HR Question:

I have read that a recent Supreme Court case has impacted the definition of “undue hardship” when it comes to providing employees an accommodation. How is this case impacting what I should (and shouldn’t) do when my employee requests an accommodation?

HR Answer:

Anti-discrimination laws have always provided guidance to employers regarding the need to accommodate applicants and employees for several reasons – such as whether they have a disability or a sincerely held religious belief – so they can perform the essential duties of their job. And with the 2023 Supreme Court decision in Groff v DeJoy (find the full summary of the case here at the Harvard Law Review), some definitions that apply to the accommodation process have shifted.

The Old Definition of Undue Hardship

When employers utilize the interactive process (see below) to understand whether or not the requested accommodation is “possible” or “doable,” they may often utilize the concept of “undue hardship” as one of the factors in that decision.

Because “undue hardship” can have different interpretations depending on the state, the applicable laws, and the situation, the most commonly used definition by employers is the guidance that has been provided by the U.S. Equal Employment Opportunity Commission (EEOC) in their EEOC Undue Hardship Guidelines. These guidelines require many considerations that should be taken into account, such as an employer’s size, financial resources, the nature and structure of their operations, and whether or not the accommodation would require more than a significant cost to the business. An important note is that overall, an “undue hardship” for one job versus another – or one employer versus another – could vary based on the circumstances as a whole.

The New Definition of Undue Hardship

Before the Groff v DeJoy ruling, the vague definition of “undue hardship” didn’t require as much effort on the employer’s part to show more than that minimally significant business impact. That’s why, in 2023, the common reference to undue hardship was given further definition – but only for those requests and accommodations based on sincerely held religious beliefs.
In the Groff v DeJoy decision, the reference to “undue hardship” now references the term “substantial increased costs” for employers when making a religious accommodation.

What Does This Mean for Me?

So, what does that mean for employers? As any changes (in this case) only fall under accommodations for religious reasons, it’s best practice to still engage with the interactive process whenever there is an accommodation request – religious or otherwise. This may look like having open and honest discussions about the challenges and needs the applicant or employee may have, as well as discussing what documentation is required (such as medical records). It’s very possible that failing to take part in this discussion of needs and limitations could lead to potential discrimination claims.

Before denying any accommodation due to “undue hardship,” work with your attorney to be sure that you have investigated all accommodation options and that the request is truly a hardship under the standards established by the court. Review your resources and consider alternative ways to support the accommodation, such as pursuing grants, engaging with the local jobs center, or even connecting with the Bureau of Workers Compensation. Also, consider the Job Accommodation Network, a free service that provides employers with accommodation options for individuals with disabilities.

Finally, keep your eyes open for more changes that could be coming. The Americans with Disabilities Act, Pregnant Workers Fairness Act, and Title VII of the Civil Rights Act all use different language as it relates to accommodations and undue hardship. Be sure you continue to watch for changes in the interpretation of these definitions going forward and stay connected with your attorney for additional guidance.

In the end, employers have a responsibility to work with employees who request an accommodation. Working with applicants and staff on these requests is an essential role for human resources, and often results in overall enhancements that benefit applicants, employees, and employers. Accommodation can be more than just a legal requirement, but rather an opportunity to provide an inclusive and better workplace for everyone – no matter their unique needs.

Thank you to Patti Dunham, MBA, MA, SPHR, SHRM-SCP, and Samantha Kelly for contributing to this edition of our HR Question of the Week!

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