Sometimes We Just Have to Talk About It: Navigating New Rules on Religious Accommodation

In this informative webinar, we dive into recent Supreme Court decisions that address the often delicate issue of religious accommodations in the workplace. Gain practical advice on compliance with the law, meeting your employees' needs, and fostering a respectful atmosphere at work.

A unanimous U.S. Supreme Court ruling on June 29, 2023, clarified Title VII requirements, emphasizing the need for employers to accommodate faith-based needs unless it imposes a substantial increase in costs related to their business conduct. This decision modifies the application of the undue hardship test, introducing nuances that employers will need to navigate. Learn more about this evolving standard and its implications.

Key webinar topics include:

• How does one distinguish between de minimis costs and substantial increased costs?
• Relevant factors to be considered in making this determination.
• Is the impact of the accommodations on co-workers still a factor?
• What type of policy and procedure changes should employers make in light of the ruling?  
• Will the ruling affect relieving an employee of a certain type work, day or hour of work, the pronouns used in referring to others, and other such controversial issues?

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Webinar Transcript

Elizabeth K. Dorminey (00:00):
Well, thank everybody for taking a valuable Friday lunchtime to come and listen to us talk about religious accommodations. As you may know, the Supreme Court has adjusted, shall we say a little bit, the test for determining whether an employer, what an employer has to do to accommodate a a religious conviction on the part of an employee. And I thought I might begin this with a little bit of an anecdote. A number of years ago, I was representing an employer who had an employee who said that he couldn't work on Saturdays because he was Seventh Day Adventist. And so they adjusted his schedule and he was excused from working on Saturdays, but it was a seven day operation. So they had him come in and work on Sundays. And then a couple weeks after that, he said that he couldn't come in on Sundays because he had to go to church.

Elizabeth K. Dorminey (00:52):
And when he, he filed an unemployment claim, the unemployment claims officer was not impressed that he had a serious religious conviction about both Seventh Day Adventist and going to church on Sundays, because I think the feeling was they could have one or the other, but not both in order to get the full weekend off. So he, his claim was denied, but but anyway, that just goes to one aspect of religious accommodation which requires that the the employee be be sincere in their belief. And there's, it's not very easy to determine that there's not real hard and fast tests, but but that is certainly an element of the statutory requirement that they sincerely believe in their, you know, their religious conviction in order to, to have the right to seek an accommodation from their employer. Now, in this last term, at the very end of the term, the Supreme Court did decide a pretty important religious accommodation case. It was called GR versus DeJoy, who was the Postmaster General of the United States. And the Supreme Court usually saves its blockbusters for the, the end of term. And this was one of the end of term cases, and it was a unanimous decision, which in this current climate is a little unusual. But I'm going to pass the torch to my esteemed colleague, Ms. Sheri, to tell you a little bit about this particular Supreme Court case. Thanks,

Sheri Oluyemi (02:26):
Betsy. So, as Betsy has sort of segued into, we are gonna talk primarily today about the decision of Grof versus DeJoy. This is a case where an employee worked for the United States Postal System and he was required to work on weekend. His particular religion was Evangelical Christian, and he stated that for religious reasons he couldn't work on Sundays because it was devoted to worship and the Sabbath, it's a holy day of rest. So in 2012, he took a job with the USPS, and previously the USPS was closed on Sunday anyway, so it was a non-issue, but as you know, the USPS now delivers on Sunday. So this became an issue, and he initially applied for a position that did not require Sunday deliveries. So at the beginning of his employment, he was in the clear, as time moves on, they start accepting Sunday deliveries, and he's required to make those deliveries.

Sheri Oluyemi (03:24):
On Sunday, I believe it was an Amazon an Amazon contract that the USPS had acquired. So to avoid Sunday work, Mr. Groff moved over to a different shift that didn't work on Sundays and didn't deliver on Sundays so that he could continue to stay employed at the USPS, which was, in my opinion, the right thing for the employee to do. This shift no longer works for me and my lifestyle, so I'm gonna get another shift. However Sunday, Sunday deliveries also came to the shift that he had transferred to, and so he could not escape it on that new shift. He continued to be required to work on Sundays and refused to do so because of his sincerely held religious beliefs. So the USPS reacted by disciplining gruff for refusing to accept those Sunday runs. And eventually he resigned. He simply quit his job, and he sued USPS for failing to accommodate his religious belief by permitting him to be off on Sundays, basically reassigning his routes to somebody else.

Sheri Oluyemi (04:27):
So the trial court in this case, granted summary judgment. Some of you might be familiar with. It's basically a decision without a hearing that gruff had no case and there was no need for a trial. It went up to the third Circuit. Court of appeals, court of third Circuit, agreed that it was not required to grant gruff the accommodation requested because the expense would've been greater than de minimis, which is simply Latin for the bare minimum. So the case went up to the Supreme Court, and as Betsy had said, we have a very rare unanimous decision. There was a concurrent decision issued by Soto Mayor and Jackson, but they agreed with the majority. They just clarified a few points. And what did the court find? The court found that this de minimis test had been derived from an earlier decision, which mentioned this in simply one sentence, it's it, the case law evolved from this one case, just because of this one sentence where the judge said it is more than a de minimis cost for the employer to accommodate the employee.

Sheri Oluyemi (05:33):
The court said that that was never the intention of the statute, the way it's drafted. The court did not align itself with the EOCs position, which required a, a much higher burden on the employer. But the court did say that the EOCs position is sensible. So where did the court land? The court landed in this statement where it says the employer must show that the burden of granting an accommodation would result in a substantial increased cost in relation to the conduct of its particular business. So we have a new test, it's no longer a question of whether the cost would be di minimis to the employer, but rather now it must be substantial increased cost. And so since this decision was rendered back in June this is a new standard that employers have to operate underneath. So having given that background, we thought we would give all of our viewers, attendees some practical information about how they might apply this decision going forward. So Betsy, I'm gonna lob the first question in your direction, and it we're simply asking, what exactly does an employer have to do to, to pass the undue hardship question in a religious accommodation situation?

Elizabeth K. Dorminey (06:50):
Well, I think the Supreme Court is telling people they have to do more than just the bare minimum, as you said, the, the de minimus approach there. There's any number of ways that a religious a religious belief can be accommodated. It might be by rearranging shifts of work, which would work, have worked for Mr. Groff and, and worked in other cases. It could be by relaxing some grooming standards. There are religious beliefs that for example, the Sikhs and other certain groups are opposed to cutting hair. And perhaps if you have a certain grooming standard you could, you could relax that or you can find some way around it. We had several years back, a an employer who had a lot of people from Somalia, and they the women wore traditional clothes, which they felt conformed to their Muslim faith.

Elizabeth K. Dorminey (07:55):
But those clothes had a lot of, of hanging fabric that in this particular setting were likely to expose them to the hazard of being grabbed and pulled into the machinery, which obviously is not a good idea. So the solution that employer came up with was to provide these really roomy jumpsuits that they could put on, on top of what they were wearing, and that kept their clothing contained in such a manner that they weren't exposed to that risk while allowing them to continue to attire themselves in a way that was consistent with their beliefs. There have been cases too with with hijab that's in prison settings now. That does pose some particular problems because again, there's a, a risk of vulnerability if a, if a a female guard is, is wearing a headscarf it might be, you know, grabbed by a, a prisoner or something like that.

Elizabeth K. Dorminey (08:56):
And there before Graff, I know that there were decisions that said you could forbid wearing the headscarf. I don't know whether that would necessarily survive Graff or not. Mm-Hmm. But at the same time, you know, putting somebody permanently on a position where they're not exposed to prisoners that they're working in a prison situation might actually work out to being an undue hardship because the employer, the prison, would essentially have to hire somebody completely new and different to to, to take that prison guard position that the person wasn't you know, was, was, was objecting to, to holding. I think that's about what I have to, to say there. We, we took a quick look at some new decisions that have come down since gr and that's kind of fun to see. 

Sheri Oluyemi (09:48):
Yeah. So

Elizabeth K. Dorminey (09:49):
What of appeals have done so far?

Sheri Oluyemi (09:52):
Grin itself did not give the employers a lot of guidance on what substantial costs, substantial increased costs looks like. I think what we take from that decision is that it's going to be case specific. So we do have a list of recent decisions that have been issued after graph to see how courts have applied it. Would you like me to run through these, Betsy?

Elizabeth K. Dorminey (10:17):
That'd be great. But just let me drop another thing there. The one thing that's common and, and these, these cases, of course, for obvious reasons, bleed over into the ADA type cases as well. And it's a, it's a, it's a similar but not exactly identical standard that we have to look at there. But the the, the point of both is that you really, as an employer, you need to engage in an interactive process with your employee, really find out what it is that they're objecting to or requesting in terms of an accommodation, and then work with them on a case by case basis to determine whether and if so, how that requirement can be accommodated. So you really do need to, to train your, your HR group to take these requests seriously and work very closely on, in an interactive back and forth way with the employees to determine what, what, you know, what you can do to, to work things out. But please do run through the cases if you like. Please.

Sheri Oluyemi (11:19):
Yes. Well, I thought let's, let's close off with some other tips on how to implement this decision. You've mentioned a very important first one, which is training. Retrain your managers, retrain your supervisors so that they understand that the standard is not what it used to be. The standard is slightly more onerous now, and we don't have a lot of decisions. So it's better to take a defensive approach to be more prudent than you normally would until we know really where the courts are gonna stand, especially where the 11th circuit is going to stand if you are in Georgia, Alabama, Florida, or your own circuit, depending on what state you're in. So yes, retraining is the first thing we had on our list. The next thing we had was reevaluating policies and procedures. A lot of us have policies that we've developed years ago, definitely before June of 2023.

Sheri Oluyemi (12:09):
So you'd like to go over those policies, reread them, make sure that they are in the spirit and in line with the law of, of the GR decision, just make sure that you don't need to make any changes or any updates. Your handbook may be general enough is not to require a revision, but if you do have a very specific policy that may run afoul of this decision, we would recommend reevaluating it, revising it to make sure that it is in line with this decision. Another one that you hear a lot, document, document, document. We're going to go through some factors that you wanna consider when you receive a reasonable accommodation request on the basis of a religion. You wanna make sure you've documented all of the factors that you've considered. How did you come to decision that this was an undue hardship for your workplace?

Sheri Oluyemi (12:58):
What were the facts on ground at the time you made that decision? Which is what's gonna be relevant when a court is reviewing it, maybe two, three years into the future? So have good records of what you've done, the interactive process, have good records of what exactly was considered at the time, and make sure that those records are re readily accessible if ever an issue comes up. The final one on our list here of suggestions is be prepared to offer an alternative. We know the loss says you're not required to accept the accommodation that has been recommended by the employee, but you should start there. Does this work? Is this an undue hardship? Does it require a substantially increased cost? And if it does, we'll offer an alternative. We believe this will show that you're not hostile to the employee. It'll show that you're participating in the interactive discussion in good faith, and it'll might be something that the employee will accept, and that way the issue is resolved. So those are our tips. Retraining, reevaluating policies, ensure a well-documented process and be prepared to offer and opinion. Betsy, did I miss any? Are there any other tips you can think of?

Elizabeth K. Dorminey (14:08):
No, I think those are, those are all good points, but also I think we should be prepared for for this this new somewhat higher standard to to, to extend into other requirements like the ADA. I think that's the first place we're going to see it. And already the, the courts of appeals have, have begun to be the, the issue's been raised in the courts of appeals, whether they should look at this undue hardship as opposed to de minimus requirement.

Sheri Oluyemi (14:42):
Do you think this'll cause an increase in applications for reasonable accommodations, or I guess employees may not be paying attention to this decision as much, but certainly from plaintiff's counsel, what do you think?

Elizabeth K. Dorminey (14:55):
I, well, maybe some, but probably not, not a whole lot, but, but as you, as you recommend, you, the, the employer would be, would be well advised to be prepared for such requests and to, and to take them seriously. And, you know, undue hardship really, is it, it comes down to a bottom line kind of thing. The Supreme Court seemed to be saying that, you know, unless it's gonna cost you a lot, like you've gotta hire a whole new person or, you know, change something else significant in the workplace you really ought to think about granting the request or finding some middle ground some way that you can accommodate their you know, not necessarily give them exactly what they're asking for, but find some middle ground that will accommodate both parties needs. That's, that's the, the bottom line where they're, they're really trying to come out on a practical level, I think.

Sheri Oluyemi (15:50):
All right. I'll, I'll just give you that update of cases that Betsy had uncovered recently. We have here Campbell v Garland. This is a case where a Baptist chaplain working at the Bureau of Prisons got crosswise with a Roman Catholic colleague and sued alleging hostile work environment. The court affirmed summary judgment for the government finding that Grof did not change anything as far as he was concerned. And that's out of the Fifth Circuit. Another one, I'm probably gonna mispronounce the name, Narayan Narayan for versus Western State University, also from the Fifth Circuit. In this case professor Na Harray tried to apply graph to the ADA and the court held that the request for unlimited leave as an accommodation was an undue burden for the employer. So, that's a good question, Betsy. Can we apply graph to the ADA?

Elizabeth K. Dorminey (16:44):
Well, not, not yet, I don't think, but it, it may move in that direction. Now, unlimited leave is a, is a curious thing because there was a time under the Obama administration when they had a pretty aggressive crowd at the EEOC, and there were some commissioners who did take the position that unlimited leave was a reasonable accommodation for somebody who had a, had a disability or a need to, to recover for something. Now, there are others who would question that and say that if you cannot come to the job at all, perhaps you were not somebody who was qualified to perform the essential duties with or without reasonable accommodation, which is where the bottom line ends up. But there again, I think to avoid an extension of this higher test of a new hardship into the world of the ADA, it would be wise to be prepared to again, engage in that interactive procedure with your employee who is requesting a disability accommodation as with a religious accommodation, and really make an effort to find some sort of a middle ground where where, where both sides can be satisfied.

Sheri Oluyemi (18:05):
Agreed. Here's another decision out of the First Circuit. This is box versus whole here, Massachusetts. Massachusetts, I can never say that State <laugh> had an executive order requiring c ovid 19 vaccines. Employees of the Steamship authority challenged the religious challenge on religious freedom grounds, and the court held under Graff, they might prevail. So the district court erred in denying a pre preliminary injunction. So in that case, Graff was potentially going to give the employees some legs to stand on. And this is going back to the C Ovid 19 vaccines, which I believe those cases are still going to run through the courts. It's been about two, three years, which is enough time to get up to the appeals level. We might see gr applied to those C Ovid 19 cases because a lot of employees applied on religious grounds as opposed to disability and medical related grounds. So I, I believe those cases are still coming out, and we'll receive some decisions on that fairly soon. The last one, that was a

Elizabeth K. Dorminey (19:10):
Very interesting chapter that we went through with the with the Covid vaccines. And, and our firm actually was involved in one of them, or two of them really. The the one where federal contractors were being they tried to have an executive order requiring federal contractors to have everyone vaccinated as a condition of performing the contract and the OSHA standard. And in both of those cases, the opponents of mandatory vaccination prevailed. And this there, you know, Supreme Court argument and everything, it was, it was kind of, kind of exciting for a while. But I, I think that's I think Sheri's right, we're not completely finished with those cases. They're, they're gonna be with us for a while. But I think enough people who've been vaccinated have gotten sick to where there may groundswell feeling that perhaps mandatory vaccination was not as bulletproof a requirement as people thought it might be when it was first proposed. So that may moderate some of the government's responses in some of these cases, because they'll all pretty much necessarily be against government related things. Although there were certainly private employers who, who

Sheri Oluyemi (20:26):
There were, there were several cases against PRI private employers who refused to grant a reasonable accommodation to the C Ovid 19 vaccine. And I believe that those cases, the, the employees who filed suit, if they file appeals, will get some good decisions on that. And I think like this judge found in the First Circuit, gruff may, may play a part there. Mm-Hmm, <affirmative> okay, the last one on our list here is Hebrew versus Texas Department of Criminal Justice. This is out of the Fifth Circuit, and in this case, a prison guard trainee sought an exemption from the grooming standards based on a religious conviction. He had not cut his hair or his beard for 20 years, and we know this is common with many religions. The Court of appeals refer to summary judgment in favor of the state, finding that the state had not exhausted alternatives. Also the short hair requirement was imposed only on men and not on women. So that is another Title seven, title VII ground on the basis of gender that may play a part. So I guess with summary judgment being reversed, the case has gone back to the district court. Mm-Hmm. <affirmative>, we don't know how gruff is going to play a part in that decision.

Elizabeth K. Dorminey (21:38):
Well, I'm, I'm put my money on the employee at this point because <laugh>,

Sheri Oluyemi (21:44):
Yes, I think the employees do have a little bit more of a leg to stand on. Previously, the ADA standard was a heightened standard. Everyone knew that it was difficult to get to a point of an undue hardship, but Title VII on the religious accommodation had always been lesser employers, always felt, well, this is a lesser standard. I can probably get by not so anymore. We have to start thinking about it differently. Okay. Before we pass it over to our attendees for questions, I thought I'd run through my list of some considerations employees, employers should make when they receive a reasonable accommodation request on the basis of religion. And here are just some of them. Are, is there something an employer could do to facilitate a shift swap? Basically, if this shift is not convenient because I go to church in the mornings, perhaps you take the evening shift or the night shift.

Sheri Oluyemi (22:39):
Is it possible for the employer to leave the shifts short staffed? Basically can your operations run less one employee? If the answer to that is yes, then it's not a substantial cost. You can probably grant that request. Is it possible for the employer to incentivize other employees to pick up the shift if the employee requesting an accommodation has a desirable shift? Maybe the hospital, they have the day shift, or I guess my cousin loves the night shift at the hospital, whichever one's more desirable, can the employer incentivize other employees to pick that up? Is there any other way to get the shift covered without the employee? Are there is there a risk of lost revenue as a result of the employee being absent? Is there any impact on the customer expectations? So failure to complete an order, increased customer complaints, the impact on coverage for patients, for example, and then is there any impact on the employer's ability to meet regulatory requirements? These are some factors that are key. If they, it goes one way, you can grant the accommodation, it's not going to be a substantial cost. And if it goes the other, for example, the regulatory requirements, then an employer has a stronger leg to stand on that it is a increased substantial cost. Hopefully those factors will help when making this decision. Betsy, any last words before I open it up for any questions we may have a little bit more time to add to our content if we don't have a question, but just in case.

Elizabeth K. Dorminey (24:09):
Well, I think you've covered it all pretty well. It again, to emphasize the, you know, the, the interactive process, you can't, you, this is not <inaudible> that you can just have a kind of a hard and fast mechanical rule to dispose of these questions. They really do require a little bit of more time in discussion with the employees and HR of trying to figure out, you know, what exactly is it that you need? And, you know, what, what is it that that, that we can, can provide? It's it that reminds me of the, the old joke about two little girls who are fighting over an orange and they're having a terrible fight about the orange, and it, it ends up that one of them wants the peel, so she can do a project with that, and the other one wants the inside of the orange. So if you just figure out what it is exactly that each one of the kids wants, sometimes you can accommodate both sides pretty well, but you gotta figure out what they're really looking for.

Sheri Oluyemi (25:08):
I love that. And I'll give, I'll give one more story that's similar. When I was in law school, we had a mediation intensive, and the question was, draw a line on the ground and try to get your opponent to cross over to your side of the line. And we went back and forth trying to figure out how to convince the other person to come to our side, but we could've just swapped sides, in which case we both win. One person goes to the other, the other person comes to the other, and none of us in the entire class thought of that because we had an <crosstalk> mindset and we were just thinking about how do I convince you to do it my way? And there is sometimes a win-win solution if you look for it. So that's a great segue. We will open the floor for our attendees to ask any questions that they may have coming out of the gr decision. You have multiple ways of doing so if you'd like to remain anonymous, you can put your question into the chat and I will read it out. You can also use the q and a, which I will also get a notification of right here. Or you can raise your hand and I will give you the mic and you can ask the question on air entirely up to you.

Elizabeth K. Dorminey (26:18):
Well, while we see, wait to see if anybody has any questions I'd kind of like to circle back to the, to the leave notion, because that's something that comes up more often than you think. A lot of there, there are pressures on employers in both directions these days now, because contrary to what plaintiff, some plaintiff's lawyers seem to think mostly employers want their employees to come to work and do the job. They're not trying to get rid of anybody. They're not trying to make it hard for people. They really, actually, genuinely want people to come in so they can pay them to, to work. But there, there are, you know, showing up needs to be a part of the job description. And regular attendance for most jobs is, is a pretty important factor. Now, some employers, many employers, particularly large ones, have rather stratified rules for how many absence occurrences or tardiness or things like that they're willing to tolerate before they will begin the progressive discipline of, you know, first, second final warnings and then termination.

Elizabeth K. Dorminey (27:23):
An employee who's maybe not being really great in attendance but otherwise is good, they might very much be tempted to to relax the requirements in order to keep the person employed and doing the job at least most of the time. But there can, you know, obviously there can be problems. And another familiar saying for a lot of our a lot of our HR clients is that no good deed goes unpunished. And when you can be, when you take a lenient approach and you allow an employee to exceed the number of absences that normally would trigger some kind of a discipline disciplinary action, you run the risk that some other employee is gonna say, well, you gave so-and-so a break and you not giving me one. So you're treating this differently, so you're obviously discriminating against me. And you know, that can, that can cause problems down the road. So that's another place where, as Sheri says, it might be a time to reevaluate what some of your policies are if you find that you are practically having to deviate from those policies from time to time just to keep people on the job. Have you encountered things like that, Sheri?

Sheri Oluyemi (28:40):
Well, I, I was thinking as you, as you were talking, how a lot of employees might not understand why someone doesn't have to pick up a specific shift, and they're going to raise the issue of discrimination. They're not going to understand that that person has requested an accommodation that has been granted. So employers have to be careful to apply their policies uniformly throughout to make sure that if they're granting a reli religious accommodation for one religion in a particular job, if another person of a different religion is asking for the same accommodation and it's, you know, not an increased substantial cost, the employers should grant it. They should not show hostility towards any specific religion or favoritism towards any religion. Something in the gr decision was whether or not the employer could consider whether it inconveniences another employee in the past under Title VII accommodations.

Sheri Oluyemi (29:36):
Once employers determined that, well, this would cause Joe Blow to work overtime and he doesn't wanna work overtime, they immediately denied the accommodation request. In this case, N gra it specifically says that just because it inconvenience another employee doesn't mean it's automatically an undue hardship. Doesn't mean the employer can automatically deny it. The employer needs to consider the entire business operations and determine whether or not paying this employee more money for overtime, even though they don't wanna want work overtime, is something that it can do without being a substantial cost. So the employer should consider that. I think those are some of the considerations that employers need to keep in mind. And if it means re rewriting your handbooks or your supervisor manuals to make sure they, they're aware of all this, 'cause they're the frontline, right? They're the ones who are gonna receive this request. They're the ones that are gonna make those comments that cause liability later. So they need to receive training on the increase standard. Okay. I am still not seeing any questions, so I'll see if I can pull a question up here and put Betsy on the spot. Let's see. Oh, yes, I already know that this is a difficult one to answer, so I'm going to ask you how <laugh>, how substantial does the cost have to be for the employer to throw up their hands and say, this is undue, this is an undue burden.

Elizabeth K. Dorminey (31:08):
Well, that is the musical question of so many of our Title VII things. You know, how much is too much? It's a really difficult standard. You know, again, there's no, there's, there's no hard and fast metrics like, you know, an increased, you know, 0.5% of your annual budget is too much and 0.4 is not enough. You know, not too much. It's, it's it's, it's very difficult to tell. But that's where I think documentation and so forth will, will help you out because when you're going to the court and trying to persuade the court that you know, it is too much of a burden, that's when you are, you're going to want to be able to show that you at least thought about it in, in a constructive way. And not that it was, oh, well, you know, we don't, we don't wanna have people swapping shifts with somebody who needs a particular time off or being, you know, getting a preferential, you know, leave early on Friday in order to to have Shabbat. You know, you can't, you, you, you, you can't have a hard and fast rule for this. And it, and it is, it is always a hair splitting operation. I mean, you get right down to it. The, the question here is, you know, what's the difference between de minimis and undue hardship? It's, you know, it's, it's a band, it's something, but we don't know precisely where one begins and the other leaves off,

Sheri Oluyemi (32:29):
Right? So we don't have an exact answer to that question yet. Maybe the courts will develop one. I mean, maybe they'll come up with some rule of thumb that we can rely on, that we can advise our clients on. As of now, it is just a case by case analysis just engaging with the employee in good faith and of course understanding your operations to know what you, what you really need, what you cannot do without, and just hoping that those good intentions, well-documented records win the day. If an, if, if an issue ever comes, if an issue ever comes up still not seeing any questions. Maybe I'll ask one last one of mine. Can we see this impacting any unionized workplaces any differently than non-unionized workplaces?

Elizabeth K. Dorminey (33:23):
That is a very good question. I think generally a religious accommodation issue is not one that's likely to be covered in a collective bargaining agreement, and that's what makes the real difference there. When we've had cases in the past about, you know, time off at the beginning or the end of the shift for donning and doffing issues and so forth the the unionization question was key to resolving a great many of those. We don't, you know, for a while there were people in unionized workplaces that were challenging these on, on wage and hour grounds saying that, you know, I'm, I'm doing work when I'm putting on my, my gloves and my hairnet and my, and my smock, and so I should be compensated for that time. Eventually it didn't get to the Supreme Court, but eventually there was a, a significant number of court of appeals decisions saying, you know what, you could have covered that in collective bargaining agreement talks, and you know about how much of the workday gets paid and what you get paid for and so forth.

Elizabeth K. Dorminey (34:24):
And so we're, you know, we're not going to entertain those questions, but religious accommodation I think is more of a, a, a case by case individual basis. And I'm not sure that you're going to be able to take you know, find any shelter in a collective bargaining agreement. There may be exceptions. There may be certain workplaces where they might bargain for time off for daily prayers. I know that there are workplaces with significant Islamic populations and they might well you know, impose that as a condition of, of work that there be a, you know, a, a recess for, for daily prayer during the course of the business day. I think it's probably the exception, but I don't think that a collective bargaining agreement is going to be any kind of a shield for most employers against a religious accommodation request.

Sheri Oluyemi (35:23):
I was thinking of another issue that is typically bargained and that might have an impact. Seniority systems and seniority bidding, bidding for shifts. Essentially if a more junior employee wants to change shifts because of a re religious accommodation request, you also have to deal with the seniority system in the collective bargaining agreement. So you wouldn't be required to basically give that junior employee a shift that he or she desires over a more senior employee who has bid for the shift under the seniority system. I think that may be one way that I don't even know if it impacts it, because I think if the employers relied on the seniority system and the collective agreement and said, I can't give you a shift that you don't have the seniority for, I think the employer would be, would be fine to, to, to say that and use that as a defense, of course, if it is generally the case. Other than that, I can't see how a collective bargaining agreement would address this issue at all.

Elizabeth K. Dorminey (36:24):
Well, I, I agree with you about the seniority issue. That has traditionally been something that the the, the, the federal laws regarding employment have have generally deferred to collective bargaining agreements on things like that post braava. I'm not sure that that would, that, that, that would insulate you here. I mean, there might be, because it has undue hardship. Well, is it an undue hardship to, to, to, to buck the seniority agreement a little bit to make an arrangement make, I don't know. I mean,

Sheri Oluyemi (36:54):
A substantially increased

Elizabeth K. Dorminey (36:55):
Cost can come up too. Hmm. Sorry.

Sheri Oluyemi (36:57):
Is it, is it a substantially increased cost?

Elizabeth K. Dorminey (37:00):
Well, it might not be really, unless you have a strike, and that would be a very substantial increased cost. But I'm not, get a strike over, over something like this. Lots as always, there's plenty left to argue about in the courts and I don't think we'll run out of things to argue about anytime soon.

Sheri Oluyemi (37:18):
I would look forward to providing an updated webinar when we have some more gr decisions under our belt, and we can give our viewers a sense of what decision has done, practically speaking to the religious accommodations space. But I think that's all the time we have today. That'll conclude today's session. Again, we appreciate your joining us. I'm Sheri Ulumy.

Elizabeth K. Dorminey (37:47):
I'm Betsy Dormy, and I have to thank Sheri especially for having to leap into this at the last minute, being eminently well prepared. So you did a great job, and I appreciate it.

Sheri Oluyemi (37:57):
Thank you for inviting me. Yes, we, we, I am covering for Larry Stein, and I know we don't need to give you our spiel about our contact information. It's all on our website where you registered. Again, thank you for tuning in. Hope you have an excellent Friday.

Elizabeth K. Dorminey (38:11):
Thanks very much.

Sheri Oluyemi (38:13):
Bye. <silence>.