Hair. In some religions it is considered a sacred gift from God that should not be cut. In other religions, it must be styled, covered, or cut in particular ways.

These religious practices may result in employees’ requesting relief from various employment policies. If that happens, the request must be evaluated under the newly invigorated “undue hardship” test outlined in the Supreme Court’s Groff v DeJoy decision. Failure to do so is likely to lead to an unpleasant outcome for the employer.

Such is the cautionary tale of Hebrew v. Texas Department of Criminal Justice, recently decided by the U.S. Court of Appeals for the Fifth Circuit.

The district court’s dismissal

Elimelech Shmi Hebrew was hired by the Department in August 2019 to work as a correctional officer. Pursuant to his religious beliefs (Hebrew Nation, which is not Judaism), he had taken a vow to keep his hair and beard long – a vow he had kept for more than 20 years.

When Mr. Hebrew first reported to the Department’s training academy, with a long beard and waist-length hair, he was told that he could not stay unless he cut both his beard and his hair, as required by the Department’s grooming policy. (Yup. He was hired with a beard and long hair and then told to cut both on his first day at work.)

After Mr. Hebrew refused to comply, he was lined up against a wall, photographed from the front and side, given a religious accommodation request form, and sent home. (Note to self. Treating an employee like a criminal, and taking his “mug shot” is probably is not a jury-friendly way of sending him home.)

Mr. Hebrew was eventually notified that his requested accommodation had been denied, he again refused to cut his hair and beard, and his employment was terminated.

Mr. Hebrew filed a pro se lawsuit (representing himself) in federal court, alleging religious discrimination and failure to accommodate his religious practices.

The district court entered summary judgment for the Department, finding that the Department had a legitimate, non-discriminatory reason for terminating Mr. Hebrew – to promote the safety of officers and the security of prisons. It also found that Mr. Hebrew’s accommodation request would have imposed an undue hardship on the Department by placing other officers at risk and requiring them to perform extra work.

Still without a lawyer, Mr. Hebrew appealed. (Talk about an underdog. The Department probably was a two-touchdown favorite going into the appeal.)

A stunning reversal

In a unanimous opinion, which relied heavily on the Supreme Court’s Groff decision, the appeals court shredded every argument that the Department had to offer and reversed the district court’s dismissal of the case.

Since its reasons for doing so were numerous, and informative about an employer’s obligation to provide religious accommodations, we list the most salient ones below (sans the quotation marks and citations to Groff):

  • Title VII requires employers to accommodate all aspects of religious observance and practice, unless the employer demonstrates that it cannot do so without “undue hardship” on the conduct of its business.
  • A hardship is more severe than a mere “burden.” Even if Title VII said only that an employer need not suffer a “hardship,” it could not escape liability simply by showing that an accommodation would impose some additional costs. Those costs would have to rise to the level of hardship, and the modifier “undue” means it must rise to an excessive or unjustifiable level.
  • This is a heavy burden and requires more than a de minimis cost or inconvenience. The cost or inconvenience must be substantial.
  • Evidence of impact on co-workers is off the table for consideration unless the impact places a substantial strain on the employer’s business. (I take issue with this “off the table” conclusion, but it is what the court said.)
  • If a requested accommodation poses an undue hardship, the employer must initiate consideration of other possible accommodations.
  • The Department could not show undue hardship because (1) it never identified the costs it faced from the accommodation, (2) its reliance on possible additional work for co-workers is insufficient to show undue hardship, and (3) it failed to present evidence that it considered other accommodations.
  • As for the Department’s arguments about security and safety, the court quickly cast them aside by finding that (1) concerns that Mr. Hebrew might hide contraband in his hair or beard could be addressed by a pre-work search (duh!), (2) concerns about his beard’s interfering with the proper use of a gas mask rang hollow because other employees were allowed to have beards, and (3) concerns about inmates grabbing Mr. Hebrew’s hair were equally specious because female officers were allowed to have long hair.

Based on these and other findings, the court concluded that the Department could not meet the applicable undue hardship standard.

When that conclusion is coupled with the case being sent back to the district court for proceedings consistent with the appeals court’s opinion, Mr. Hebrew might be able to get summary judgment – in other words, a win without a jury trial.

Lessons to be learned

Requests for religious accommodations can come in all forms - relief from grooming standards, particular days off, being exempted from certain employer policies, or time and space to pray at work.

Whatever form the request takes, one thing is certain. Under the newly invigorated “undue hardship” test outlined in Groff, an employer no longer can justify denying the request by showing more than a de minimis impact on the business. Instead, the employer must show that accommodation will result in substantial additional costs or disruption to the business.

And even if the accommodation requested by the employee would be a true undue hardship, the employer will still be required to engage in the interactive process with the employee and consider in good faith (pardon the expression) other accommodations that might be less expensive or disruptive.

Over the course of the next year, we expect to see more requests for religious accommodations from educated employees or at the urging of advocacy groups. If you are on the receiving end of such a request, you should exercise extreme caution, seek input, and carefully evaluate the impact on the business from granting the request.

If you don’t, even a pro se plaintiff might beat you.

For a printer-friendly copy, click here.


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