By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
 
 

 
Dear Legal Mailbag:

My colleagues and I read with interest your response to the question regarding accommodations for a student whose faith prohibits him from participating in holiday celebrations (Legal Mailbag, November 22, 2023), and we have a related question.

We have a paraprofessional who is assigned to assist one of our students, and when asked to accompany the student to a Thanksgiving concert in school, she refused to attend on the basis of her religion, being a Jehovah’s witness. She asked to remain in an empty classroom doing something else while the student attends the concert as an audience member. Her role during the concert would be to monitor his needs and behavior as he watches the concert, but she is refusing to attend.

We are not asking the paraprofessional to participate in the celebration actively; rather, we are asking her to perform the duties of her job in assisting the student so he can attend the show. Should the paraprofessional be given an alternate assignment during the concert?

If the answer is yes, does that then require us to give the paraprofessional an alternate assignment each time the student actively participates in an activity that involves a celebration/holiday of any kind (cutting out a tree/dreidel/birthday candle, etc.)? While we want to be sensitive to her religious beliefs, her job requires her to help this student access the curriculum, and that involves these types of activities at times throughout the year.

Signed,
Wishing Everyone a Happy New Year

Dear Wishing:

Legal Mailbag thanks you for the good wishes and for a great question. Legal Mailbag will be pleased to describe the framework for you to analyze the situation and make a decision. However, as discussed below, Legal Mailbag must leave the final decision to you, your superintendent, and possibly your district’s legal counsel, based on the specific facts presented.

Title VII prohibits discrimination on the basis of religion, and employers are therefore required to make reasonable accommodations to the religious practices of their employees. Under the 1972 Amendments to Title VII of the Civil Rights Act of 1964, all employers are required to “reasonably accommodate an employee’s . . . religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). The question for employers, therefore, is what is or is not “undue hardship.”

In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), the Court previously ruled that requiring an employer “to bear more than a de minimis cost” to provide a religious accommodation is an “undue hardship.” Applying that standard, in 2022 the Third Circuit upheld an employer’s denial of a request for religious accommodation from a UPS driver who for religious reasons could not work on Sundays. Groff v. DeJoy, 35 F.4th 162 (3rd Cir. 2022).

However, in 2023 the United States Supreme Court reversed, holding that reliance on a “de minimis” standard is inappropriate. Rather, an “employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business” to show undue hardship that excuses a refusal to accommodate. Groff v. DeJoy, 600 U.S. __, 2023 WL 4239256 (U.S. 2023).

In Groff, the Court stated that “courts must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of an employer.” This new standard is a significant change to the required scope of accommodations for employee religious practices. For example, in Kluge v. Brownsburg Community Schools, 64 F.4th 861 (7th Cir. 2023), the Seventh Circuit previously ruled that accommodation was not required for a teacher whose employment was terminated after he refused to use preferred pronouns because of religious convictions. The “cost” in that case was the impact on the school environment, not dollars and cents. Nonetheless, in light of the Groff case, the Seventh Circuit subsequently vacated its opinion and remanded the case to the district court for further proceedings in light of the new standard announced in Groff. Kluge v. Brownsburg Community Schools, 2023 WL 4842324 (7th Cir. 2023).

Here, Legal Mailbag suggests that you start with the threshold question: does assigning the paraprofessional to accompany the student to the assembly violate the tenets of her religion? While one must be respectful and not substitute one’s judgment for that of an adherent, one can reasonably argue that the employee is not being asked to participate in a celebration, but rather is being asked to support the student in accordance with her assigned duties. It is therefore advisable to have further conversation with the paraprofessional about whether and how the district can address her concerns without relieving her of her duties to support the student during the concert and otherwise. In considering this matter, it may even necessary to confer with clergy of her faith to determine whether and how the paraprofessional’s performing her duties in that situation would conflict with her religion and how that conflict may be resolved.

If you determine that there is a bona fide conflict between the paraprofessional’s assigned duties and the paraprofessional’s religious obligations, it will be necessary to explore whether accommodation will be possible without “undue hardship” under the new, demanding standard the United States Supreme Court announced in Groff. As the Court there stated, that will require consideration of “all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of an employer.” Given the importance of the specific facts in that consideration, Legal Mailbag must leave the final decision to the district.

Finally, Legal Mailbag joins you in conveying best wishes to all for a healthy and happy 2024.