Editor's Note: The U.S. Equal Employment Opportunity Commission (EEOC) published proposed regulations to implement the Pregnant Workers Fairness Act (PWFA) on Aug. 11, 2023. Comments regarding this proposal must be submitted no later than Oct. 10, 2023, and final regulations are expected by Dec. 29, 2023. While the proposed regulations may be helpful for employers in understanding how the EEOC is currently interpreting the PWFA, they cannot be relied upon until regulations are finalized.
Both federal and state anti-discrimination laws require employers to provide people with disabilities and those with sincerely held religious beliefs reasonable accommodations that will allow them to continue to perform the essential functions of their jobs, unless doing so would create an undue hardship for the employer.
So, how is undue hardship determined? Under federal law, the Americans with Disabilities Act (ADA) covers disability accommodations, the Pregnant Workers Fairness Act (PWFA) covers accommodations due to pregnancy, and Title VII of the Civil Rights Act covers religious accommodations. There is a textual difference between the ADA and PWFA versus Title VII in regard to undue hardship.
ADA
The Equal Employment Opportunity Commission's (EEOC's) guidance defines undue hardship under the ADA as an action requiring significant difficulty or expense as it relates to the individual business. The PWFA states that undue hardship will have the same meaning as under the ADA.
A determination of undue hardship should be based on several factors, including:
- The nature and cost of the accommodation needed.
- The overall financial resources of the facility making the reasonable accommodation, taking into account the number of people employed at the facility and the facility's expenses.
- The overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity).
- The type of operation of the employer, including the structure and functions of the workforce, as well as the geographic separateness and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer.
- The impact of the accommodation on the operation of the facility.
The undue hardship principle can protect an employer from having to make unreasonable accommodations, but these factors create a very high threshold to meet. The Job Accommodation Network offers detailed explanations of each of these factors that can help an employer make undue hardship determinations under the ADA.
Title VII
An accommodation based on a sincerely held religious belief would pose an undue hardship when a burden is "substantial in the overall context of an employer's business", per the Supreme Court ruling in Groff v. DeJoy, on June 29, 2023. The court also stated that, "Courts must apply the test to take into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of an employer."
This is a clarification of the 1977 ruling in Trans World Airlines v. Hardison, which had been interpreted by many courts that an employer could deny a religious accommodation if it would cause more than a de minimis, or trivial, cost to the employer. That interpretation no longer stands.
Factors relevant to undue hardship under Title VII include:
- The type of workplace.
- The nature of the employee's duties.
- The identifiable cost of the accommodation in relation to the size and operating costs of the employer.
- The number of employees who will need a particular accommodation.
The EEOC further explains:
"Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer's business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees' job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee's share of potentially hazardous or burdensome work. Whether the proposed accommodation conflicts with another law will also be considered.
"To prove undue hardship, the employer will need to demonstrate how much cost or disruption a proposed accommodation would involve. An employer cannot rely on potential or hypothetical hardship when faced with a religious obligation that conflicts with scheduled work, but rather should rely on objective information. A mere assumption that many more people with the same religious practices as the individual being accommodated may also seek accommodation is not evidence of undue hardship."
COVID-19
With the onset of the pandemic and the introduction of the COVID-19 vaccines, many employers with vaccine mandates are being flooded with religious accommodation requests. In response, the EEOC has published robust guidance on accommodations and discrimination, including section L, titled Vaccinations—Title VII and Religious Objections to COVID-19 Vaccine Mandates.
According to the EEOC, costs to be considered include not only direct monetary costs, but also the burden on conducting the employer's business—including, in this instance, the risk of the spread of COVID-19 to other employees or to the public.
Additionally, the guidance states:
"An employer cannot rely on speculative hardships when faced with an employee's religious objection but, rather, should rely on objective information. Certain common and relevant considerations during the COVID-19 pandemic include, for example, whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals). Another relevant consideration is the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer)."
In all accommodation situations, many different factors come into play when determining whether an accommodation would pose an undue hardship. What may constitute an undue hardship to one employer may not be a hardship to another employer.
Before denying an accommodation request because of undue hardship, employers are encouraged to explore different options that might make a seemingly difficult accommodation possible. If, for example, an accommodation seems to pose a financial hardship, the employer could look to outside agencies for potential funding as well as investigate tax credits that might assist in fulfilling an employee's request. Employers also are encouraged to be creative and determine if a different accommodation would meet the employee's needs.
Employers may seek assistance from the Job Accommodation Network, a free service that provides employers with accommodation options for individuals with disabilities.
If an employer, after reviewing all possible scenarios, determines that it cannot reasonably accommodate an employee, the employer may wish to consult with legal counsel to ensure that it has sound business reasons for denying the accommodation request.
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