Religious objections to politically tinged workplace policies continue to face an uphill battle in court, even though a recent US Supreme Court case made it easier for employees to bring such claims under federal anti-discrimination law.
Last year’s Groff v. DeJoy decision created a new standard that prohibits employers from denying a religious accommodation on the grounds that it’s an undue hardship unless they can show that the burden of granting it “would result in substantial increased costs” to the business.
This test for religious accommodations under Title VII of the 1964 Civil Rights Act took hold at the same time workers started lodging new religious objections to policies such as the use of pronouns in the workplace, anti-bias training, and Covid-19 vaccine rules.
At least 125 lower court rulings have cited Groff, said Stacy M. Bunck, a shareholder at Ogletree Deakins Nash Smoak & Stewart PC who tracks faith-based accommodation legal developments.
So far, they’ve largely sided with employers—even after the new worker-friendly standard replaced decades-old precedent that arguably gave companies an edge in rejecting a worker’s religious request.
“We’re seeing employers having a lot of success at the motion to dismiss stage, particularly in vaccine cases, in terms of whether the plaintiff has adequately pled a sincerely held religious belief,” said Seyfarth Shaw LLP partner Dawn Reddy Solowey.
“It’s not enough to say, ‘Oh, I have this religious belief.’ The plaintiff has to go further,” she said.
Meanwhile, where a worker can convince a court that their belief is sincere, the judge often ultimately rules that the requested accommodation would cause an undue hardship on the business even under the new standard, Bunck said.
“Based on my review of about one-third of the decisions citing Groff, the vaccine mandate cases largely seem to be resolved at the undue hardship analysis, at least in the medical context, where public safety tends to have higher implications,” she said. In the other cases, “the scrutiny tends to focus on evidence submitted by the employer of the actual costs of the exemption, and whether the employer has provided exemptions for non-religious reasons,” Bunck said.
Federal courts traditionally have refrained from questioning the validity or plausibility of a person’s religious beliefs. Yet employment law scholars say there’s been a shift as social and political issues bleed into the workplace.
Vaccine Cases Predominate
Several cases since Groff involved denials of religious accommodations surrounding grooming, attire, and other such requirements, some of which attorneys say are fairly clear-cut.
The US Court of Appeals for the Fifth Circuit, for example, ruled last September that Texas unlawfully fired a Jewish corrections officer who declined to shave his beard and cut his hair because the state failed to articulate the actual costs associated with granting him an exemption to grooming requirements.
But disputes over religious exemptions to Covid-19 vaccine requirements, which make up the majority of the new cases, have seen mixed results.
In some cases, courts have dismissed a lawsuit after finding that the employer adequately raised doubts about the sincerity of the workers’ belief, or after finding that a belief wasn’t religious in nature. These include disputes in which religious workers claimed that Covid-19 vaccines contain aborted fetal cells.
Other judges determined that a jury must decide the sincerity issue.
Courts have also found that Title VII doesn’t mandate that an employer grant a religious exemption if doing so would cause it to violate other laws.
One notable case involves a Christian teacher’s challenge to his former school’s denial of his request to be exempt from a policy on the use of transgender students’ preferred names and pronouns.
On remand from the Seventh Circuit, a federal judge in May dismissed the lawsuit after applying Groff. The case is pending again at the appeals court.
In a recent federal-sector administrative case analyzing Groff’s reach, the US Equal Employment Opportunity Commission said a requested accommodation can impose an undue burden if it interferes with companies’ obligations under Title VII or other equal employment opportunity laws. Solowey called this an “important development.”
The issue of religious accommodations clashing with the rights of protected groups like historically marginalized workers, or with companies’ compliance requirements, will emerge as a contentious issue, putting courts in a tricky spot to balance competing interests, attorneys said.
Although the commission’s analysis applied in a dispute involving a federal agency, it can still help corporate employers navigate discrimination complaints in which competing rights and obligations collide, EEOC Chair Charlotte Burrows said at a recent conference at New York University.
More Jury Trials?
As the case law on religious accommodation further develops, attorneys say it’s foreseeable that more litigation will be brought and proceed through discovery.
Andrew Schpak, co-managing partner at Barran Liebman LLP, said the scarcity of case law on the extent to which courts can assess the sincerity of a worker’s professed belief poses a greater challenge at the summary judgment phase.
“This may result in courts allowing more cases to proceed to juries, thereby resulting in members of the public being tasked with deciding whether particular beliefs are indeed truly held and religious versus political, sociological, or philosophical,” Bunck said.
A belief, observance, or practice can be completely personal and contradict official church doctrine. However, ideological and political views aren’t protected by Title VII.
Courts and juries should proceed with caution, but there’s no reason they can’t decide if a belief is sincere because they’ve done so in cases involving intentional dishonesty, said Nathan Chapman, a law professor at the University of Georgia who specializes in constitutional law and religious liberty.
“The issue is being sure that they don’t infer that a claimant is insincere just because the claim is unusual or perceived to be unreasonable,” Chapman said. “That would substitute a judgment about the accuracy or truth of the religious belief itself, rather than whether the claimant actually believes it.”
An inquiry into the sincerity of a worker’s faith-based claims generally focuses on how consistent and credible an employee’s purported religious beliefs are, legal scholars said.
“However, there are cases which hold that an employee’s failure to previously observe a specific religious holiday should not act as a bar for the conclusion that their request to observe that same holiday this year, especially if there are any relevant changes in circ*mstance,” Schpak said. “I suspect these inquiries will be extremely fact-intensive.”
Documentation Recommended
Guidance from the EEOC, which enforces Title VII, encourages employers to give workers the benefit of the doubt.
But during the interactive process for working out a potential accommodation, the EEOC suggests that an employer may request additional information if it’s aware of objective facts that call into question the sincerity of an employee’s claimed belief.
Employers should carefully consider accommodation requests, modify workplace policies, and properly document their engagement with the employee to find a solution that works for both parties, said Amy Epstein Gluck, chair of Pierson Ferdinand LLP’s employment, labor, and benefits department.
“The employer bears the burden of proof, so it will be critical for an employer to show it engaged in this process,” she said.
