Management Update

Supreme Court to Rule on Workplace Religious Accommodation Requests

By: E. Fredrick Preis, Jr. and Philip Giorlando

On Tuesday, April 18, 2023, the U.S. Supreme Court heard oral arguments on its most recent employment accommodation case, Groff v. DeJoy, in which a U.S. Postal Service employee who requested not to work on Sunday was denied the accommodation because of the burden his absence placed on his workplace in rural Pennsylvania, which greatly struggled to find a replacement worker. Groff quit his job and sued his employer for violations of Federal religious discrimination law.

The Supreme Court is faced with a question that has been longstanding law for almost fifty years: when can an employer refuse an employee’s religious accommodation request? How this Court will address that question could have substantial implications for how employers handle religious accommodations—especially during a historic uptick in accommodation requests due to COVID-19 vaccination policies. The Supreme Court’s decision could encourage employees to re-submit religious accommodation requests for COVID-19 vaccines and other accommodations.

How has the Court Interpreted Undue Burden Previously?

Federal law provides that an employer can refuse an employee’s religious accommodation request when that request would be a “undue burden” on the employer. In 1977, the Supreme Court said that an accommodation was an “undue burden” if it caused more than a “de minimis” cost on the employer. This standard has not changed since that decision.

The appellate court, in dismissing the Groff’s case, recognized that the employer relations issues, overtime costs, increased workload on other employees, and reduced employee morale satisfied were more than “de minimis” costs, such that the employer’s decision to deny the accommodation was proper. The Justices, including historically conservative Justices Kavanaugh and Barrett, asked questions that suggested doubts that the standard should change.

Justice Kavanaugh noted that Groff’s accommodation to be off on Sundays caused one employee to quit, one to transfer to another location, and one to file a grievance against the employer because of Groff’s treatment. Justice Kavanaugh made clear that his position is that such costs were sufficient to constitute an undue burden.

Justice Barrett, in response to the statement by Groff’s counsel that employee morale would only be an undue burden if an employee quits, suggested that she disagreed with the idea that an employer would have to wait until employees start quitting to deny a reasonable accommodation.

What Employers Should Do

While the Supreme Court deliberates its ruling on this religious accommodation case, employers should review their religious accommodation policy to ensure that it is legally compliant, as well as analyze their current religious accommodations provided or denied in the past to determine how the Supreme Court’s decision could impact those accommodations.

Weeding Out: Budding Legislation – Status of House Bill 24

By: Kayla M. Jacob

Louisiana’s 2023 Regular Legislative Session is filled with high hopes for cannabis enthusiasts as several bills have been introduced regarding marijuana. However, one of those bills – House Bill 24 – has already gone up in smoke.

Currently, marijuana is classified as a controlled dangerous substance under Louisiana law. Possession of marijuana in Louisiana could result in criminal penalties.

House Bill 24 was introduced to repeal Louisiana law that classifies marijuana as a controlled dangerous substance and to further decriminalize marijuana by removing criminal penalties for the possession and distribution of marijuana. The bill was contingent on the Louisiana Legislature enacting a regulatory system for the sale and distribution of marijuana.

No amendment to criminal penalties imposed for synthetic cannabis was proposed under the bill.

Moreover, the proposed law did not seek to prohibit Louisiana employers from implementing or enforcing reasonable zero tolerance or drug free workplace policies.

During the hearing before the Administration of Criminal Justice committee on April 25, 2023, the economic benefits of taxing adult recreational marijuana use was emphasized in support of the bill, but to no avail. The bill was involuntarily deferred by a majority vote of the committee. This decision effectively killed House Bill 24.

For some, House Bill 24 being shelved halts Louisiana’s progress on marijuana reform while, for others, preserving the status quo with regards to marijuana is a victory. Despite the different opinions on marijuana legalization, marijuana remains a hot topic for Louisiana’s 2023 Regular Legislative Session, and the outcome of this session could significantly impact the future of marijuana regulation in this State.

EEOC Sues New York Pizzeria for Harassing and Driving Out a Transgender Employee

By: Alexandra Hains

In January, the Equal Opportunity Employment Commission (“EEOC”) released a draft of its “Strategic Enforcement Plan” for 2023-2027, which included expanding priority workers to include LGBTQIA+ individuals. In the plan, the EEOC wrote that it will prioritize vulnerable and underserved categories of workers “who may be unaware of their rights under equal employment opportunity laws, may be reluctant or unable to exercise their legally protected rights, or have historically been underserved by federal employment discrimination protections.”

Based on recent activity, the EEOC is serious about this priority. In March, the EEOC filed a lawsuit against a New York pizzeria after “management and employees harassed an employee because of his gender identity.” The lawsuit is the first from the EEOC since filing on behalf of another trans worker in 2017.

In the suit, the EEOC alleges the owners of TC Wheelers Bar & Pizzeria in Tonawanda, New York, “repeatedly harassed Quinn J. Gambino, a transgender male, including telling Gambino that he ‘wasn’t a real man’ [and] asking invasive questions about his transition.” The EEOC also alleges that management intentionally misgendered the employee and did not take any action when other employees and customers did the same. The EEOC claims that the employee repeatedly complained to management and that the company failed to protect the employee by not addressing the almost daily harassment from all levels of staff, including owners, managers, and line employees. Eventually, the employee had “no choice but to resign to escape the harassment,” the EEOC charged.

The alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees on the basis of sex, including gender identity, as reaffirmed by the United States Supreme Court in Bostock v. Clayton County. In a statement following the filing of the lawsuit, the Chair of the EEOC stated, “The EEOC will vigorously enforce the Supreme Court’s holding in Bostock that discrimination against transgender workers violates the law.”