The results of three pending cases could greatly increase the amount of employment-related litigation Texas employers may face in 2023 and beyond. In Groff v. DeJoy, Postmaster General of the United States Postal Service, the U.S. Supreme Court is considering what the lengths to which an employer must go to accommodate an employee’s sincerely held religious beliefs. The Court has long applied a lower accommodation obligation for religious beliefs than it requires for disability accommodations. Under existing law, the Hardison test, any religious accommodation that requires more than de minimis cost is considered an undue hardship. And, accommodations that burden co-workers but not the business itself, are also considered an undue hardship that need not be provided by the employer. If Groff prevails in the appeal, employers will be burdened with substantially more requests for religious accommodation and may have to engage in similar interactive processes and accommodation obligations as is required under the Americans with Disabilities Act.
In Hamilton v. Dallas County, No. 21-10133 (5th Cir. Aug. 3, 2022), the Fifth Circuit Court of Appeals, sitting en banc, is considering whether the ultimate adverse employment action is required to have an actionable Title VII discrimination claim. In that case, the Court is reviewing the Dallas County jail’s gender-based scheduling policy that limits the days on which female detention officers could have off based on purported safety concerns but that did not otherwise effect pay, benefits or other terms and conditions of employment of the officers constitutes an adverse employment action that could be remedied under Title VII’s anti-discrimination provisions. A win for Hamilton would greatly expand the types of employment actions that employers could be sued for and increase the number of employment claims against which employers would have to defend –including even minor or trivial employment actions.
Finally, in Texas Tech University Health Sciences Center – El Paso vs. Niehay, the Texas Supreme Court will consider whether discrimination based on obesity that is not caused by some other underlying medical condition can constitute disability discrimination under the state’s employment discrimination laws. With 41.9 percent of American considered obese, according to the Centers for Disease Control, the number of Texan that could use the state anti-discrimination laws to challenge an adverse employment action would increase dramatically.
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