An Employer Must Prove a “Substantial Burden” in Order to Deny a Religious Accommodation

The new standard requires the employer to show that granting the accommodation “would result in substantial increased costs” to the business. One of the first cases to interpret the Court’s new undue hardship standard was Hebrew v. Texas Department of Criminal Justice, a Fifth Circuit Court of Appeals decision. In Hebrew, a Jewish corrections officer was fired because he would not shave his beard or cut his long hair. Hebrew claimed his beard and long hair were part of his religious observance.

The correctional facility had argued that accommodating Hebrew would be an undue hardship because of the extra time and effort it would take to search him for contraband. The facility also claimed that the safety risks associated with wearing a gas mask and that an inmate could grab his hair or beard in a fight created an undue hardship.

The Fifth Circuit rejected the employer’s argument that the employee’s long hair was an undue hardship because contraband could be hidden, and if all officers had long hair, it would change the way in which the employer searched its officers. The court noted that this is a hypothetical policy and did not apply to the single accommodation request. Even if the search of the employee might take a few extra minutes, the court did not rule that to be substantial or an undue hardship. Moreover, the prison already allowed officers to have short beards and female officers to have long hair, so the safety risks allegedly presented by accommodating Hebrew were not an undue hardship.

After Groff v. DeJoy, the employer must provide evidence of specific costs which would be substantial and impact the business as a whole and not merely whether the accommodation would have a de minimis effect on the business.

If you have any questions regarding the Title VII or religious accommodation or any other employment issues, please contact Fraser Stryker’s Labor and Employment lawyers.