Can’t Spell Religious Discrimination Without ESG

Can’t Spell Religious Discrimination Without ESG

For those of you who are familiar with the blog, you know the fastest way to our heart is an obscure, mildly inappropriate employment law story that also happens to raise a genuinely useful, practical point. Accommodation cases – specifically religious ones – are frequent flyers in that category. I think fondly about an early post involving – and I promise you this is true – a Long Island wholesale company that tried to fix its workplace culture with a spiritual program internally known as “Onionhead”. A handful of employees objected. They got fired for objecting, sued for religious discrimination, and a jury eventually awarded them millions of dollars.

“Onionhead” checked all of the boxes, including the lesson to treat the definition of “religion” as genuinely broad. Sincerity is the test, and it doesn’t matter how bat$#!* crazy whether anyone else on Earth recognizes the belief. Now, technically, an employer can deny a request on sincerity grounds. In practice, though, we almost never advise clients to go there. Sincerity fights are almost always “fact-intensive” (legal talk for “expensive”), and –  because you’re literally questioning the sincerity of someone’s beliefs – tend to provoke and anger people (good rule of thumb: happy people tend to not sue; provoked and angry people tend to sue – you’re welcome). 

The practical move tends to be to leave the belief alone and focus on the accommodation request itself. Is it reasonable? Can I live with it from an operations perspective? Does it involve lighting candles instead of lights to keep out demons? (Yes that was from Onionhead) It’s a much better hill to defend than “we didn’t believe you.”

Remember during the pandemic when a remarkable number of people who had never previously expressed a religious objection to anything suddenly discovered a deeply held one regarding a vaccine? Well, the employers who focused on the accommodation-not-belief approach tended to fare better, in large part because it’s the more strategic and practical play. They also had the benefit of nearly fifty years of jurisprudence giving employers an advantage when it comes to denying religious accommodations.

A little history here: back in 1977, the U.S. Supreme Court issued its decision in Trans World Airlines, Inc. v. Hardison and first established the standard for religious accommodations under Title VII. Following Hardison, an employer could deny a religious accommodation if providing it caused more than a “de minimis” cost or burden. That was a low bar for employers, and they cleared it often. Again, focus on the accommodation and not the sincerity of the belief.

Then came Groff v. DeJoy in 2023, and the Supreme Court effectively overturned Hardison and created a new standard: an employer now has to show “substantial increased costs in relation to the conduct of its particular business” before it can deny a religious accommodation. That is a considerably higher bar, and courts have been enforcing it accordingly, issuing decisions favoring employees that likely would have gone the other way under Hardison.

What’s interesting – and potentially terrifying for employers – is when you start to see fact-patterns combining the broad rules for “sincerely held beliefs” with the heightened Groff standard. We’ve since seen religious accommodation claims involving employees objecting to DEI-related trainings, and objections to using AI tools in the workplace. It’s almost like an invitation for employees to test the outer limits of what constitutes an accommodation . . .

Let’s say you’re an active member of a religious organization whose faith calls on all members to be good stewards of the Earth. You live according to these beliefs and do things like have a plant-based diet and commute almost exclusively by bicycle to reduce fossil-fuel emissions. You review your company’s 401(k) plan and notice that every single equity investment option currently offered includes significant holdings in fossil fuel companies. You, feeling as if you’re forced to choose between compromising your sincerely held religious beliefs or forfeiting key employment benefits, request that the company add a fossil-fuel-free option to its menu of 401(k) investment funds. Well . . .

Lawsuit seeks fossil fuel-free 401(k) plan on religious grounds

Hartley v. Thermo Fisher Scientific Inc. was filed earlier this month and involves this novel legal theory that, under Groff, adding a single fossil-fuel-free investment fund option to the existing 401(k) menu is reasonable. Thermo Fisher’s accommodations team – apparently not readers of this blog – allegedly focused on the nature of the belief and told Hartley his request “does not meet the criteria for a religious accommodation.” Yada yada yada, they got sued.

Would the result have changed by focusing on the accommodation and saying something like, “we’re evaluating whether this fund fits our fiduciary obligations”? I guess we’ll never know.

What we do know is that Hartley’s lawyers – from the environmental advocacy group ClientEarth – are leaning directly into Groff. Whether a court ultimately agrees that this specific belief, applied to this specific request, is the kind of thing Title VII was built to protect is kind of not the point? Hartley is a live stress-test of just how far post-Groff religious accommodation law can stretch into parts unknown that historically wouldn’t have even remotely been filed under “religious accommodations.”

So what do you do with this if you’re an employer? Pray (kidding, kidding . . . sort of).

The advice remains the same, just applied to a stranger landscape. Don’t get cute litigating whether someone’s belief system is “real” or sincere. Evaluate the accommodation request strictly on its own operational terms – hard costs, administrative feasibility, actual undue hardship, etc.

(Funny enough, Onionheads apparently, didn’t have a 401(k) plan – which, in hindsight, might have been their most legally sound business decision)

That’s all for this one. As always, if you’ve got questions, you know we’ve got answers.

~ The W + K Team