Federal Standards for Accommodating Religious Beliefs Becoming More Similar to Standards for Accommodating Disability, California State Law

The Ninth Circuit’s recent decision in Lewis-Williams v. San Francisco Bay Area Rapid Transit District is a sharp reminder for employers: federal law prohibits the denial of a religious accommodation merely because the employer’s preferred practice is safer or easier. Instead, employers must conduct a more rigorous analysis, similar to that required in the disability context and under California’s anti-discrimination laws.

BART required employees to receive a COVID-19 vaccine unless they qualified for a medical or religious exemption. Although BART recognized that dozens of employees had potentially qualifying religious objections, it concluded that none could be accommodated. Six former employees sued and won $7.8 million in a jury verdict that was upheld by the Ninth Circuit Court of Appeals.

BART’s central argument was that no alternative to vaccination was reasonable unless it provided the same level of protection as vaccination. The Ninth Circuit disagreed. According to the U.S. Supreme Court’s decision in Groff v. DeJoy, the proper question is whether accommodating the employees would impose a burden that is “excessive,” “unjustified,” or substantial in the overall context of the employer’s business. 

And the answer depends on the circumstances of the employees’ work. In Lewis-Williams, some employees performed their duties largely alone, outdoors, in spacious facilities, behind barriers, or with limited public contact. BART did not establish that in those settings alternatives such as masking, testing, distancing, adjusted work assignments, or remote work where feasible could not adequately address its health and safety concerns. 

Accommodation laws becoming more consistent

Historically, under federal law, employers faced a lower bar for rejecting requests for religious accommodations; they only needed to show that the accommodation would impose a “more than de minimis” burden. But now, as described above, a religious accommodation may be denied only if it would create a substantial burden. Under the ADA, a disability accommodation may be denied if it would cause “significant difficulty or expense.” These two standards are now much more similar than in the past – but it remains to be seen whether the courts will interpret them identically.

California law has long required identical standards for assessing requests for accommodations in both disability and religion contexts. In each, undue hardship generally means “significant difficulty or expense.” 

Best practices for accommodation requests

California employers should use the same disciplined process for religious accommodation requests as for disability accommodation requests, while tailoring the analysis to the different issues each type of request presents. That means, among other things:

• Assess the employee’s job duties, work environment, contact with others, essential functions, and available work arrangements.
• Do not rely only on blanket policies, customer preferences, or generalized safety concerns.
• Identify and evaluate reasonable alternatives, and, if rejecting them, document reasons why.
• Record facts relevant to hardship, such as cost, impacts on other staff, operational disruption, safety implications, and the employer’s resources.
• Keep communicating. A denial of the employee’s preferred accommodation is not necessarily the end of the accommodation process.

Which religious accommodations are reasonable may differ dramatically between, for example, a hospital employee with direct patient-care responsibilities and an employee who works alone, behind a barrier, or primarily from a private office. Not every accommodation request must be granted, but the employer must be able to explain why a proposed accommodation – or any workable alternative – would create a real and substantial burden in that specific workplace.

For California employers, the smartest approach is an individualized, evidence-based process that treats religious and disability accommodation requests with equal seriousness. If an accommodation is denied, your records should show more than a policy preference: they should document why the request would create significant difficulty or expense, and why no reasonable alternative would work.