The evolving duty to accommodate employees’ religious beliefs and practices

We’re not in Kansas anymore.

In The Wizard of Oz (1939), Dorothy and her little dog Toto are transported by a “cyclone” (tornado) from their home in Kansas to a magical and sometimes scary place called Oz.  

Soon after arriving, Dorothy says, “Toto, I've a feeling we're not in Kansas anymore.”  

That line has been repeated countless times to describe the entry into a strange and unfamiliar situation in which the old rules no longer apply. 

When it comes to an employer’s duty to accommodate religious beliefs and practices of employees, welcome to Oz.

The old days in Kansas

In its 1977 decision in Trans World Airlines, Inc v. Hardison, the U.S. Supreme Court appeared to suggest that an employer need not provide an employee with a religious accommodation if doing so would result in more than a de minimis (negligible) cost to the business.

For nearly half a century, federal courts routinely dismissed religious accommodation cases because the employer was able to make that relatively easy showing.

But in its 2023 decision in Groff v. DeJoy, the Supreme Court repudiated that reading of Trans World and breathed new life into an employer’s duty to accommodate the religious beliefs and practices of its employees.

No longer could judges dismiss religious accommodation cases based on proof that the employer’s cost of granting it was more than de minimis.   

Instead, federal courts have spent the last three years articulating the legal standards that apply to religious accommodation.

A recent decision from the U.S. Court of Appeals for the Ninth Circuit is the latest step in that evolutionary process.

“There’s a storm blowin’ up, a whopper!”

In 2021, several employees at the Washington (State) Department of Fish & Wildlife asked for religious exemptions from the Governor’s COVID-19 vaccination mandate.

Because their jobs often required them to be in the physical presence of others, their requests were denied.

According to the Court, the Department sent each employee a letter stating that “they would be unable to stay in their current positions” but that “reassignment remain[ed] a possibility, [even though] opportunities remain limited.” The letter identified the person to contact to explore the possibility of reassignment.

Some of the employees testified that they believed the reassignment process was pointless. None of the employees completed the process, and all were terminated.

The employees sued for violations of federal and state laws, and a federal court in Washington State dismissed all their claims on summary judgment.

Regarding the Title VII failure to accommodate claims, the court concluded that the Department had made a good faith effort to offer a “reassignment process” and that the employees refused to “fully participate in” it.

The employees appealed. Roughly two weeks ago, the Ninth Circuit reversed dismissal of the Title VII claims, meaning that those claims will go to trial.

“We’re not in Kansas anymore.”

The Ninth Circuit opinion provides a post-Groff framework for resolving Title VII claims for failure to accommodate religious beliefs.

There are some subtle differences between the Ninth Circuit framework and the those adopted by other federal circuit courts. However, they all include the following:

• The employee must make a prima facie showing that he or she (1) has a sincere religious belief or practice that conflicts with a job requirement, (2) has informed the employer about the conflict, and (3) was subjected to an adverse employment action for failing to comply with the job requirement.
• If the employee can do this, the employer must then show that it offered a reasonable accommodation that resolved the conflict between the employee’s religion and the job requirement, or that it could not make such an offer without imposing an undue hardship on the business.
• A reasonable accommodation is one that preserves (or reasonably attempts to preserve) the employee’s compensation, and terms and conditions and other privileges of employment.
• The employee has a duty to make a good faith effort to satisfy his or her religious needs through the accommodation offered by the employer.
• But that duty arises only if the employer’s suggested accommodation is reasonable. In other words, the accommodation must attempt to preserve the employee’s compensation, and terms and conditions and other privileges of employment.
• The employer’s burden is not “one and done.” Employers have a duty to consider alternatives unless the alternatives would impose an undue hardship on the business.
• The determination of undue hardship considers both economic and non-economic costs that the employer would incur in granting the accommodation, and whether those increases are substantial in the overall context of the employer’s business.

The Ninth Circuit applied these standards and concluded that offering the opportunity to participate in a reassignment process with (according to the evidence) a 14 percent chance of success, was not reasonable and not sufficient to trigger the employees’ duty to participate in the process.

Courage, brains and heart: How to deal with requests for religious accommodation 

In her journey to find the Wizard who could help her and Toto get back to Kansas, Dorothy befriends a scarecrow (in need of a brain), a tin man (in need of a heart) and a lion (in need of courage).

With Dorothy’s help, all three find that they already had what they sought. Then, after three clicks of her heels, Dorothy wakes up to find that she and Toto are home in Kansas.

When you are dealing with a sincere request for a religious accommodation, have the heart to recognize the employee’s belief, whether you personally share it or not.

Have the brains to try and find a resolution that provides what the employee needs without creating an undue burden on your business.  

Have the courage to do the right thing for both the employee and the business. That may be granting the accommodation, discussing alternatives in good faith, or (when it’s an undue burden) denying it.

But if you deny it, understand that you are much more likely now to be in the hands of a jury who will decide whether you did the right thing.