Last week, the Supreme Court issued two significant decisions impacting employers nationwide. The Court’s holding in Groff v. DeJoy requires employers to grant religious accommodations to employees, unless such accommodations would cause substantial increased costs in relation to the conduct of the employer’s business. The standard is a higher bar to meet than the previous standard, which allowed employers to deny religious accommodation requests causing more than a de minimis burden. The Court’s holding in 303 Creative LLC v. Elenis also created a seismic shift, holding that a Colorado law prohibiting private companies from discriminating against members of protected classes did not require an artist to engage in artistic expression containing a message counter to her morals.
Heightened Requirements for Employers Evaluating Requests for Religious Accommodations
In Groff v. DeJoy, Groff was a USPS employee seeking a religious accommodation excusing him from Sunday deliveries due to his religious practice, which prohibited working on the Sabbath. USPS refused the accommodation, concluding that granting the accommodation would unacceptably burden other employees. Groff brought suit, alleging religious discrimination in violation of Title VII of the Civil Rights Act of 1964. USPS prevailed at the trial court and appellate court, both holding that an employer need not accept a more than de minimis burden in order to accommodate an employee’s religious observance and comply with Title VII.
In overturning the lower court’s holdings, the Supreme Court stated that an employer declining a religious accommodation requested by an employee must show that granting the accommodation would result in “substantial increased costs in relation to the conduct of [the employer’s] particular business.” Further, the phrase “undue hardship” “means what it says, and courts should resolve whether a hardship would be substantial in the context of an employer’s business in the commonsense manner that it would use in applying any such test.”
When an employer is presented with a request for a religious accommodation that it concludes would constitute an undue hardship, the employer must still consider alternatives that may be available. “[I]t would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary.”
Importantly, the Court rejected the argument that the process for evaluating requests for religious accommodations should match the process for evaluating requests for accommodation under the Americans with Disabilities Act (ADA) and that “undue hardship” should be defined under ADA guidance and case law. The Court left it to the EEOC to determine whether there should be any changes in its past guidance on undue hardship in religious accommodation cases based upon this decision. This leaves open the possibility that the EEOC may choose to use some of its ADA guidance in religious accommodation cases, where it was not based specifically on the ADA’s statutory language.
Practically speaking, the Groff decision imposes upon employers a much higher standard on religious accommodation requests and will make it harder for employers to deny employees’ religious accommodation requests.
Free Speech Trumps Colorado Non-Discrimination Law
In 303 Creative LLC v. Elenis, the owner of website creation company 303 Creative LLC challenged a Colorado law prohibiting public accommodations from discriminating on the basis of disability, race, creed, color, sex, sexual orientation, religion, age, national origin or ancestry. The owner stated that it would not create a website for same-sex couples because it is against her religious beliefs to do so.
While the owner invoked religion, the touchstone of the Court’s decision was free speech. “When a state public accommodation law and the Constitution collide, there can be no question which must prevail.” The Court centered its analysis in the long history of rulings that First Amendment protections include speakers whose motives or content might be offensive. See National Socialist Party of American v. Skokie, 432 U.S. 43 (1977) (free speech right of participants in a Nazi parade through a heavily Jewish community with many Holocaust survivors). The Court also focused on two more recent cases upholding the rights of groups to exclude LGBTQ+ individuals as part of their expressive content, notwithstanding state public accommodations laws. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557 (1995) (exclusion of LGBTQ+ group from veteran-organized St. Patrick’s Day parade); Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (exclusion of gay assistant scoutmaster from membership).
The Court explained that to take any other position would require artists and others to offer their services to all members of the public, even if the content violated their principles. The Court gave as examples that the government could force a Muslim movie director to make a film with a Zionist message, or a male website designer who is married to another man forced to design websites for groups opposed to same-sex marriage. These hypotheticals are not based on the prospective customer’s membership in a protected class, but the nature of the message that offended the business (i.e., compelled speech).
The Court further explained that its decision is consistent with its 2018 decision in Masterpiece Cakeshop, which upheld the same Colorado law, because states can use their discrimination laws to ensure that all individuals are offered goods and services on the same terms and conditions as other members of the public, unless the laws are “applied to expressive activity” to compel speech. The Court draws a distinction between “status-based discrimination (forbidden) from the right of a speaker to control his own message (protected).”
The decision appears to be limited to those businesses that provide “expressive” content for money and that it has little, if any, impact on businesses in their capacity as employers and complying with federal and state anti-discrimination laws. However, the decision does leave open the question of how far individuals and businesses can go in expressing their views, while not discriminating based on protected status. For example, assume that a business owner either openly expresses opposition to same-sex marriage or her religious beliefs about LGBTQ+ individuals, or tolerates such expressions of opinions in the workplace. In that situation, could the EEOC make a finding of harassment based upon sex, gender or sexual orientation if the only conduct was “expressive speech”, with no other adverse action or disparate treatment? Despite decades of precedent that words can be illegal harassment if they create a hostile work environment, is this situation any different than what occurred in 303 Creative LLC? If not, this potentially opens up a whole new category of defenses that private employers could raise in harassment cases.
