Proposed New Religious Discrimination Guidance: EEOC Seeds Exceptions to Longstanding 'More than Minimal Cost' Defense

14 December 2020 Labor & Employment Law Perspectives Blog
Author(s): Kenneth C. Broodo

In the hierarchy of employment discrimination laws, religious discrimination has traditionally been viewed as the proverbial unwanted stepchild, with pro-employer “undue hardship” exceptions to accommodation requirements that do not require much, either in terms of hardship or of being undue.

Last month, however, religious discrimination came to the forefront, as on November 17, the EEOC issued a “Proposed Updated Compliance Manual on Religious Discrimination,” with a comments deadline of December 17.

Per the EEOC’s notice, “The revisions to the guidance include important updates to the discussion of protections for employees from religious discrimination in the context of reasonable accommodations and harassment. It also expands the discussion of defenses that may be available to religious employers.”

While pro-employer defenses remain deeply entrenched, some interesting exceptions are to be found in the proposed new guidance.

More than ‘De Minimis Cost’

To establish undue hardship in response to a request for religious accommodation, the employer must demonstrate that the accommodation would require the employer “to bear more than a de minimis cost.”  Of course, “more than a minimal cost” is still not much cost, so that courts draw the lines at low thresholds. 

This is illustrated by case precedents cited in the new manual:

  • Undue Hardship:  “[T]he payment of overtime (or premium pay) to another employee so that plaintiff could be off for weekly religious observance was an undue hardship.

  • No Undue Hardship

    • “[I]nfrequent payment of premium wages [$220 each to two replacements] for an occasional religious observance is not “more than de minimis.” 

    • “[E]mployer could not demonstrate that paying replacement worker premium wages would cause undue hardship because plaintiff would have been paid premium wages for hours at issue.

Translation:  Paying overtime or premium pay to replacement workers, as part of a scheduling accommodation, is an undue hardship.  Why? Because it is “more than de minimis”—unless infrequent, or purely a wash with what it would have cost without accommodation.

Beyond case precedent, the guidance goes on to give its own official examples (emphasis added): 

  • The first is of an employee who wants to wear his hair long due to his Native American religious beliefs, as an accommodation for restaurant policy requiring that hair be kept “short and neat.”  Management likes its policy because of the dining ambiance it wants to create.  Between management wanting a haircut and the employee wanting a hairnet, the employee wins. 


  • The other example is of a Pentecostal steel mill laborer wanting to wear a skirt as an accommodation for religious precepts of modesty, instead of pants, as required by policy.  Management claims a history of accidents in whichemployees’ skirts were caught in the steel mill machinery.  Easy call for the employer.

In fact, both cases are relatively easy calls, one with a no-cost hairnet for the employee (OK, so less ambiance), and the other with danger to limb, if not life.  While such easy cases don’t offermuch in the way of guidance, the manual does make clear from case precedent that “[c]osts to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.

Translation:  Pure inconvenience, if inconvenient enough, and, of course, safety concerns, are “more than de minimis costs,” and thus undue hardships on the employer, excusing the employer from making religious accommodations.

Exceptions (Such as They Are)

With the ageless “more than de minimis cost” standard still in place, the proposed new guidance is interesting in that it seeds various exceptions to that standard.  Employers take note—the seeds may grow.  Examples (emphasis added):

  • Co-worker complaints are not quite enough, until they are.  Co-workers’ displeasure or even taking offense from religious views, alone, is not undue hardship—unless it rises to the point of affecting “efficiency, production, quality [or] morale.

  • Not all security requirements are inviolate.  A baptized Sikh wearing a “small (four-inch), dull and sheathed kirpan (miniature sword) strapped and hidden underneath her clothing, as a symbol of her religious commitment to defend truth and moral values” must be accommodated in a hospital setting that prohibits all weapons, as the kirpan is “no sharper than butter knives found in the hospital cafeteria.

  • Scheduling mandates sometimes have to give way.  Employers must consider “allowing flexible arrival and departure times, floating or optional holidays, flexible work breaks, use of lunch time in exchange for early departure, staggered work hours, and other means to enable an employee to make up time lost due to the observance of religious practices.” 

    (In the same vein, requiring work or work availability as a job requirement may violate Title VII from the beginning, in the absence of religious accommodation—capped by undue hardship.)

  • Task and location changes are not always undue hardship.  “Appropriate accommodations may include relieving the employee of the task or transferring the employee to a different position or location that eliminates the conflict with the employee’s religion. Whether or not such accommodations pose an undue hardship will depend on factors such as the nature or importance of the duty at issue, the availability of others to perform the function, the availability of other positions, and the applicability of a collective bargaining agreement or seniority system.”

  • Most notably of all, voluntary shift swaps must be affirmatively supported.  “Although it would pose an undue hardship to require employees involuntarily to substitute for one another or swap shifts, the reasonable accommodation requirement can often be satisfied without undue hardship where a volunteer with substantially similar qualifications is available and willing to switch shifts, either for a single absence or multiple absences, including absences occurring over an extended period of time. The employer’s obligation is to make a good faith effort to allow voluntary substitutions and shift-swaps to accommodate a religious conflict.”

Religious accommodation is a case-by-case inquiry, and the new proposed guidance is far broader than this post can cover.  The EEOC seems to be hardening the target for employees bringing these claims.  Conferring with L&E counsel at the outset of such accommodation requests can aid lawsuit avoidance.

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