new to the Firm!

Peter Q. Nguyen, a Senior Labor Relations Consultant in our Los Angeles office, has extensive experience, having negotiated over forty master agreements and doing labor relations work across many jurisdictions, including municipalities, special districts, K-12, higher education, entertainment, and healthcare. He has also engaged in complex policy analysis, drafted legislation, and taught public policy at the university level.

Will Abramovitz, an associate attorney in Liebert Cassidy Whitmore’s San Francisco office, provides labor and employment law and litigation expertise to our clientele. Prior to joining LCW, Will was an associate at a major international law firm and a San Francisco based law firm where he obtained significant experience litigating and advising on labor and employment matters and complex commercial disputes in both state and federal courts through all stages of litigation.

U.S. Supreme Court Establishes Higher Standard When Denying Religious Accommodations Due To Undue Hardship.

Gerald Groff is an Evangelical Christian who believes for religious reasons that Sunday should be devoted to worship and rest. In 2012, Groff took a mail delivery job with the United States Postal Service (USPS). Groff’s position generally did not involve Sunday work, but that changed after USPS began facilitating Sunday deliveries for Amazon. To avoid the requirement to work Sundays on a rotating basis, Groff transferred to a rural USPS station that did not make Sunday deliveries. Soon, Amazon deliveries began at that station as well, so USPS redistributed Groff’s Sunday deliveries to other USPS staff. During peak season, Sunday deliveries that would have otherwise been performed by Groff were carried out by the rest of the USPS station’s staff. During other months, Groff’s Sunday assignments were assigned to the regional hub.

Throughout this time, Groff continued to receive progressive discipline for failing to work on Sundays. Eventually, Groff resigned. Groff sued under Title VII of the Civil Rights Act of 1964, asserting that USPS could have accommodated his Sunday practice without undue hardship on USPS’s business. Under Title VII, it is unlawful for covered employers to discriminate against any individual because of that individual’s religion. The EEOC has held that employers are required to provide reasonable accommodations to the religious needs of employees whenever that would not work an undue hardship on the employer’s business.

The trial court determined that USPS had a valid undue hardship defense and granted summary judgment to USPS. The Court of Appeals upheld the trial court’s decision, holding that requiring an employer to bear more than a de minimis cost to provide a religious accommodation is an undue hardship under the Court of Appeals’ current precedent.

The de minimis cost standard was a low standard to meet, and the Court of Appeals determined that exempting Groff from Sunday work imposed a cost on his coworkers, disrupted the workplace and workflow, and diminished employee morale. This was enough to establish undue hardship. The case was then appealed to the U.S. Supreme Court, and the Supreme Court granted certiorari.

The Supreme Court held that the de minimis cost standard did not suffice to establish undue hardship under Title VII. Rather, undue hardship is shown when a burden is substantial in the overall context of an employer’s business. This is a fact-specific inquiry. The Supreme Court noted that undue hardship is more severe than a mere burden and more than imposing some sort of additional costs on the employer, rather, it must rise to the level of excessive or unjustifiable. The Supreme Court also held that all relevant factors must be considered when evaluating reasonable accommodations, including the practical impact of the accommodations in light of the nature, size, and operating cost of the employer.

The Supreme Court remanded the case to the lower courts to apply the context-specific application of the standard.

Groff v. DeJoy (2023) __ S.Ct.__ [2023 WL 4239256].

Note:

Title VII generally applies to schools, though there are some exceptions for religious schools. Schools should make note of this decision and consult LCW when responding to religious accommodation requests, as schools will need to meet a higher burden if denying any requests.

Religious Organization Exempt From LGBTQ+ AntiDiscrimination Obligations.

Braidwood is a management company that employs workers at the Hotze Health & Wellness Center, Hotze Vitamins, and Physicians Preference Pharmacy International. Steven Hotze controls or owns these entities, and is the sole trustee and beneficiary of the trust that owns Braidwood. He is also the sole board member of Braidwood. Hotze runs his corporations as “Christian” businesses. He does not allow

Braidwood to employ individuals who engage in behavior he considers sexually immoral or gender non-conforming, nor does he allow Braidwood to recognize homosexual marriage. Braidwood enforces a sex-specific dress code, meaning that “biological” men must wear a tie if they have contact with customers, and “biological” women who have contact with customers may not wear a tie, but may wear skirts, blouses, shoes with heels, and fingernail polish. Dressing in a manner that the employer viewed as inconsistent with clothing commonly associated with the sex assigned at birth was strictly forbidden. There is no evidence of any applicant or employee claiming discrimination under these policies.

Bear Creek is a nondenominational church whose bylaws state that marriage is exclusively the union of one genetic male and one genetic female. Accordingly, the church will not hire “practicing homosexuals, bisexuals, crossdressers, or transgender or gender non-conforming individuals.” Employees who enter into a homosexual marriage will be fired.

Bear Creek and Braidwood require each employee to use the restroom of his or her biological sex.

In Bostock v. Clayton County, the U.S. Supreme Court determined that Title VII of the Civil Rights Act of 1964 forbids employers from discriminating against homosexuals and transgender persons, holding that this falls into the category of discrimination “on the basis of sex.” The Supreme Court gave little guidance on how courts should apply this ruling to religious employers.

In response, Braidwood and Bear Creek filed suit against the Equal Employment Opportunity Commission (EEOC), arguing that Title VII, as interpreted under the EEOC’s guidance and Bostock, prevents them from operating their places of employment in a way that is compatible with their Christian beliefs.

The two employers stated that they will not alter or discontinue their employment practices, and numerous policies and practices they follow (such as those about dress codes and segregating bathroom usage on biological sex) already clearly violate EEOC guidance.

The trial court ruled in favor of the employers and issued an order establishing nationwide exemptions to Bostock. Specifically, the trial judge ruled that Bear

Creek and other religious nonprofits fall under Title VII’s religious exemptions, and that Braidwood and other for-profit companies with a “religious element” are shielded from claims of sexual orientation and gender identity bias under the Religious Freedom Restoration Act (RFRA) and the First Amendment.

On appeal, the EEOC argued that they have not historically enforced Title VII’s prohibitions against religious entities’ engaging in potential discrimination against homosexuals and gender non-conformists. The EEOC argued that it counsels its investigators to respect employers’ religious liberties when deciding whether to bring an enforcement action. At the same time, the EEOC has stated that employers must treat homosexual marriage as the same as heterosexual marriage, and bathroom policies should be dictated by an employee’s asserted gender identity rather than their biological sex. There is no official guidance indicating exemptions for employers that oppose homosexual or transgender behavior on religious grounds.

The Court of Appeals ruled that even though no enforcement action had been brought against Braidwood or Bear Creek, the employers established a credible fear that such an action could be brought one day.

The Court of Appeals ruled that Braidwood is exempted from Title VII due to the RFRA because compliance with Title VII post-Bostock would substantially burden its ability to operate per its religious beliefs about homosexual and transgender conduct. Braidwood maintained it has sincere and deeply held religious beliefs that heterosexual marriage is the only form of marriage sanctioned by God, pre-marital sex is wrong, and men and women are to dress and behave in accordance with their Godordained, biological sexual identity. Under the RFRA, the federal government is prohibited from burdening a person’s free exercise of religion, even if that burden stems from a neutral law.

The Court of Appeals also found that the EEOC’s guidance burdened Braidwood’s religious practice because Braidwood was required to either violate Title VII and obey their convictions, or obey Title VII and violate their convictions. The Court of Appeals said that the EEOC did not provide a compelling interest in refusing Braidwood an exemption, and the Supreme Court has not yet held that preventing commercial business from discriminating on factors specific to sexual orientation or gender identity is a compelling government interest that overrides religious liberty. As for Bear Creek, the Court of Appeals upheld the trial court’s ruling that Bear Creek is a religious organization not burdened by Title VII, and the statute can bar policies regarding bisexual conduct, gender reassignment surgery, and hormone treatment.

Note:

Although this is a 5th Circuit case and does not directly impact California schools, this case highlights that there is considerable debate over the laws that apply to religious institutions and how those laws interact with sex and gender discrimination.