New Rules for Religious Discrimination and Accommodation In the Workplace

The following is a bulleted list of the key insights from the webinar on religious accommodation in the workplace, focusing on the changes brought by the Supreme Court decision in Groff v. DeJoy.

Key Insights on Religious Accommodation

• Substantially Increased Employer Burden: The Supreme Court's 9-0 decision in Groff v. DeJoy (2023) abandoned the previous "de minimis" (minor cost/inconvenience) standard for denying religious accommodation.
• The New Undue Hardship Standard: Employers must now demonstrate that the requested accommodation would result in substantial increased costs in relation to the conduct of the specific business operation.
• Higher Burden of Proof: Employers must show concrete evidence of a significant financial or operational burden to justify denying an accommodation.
• The Interactive Process: Employers are strongly advised to implement a robust, documented interactive process (similar to the ADA) to engage the employee, analyze the request, and determine appropriate accommodations.
• Sincerely Held Belief: The burden remains on the employee to prove their belief is sincerely held. Inconsistent testimony, like buying a fraudulent affidavit (as seen in a Second Circuit vaccine mandate case), can undermine this claim.
• Employer Chooses the Accommodation: If multiple reasonable accommodations exist, the employer has the right to select the option that best balances the employee's needs with the business's operations and costs; the employee does not get to choose their preferred solution.
• Operational Hardship: Undue hardship is not limited to financial cost; it can include demonstrable operational burdens such as safety hazards (e.g., long garments near machinery) or security issues (e.g., head coverings in correctional facilities).
• Common Accommodations: Reasonable accommodations often involve solutions like flexible scheduling, voluntary shift substitutions or swaps, and job reassignments to roles that do not conflict with the religious practice.
• Avoiding Segregation: Employers cannot discriminate or practice segregation by moving employees who wear religious garb out of front-facing positions simply because of customer preference.
• Harassment vs. Free Speech: While employees can discuss their faith in the workplace, managers must ensure these conversations remain respectful and professional. The behavior crosses the line into harassment if it becomes severe, pervasive, or continues after an employee asks that the conversation stop.

Elizabeth K. Dorminey (00:00):

Well, good afternoon, everybody. I'm your disembodied voice here today, just in preparation for Halloween. Larry and I are going to be talking about religious accommodation and some new rules that the Supreme Court and the EEOC have clarified over the last couple of years. You know, they always say, "Don't discuss religion and politics," and that's probably good advice, but in the workplace, there are times when you have to address at least religion. So, what we're going to talk about today is the Supreme Court's decision, Groff versus DeJoy. That was a big development, I believe, in 2023, and the way that it has been applied for employers. Larry has put together a beautiful PowerPoint that's going to take us through the discussion. It's going to kick off with a synopsis of what that Supreme Court decision was all about and why it's important.

J. Larry Stine (01:06):

All right. Well, thank you, Betsy. I have now put up the screen, so now we're both disembodied voices. As Betsy said, we're going to be talking about religious accommodation. The reason for this discussion is that the Supreme Court really has changed the law, and they have changed it very substantially. What you've been doing in the past related to religious accommodation is something that I think you're going to find you can no longer do. To give you the basis of this case, which was from 2023, it changed the standard for which employers can deny religious accommodation from a minimal, de minimis cost to demonstrating a substantial increased cost in relation to the specific business operation. It used to be a very low burden, as the court says.

J. Larry Stine (02:05):

One thing you ought to understand about this particular decision—because we're so used to hearing on the news it's a five-four decision or a six-three decision from the Supreme Court—this was a nine-zero decision from the Supreme Court. That means that it is solid, and there's really not going to be a substantial change when you have all nine justices coming out. The scales have really tipped further in terms of the employee. There are still burdens, which we're going to talk about, but the burden for making the cost of the requested accommodation has been substantially changed. Betsy, you got any comments?

Elizabeth K. Dorminey (02:59):

Well, I think these are all balancing acts all the time, but the bottom line here is that the court really did ratchet up the requirements for the employer, saying that it's not just some small inconvenience. It's got to be a demonstrated higher threshold that you have to meet. We always talk about documenting everything, but it becomes all the more important when you are going to have to justify your decisions. That being said—and Larry will get to this in a minute—there are burdens on the employee's side too, because they have to demonstrate, among other things, that their beliefs are sincerely held. I have a little anecdote about that when it's time. Do you want to give the background on the Supreme Court case, Larry? Because I think it's kind of interesting.

J. Larry Stine (03:55):

Yeah, I think we need to give them a little background. That's the reason I pulled up the post office picture.

Elizabeth K. Dorminey (04:00):

The post office.

J. Larry Stine (04:01):

This case is actually about a case against the United States Postal Service and a letter carrier. The letter carrier started to work with the postal service, which is heavily unionized, and he had a religious conversion. His conversion was very traditional: he wasn't to work on Sundays. That really had no problem to begin with because, if you recall, the postal service has not made deliveries on Sundays for decades. Except, what happened recently is the postal service took a contract from Amazon, and that contract with Amazon required the postal service to deliver Amazon packages on Sunday. The journey begins with him being in a small, rural area. He was very happy because the small rural station he was assigned to wasn't covered by Amazon.

J. Larry Stine (05:16):

He clipped along nicely, and then Amazon expanded and came to his area, and they had Sunday delivery. He was trying to basically ask for an accommodation for delivering on Sundays. Every time another postal service employee had to take his Sunday shift, they disciplined him, and just before they were ready to terminate him, he quit. The case went up to the court, and they said because it's a collective bargaining agreement, and this interfered and other employees with seniority objected to it, the postal service met its de minimis burden, which the court below said was a very low standard, a low requirement, and granted summary judgment to the postal service. Did I miss anything about the facts, Betsy?

Elizabeth K. Dorminey (06:21):

No, except that I think it was important that he originally went to work for the postal service. I think he said in the lawsuit specifically because he wouldn't have to work on Sundays, and he considered that the day of rest. He had a strong religious conviction against Sunday work. So, this contract with Amazon and the requirement that he work on Sundays was really a big deal for him, more so than it would have been otherwise.

J. Larry Stine (06:47):

Right, I agree with that. So, there are a couple of key phrases to remember when we're talking about religious discrimination. The first one is undue hardship. This is what the decision of the Supreme Court really focuses on. What the law says is that employers are required to provide reasonable accommodation to the religious beliefs of the employee unless the accommodation causes undue hardship and burdens the business. The Supreme Court changes this burden: you can't just show a minor inconvenience; you've got to show more. Now, the EEOC is developing guidelines based on this post-Supreme Court guidance, and they are enforcing this higher standard in the cases they now have before them. That is one of the issues that's going on. There are still issues we see, like vaccine mandates, beards, and dress, but that's the key phrase to remember on that one.

J. Larry Stine (07:58):

The other key phrase is a sincerely held belief. Just for folks, this is not a hard standard for the employee to get to a jury; it doesn't mean he'll win before the jury. But it is a pretty tough issue. We'll talk about a case which finds that the employee did not have a sincerely held belief, but the burden is on the employee to show that his religion has a sincerely held belief. Your sincerely held belief can't be that you're in a prison, and you don't join a church, and the sincerely held belief is you have to have sirloin steak and baked potatoes every Saturday. If you think I made that up, I didn't. That actually is a case in which a prisoner tried to have a religion in which he got sirloin steak and baked potato served to him every Saturday. In that particular case, believe it or not, the courts found that that was not a sincerely held religious belief.

Elizabeth K. Dorminey (09:13):

Well, that also led to a change in the law, I believe, because that was the Religious Freedom Restoration Act, wasn't it, from the Clinton era?

J. Larry Stine (09:21):

Yeah, there were some changes where that act came in the nineties, but that is one of the cases I remember reading, and it was like, that's interesting.

Elizabeth K. Dorminey (09:32):

Well, actually, Larry, I've got an anecdote on the sincerely held beliefs. Years ago, I had a case for a retail employer, or maybe it was a grocery store; I can't remember. But it was a large employer that was open seven days. A young man said he needed to have Saturdays off because he was a Seventh-day Adventist. The employer said, "Okay, if that's what we need to do, we'll schedule around that." But then, after he got his Saturdays off, he said he needed Sunday off to go to church. At that point, the employer said, "One or the other, but not both." I think he lost that claim because you could question the sincerity of needing to be a Seventh-day Adventist on Saturdays and then being a more traditional Christian taking the Sunday off.

J. Larry Stine (10:28):

So far, I don't know of any religions that require both to worship and not work on Saturday and Sunday, but I'm certain somebody will come up with one just because of that.

Elizabeth K. Dorminey (10:38):

Well, the weekly conversion might be a tough sell.

J. Larry Stine (10:41):

It might be. All right. The key shift is from the de minimis to the substantially increased costs. Let's look at the old standard first. Under the previous interpretation, everything came off a Supreme Court case called TWA versus Hardison. It was that the employer could deny reasonable accommodation if it imposed only a minor or de minimis cost on the business. In the Supreme Court, the Groff case basically said that there was a misunderstanding of what they were trying to do in that particular case, and they took that from one single line from it. But I will tell you that the employers and the employers' attorneys took that one line and ran with it. Even the EEOC began to try to explain what was de minimis and what was not a de minimis burden on the employers. Now, what the new standard is: undue hardship means that the employer must show the accommodation would result in substantial increased costs in relation to the conduct of this particular business. Betsy, any comments on that?

Elizabeth K. Dorminey (12:05):

No, I don't. Let's move on to the next point. I think that's pretty clear.

J. Larry Stine (12:10):

Okay. So, basically now, what lawyers like to say is we got a higher burden of proof. We've got to show concrete evidence of significant financial or operational burdens. Make certain we understand that it's not just financial; it can be an operational burden. One of the issues you may have for an operational burden is that you would have Muslim women working in a facility and wanting to wear long scarves. The problem for the employer was not that the scarves caused any financial problems, but the long scarves would cause a safety hazard by being potentially able to get entangled into the gears, et cetera. Now then, you've still got to figure out how to accommodate that particular issue. What we have seen even prior to this is that the employers who do provide reasonable accommodation basically require them to have a head covering without the long tails that the scarf would normally have. So, they can still cover their hair, which is the religious aspect of it, but they have to avoid using a particular scarf, which is not religious. Any comments on that one, Betsy?

Elizabeth K. Dorminey (13:39):

Well, no, except that I'm remembering that we had one client who had a lot of Muslim women workers, and one of the things they did is have them just put on a big jumpsuit over the clothing that they felt comfortable in, in order to be able to move around inside the factory without having the hazard that the trailing garments would pose. Another operational hazard, now that you mention it, is in law enforcement in prisons. They don't like the head coverings because they provide an opportunity for people to grab them and pull them if they're not behaving as they should, and also for concealing things that are contraband inside a correctional facility if the employees are not behaving as they should. So, these are just a couple of examples of the kind of operational issues that can come up.

J. Larry Stine (14:40):

Right. And that's still there. The fact of the matter is you still gotta be thoughtful in your analysis of how to handle it. Partly, what you've got to do is you've got to be able to ascertain what is the sincerely held belief. Sometimes, the employee will have a sincerely held belief that they would like to apply in a way that is the best for them, and you don't have to go that far. They don't get to just say, "Here's my sincerely held belief, and here is what I want you to do." Once again, employers have to provide a reasonable accommodation unless it causes undue hardship, but they get to determine what the reasonable accommodation is. If there are multiple reasonable accommodations, the employee doesn't get to decide which one it likes best; the employer gets to decide which one they like best that accommodates that belief.

J. Larry Stine (15:45):

So that would be like Betsy's example of the women with hijabs, which are just long, flowing. They cause so many problems that putting on a jumpsuit around them lets them continue to wear what they want to wear. Basically, we think you should think about this as you want a robust interactive process. Think of the ADA (Americans with Disabilities Act). Basically, the way that works is somebody comes in and says, "Hey, I need an accommodation for my job." And you have to look at it, you have to analyze it, and the analysis can come out with, "I can't come up with something that will work to do what you want to do," or "What do you propose?" And then look at it and determine whether you can use that or you can modify it or you can't. But just think about documenting the interactive process to find the reasonable accommodation. It's not like you have to just accept it. You've got to document, once you get these requests, how you went about the process, whether you came up with something or not, and then involving the employee in that conversation and allowing them to input their data. A lot of times in the ADA, what happens in the end is the employees actually can't come up with anything that works. But if they come up with something, like, "I want you to hire somebody else as a part-time employee who only works on Saturdays and comes in and works my shift," that is not going to be considered reasonable accommodation.

Elizabeth K. Dorminey (17:44):

Larry, you make a couple of really good points there. I'd like to emphasize the first is that you can sort of lob that ball back into the employee's court and say, "Okay, so what do you suggest?" Because they make a suggestion, as Larry says, doesn't necessarily mean they're going to get what they want, but you are sort of making them come up with something that they think is reasonable, and that gives you something to work off against. It also raises the point, which I think you just made now with "hire somebody else to do my job for me one day a week." As I recall, the Groff case, they were wanting to just shift the schedules around so that he would not be assigned to work on Sundays.

Elizabeth K. Dorminey (18:30):

He was willing to work on other days. I think that the bottom line for the Supreme Court was that that was not too much of an imposition. That was not an undue hardship, even if the other employees didn't necessarily like it. He was willing to pick up the slack and take additional work on some other days when they might be off in order to balance it out. Ergo, it was not an undue hardship on the employer to come up with that kind of scheduling fix that allowed him to practice his beliefs.

J. Larry Stine (19:00):

I concur with that completely, but it gives you a record. If we have a record of showing you're going through this interactive process, it will help you with that defense of either coming up with something they don't like or coming up with nothing if their only suggestions are totally unreasonable.

Elizabeth K. Dorminey (19:23):

Your ADA analogy is very apt, too, I think, because this has been an issue with working from home. That's a solution that some employees propose, but it may not be one that they're entitled to or one that's going to work for the employer.

J. Larry Stine (19:40):

Yeah, I agree. Obviously, one of the things that we now have is the EEOC is taking the Groff case and running with it. So, we want to talk a little bit further than just the reasonable accommodation in religious discrimination. We want you to watch out for some of the religious accommodation and religious discrimination issues in the following circumstances. One of them is discrimination. That's the fundamental one: the law just basically says you can't discriminate against people because of their religion for employment, hiring, firing, pay, job assignments, promotions, basically any term or condition of employment. You have to be careful. Some of the cases that they cite where the companies have run into trouble are like retail stores where they've hired Muslim women, and they're wearing their full outfit that some Muslim sects believe in.

J. Larry Stine (20:52):

The reaction is, "You can't wear that because my customers will not like you wearing that." You can't do that. If they're front-facing and you don't like the fact that they're wearing religious garb, basically, you're just going to have to tolerate it. Or, if you're a Sikh with a full turban and a full beard and they're doing retail, the fact that you think some of your customers will not like it is not going to be sufficient. Any responses to that, Betsy?

Elizabeth K. Dorminey (21:30):

Well, those are very good points, but it also can flow back to the sincerely held belief angle because if someone shows up for an interview looking one way and then they show up for work looking another way, you might have some question about the sincerity of their beliefs. There again, you'd want to document. I've had situations in the work-from-home thing, too, where somebody says, "I can't come to work." Well, "You came to a full-day interview at the facility, so if you could come for the full-day interview, why is it that you can't come to the office on occasion?" So, that gets into the sincerity angle, too, but Larry's right: just because you think your customers won't like the way somebody looks is probably not going to cut the mustard.

J. Larry Stine (22:22):

You brought up what I think is an excellent point. I don't think I have it in the PowerPoint, but since COVID and we had that massive time where everybody was working remotely, one of the most common reasonable accommodations we're getting from employees now is, "Well, just let me work remotely. I know you did it before, so you can accommodate it. It won't cause undue hardship." That is not necessarily a slam dunk for them to have them work remotely because you still have to look at the job and what they're doing and how they have to interact with other people. You've got to do the analysis, just like you do in the ADA. Why is it that working remotely is not a reasonable accommodation? You've got to document it; you've got to show that that won't work in this particular case. Some of them are really easy: you can't have a remote location when you're doing retail or when you're working in production facilities, but some of the administrative stuff is a more difficult issue.

Elizabeth K. Dorminey (23:28):

But obviously, there are jobs that you can do remotely, and if your analysis shows that that's not going to be a problem, then you probably better live with it, right?

J. Larry Stine (23:39):

Yeah, or we'll let you go remotely X percentage of time, but you're going to have to show up for this and this because that is sometimes the way the job works. Yeah, you can work remotely most of the time, and their argument is they want to be able to do it remotely 100%. The same fact of the matter is you've got to get through the analysis, you've got to look at the job, you've got to look at what you've got to do and what is involved in it, and whether that'll work. The other part is, now you let them work remotely, doesn't mean that you don't continue to analyze how effective they are as a remote worker. As we all know, some employees are really good at remote working, and some basically don't get anything done, and you've got to be able to figure that out.

J. Larry Stine (24:24):

Another thing that we have to be careful about is harassment. You can't harass somebody because of their religion. Offensive remarks about a person's religious belief or practice. It always gets interesting because the definition that employees have of harassment and what the law has as harassment don't match. I can guarantee you that 90% of your employees view harassment as people doing something to them that they don't like, and particularly managers doing something to them that they do not like. Therefore, we find all the time now in the harassment cases, "Well, my boss made me do this, and that's harassment." So you've got to be careful. But harassment is simple; it's related to the protected activity. It still requires that it be pervasive and severe, which means teasing, offhand comments, and isolated events are not that. As Betsy started off, one of the things that we normally recommend not doing is talking politics and religion. If your people aren't talking politics and religion, and they're not doing anything, then you've got control of your harassment because you stop it long before it becomes an event.

Elizabeth K. Dorminey (26:00):

Larry, let me add here too. This is an issue for supervisor training a lot of times because the supervisors are going to set the tone. Your supervisor can criticize your work until the cows come home, and that's not harassment. But a supervisor should make it clear that discussions about personal attributes and personal habits and excessive personal stuff is not appropriate in the workplace. I think with the younger generation—not to generalize too much—sometimes their notion of what's acceptable to talk about is a little broad and can lead to problems. But that's where supervisor training can keep you out of trouble because your supervisors will set the tone for what's permissible and what's not.

J. Larry Stine (26:49):

Right. I like to point out I had a case actually when I was a federal attorney and an internal labor relation. I had a discrimination case brought by one of the employees of a Mine Safety and Health supervisor. The supervisor was a mean son of a gun. We went to trial, and the guy brought in virtually every employee in the shop, and every employee in the shop testified that he was a mean son of a gun. He lost the case because he wasn't being harassed because of what he claimed was his protected activity. The guy was an equal opportunity mean son of a gun, and that is not a violation of harassment or discrimination laws.

Elizabeth K. Dorminey (27:52):

But neither is it to be encouraged.

J. Larry Stine (27:55):

I have to tell you that he was very mad at me when we won the case, and the EEOC administrative law judge basically said he was a mean son of a gun, but he was an equal opportunity son of a gun. So he was not happy with me, and I was not happy with his management style, but that's a management issue, not a legal issue.

Elizabeth K. Dorminey (28:19):

Right.

J. Larry Stine (28:20):

The other one is a kind of segregation, which means you're trying to keep somebody out of a job. We talked about this, like you don't want the Muslim women to be doing a front-facing job, so you put them in the back doing other jobs. You cannot do that. I really don't think that's something that many people do, but you'll be surprised. We're still reading cases where employers say, "Oh no, I didn't want them because the customers didn't like them, and so I wouldn't let them come out front."

Elizabeth K. Dorminey (29:07):

Remember, Larry, there was that notorious case in the Northern District of Georgia and the Atlanta Public Library where someone in management said, "I don't want to see so many white faces out here in front at the desk." That produced large monetary awards for some of the people who were shunted into the back. In the final analysis, that was race discrimination, of course, not religious, but still, the idea of treating people differently because of a particular attribute is not going to be a plus.

J. Larry Stine (29:39):

Right, no, it's not. That's what we mean by segregation. You're going to see this most often in a religious discrimination case where they're doing something that is visible, and you can see, like the full Muslim women's garb or the Sikhs with the full beard and the turban. That's where you'll see that. You're not going to see it with somebody like a Seventh-day Adventist. You're going to have a problem with him with the Saturday, but not with his looks. So, here we are with the religious discrimination and the accommodation. It requires us to reasonably accommodate their religious beliefs and practices unless it would cause a burden that is substantial in the overall context of the employer's business, taking into account all relevant factors, including the particular accommodation issue, the practical impact in light of the nature, size, and operating cost of the employer.

J. Larry Stine (30:37):

This also means that you've got to make reasonable adjustments to the work environment to let them practice his or her religion. Once again, it's a kind of balancing. When you read the Supreme Court case, we're talking about the undue impact, undue burden being financially important. Now that does play, but once again, you can see that they look at other things: the nature of the accommodation, the size, the operating cost of the employer. Something that requires another employee to do something for the employee is harder and harder the smaller you are, and that is something that you can take into account. Now, I want to look at some examples of what I will call common reasonable accommodations and go through those.

J. Larry Stine (31:31):

The first one is, and this one comes up a lot because of different days of worship: flexible scheduling. If you can be flexible in your scheduling and how you schedule people, that obviously is the easiest thing to do. Let's just say you happen to have two people: one who's a Christian who has to be off on Sundays and a Seventh-day Adventist who has to be off on Saturdays. Well, it's pretty clear that I will take the Seventh-day Adventist and schedule him for Sundays and take the Christian who's taken Sundays as the Sabbath, and he works on Saturday. If you have that ability to do that, that obviously might be the easiest thing to accommodate that type of accommodation.

Elizabeth K. Dorminey (32:16):

Larry, let me point out there. I think you had a case a few years back of a large poultry processor in the upper Midwest that had a substantial Muslim population that wanted to have prayer breaks. So, they just worked the schedule around that, and it seemed to satisfy everybody reasonably well.

J. Larry Stine (32:34):

Over a third of the plant was Muslims, and they needed to have the prayer session. So, we just rebuilt the whole scheduling around the Muslims' prayer. The other thing is, when you've got something like that, from a management point of view, you're actually engendering goodwill with this group of people, and you will have more people show up. You will make your recruiting easier if you are known in the community as, "Hey, these people will accommodate this, and they've got it set up already." The simple fact of the matter is that the non-Muslims are okay with another five-minute break. They're not going to complain about having short little breaks while they have a pause in the processing. Now, one of the other things that has been around for a very long time is voluntary shift substitutions.

J. Larry Stine (33:28):

What this fundamentally means is that the employer accommodates and supports voluntary shift substitutions so that the employee has given the authority to reach out to other employees who can do his job to see if they can switch shifts. For example, I'll take my example. I've got a Seventh-day Adventist, and I only have a Seventh-day Adventist. He wants Saturdays off. One of the things we can do is, if there are enough employees, he can come back and say, "Hey, I'll work that Monday where you want off if you'll take the Saturday," and he can actually contact people, and you facilitate and allow that. So, there's a switch between two people who can do the same job with a voluntary shift substitution. Kind of similar to that is the swaps: you let employees swap shifts, and all they have to do is let you know. Any comments on that, Betsy?

Elizabeth K. Dorminey (34:29):

Well, I think that reinforces the earlier point too, that this is a management decision, again, not a legal one, but it's one that can build a team because people are helping each other out. The perception there is going to be more with a voluntary arrangement rather than a coerced one that can help the cohesiveness of all your employees together.

J. Larry Stine (34:59):

Right. What happens occasionally when you do this is that somebody who has an objection to working on a Saturday is given all that authority. Now, what happens when he can't? Are you going to force it, or is he going to have to come in and work on one Saturday a year or something along those lines?

Elizabeth K. Dorminey (35:17):

Then you figure it out, though. Maybe you draw lots, or maybe you give an incentive to somebody who wants to take that, or an additional shift differential or something. There are ways of doing it that are not necessarily as heavy-handed as other ways.

J. Larry Stine (35:34):

Right. It is interesting you point that out because Justice Marshall made those suggestions in a dissent in the TWA Hardison case. He made that very suggestion: give some incentives. The majority shot it down, but now that it's a nine-zero decision, that is something I think you all can consider again. Another thing is job reassignments to give the person a job that doesn't require Saturday work. If, for example, you've got some shifts or some departments that don't do the Saturday or Sunday work, or for example, if you're concerned about safety concerns working around machinery with the hijab, you can put them into another job where that's not an issue, not a safety issue. So, you can look at that.

Elizabeth K. Dorminey (36:23):

Well, and Larry, wasn't there a case years ago when there was a trucker who didn't want to carry alcohol?

J. Larry Stine (36:29):

I don't remember that one, Betsy.

Elizabeth K. Dorminey (36:31):

I remember that. And it was like, it's in a box in the back of your truck. But anyway, if that really bothers you to have to drive boxes containing alcohol around, we'll just find you a different truck to drive, and somebody else can drive that truck.

J. Larry Stine (36:48):

That probably will work there, but he shouldn't apply for like a beer distributor. I don't think he would have a reasonable accommodation under those circumstances. So, another one is to modify workplace policies or practices. Sometimes you've got to change a little bit of your own policies or practices, but it has to be something that doesn't cause major operational issues. I think we've actually kind of hit with the dressing and the grooming things. I think we've already covered this, Betsy, don't you think?

Elizabeth K. Dorminey (37:28):

I think so. We've covered it in the context of the other things, and we do need to leave a little time if anybody has any questions.

J. Larry Stine (37:35):

Yeah, I'm going to give them another minute or so. An employee cannot be forced to participate or not participate in religious activities as a condition of employment. Where that is coming up is that in some of these operations, let's just say you're working for a Christian organization, but you're not a Christian, and they hire you. They really are not going to be able to make you go to prayer meeting when they have a morning time to get together and pray. That employee has to understand that they're not required to be there and they do not have to participate as a religious accommodation. I think I give us about five minutes, Betsy. We will go a little over 12:45, but I do want to talk about this vaccine mandate. And what I really want to talk about is the Second Circuit case.

Elizabeth K. Dorminey (38:33):

That Second Circuit case. That was very interesting, wasn't it?

J. Larry Stine (38:36):

Yeah, it was very interesting. So now we've got the Second Circuit dealing with a religious accommodation case related to the vaccine mandate after Groff versus DeJoy. The interesting thing is there were two employees who were claiming they had sincerely held beliefs against having the vaccine. The court below granted summary judgment to the employer, the Federal Reserve Bank, and the Second Circuit affirmed one summary judgment and denied another. The reason was that they decided that the evidence for Gardner Alfred, her testimony, was so conflicting and so off the board that they came to the conclusion she did not have a sincerely held belief. Basically, what the woman did is she found an ad from a place called "the Temple" who for $487 sold an affidavit and a form completed by the pastor that one of their religious beliefs was not to get a vaccine.

J. Larry Stine (39:47):

However, she could never prove that she was actually a member of the temple and honestly kind of lied about it and got caught in multiple conflicting issues. What the court eventually came to for her is, well, we think there's enough that we cannot submit it to a jury. The other lady was a Catholic. Interestingly, the pastor would not sign her affidavit, saying that the official position of the Catholic church was that they did not object to the vaccine. However, she got some objections from a different Catholic church out of Colorado, and she was in New Jersey that said it was there, but she was a Catholic. She did set forth a belief. They tried to argue that she wasn't following her beliefs as well as she should, which the Second Circuit basically kind of says, "Well, how many followers are always compliant with everything they say?"

J. Larry Stine (40:43):

"We don't think that's a requirement." If you remember, I started off by saying, sincerely held belief is a hard thing to get summary judgment. The Second Circuit showed why it was. The woman went and bought $487 to get her religious belief. They came to the conclusion that she didn't have a sincerely held belief, and in her own deposition, she couldn't give any details, whereas the other lady did. They said that everything else they're looking at was the weighing of the evidence, and that that weighing of that evidence was inappropriate for summary judgment, and they were going to let it go to a jury. That doesn't mean that she would have won; it doesn't mean that the jury would come to the conclusion it was a sincerely held belief, but it becomes a jury issue. That, I believe, is the critical part about that case. Since I'm running out of time, I thought I would at least get that. Any comments about that, Betsy?

Elizabeth K. Dorminey (41:42):

Well, just that it's a very interesting circuit court decision that basically goes both ways or gives you an example of each direction because of having the two different plaintiffs. I think that makes that particular decision a useful and instructive one because you have on the one hand and on the other hand in the decision instead of just testing one.

J. Larry Stine (42:09):

Right. I agree. I think that was one of the—it was a fascinating case to read. Can we briefly speak to the memo authorizing employees to basically talk about their religion and how that might interact with management-employee relationships? Fundamentally, the fact that you can talk about your religious beliefs, there's a line between allowing employees to discuss what their religious beliefs are and trying to persuade somebody they're right and crossing the line to being harassing. You've got to watch that line because you've got beliefs on both sides. You've got religious beliefs against the one they're wanting to persuade the employee to take and your own. So, that's one of the more difficult issues involved. You've got to make certain they understand that these conversations have to be respectful. When the other person basically says, "No, I don't want to talk about it anymore," they need to honor that person's response to it all so it doesn't cross the line to being harassing. You got any comments about that, Betsy?

Elizabeth K. Dorminey (43:26):

Only that that's where your supervisor training can come in handy. You are training your people to set the tone for the workplace so that it stays on a professional level. It was Justice Scalia that famously said that the workplace was not supposed to be a "Victorian tea party," but then again, it shouldn't be a knockdown, drag-out barroom brawl either. So, you've got to draw a line between what's acceptable conduct and what's not, and it's not going to be a clear line.

J. Larry Stine (43:55):

Yeah, that is one of my favorite quotes for harassment because I think a lot of employees define the harassment as every employer has to have a Victorian tea party.

Elizabeth K. Dorminey (44:08):

And again, not to cast any aspersions on the younger generation, but we seem to live in an environment where a lot of people are easily offended. Just because you're offended does not necessarily mean that you have been harassed, and that's sometimes a hard distinction to convey.

J. Larry Stine (44:28):

The same thing is true for religion. You've got to make certain that's controlled and respectful. If they keep doing it over and over again, they've crossed the line, and they've now gone where they're interfering with somebody else's religious beliefs or lack thereof, being an atheist. But the Supreme Court has protected under the religious beliefs beliefs that they're an atheist. Thank you for that question. We greatly appreciate any questions we get. In what ways is the new memo a departure from already existing law?

Elizabeth K. Dorminey (45:09):

Well, I think one way to convey that, Larry, is to say that it's like they turned the dial from five up to about eight as far as the employer's burden of showing that it's going to be an imposition and an undue hardship instead of just a minor distraction.

J. Larry Stine (45:29):

Now, what she's talking about is a memo about the employees being able to try to persuade somebody about their own religious beliefs. The problem is—and I think you've mentioned this before—it's a balancing act because you've got conflicting religious beliefs. I've got atheists, and I've got Christians who are devout Christians, and they believe their duty is to bring everybody in the world to Christianity, which is what they preach, and some take up more. The thing is, from the HR point of view, is it a departure? I don't know if it's a departure from an already existing law so much as it's an acknowledgement of the balancing test, and it's always been there that you've got to balance that. I can't tell somebody who's a devout Christian that I might have an employment rule that you cannot talk about religion, period. That's too far. But you can have a rule that says it needs to be limited to these circumstances and these times, and I don't need you to be doing it here, and I need you to be respectful and honor the request of the other employees. So, once again, it's a balancing between them being able to profess their beliefs and going so far that they begin to harass everybody else.

Elizabeth K. Dorminey (47:01):

We can call it the Franklin rule: R-E-S-P-E-C-T.

J. Larry Stine (47:06):

Yeah, it's not easy. I don't think it's going to be easy. I think it's going to be one of the more difficult things that we see coming out of this case. But I think one of the things that you're seeing, not just in this one case, but overall, it had looked like religious discrimination had been kind of like the unfavored child of the list of protected activities. Now, the courts are recognizing that when Congress said sex, race, and religion, they meant them all to be treated the same way, I think is a fair way to look at it.

Elizabeth K. Dorminey (47:45):

It's a good summation.

J. Larry Stine (47:46):

Let me thank you all for participating, and we'll have another one next first Friday of November and talk to you then. Thank you so much for your time.

Elizabeth K. Dorminey (47:58):

Thank you, Larry, and thanks to everybody listening. Thank you.

J. Larry Stine (48:01):

Bye, everybody.