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September 2, 2021
by Xavier T. Romero

By right, each U.S. citizen enjoys the protections of the Free Exercise and Establishment Clauses of the United States Constitution. These Clauses seek to find a happy medium between allowing each person to practice their sincerely held religious beliefs without restriction and ensuring that the government does not go so far as to support any one religion in a preferential manner. These Clauses apply to state and federal government action only and set the floor for which the legislature can further extend protections. Congress did so when it passed Title 42 § 2000 as part of the Civil Rights Act, which extends liability to private employers for “disparate treatment” based on one’s faith. So, how far must private employers go to accommodate their employees’ religious requests that might conflict with workplace policies? What may seem like a difficult predicament for employers, at first, is really not as intimidating.

​In 2015, Justice Scalia wrote an opinion for the United States Supreme Court in EEOC v. Abercrombie & Fitch Store, Inc., in which a practicing Muslim woman applied for a job at the large retailer’s store. Despite evaluating the applicant to be a qualified candidate, the interviewer (seeking guidance from her district manager) still declined to hire her, because she concluded that the religious headscarf the applicant wore, as a believed religious requirement, violated the company’s “Look Policy.” The Supreme Court ultimately held that intentional religious discrimination of a job applicant – let alone terminating existing employment – in consideration of a religious practice violated the Civil Rights Act’s disparate-treatment provision. The Court said that in such instances employers must consider whether those religious practices can be accommodated in the workplace without undue hardship. “If a plaintiff shows that the employer took an adverse employment action because of a religious observance or practice, it is then up to the employer to plead and prove the defense [of undue hardship].” Employers, the Court stated, may be liable if that protected religious practice is even just a motivating factor, among other factors, in denying employment.

This does not mean an employer must invest large amounts of time or money in accommodating someone’s religious practice. Rather, the Court interpreted relevant provisions of the Act together to come to the conclusion that:

​​”It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire . . . any individual . . . because of [any aspect of] such individual’s . . . religious . . . practice . . . unless an employer demonstrates that he is unable to reasonably accommodate to [the] employee’s or prospective employee’s religious . . . practice . . . without undue hardship on the conduct of the employer’s business.”

​In the Eleventh Circuit Court of Appeals, this means “[o]nce a plaintiff makes out a prima facie case, the burden shifts to the employer to show that it either offered a reasonable accommodation or that it cannot reasonably accommodate the employee’s religious practice without undue hardship on its business.”

Accordingly, if an employer can demonstrate that accommodating a religious belief creates an undue hardship on the business, then it is not obligated to make the accommodation. The courts decide what is a reasonable accommodation or an undue hardship on a “case-by-case basis.” The U.S. Supreme Court’s standard is that an undue hardship occurs when an employer must bear more than a “de minimis cost” in accommodating the employee’s religious beliefs, and the analysis considers both monetary concerns and the employer’s burden in conducting its business, including the burden placed upon other employees who may be required to alter the scope and duties of their employment as part of the accommodation. This also does not mean that the applicant or employee gets to choose what the reasonable accommodation must be.

If the employer proposes a sufficient accommodation and the applicant/employee does not accept, the employer will not be liable under the Civil Rights Act for disparate treatment of a religious accommodation. For instance, the Eleventh Circuit Court of Appeals recently opined on this subject when an Emergency Medical Technician (EMT) claimed his goatee was part of his Rastafarian religious practice. The employee’s facial hair was prohibited by the employer’s grooming policy, which was adopted as a precaution to ensure that employees could safely use a work-related breathing apparatus. Bailey v. Metro Ambulance Servs., 992 F.3d 1265 (11th Cir. 2021). The employer offered the EMT a position as a non-emergency EMT that would have no other effect on his employment conditions, which the EMT refused. The Eleventh Circuit stated, “If an employer establishes that it offered a reasonable accommodation for the employee’s religious practice, it is entitled to judgment in its favor…. The employer has no further obligation to offer an employee’s preferred accommodation or to demonstrate that an employee’s preferred accommodation would cause an undue hardship.”

As a final example, the Eleventh Circuit considered a case in which a long-haul truck driver was offered a different set of routes to accommodate his religious belief, as a Jehovah’s Witness, to not work on Sundays. Walker v. Indian River Transp. Co., 741 Fed. Appx. 740 (11th Cir. 2018). The driver rejected the accommodation and insisted on his proposed accommodation that specifically tailored routes and times to his religious belief. The court ruled that an employer is under no obligation to “give an employee a choice among several accommodations,” nor “demonstrate that alternative accommodations proposed by the employee constitute undue hardship.” Instead, “the inquiry ends when an employer shows that a reasonable accommodation was afforded the employee, regardless of whether that accommodation is one which the employee suggested.”

So, what initially may seem like a difficult hurdle for employers to overcome may be more manageable when considered in the context of these examples. Employers are not obligated to offer an endless array of options to accommodate employees’ or applicants’ religious beliefs. They are not obligated to endure heavy costs or restructure their business. Rather, employers are only compelled to make a reasonable and de minimis effort to accommodate an employee’s religious preferences in the workplace.

​Xavier T. Romero is an associate attorney with Flint, Connolly & Walker, LLP currently representing clients in various civil litigation matters. If you are a business owner seeking legal advice regarding employment issues, or any other civil matters, Xavier and the other attorneys at Flint, Connolly & Walker have the knowledge and expertise to assist you.