers for sex discrimination and equal pay, one wage-hour collective action, and a lawsuit seeking to require a health insurance company to pay for transgender surgery.

The losing trifecta?

Before Groff, employers could often justify the rejection of a religious accommodation by showing that it imposed more than a de minimis cost or inconvenience. Now, employers will have to prove that the requested accommodation imposes a substantial burden on the business that rises to an excessive or unjustifiable level. Calling Groff a “game changer” may not do it justice.

As for the technical guidance on this new standard, the Court left that to the EEOC, a Commission that now has a Democratic majority with its newest member a former plaintiffs’ side employment attorney. And along comes Senator Cassidy asking the Commission to provide details.

This may not prove to be a winning ticket for employers.

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