Does religious accommodation end at the workplace door, or does it extend into the 401(k) investment menu? I found myself pondering this as I looked over a recent lawsuit as well as one from a couple of years ago.
InGroff v. DeJoy (2023), postal worker Gerald Groff asked not to work on Sundays because of his religious observance. InHartley v. Thermo Fisher Scientific Inc., scientist Andrew Hartley is asking for something very different: a 401(k) equity investment that does not own fossil-fuel companies.
The factual circumstances are far apart, but the cases share the same legal foundation. Both ask how far an employer must go to accommodate an employee’s religious beliefs under Title VII of the Civil Rights Act.
Hartley’s case may determine whether the stronger religious protections established inGroffextend beyond workplace schedules, clothing, and job duties into employee benefits.
What Groff Changed
Groff, an Evangelical Christian, believed that Sunday should be reserved for worship and rest. After the Postal Service began Sunday deliveries, he sought an exemption from Sunday work. Other employees covered his assignments, Groff was disciplined, and he eventually resigned.
For years, many courts allowed employers to reject religious accommodations when they imposed more than a minimal cost. In 2023, the Supreme Court unanimously rejected that interpretation.
The Court held that an employer denying a religious accommodation must demonstrate that the accommodation would impose a substantial burden in the context of its particular business. The analysis must consider the employer’s size, operating costs, the requested accommodation, and its practical effect.
The Court also said an employer cannot simply examine one proposal, reject it, and stop. It must consider whether another reasonable accommodation is available. Coworker dissatisfaction or opposition to accommodating religion does not establish an undue hardship.
Can't help but feel that standard gives Hartley a stronger case than he would have had beforeGroff.
Hartley’s Religious Objection
Hartley describes himself as a devout Christian whose faith requires responsible stewardship of the Earth (ie, Genesis 2:15?). He believes that owning and profiting from fossil-fuel companies contributing to climate change violates that obligation.
According to his complaint, every equity option in Thermo Fisher’s 401(k) plan holds meaningful investments in fossil-fuel companies. He requested that the company add one fossil-fuel-free equity option. He alleges that Thermo Fisher initially concluded that his request did not qualify as a religious accommodation and later stopped providing substantive responses.
Hartley claims that this leaves him with three choices:
- Invest contrary to his religious beliefs.
- Avoid equity investments that he considers essential to retirement saving.
- Limit his participation in an employment benefit available to other employees.
His lawsuit relies primarily on Title VII and New York law, not on a claim that Thermo Fisher violated its fiduciary duties under ERISA.
The Argument Supporting Hartley
A 401(k) plan is part of an employee’s compensation and benefits. If an employee must choose between following a sincere religious belief and receiving the practical value of that benefit, the conflict is not necessarily less important because it occurs inside an investment account.
Title VII defines religion broadly. A protected belief does not have to be shared by every member of a church or formally required by a denomination. Courts generally avoid deciding whether a religious interpretation is correct.
Hartley’s conduct may support his claim that environmental stewardship is part of his religious practice rather than merely a political preference. His complaint connects his Christian faith, participation in church environmental programs, personal conduct, and investment decisions.
If a suitable fossil-fuel-free fund could be added at a modest cost, Thermo Fisher may have difficulty proving that the accommodation would impose a substantial burden relative to the size of its business and retirement plan. Routine review, recordkeeping work, or administrative inconvenience may not satisfy the standard established inGroff.
A brokerage window could also be relevant. If it gives Hartley access to a suitable investment without requiring a major change to the core menu, it could provide a practical accommodation.
The Argument Supporting Thermo Fisher
Groffdid not grant employees the right to receive their preferred accommodation. It requires a reasonable accommodation, provided that one is available without substantial hardship.
Thermo Fisher can argue that its plan does not require Hartley to invest in any particular company. He chooses whether to participate, how much to contribute, and which available investments to use. Every employee receives the same menu.
That creates a threshold question: Is Hartley being required to violate his beliefs, or is he asking the company to redesign a voluntary benefit around his personal investment restrictions?
The company can also argue that adding a fund is fundamentally different from adjusting a work schedule. A new investment option affects plan administration, employee communications, oversight, recordkeeping, and the investment committee’s ongoing responsibilities. It could also invite accommodation requests involving weapons, alcohol, tobacco, gambling, abortion, contraception, animal testing, defense contractors, interest-bearing investments, or other activities to which employees may have religious objections.
A court may be reluctant to interpret Title VII as requiring a separate 401(k) investment option for each sincerely held religious restriction.
ERISA Does Not Disappear
Even if Hartley establishes a right to religious accommodation, Thermo Fisher’s retirement plan committee must still follow ERISA.
The committee cannot add a fund merely because an employee requests it. It must prudently examine the fund’s costs, diversification, performance, management, operational availability, and role within the overall menu. Plan fiduciaries must act solely in participants’ interests and follow a careful decision-making process.
This does not mean that an environmentally screened fund is automatically imprudent. Nor does the need for a prudent review automatically establish undue hardship. It means that Title VII and ERISA must operate together.
A fund that satisfies Hartley’s religious restriction and survives the plan’s normal review process may provide a straightforward accommodation. A fund that is expensive, poorly diversified, operationally unavailable, or otherwise unsuitable presents a different question.
A Decision With Consequences Beyond Fossil Fuels
Hartley’s case should not be reduced to a referendum on sustainable investing.
The larger question is whether employers must consider religious accommodations within a 401(k) plan and, if so, what limits apply. A decision recognizing Hartley’s claim could also support employees seeking faith-compatible investments based on Islamic, Catholic, Jewish, or other religious principles.
That possibility is both the strength and the challenge of his argument. Religious protection cannot depend on whether an employer, court, or investment committee agrees with the employee’s beliefs. At the same time, a 401(k) plan cannot realistically provide a separate investment for every religious, ethical, or political objection.
The Parting Glass
Groffgives Hartley a credible legal foundation, but not an automatic victory.
It strengthens his argument that Thermo Fisher must take his request seriously, investigate possible accommodations, and demonstrate a substantial burden before denying them. It does not establish that Title VII requires an employer to add a specific investment option or restructure its 401(k) menu.
The most defensible response is neither an immediate rejection nor the automatic addition of a requested fund. It is a documented process that examines the sincerity and nature of the religious conflict, considers reasonable alternatives, measures the actual cost and burden, and evaluates any investment through the plan’s established fiduciary process.
The question is no longer simply whether sustainable investments belong in a retirement plan. It is whether access to an employment benefit can be considered equal when every available path requires an employee to act against a sincerely held religious belief.
#401k #ERISA #ReligiousAccommodation #SustainableInvesting #PlanSponsors