An Accommodation, Unlike a Diamond, Need Not Be Forever
A recent case illustrates the point that employers can “test drive” a religious (or medical) accommodation to see if it is, in fact, feasible or whether it poses an undue hardship.
In Kluge v. Brownsburg Community School Corp., a teacher objected on religious grounds to calling transgendered students by their registered first names in accordance with school policy, rather than those consistent with their sex at birth (an issue that may be arising more frequently in the workplace now). The teacher proposed, as a reasonable accommodation under Title VII, that he be allowed to call all students by their last name, “like a gym coach.” The school initially allowed this accommodation. However, students soon complained that they found this practice insulting and disrespectful, and that they thought it was due to the transgendered students, who were then targeted and isolated by their peers. Teachers also reported that they believed the use of last names was harmful to the students and disrupted learning because the students brought their concerns into other classrooms. The school informed the teacher that the accommodation was not working, and he subsequently resigned and sued for failure to provide a reasonable accommodation under Title VII.
The U.S. Court of Appeals for the Seventh Circuit noted that, under current Supreme Court precedent, an employer need not provide a religious accommodation that imposes more than a de minimis cost or impact, as it would constitute an undue hardship on the employer. (Note that this de minimis standard for undue hardship under Title VII does not apply under the Americans with Disabilities Act, which has a significantly higher standard for establishing an undue hardship. We further note that the Supreme Court is currently reviewing whether to revise the de minimis standard for religious accommodations.)
In the current case, the Seventh Circuit found that the “emotional harm to students and disruptions to the learning environment are objectively more than de minimis or slight burdens to schools.” Thus, the accommodation imposed an undue hardship. Of particular interest, the Seventh Circuit stated, “Title VII does not require the school to adopt an accommodation that, although facially neutral, does not work that way in practice.” As shown here, the proposed accommodation, though reasonable on its face, ended up imposing an undue hardship on the school because it harmed students and the educational environment. Thus, it was lawful for the employer to withdraw the accommodation.
This case reminds employers that an accommodation, once granted, does not need to continue regardless. The actual impact of the accommodation, if it proves to impose an undue hardship on the employer, can be taken into account, and the accommodation may be discontinued. This gives employers and employees the flexibility to explore accommodations to see if they are, in fact, effective and the employer is not forced to tolerate them if it turns out that they are an undue hardship. This is also the case if the accommodation is initially workable, but circumstances change such that it later becomes an undue hardship.