Decision is a game-changer likely to encourage litigation
I have often written about staffing firms that get caught in lawsuits because their client failed to "reasonably accommodate" a temporary worker's disability under the Americans with Disabilities Act. I have not written about the duty to accommodate religious beliefs and practices under Title VII of the Civil Rights Act of 1964, because lawsuits in this area are rare. This is likely to change after the U.S. Supreme Court's ruling last week in a case called Groff v. DeJoy.
Employers have long had a theoretical duty to accommodate employees' religious beliefs and practices. In the 1977 case Trans World Airlines, Inc. v. Hardison, the Supreme Court recognized the duty to accommodate as written into Title VII in 1972, but the case was widely read to set a standard so low that it was virtually impossible for an employer to violate it. Under Hardison, an employer was required to “bear no more than a de minimis cost” in response to a religious accommodation request. In other words, if the cost of the accommodation was more than trivial, the employer had no obligation to accommodate. As a result, there has not been much religious accommodation litigation over the past 46 years.
On June 29, 2023, the Supreme Court changed the playing field by unanimously imposing a new standard for religious accommodation requests, under the guise of "clarifying" Hardison. Employers now must grant a religious accommodation unless they can demonstrate that the accommodation would result in “substantial increased costs in relation to the conduct of the employer’s particular business." This is a drastically different standard than the duty to only incur trivial costs, and clearly contemplates "more than trivial" costs, up to the point where the cost becomes "substantial." Unfortunately, the Court gave no guidance as the meaning of "substantial cost," and left it to be determined on a fact-intensive, case by case, analysis. This effectively means that virtually every religious accommodation request that is litigated from now on will present a jury question and will go to trial unless settled.
The new standard is different from the well-stablished principals under the Americans with Disabilities Act, and invites years of uncertainly while the courts painstakingly develop a body of law, case by case, in the future. And whatever happens, the likelihood of summary disposition by the Court in these cases seems slim.
In addition, the words "in relation to the conduct of the employer’s particular business" suggest that the impact of an accommodation request upon other employees may not be much of a factor for consideration, as it sometimes was under the Hardison analysis.
Finally, one has to wonder if the meaning of "substantial cost" will vary in relation to the size of the employer. What is substantial to a small enterprise may be trivial to a larger one. Score one for small business, I suppose.
Once the religious accommodation litigation gets going, as I predict it will, look for the cost of Employment Practices Lability Insurance to increase.
What can staffing firms do to reduce risk? Even if it is the client is taking the adverse action, the law imposes a duty on the staffing firm to do what it can to protect the legal rights of its assigned personnel. An approach that assumes "the client is always right" can turn an ordinary risk into a significant one. Field associates should be trained to recognize all situations where a client failure to accommodate claim might be developing. At present, there are three such areas: 1) disability accommodations; 2) religious accommodations; and 3) pregnancy and lactating mother accommodations.
As a geneal rule, it is imperative to contact the client's human resource department to be sure they are involved in the situation. And in some cases, it may be prudent for the staffing firm to offer to share the cost of an accommodation. Finally, if the client ends an assignment under questionable circumstances, finding the candidate another position should be a high priority. Not attempting to redeploy a terminated candidate in these situations will substantially increase your exposure.
Contract Bill Josey: email@example.com