Supreme Court Hears Argument in Religious Accommodation Case.
On April 18, 2023, the United States Supreme Court heard oral argument in Groff v. DeJoy, a case that could set a new standard for the burden an employer must demonstrate to deny an employee’s request for a religious accommodation. Title VII of the Civil Rights Act of 1964 requires employers provide reasonable accommodations for their employees’ religious beliefs and practices. For example, an employee may seek an exception to a dress standard to allow for religious garb, or ask for a Saturday or Sunday off for worship, etc. Courts have long maintained that employers must provide such religious accommodations unless the request imposes an “undue hardship,” defined as “more than a de minimis cost.” Similarly, the Americans with Disabilities Act (ADA) requires employers provide disability accommodations unless an employee’s request imposes an “undue hardship.” However, the standard for “undue hardship” under the ADA is far more stringent, requiring a showing of “significant difficulty or expense.”
The standard courts use to examine hardship for religious accommodations could change when the Supreme Court issues its decision in Groff v. DeJoy later this term. The plaintiff, Gerald Groff worked for the U.S. Postal Service (USPS) and asked for Sundays off, asserting that his religion as an Evangelical Christian forbad Sunday work. USPS asked Goff’s coworkers to voluntarily trade shifts with him, but that did not work. Ultimately, USPS denied Groff’s request and then disciplined him when he missed work on Sundays. Groff resigned and filed suit. A federal district court and appellate court found in favor of USPS because Groff’s request for Sundays off imposed “more than a de minimis cost” because the request “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.” Groff now asks the Supreme Court to reject the employer-friendly “de minimis” standard in favor of the more stringent “substantial difficulty or expense” standard.
We believe the Supreme Court likely will revisit the “de minimis” standard. Justice Brett Kavanaugh referred during oral argument to precedent calling for a showing of “substantial additional cost” as a possible hardship standard. Justice Samuel Alito suggested that USPS could pay a little extra to hire another employee to work Sundays. Conservative Justices Clarence Thomas and Neil Gorsuch have previously opined that the “de minimis” standard for religious accommodation should be revisited. Stay tuned to these updates for news about this decision!
NLRB Outlines Harsh Remedies for Repeat Offenders
On April 20, 2023, the National Labor Relations Board (NLRB) issued its decision in Noah’s Ark Processors, LLC, detailing potential remedies it will consider when employers have repeatedly violated employees’ rights under the National Labor Relations Act (NLRA). Typically, when the NLRB finds that an employer has violated the NLRA, it will issue a cease-and-desist order and require that employers post a notice for employees, e.g., in a breakroom, about the violation. Monetary damages also are possible when an employee has suffered damages as a result of a labor violation. In its Noah’s Ark decision, the NLRB explained that it would consider the following additional remedies, among others, for repeat violators:
· Requiring a reading and distribution of any notice to employees about the violation
· Mailing a notice of the violation to employees
· Publishing the notice in a local publication “of broad circulation and local appeal”
· Visitation requirements, allowing NLRB representatives to inspect employer bulletin boards and records to determine compliance with orders
· Reimbursement of union expenses
You can read more about the NLRB’s decision, and find a link to it, on the NLRB’s website here: Board Details Potential Remedies for Repeated or Egregious Misconduct | National Labor Relations Board (nlrb.gov).
