Labor and Employment Law Alert: Religious Accommodation Hardship Defense Changing
4/6/2006

A recent decision of the Oregon Court of Appeals dealing with religious discrimination in educational activities may impact private Oregon employers. The court’s new definition of "undue hardship" may require Oregon employers to reasonably accommodate the religious practices of employees unless the accommodation would require significant difficulty or expense.

In Nakashima v. Board of Education, the issue was whether the Oregon School Activities Association ("OSAA") and the Board of Education (the "Board") discriminated against members of the Portland Adventist Academy (the "PAA") basketball teams when OSAA refused to adjust the schedule of a state basketball tournament so that the PAA team members would not have to play on their Sabbath. OSAA determined that adjusting the schedule would have imposed an undue hardship on OSAA because the PAA teams’ proposed accommodations would impose more than de minimis costs on OSAA.

The court rejected the de minimis standard that has been followed under Federal law and held that OSAA would have to accommodate the PAA’s requests for reasonable accommodation unless it could show that it would result in significant difficulty or expense. This more rigorous standard may apply to religious accommodation in the workplace as well under ORS659A.030.

Pending bipartisan federal legislation also seems to reject the current de minimis standard for measuring undue hardship. The proposed "Workplace Religious Freedom Act of 2005" (the "Act") would amend Title VII to define "undue hardship" to mean "an accommodation requiring significant difficulty or expense," considering (1) the identifiable cost of the accommodation, including costs of lost productivity and of retraining or hiring employees or transferring employees from one facility to another; (2) the overall financial resources and size of the employer relative to the number of its employees; and (3) when the employer has multiple facilities, the geographic separateness or administrative or fiscal relationship of the facilities.