Tips from the Other Side: Undue Hardship and Religious Accommodation

By Meghan Droste, January 11, 2021

It’s a new year, so I have a new focus for my tips for you this month. Well, sort of a new focus. I spent the last few months of the year-that-shall-not-be-named bringing your attention to issues related to accommodating employees with disabilities. As promised, we’re moving to a new topic this month, but it still involves accommodations. This time, I want to focus on handling requests for religious accommodations.

Agencies are required to provide accommodations for religious beliefs and practices unless doing so would present an undue hardship. In contrast to disability cases, the bar for undue hardship in religious accommodations is fairly low: Anything that would require more than a de minimis cost to the agency is an undue hardship. Agencies still often trip over this bar in denying requests for accommodations without any evidence that the accommodation actually would be a hardship.

The Commission’s recent decision in Frances A. v. Department of Justice, EEOC App. No. 2019004187 (Nov. 30, 2020) provides a good example of this. The complainant served as a chaplain at a federal correctional facility. In early 2017, the warden issued a memo requiring all employees who worked in duty stations beyond the control center to carry pepper spray with them. The policy initial exempted chaplains from this requirement, but the agency rescinded the exemption a week later.

In March 2017, the complainant requested an exemption from the requirement to carry pepper spray, citing his religious beliefs that prevented him from carrying a weapon. Three months later the warden denied the complainant’s request on the grounds that it was an undue hardship.  The warden stated that if the complainant did not carry pepper spray it would result in a “significant impact” on facility operations by reducing the number of staff who could respond to emergency or requiring other staff to assist the complainant. Five months after the denial, the agency reversed its position and granted the complainant’s accommodation request.

In its decision on the failure to accommodate complaint, the EEOC found that the agency had no evidence to support its assertion that the granting the complainant’s request would result in an undue hardship on the agency. As the Commission noted, the claim that it would result in a “significant impact” on facility operations was questionable when there were 300 employees who were required to carry pepper spray, and the complainant represented only 0.33 percent of those employees.

As happens too often, it appears that the agency simply pushed back reflexively on the complainant’s request for accommodations rather than making an effort to really consider whether it was possible to grant it (or to provide an alternative accommodation).

The lower threshold for establishing an undue hardship should not be read as a free pass to choose not to provide accommodations when the agency would rather not. The agency must still have some real evidence to point to before denying a request. Droste@FELTG.com