Supreme Court Hears Oral Argument on Title VII Religious Accommodation Standard
On April 18, 2023, the U.S. Supreme Court heard oral argument in Groff v. DeJoy, a case raising the issue of how great a burden an employer must bear in order to accommodate an employee’s religious belief or practices.
By way of background, Title VII, as adopted in 1964, prohibits discrimination on the basis of religion. In 1972, Congress amended the statute to make clear that “religion” includes all aspects of belief, observance and practice, and that an employer must “reasonably accommodate” such observances and practices where it can do so “without undue hardship on the conduct of its business.” In 1977, in Trans World Airlines v. Hardison, 432 U.S. 63 (1977), the Supreme Court held that the standard for assessing whether accommodating a religious employee’s request is an “undue hardship” is whether it would require an employer “to bear more than a de minimis cost.” In a footnote to that decision, the Court suggested that an employer need not “incur substantial costs” to accommodate a religious employee. At issue in Groff is whether the de minimis standard is a correct reading of Title VII, and just how “de minimis” should be defined in practice.
Current guidance from the Equal Employment Opportunity Commission—the federal agency that enforces Title VII—explains the meaning of “undue hardship” under Title VII this way:
To establish undue hardship, the employer must demonstrate that the accommodation would require the employer “to bear more than a de minimis cost.” However, undue hardship is something greater than hardship. Factors to be considered include the identifiable cost in relation to the size and operating costs of the employer, and the number of individuals who will in fact need a particular accommodation. Generally, the payment of administrative costs necessary for an accommodation, such as costs associated with rearranging schedules and recording substitutions for payroll purposes, or infrequent or temporary payment of premium wages (e.g., overtime rates) while a more permanent accommodation is sought, will not constitute more than a de minimis cost, whereas the regular payment of premium wages or the hiring of additional employees to provide an accommodation will generally require more than de minimis cost to the employer.
Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work. Whether the proposed accommodation conflicts with another law will also be considered. [Emphasis added.]
The plaintiff in Groff, an employee of the postal service in a rural post office, asserted that his religion required him to honor the Sabbath and refrain from working on Sunday. When he began his employment in 2012, he was not required to work on Sundays. In 2013, however, the postal service entered into a contract to deliver private packages, including on Sundays. The postal service entered into a Memorandum of Understanding (MOU) with the postal workers’ union to rotate Sunday work among workers who were specifically hired to work those days, and, if that was insufficient, to other postal carriers, first on a voluntary basis and finally on a mandatory basis. The postal service attempted to accommodate Groff’s request to not work on Sundays by allowing him to transfer to a different branch that had not yet begun to deliver on Sundays. Later, when that branch began Sunday deliveries, it asked for volunteers to cover Groff’s shift. For some period of time, the postal service automatically scheduled an additional worker to cover for Groff. Ultimately, however, this practice was discontinued, and no volunteer was available. Groff was disciplined when he failed to report for his scheduled Sunday shifts. Facing termination, Groff resigned and sued the post office for failing to reasonably accommodate his religious practice.
Applying the de minimis standard of Hardison, the U.S. District Court, and on appeal, the U.S. Court of Appeals for the Third Circuit, held that exempting Groff from Sunday work as an “undue hardship” for the postal service inasmuch as it imposed “more than a de minimis cost… because it actually imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.” The Supreme Court agreed to hear the case to consider two questions: (1) whether the Court should overturn Hardison and reject the “more-than-de-minimis-cost test for determining whether a given religious accommodation is a hardship; and (2) whether an employer can demonstrate undue hardship on the conduct of its business by showing that the requested accommodation burdens the employee’s co-workers rather than the business itself.
Groff asks the Court to reject the de minimis standard, and instead adopt a higher standard of “substantial difficulty or expense” similar to the reasonable accommodation test used for the Americans with Disabilities Act and a number of state civil rights laws.
Based on yesterday’s oral argument, it seems likely that the Supreme Court will modify the de minimis standard in some fashion, at a minimum clarifying that it means something more than a “trifling” expense—very possibly referencing the “significant cost” language in the footnote in Hardison. It is less clear whether the Court will overrule Hardison in its entirety, or adopt the much more stringent “substantial difficulty or expense” test urged by Groff. At least three current justices—Thomas, Alito, and Gorsuch—have previously stated their view that Hardison should be revisited. At oral argument, Justices Kavanaugh and Barrett likewise seemed willing to clarify the meaning of the Hardison standard. Questions of stare decisis—the general principle that the Court should adhere to precedent in making its decisions—were raised, but as seen in other instances, the current Court does not view itself as strictly bound by that doctrine. It is also unclear whether, if the Court modifies the current standard, it will provide guidance as to what “significant cost” means and what factors are relevant to that determination.
A decision in the case is expected before the end of the Court’s current term in June. In the interim, employers seeking to deny a religious accommodation as an undue hardship should make sure the cost and operational impact of granting their accommodation are well-documented and non-speculative.
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