Tuesday, November 28, 2023

This case perfectly illustrates religious accommodations post-Groff

Elimelech Shmi Hebrew is a devout follower of the Hebrew Nation, a religion that requires its followers to keep their hair and beard long — a vow he has kept for over two decades.

The Department of Criminal Justice has a grooming policy that prohibits male officers without medical skin conditions from having beards and in any case from having long hair.

Hebrew applies for a job as a corrections officer with DCJ. What wins out — Hebrew's religion or DCJ's grooming policy?

The answer — courtesy of the 5th Circuit Court of Appeals and its application of SCOTUS's Groff v. DeJoy "substantial burden" undue hardship standard for religious accommodations — is Hebrew's religion.

DCJ nowhere identifies any actual costs it will face — much less "substantial increased costs" affecting its entire business — if it grants this one accommodation to Hebrew. DCJ simply identifies its security and safety concerns without regard to costs. Likewise, DCJ's reference to possible additional work for Hebrew's coworkers is insufficient to show an undue hardship.

If you're going to claim on an undue hardship to deny a religious accommodation request to an employee, you best have your Groff v. DeJoy ducks in a row … and by ducks, I mean empirical evidence of actual costs that substantially and negatively affect your entire business. Otherwise, the more prudent course of action is to grant the accommodation and give up fighting a fight that you likely cannot win.