Religious Accommodation at Work After Bergin: The "Motivating Factor" Test in New York

A dispatcher at a private bus company in Ronkonkoma keeps a Saturday Sabbath and asks HR to stay off the new Saturday rotation. HR sends a religious accommodation form with a five-business-day deadline. It comes back on the seventh business day. HR denies the request as late, the dispatcher misses two Saturdays, and the company fires the dispatcher for attendance.

I represent employees on Long Island in this position. On September 15, 2026, the federal appeals court for New York amended an opinion that changes how the dispatcher’s federal claim is proved, and it speaks directly to the late form.

What the Second Circuit decided in Bergin

Jessica Bergin had been a New York State court officer since 2016 when the court system required COVID-19 vaccination or an approved exemption. She asked for a religious exemption on September 26, 2021. The review committee sent her a supplemental form, which she returned “without answering most questions.” Her request was denied on December 29, 2021. A week before her January 10, 2022 deadline to show proof of vaccination, she sent the form completed; the committee answered that its “decisions are final, and the new request [would] not be considered.” She was terminated on April 7, 2022. The vaccine policy is background; she told the court she was not “challenging the legality of the policy itself,” and this post takes no side on it.

She sued under Title VII for failure to accommodate her religion and won partial summary judgment in the Eastern District of New York. The Second Circuit vacated that judgment and sent the case back: “to state a prima facie case of failure to accommodate a religious belief or practice under Title VII, a plaintiff must demonstrate (1) that she actually required an accommodation of her religious practice, and (2) that the employer’s desire to avoid the actually required prospective accommodation was a motivating factor in (3) an adverse employment decision.”

The court took no position on who should win. Consequently, Bergin settles the test. Her case goes back to be decided under it.

What “motivating factor” means for you

The phrase comes from the statute. 42 U.S.C. § 2000e-2(m) says a violation “is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015), applied it to religious accommodation: “Title VII relaxes” but-for causation “to prohibit even making a protected characteristic a ‘motivating factor’ in an employment decision.”

Whenever I hear the words motivating factor, it’s not the only reason. It’s some reason. You have multiple reasons why you did something. Motivating factor means that it was a factor that motivated you. It was something on your mind that led you to make a certain decision, as opposed to but-for causation, where the reason you did this was because of X. So it becomes, in many ways, similar to most discrimination cases. Is being female or black a motivating factor? Now it’s: is the desire to avoid accommodation a motivating factor? And I think for the employee it seems like an easier test than but-for causation.

That is my reading, a position and not a holding, and there is another side to it. The old test asked for no proof of motive, and the new one does. In Bergin itself the change worked against the employee: her judgment was vacated, in part because the district court had not applied the motive test. What the employee gains is that the motive need only be one factor, not the but-for cause, and the employee no longer has to prove she told the employer anything. The courts will prove or disprove how much easier that is as cases under the new test reach them.

You used to have to show the belief, that you told them about your belief, and that they disciplined you for not complying with it. Now it’s that you told them that you needed this accommodation, they disciplined you, and it was one of the motivators. You could very well say it’s easier for an employee to prove now than it used to be.

Telling the employer is still the best evidence of motive. Under Bergin it is no longer a required element.

One limit comes with it. If the employer shows it “would have taken the same action in the absence of the impermissible motivating factor,” the court “shall not award damages,” 42 U.S.C. § 2000e-5(g)(2)(B). Consequently, the employer’s other reason is the whole defense, and the record of it decides the money.

What the September 15 amendment added

Read alone, the July opinion’s talk of motive could suggest that an employee must prove hostility to religion. On September 15 the panel added a footnote: “we do not suggest that a new, heightened discriminatory motive requirement exists in failure-to-accommodate cases.” The same footnote states the line the dispatcher’s case will be fought on. The employee “does have to show that the denial was ‘because’ of the employee’s religion as opposed to, say, the employee’s failure to timely provide sufficient information.” That example fits Jessica Bergin’s supplemental form, and the dispatcher’s seventh-day form. A second new footnote holds her discharge is an adverse action and leaves open whether a denial alone is one.

In practice, that puts the paperwork at the center. If the employer says the form was late or incomplete, the question is whether the deadline was the real reason. Was it written down before your request? Did it apply to everyone? Did others who missed it get more time? Those answers are the motive evidence.

The employer’s defense: undue hardship

Even with a prima facie case, the employer can win by proving undue hardship; the Second Circuit treats that as the second step. The words come from the definition of religion itself, 42 U.S.C. § 2000e(j): religion “includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

Groff v. DeJoy, 600 U.S. 447 (2023), rejected the old “more than a de minimis cost” reading and set the standard this way: “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.” In Bergin the district court had agreed that accepting her late form would itself have been an undue hardship; the appeal did not reach that point. The burden on this step is the employer’s.

New York’s own religious accommodation laws

Bergin interprets Title VII and does not mention New York’s State or City Human Rights Laws. Neither uses the phrase “motivating factor,” and both put the hardship proof on the employer in their own words.

Executive Law § 296(10)(a) forbids terms or conditions “that would require such person to violate or forego a sincerely held practice of his or her religion,” including Sabbath observance and religious attire, “unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate” without undue hardship. Paragraph (b) speaks to the dispatcher directly: “no person shall be required to remain at his or her place of employment” on a day observed as a Sabbath, absent undue hardship.

The State statute defines undue hardship in its own terms, and they are not Groff’s: “an accommodation requiring significant expense or difficulty.” Since 2019 the article must be “construed liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws … have been so construed,” Executive Law § 300.

The City law says it outright: “the employer shall make reasonable accommodation to the religious needs of such person,” Administrative Code § 8-107(3), and “The employer shall have the burden of proof to show such hardship.” It also requires a “cooperative dialogue” and a written final determination, § 8-107(28).

Asking is itself protected: Executive Law § 296(7) forbids retaliating against a person who “requested a reasonable accommodation under this article.” How New York courts will treat motive under § 296(10) after Bergin the opinion does not address, and I would not predict it. Consequently, a Long Island employee pleads the State claim on its own text, and the employer has to prove the bona fide effort and the hardship.

Here, the dispatcher works in Suffolk County: the State claim, plus Title VII if the company has fifteen or more employees. Our case-value post explains why the State claim has carried more weight since 2019, and the disability accommodation guide covers the other accommodation employees ask about most.

What to keep if you asked for a religious accommodation

After Bergin, motive is the case, and motive is proved with paper and dates. It is incumbent upon you to keep the record on your own device.

Item two is where the dispatcher’s case lives. A deadline on a form HR created the week of the request reads differently from one in a handbook every employee signed years earlier. Consequently, the first thing I ask for is the form and the date it was written.

The 300 days is the shortest clock. Our EEOC charge or New York lawsuit guide covers which door to use first, and our EEOC practice page explains what we file.

Sources

• Bergin v. N.Y. State Unified Court System, No. 25-721 (2d Cir. amended Sept. 15, 2026)
• EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015)
• Groff v. DeJoy, 600 U.S. 447 (2023)
• 42 U.S.C. § 2000e
• 42 U.S.C. § 2000e-2
• 42 U.S.C. § 2000e-5
• Executive Law § 296
• Executive Law § 297
• Executive Law § 300
• CPLR 214
• Administrative Code of the City of New York § 8-107
• Administrative Code of the City of New York § 8-502

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The form came back on the seventh business day and the firing followed two Saturdays later. Under Bergin the company will point to the deadline, and the case turns on when that deadline was written and who else it was enforced against. Our retaliation standard post covers what happens when the discipline follows the request, and our wrongful termination page covers the firing.

If you asked your employer for a religious accommodation and were denied, disciplined or fired, call (516) 750-0595 with the request you sent and the employer’s form, or request a free case review.