Perfect illustration of religious accommodations post-Groff ruling

Elimelech Shmi Hebrew is a devout follower of the Hebrew Nation, a religion that requires its followers to keep their hair and beards long—a vow he has kept for over two decades. In 2019, Hebrew was hired by the Texas Department of Criminal Justice to work as a corrections officer.

The TDCJ has a grooming policy that prohibits male officers without medical skin conditions from having beards and in any case from having long hair. When Hebrew was ordered to cut his beard and hair or be fired, he sued for religious discrimination and failure to accommodate his religious practice.

What wins out—Hebrew’s religion or the department’s grooming policy? The answer, courtesy of the 5th Circuit Court of Appeals: the employee. The case is Hebrew v. Texas Department of Criminal Justice.

The court based its ruling on the U.S. Supreme Court’s June 2023 decision in Groff v. DeJoy, in which the High Court said employers must accommodate employees’ religious practices and beliefs unless doing so creates an undue hardship. It defined undue hardship to mean the accommodation would result in “substantial increased cost in relation to the conduct of an employer’s particular business.”

In Hebrew v. Texas Department of Criminal Justice, the 5th Circuit cited the “substantial burden” hardship standard the Supreme Court outlined in Groff:

DCJ nowhere identifies any actual costs it will face—much less “substantial increased costs” affecting its entire business—if it grants this one accommodation to Hebrew. DCJ simply identifies its security and safety concerns without regard to costs. Likewise, DCJ’s reference to possible additional work for Hebrew’s co-workers is insufficient to show an undue hardship.

The lesson: If you’re going to claim an undue hardship to deny an employees’ religious accommodation request, you best have your Groff v. DeJoy ducks in a row … and by ducks, I mean empirical evidence of actual costs that substantially and negatively affect your entire business.

Otherwise, the more prudent course of action is to grant the accommodation and give up fighting a fight that you likely cannot win.

Jon Hyman is a partner at Wickens Herzer Panza in Cleveland and one of America’s top writers and speakers on employment-law topics. Read his popular blog at www.OhioEmployerLawBlog.com.