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As the authoritative force in Employment and Labor Law, we, here at Miletti Law®, are committed to the continued updating of our series with fresh, verifiable, and credible content, which looks to not only educate, but also deliver in a manner that only Miletti Law® can. In that spirit, this blog is Part VII of our series on “Religious Accommodation Requirements.” We have been, since Part I of this series, talking about the obligation of the employer to provide the employee or applicant with a reasonable accommodation. However, Title VII does not require the employer to provide accommodation that imposes an undue hardship on the employer’s business operations. Accordingly, after having hammered on “What exactly a Reasonable Accommodation is” in Part VI of the series, it is time to look into what encompasses an “Undue Hardship,” as defined by Title VII.

Undue Hardship

As mentioned above, an employer is not obligated to accommodation a person’s religious beliefs if such an accommodation would impose an undue hardship on the business operations of the employer. As the U.S. Supreme Court has ruled in the past, the employer is supposed to demonstrate that the accommodation being requested by the employee or applicant would impose “more than a de minimis cost” or burden. For example, during the case Trans World Airlines v. Hardison, 432 U.S. 63, 84 (1977), the Court ruled that the requested accommodation would have imposed an undue hardship since the employer was being required to deviate from a seniority system in the employer’s collective-bargaining agreement in order to permit an employee to have Saturdays off so to observe the Sabbath.

Although undue hardship is bit ambiguous as a concept, both the Equal Employment Opportunity Commission (EEOC) and courts are clear that where “more than a de minimis cost” is required, such an accommodation imposes an undue hardship. While they encompasses both economic costs (such as overtime compensation payment to a substitute) and non-economic costs (such as compromising a workplace’s safety), the operating cost of the employer and the overall size determines whether a cost is “de minimis.” However, in order to impose an undue hardship, the EEOC does not consider the infrequent payment of premium wages (such as overtime compensation) or administrative costs to a substitute employee.

Further, it is crucial to note that as opposed to a proposed religious accommodation under Title VII, employers find it more challenging to show an “undue hardship” under the ADA (Americans with Disability Act). Under the ADA, “undue hardship” occurs when a significant difficulty or expense is imposed by a proposed accommodation (as opposed to a de minimis costs under Title VII) when factors that include the structure and nature of operation, financial resources, and size of the employer are factored in. This means that employers enjoy a greater leeway under Title VII’s test for “undue hardship.”

In a recent religious accommodation case, the Supreme Court was involved in a hearing aimed to address undue hardship matters under Title VII. During this case, Justices Alito and Gorsuch dissented the Court’s denial of a certiorari petition. According to Justice Gorsuch, while the court should have overruled the Trans World Airlines decision, the de minimis test applied based on prior Supreme Court precedents should be revisited because it has no basis in the statutory language or intent. This shows how complex issues regarding undue hardship can be, especially when claims are brought forth under Title VII.

In Part VIII of this series, we shall look into the various types and instances of undue hardship imposed by a requested religious accommodation.

Until then, stay tuned for more guidance and counsel. In the interim, reach out to us at the Contact Us page for answers to your questions and/or comments and business legal representation.

Always rising above the bar,

Isaac T.,

Legal Writer & Author.