by Cliff Martin, Senior Counsel • 3 minutes
Before First Liberty Institute prevailed at the U.S. Supreme Court in Groff v. DeJoy, employers were free to disregard religious accommodation requests by showing the requested accommodation would interfere with business operations, even minimally.
However, the Supreme Court declared in Groff that employers must accommodate employees’ religious practices unless they can demonstrate a “substantial increased cost” in the context of the business. Employment attorneys have taken note, but we have seen several human resources managers in various businesses fail to acknowledge the new standard.
Practically speaking, this means religious employees have continued to face opposition from the supervisors they interact with, even though employers are often ready to accommodate religious practices when their attorneys review their human resources employees’ actions.
As a former corporate employment attorney myself, I know this pattern. Employment attorneys are quick to recommend a strategy for avoiding lawsuits, so they direct human resources managers to respect employees’ legal rights as much as possible. But by the time the matter reaches the legal department, the religious employee may have already endured several rejected requests for accommodation.
Over the past year, I have had a different vantagepoint after joining the Marketplace Practice Group at First Liberty. Many religious employees are uninformed of their right to religious expression and are unsure how to navigate communications with human resources personnel, especially when they turn hostile. Religious employees also are often unaware of the time limits imposed on seeking legal remedies.
Even so, when a religious employee timely reaches out to First Liberty, we sometimes see victories even before litigation starts, as corporate attorneys review recent developments in the law and course-correct their clients. But this only happens when religious employees courageously assert their rights and then timely seek legal assistance in dealing with an obstinate employer. When an employee waits longer than six months to seek a remedy, it is often too late.
Helpfully, earlier this year the Trump Administration issued a memo protecting the religious expression of federal government workers in the workplace. The memo specifically discussed the Groff decision and federal laws such as Title VII of the Civil Rights Act of 1964, which protects against religious discrimination in the workplace. The memo further stated, “employees must be allowed to engage in private religious expression in work areas to the same extent that they may engage in nonreligious private expression.” Because Title VII also applies to private employers, the logic of the Trump Administration’s memo should be persuasive in the entire marketplace.
The memo also acknowledged First Liberty’s landmark Supreme Court victory in Kennedy v. Bremerton School District, which held that the Constitution “protects not only the right to harbor religious beliefs inwardly and secretly, but also protects the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life.”
Employers are generally obligated to respect religious expression, subject to some narrow exceptions. While it may take time for private employers to catch up to the law, the Trump Administration’s memo will provide further ammunition as we pursue our mission to see religious liberty advance throughout the marketplace.
Eventually, it seems likely that the Supreme Court victories will influence human resources departments across the nation, as risk-averse decisionmakers learn of the new risks associated with failing to accommodate religious employees. To put it in the words of one prominent employment law firm, religious accommodation requests are “here to stay.”
Savvy employers will avoid legal headaches by training human resources managers and supervisors to accommodate religious practices whenever they can do so without substantial increased cost. Other employers may be slower to get the message, but there is reason to hope that employment practices will continue changing for the better.
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