Religious Accommodations in the Workplace – Breaking Down Groff vs DeJoy

Lauren Sobaski (00:00):

I think that businesses need to start from a different perspective. So, when an employee says, "I need an accommodation," whether we are talking about an accommodation under the ADA or the Americans with Disabilities Act versus an accommodation for religious purposes, the employer should be looking at it instead of, "How do I deny this?" They should be looking at it to say, "What can we do to work together?" And under the law, it's called an interactive process. "What can we do to work together to come up with a solution that works for both parties?"

Speaker 2 (00:54):

Welcome to Paychex THRIVE, a Business Podcast, where you'll hear timely insights to help you navigate marketplace dynamics and propel your business forward. Here's your host, Gene Marks.

Gene Marks (01:10):

Hey everybody, it's Gene Marks and welcome back to another episode of the Paychex THRIVE Podcast. Thank you so much for joining me. I'm here with Lauren Sobaski, she's an employment attorney and partner at Fisher Phillips. Lauren, where is Fisher Phillips? Kansas, right?

Lauren Sobaski (01:25):

We are a nationwide-

Gene Marks (01:26):

Nationwide.

Lauren Sobaski (01:27):

... labor and employment law firm.

Gene Marks (01:28):

Got it. And where are you based?

Lauren Sobaski (01:30):

I'm based in the Kansas City office.

Gene Marks (01:31):

That's what I thought. Yeah, Kansas City, steaks, the Royals, the whole thing going on there. Well, it's great to have you … and Chiefs, right? I forget, right? Okay. You stole Andy Reid from us here in Philadelphia, but that's another conversation we'll have for another time.

Lauren Sobaski (01:48):

We won't hold a grudge.

Gene Marks (01:49):

We won't hold a grudge. So, Lauren, you’re an employment attorney and a partner at Fisher Phillips. Can you give me an idea of what that job entails?

Lauren Sobaski (01:57):

Well, it entails a lot, but I represent businesses in educating them on how to comply with employment laws. I also am a litigator, so I assist businesses with charges of discrimination, harassment, retaliation, those types of things along with litigating in court and arbitrating those types of matters. So, we as a firm touch everything that’s related to the employment relationship. So, anything that is related to your employees, that’s what we do.

Gene Marks (02:31):

That is great. Yeah. I have a really good friend who does what you do in Philadelphia. He went out on his own and does it and he’s great. And there are attorneys that represent employees and they’re attorneys that represent companies. You’re on the side of the companies, those are your clients, and you’re advising them how to make sure they’re in compliance with the law when it comes to their workers.

Lauren Sobaski (02:53):

That’s correct.

Gene Marks (02:55):

Okay. We have a few things to talk about, but the big thing, the big topic of the day is Groff v. DeJoy or really religious freedom, and it’s an important case that we’re having you on to discuss because it impacts a lot of our listeners and our viewers. So, tell us about this case and let’s talk about why you think it’s important for my audience, but also for your clients, as well.

Lauren Sobaski (03:22):

Yeah, sure. So, really the Groff v. DeJoy case, I'll give you just a background of the litigation. I'm not going to get into all the details of the previous briefing and what happened in the lower court, but really what was in front of the Supreme Court and what they took up was the issue of the religious accommodations under Title VII of the Civil Rights Act. So, one of the things I want to note about this particular case is that we're still waiting to see what the outcome is going to be because the case was remanded back to the lower court, meaning that the Supreme Court sent it back to the lower court to say we set out a new standard, which I'll explain in just a minute, but we set out a new standard ... I'm doing air quotes, “undue hardship” to define more clearly what that means to businesses when they're evaluating accommodation requests for religious accommodations.

Lauren Sobaski (04:25):

So, we're still waiting on that. But the gist of the case is that Groff was an employee of the United States Postal Service, and he brought a claim alleging after he resigned from his employment with the U.S. Postal Service, he brought a claim alleging that the company had discriminated against him on the basis of his religion. Primarily, the discussion was about whether or not the company had an obligation to accommodate his religious requests.

Lauren Sobaski (04:57):

His specific request was related to having Sundays off for his own religious observations. So, that's what was before the court. And really the clarification came under the difference between, or the court's interpretation of de minimis, what would cause a de minimis impact or de minimis cost to a business to provide a specific accommodation for an individual employee. And so the court had the opportunity for the first time in almost 50 years to take up this issue and to provide clarification to what does it mean, what does ”undue hardship”? And there I go with my air quotes again, but what does undue hardship mean? And the court gave us a different standard to apply. And so what we are all waiting on is to see that application of the facts of this particular case to see how the lower courts apply this new standard so that we can learn from that and figure out, "Okay, how is this going to impact other businesses?"

Gene Marks (06:12):

So, let me just interrupt you and just pause if you may. So just as a recap, so we have a guy that works for the U.S. Postal System. He wants to take Sundays off because of his religion, which I didn't even know the post office delivers on Sundays, but okay, that's a whole other thing. He wants to take it off. The post office says, "No, we're not going to let you take it off." He sues the post office.

Gene Marks (06:39):

This ultimately makes its way up to the Supreme Court and the Supreme Court says, "Well, he has a point, but both parties have to..." We're going to give a new, I guess, version of what an accommodation is. Is that what the Supreme, and then send it back to the lower courts to figure out the details. What exactly did the Supreme Court... What was the directions that the Supreme Court gave to the lower courts?

Lauren Sobaski (07:10):

So, you're partially correct. So, the case was brought up related to his employment, his request for his time off of work. Groff was disciplined because of his attendance, because he was unable to work on Sundays as required. There's a long history of facts that went along with what went into the case. So, just kind of fast-forwarding what the court took up is that the lower courts had sided with the United States Postal Service that said that the accommodation request that they had used the de minimis standard. So did the cost of the accommodation, was it above a de minimis cost, and did the employer have to accommodate him under that particular standard? And so the lower courts had sided with the postal service and said the request that he made based on the circumstances that they had evaluated, it was more than de minimis.

Gene Marks (08:11):

Right. It was a significant cost to the employer to not have this guy around on a Sunday, okay?

Lauren Sobaski (08:16):

Well, you're using the word significant, and I want to be careful about that because that's the primary issue that the Supreme Court brought back and told the lower court to evaluate. They emphasized that in order for a business to deny or not approve a religious accommodation, the exact word that you just said, which is that it would have to rise to the level of a significant cost to the business.

Gene Marks (08:47):

Right. How do you define that?

Lauren Sobaski (08:50):

Well, that's what we're waiting to see, but the Supreme Court gave us some guidance. And so the guidance that they said is that a business needs to look at and take into account all of the relevant factors at that particular case. So, it's an individual assessment based upon the particular accommodation that somebody might be requesting. And so when a business takes all of that into account, they have to look at the nature of the accommodation request, the size of the business, the operating costs of the employer, the nature of the business itself. So, those are all things that the court told us that businesses should be putting into their analysis.

Gene Marks (09:43):

It's a tough one because you just mentioned a number of different factors, which can be judged in a number of different ways. It's not like the Supreme Court said, "Okay, if the cost is over this certain percentage, then it's deemed significance." Or "If it's this title of an employee, then it's deemed..." And it almost seems like it's just opening the door up to more potential lawsuits as people are trying to define what is significant or not.

Lauren Sobaski (10:14):

Well, I think that is a very good point, and I like to say that employment law, and this is no different, is kind of varying shades of gray.

Gene Marks (10:22):

Yeah, it's an art, not a science,

Lauren Sobaski (10:25):

Right. There is not a black-and-white answer that says, once the cost exceeds X, then you've reached substantial. And so by way of example, the United States Postal Service, and it's in the Supreme Court's in their holdings, that as an employer, they have 600,000 employees.

Gene Marks (10:49):

All right.

Lauren Sobaski (10:49):

And so, if we're trying to say, "Well, let's analogize a 600,000-employee business to a 50-employee business or 20-employee business.

Gene Marks (11:01):

I already do.

Lauren Sobaski (11:02):

How do we make that analysis? And that's what I think the court has put into... Has tried to create, there has to be an analysis based upon the factors of that particular business. A mom-and-pop business that has 20 employees cannot compare themselves for cost related to a 600,000-employee business. And so there has to be some leeway in evaluating what is significant under those circumstances.

Gene Marks (11:33):

I'm curious, did the court go any further in defining what is a religious accommodation? I mean, are people like they're celebrating Festivus on a Wednesday and therefore that's their religion, and I'm just taking that day off. Was there any guidance provided on what's considered to be a religious accommodation?

Lauren Sobaski (11:53):

The court didn't address that. I mean, Title VII says that the businesses have to accommodate employees requests because of their religion or some language like that. I'm paraphrasing slightly, but it did not go into defining more clearly as to what is considered religion.

Gene Marks (12:17):

Right.

Lauren Sobaski (12:17):

It did not take that up. It took up more from the business side to say, if you as a business are going to say, "I can't make this accommodation because it creates a hardship for my business," what does that hardship, what does that mean? And to further clarify, many, many, many years of precedent of what courts have been looking at under that de minimis equation.

Gene Marks (12:43):

So, if I'm an employer, an employee comes to me and says, "I need Wednesdays off because of my religion," it's really not for me the employer to start questioning the religion. That shouldn't even be part of the conversation. What me as the employer, what I should be focusing on is will this have a significant impact on my business? That would be the way that I can potentially say to the employee, "No, I can't allow you for that time off." And of course, that's still to be determined as we're talking about this now. Is there any timeline on this, Lauren? Do we know when this lower court is going to figure out what's significant?

Lauren Sobaski (13:25):

I don't have that estimate.

Gene Marks (13:29):

Okay. Fair enough.

Lauren Sobaski (13:30):

The wheels of justice do move kind of slowly, so I wouldn't expect it anytime real quick.

Gene Marks (13:34):

Okay. So, what do you tell your clients that are hitting this issue? I mean, people do and people have religious observances. What advice are you giving?

Lauren Sobaski (13:49):

Well, I want to go back to your assessment of the ruling here.

Gene Marks (13:56):

Okay.

Lauren Sobaski (13:56):

I think that businesses need to start from a different perspective. So, when an employee says, "I need an accommodation," whether we are talking about an accommodation under the ADA or the Americans with Disabilities Act, which is a similar, it's not the same, a similar analysis versus an accommodation for religious purposes, the employer should be looking at it instead of, "How do I deny this?" They should be looking at it to say, "What can we do to work together?" And under the law, it's called an interactive process. What can we do to work together to come up with a solution that works for both parties?" And so I think that that's the objective, is to start from that perspective to say, "What accommodations can we make? How do we get there?" versus, "How do we deny this?" And I'm not saying that any businesses are doing that, but I think that that's a really good starting point to just say, "We should review these requests to say, 'How do we get to an understanding? How do we get to something we can both agree on?' "

Gene Marks (15:16):

Great advice. That's great advice. Anything else to add on this case? Before I move on? I want to talk about retaliation claims, but any further final thoughts?

Lauren Sobaski (15:26):

Yeah, I think that we probably should just talk about some of the things that impact and what employers should be doing at this point in evaluating their own practices. So, the first thing I would recommend is to take an inside view at what your current practices are, policies, things like that to evaluate to say, "What are we currently doing? Do we have a form for this? Are we asking employees to put this in writing to us? Have we challenged or looked at certain things without an evaluation of how does this impact the business?" And so if the business has made decisions or businesses have made decisions without including those additional factors, they may want to just re-look at their practices. Also, if you have made recent decisions about a religious accommodation request for your employees, it might be worthwhile to have that reviewed by counsel to just say, "Hey, do we need to adjust a recent determination that we made?" And just training your managers on how to address these types of requests.

Lauren Sobaski (16:42):

That's one thing that I think a lot of businesses forget about is that your managers and supervisors are your frontline. They are the ones that are interacting with your employees, and if they're not trained with how to recognize, I call them “trigger words” …

Gene Marks (17:00):

Yeah.

Lauren Sobaski (17:00):

Apparently, I like air quotes today, but so I call them trigger words, which means that our HR, sorry, our managers and supervisors are not human resource professionals.

Gene Marks (17:12):

Right.

Lauren Sobaski (17:12):

They don't want to be in HR, otherwise they would've gone that route with their career.

Gene Marks (17:16):

Right.

Lauren Sobaski (17:16):

But we need to train them on what are those trigger words that say, "This is something I as a supervisor and manager shouldn't handle by myself, and I should take this to HR or take this to somebody else to address." And this is one of those things that I think you should have conversations with your managers to say, "Hey, if employees are asking about accommodations, religious accommodations to the dress code or to break times or to days off of work, that is something that your managers should probably not be addressing on their own." They can't just tell an employee, "No, we're not going to do that." There's a lot more into the analysis to get to a determination than just that.

Gene Marks (17:58):

And I’ve got to imagine that happens all the time where you’ve got some uneducated managers saying, “You want to do what? No way. Get back to work.” And then before you know it, the company is being sued because of that.

Lauren Sobaski (18:10):

Yep.

Gene Marks (18:10):

All right, that’s great advice. All right. Before we started recording this conversation, I was asking you about what’s going on in your practice and what you’re seeing a little bit more of than other things. You had mentioned a few clients are going through issues with retaliation claims from employees. Now, just in the final few minutes that we have, I was wondering if you could talk a little bit about that. What is that? What does it mean? What should we be aware of when it comes to employee retaliation?

Lauren Sobaski (18:31):

Yeah, so you can look up the statistics, the EEOC statistics about the types of claims and the number of claims by year. And you’ll see that there has been a trending upward percentage of increase in retaliation claims. So, I mean, retaliation is something legally, there are elements and there's complicated things to rise to the level, but conceptually from common sense, it makes sense to people. Retaliation means somebody treated someone differently to get back at them for something. And so when we have cases that are related to, or cases that are going to a jury, juries understand that. They understand getting back at someone for doing something that you don't like.

Gene Marks (19:26):

Well, can you give me an example of what you mean by that?

Lauren Sobaski (19:31):

So, for example, you have an employee that raises an issue in the workplace.

Gene Marks (19:36):

Okay.

Lauren Sobaski (19:36):

Use your imagination. They're not paid correctly. They're not getting breaks that they want. Use your imagination.

Gene Marks (19:42):

Okay.

Lauren Sobaski (19:43):

Discrimination, harassment, whatever you want to say. So, an employee makes a claim or reports something that they think is going wrong or against company policy. Thereafter, the managers, their coworkers, they all start treating them differently. "Hey, you can't talk to that person." "Don't have lunch with that person." "Be careful what you say around that person." And that type of conduct can permeate the workplace. It can permeate how that person is getting assignments, what kind of work that they're doing. And all of that goes to the potential for retaliation that if we have situations in which employees are treated differently because of some protected characteristic or protected activity, it can be the basis of those claims. And it's very difficult for businesses to defend those types of claims because it conceptually and logically makes sense.

Gene Marks (20:50):

And do the employees usually make these claims with the EEOC? Is that usually the agency they go to?

Lauren Sobaski (20:57):

So, generally, there is an administrative remedy that is required before an employee can file a lawsuit in court. So, an employee can either go to the EEOC, which is the federal agency, or they can go to the state equivalent. It's usually the state commission on human rights. The name fluctuates slightly based upon the jurisdiction that you're in, but they can go to either of those avenues. But it's the prerequisite to getting into court for a harassment discrimination retaliation.

Gene Marks (21:29):

Well, you tell me the stories. This is the workplace. This isn't like sixth grade in middle school, right? I mean, it's crazy. And I'm assuming-

Lauren Sobaski (21:38):

Sometimes there's not too much difference.

Gene Marks (21:39):

Not too much difference, yeah, not too much difference. And I was going to ask you, but I think I know the answer I mean, the way to address this is through training and policies. Can you talk a little bit about that?

Lauren Sobaski (21:52):

Yeah, absolutely. So, I tell people all the time, my practices, I mean, I'm a litigator. I defend businesses all day every day. That's what I do. One of my favorite things about my practice and what we do here is we have the opportunity to help employers comply with the law, and that comes with training and educating people on the types of conduct and things that they cannot be doing in the workplace. I feel like there's not enough training for the management level. Our HR folks are usually fairly good, but from a management perspective of just training those folks on what to look for, what types of things can get you as a supervisor and manager in hot water?

Gene Marks (22:37):

Right. Yeah, I mean, it's a matter of learning how to behave, and that's what's most important. Just before I let you go, say I'm listening to this or I'm watching you with the air quotes and I have an interest in, I'm like, "Okay, this could be an issue in my company. We have certain workers. It could be... I'm concerned about a potential retaliation issue or whatever. I think we should be training our managers about this." Where would you go for that kind of training? What would you recommend?

Lauren Sobaski (23:07):

I would recommend that folks go to their HR departments first. If you're a small enough business and you don't have an HR department, you should be going to your senior leadership to have those discussions. But this is a Paychex podcast. I mean, I know there are great resources through Paychex. There are great resources externally. Law firms also offer these types of trainings depending on the context of what you're looking for, but there's lots of great resources and lots of ways to get your managers the information to recognize the things that they shouldn't be handling themselves.

Gene Marks (23:48):

It's great stuff, Lauren. It's fascinating stuff. And labor law, employment law, like your job is just, I made such an error becoming a CPA. I should have been a labor attorney. I just think it's just a technical job, but it's fascinating what goes on in the workplace and given what's coming out of Washington, regardless of the administration, definitely keeping you on your toes. So, thank you.

Lauren Sobaski (24:16):

We always have the best stories in the Labor and Employment Group.

Gene Marks (24:19):

I am sure that you do. Hey, thank you very much for joining me. It was a great conversation. We'd love to have you back, so thank you. Lauren Sobaski is an employment attorney and partner at Fisher Phillips with offices around the country. Lauren is based in the Kansas City area. You have been watching and listening to the Paychex THRIVE Podcast. If you have any need of advice or help or tips in running your business or would like to suggest a guest, visit us at payx.me/thrivetopics.

Gene Marks (24:54):

Do you have a topic or a guest that you would like to hear on THRIVE? Please let us know. Visit payx.me/thrivetopics and send us your ideas or matters of interest. Also, if your business is looking to simplify your HR, payroll, benefits, or insurance services, see how Paychex can help. Visit the resource hub at paychex.com/worx. That's W-O-R-X. Paychex can help manage those complexities while you focus on all the ways you want your business to thrive. I'm your host, Gene Marks, and thanks for joining us. Till next time, take care.

Speaker 2 (5:31):

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