On June 29, 2023, the Supreme Court of the United States (SCOTUS) issued a unanimous opinion, authored by Justice Alito, in Groff v. DeJoy, Postmaster General, 600 U.S. ___ (2023), in which it “clarified” decades-old precedent regarding an employer’s obligation to accommodate the religious beliefs of its employees. The unanimous Court held that, under Title VII, an employer is required to accommodate an employee’s religious beliefs unless doing so would result in substantial increased costs in relation to the conduct of its particular business. Unfortunately, this decision may create more questions than answers about religious accommodation in the workplace.
A 1972 amendment to Title VII established that employers must reasonably accommodate an employee or prospective employee’s religious observance or practice unless the employer is unable to do so “without undue hardship on the conduct of the employer’s business.” 29 CFR § 2000e(j).
Before Thursday’s decision in Groff, in the context of religious accommodations under Title VII, courts (and the Equal Employment Opportunity Commission (EEOC)) found accommodations that impose a “more than de minimis” cost on employers, to be an undue hardship. This de minimis standard has been applied since the Supreme Court’s 1977 decision in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).
Both Hardison and Groff involved employees who refused to work on their Sabbath and who sued their employers for failure to accommodate their request to be granted off on their Sabbath. In both cases, the employer attempted to accommodate the religious practice in ways that would not impact operations or interfere with other employees’ contractual rights under labor agreements, but were unable to do so.
Hardison held that Title VII did not require the employer “to discriminate against some employees in order to enable others to observe their Sabbath.” 432 U.S. at 85. It concluded that “[t]o require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” 432 U.S. at 84.
Groff did not overrule Hardison. Rather, it opined that lower courts have misinterpreted the Hardison decision by giving undue weight to that particular sentence, and Groff was a vehicle for the Court to clarify the contours of what Title VII requires. Because it did not technically announce a new rule, it is likely that the Court’s “clarified” standard will be applied to cases currently pending review, despite defendant employers’ seemingly reasonable reliance on the de minimis standard.
In its opinion, the Court explained the context in which Hardison was decided, and opined that the decision was based squarely on the fact that accommodating Hardison’s request would have required the employer to deprive other employees of their collectively bargained contractual rights. The Groff opinion did not, however, address the Hardison Court’s additional rationale that “to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion.” Id.
The Court in Groff held that “[f]aced with an accommodation request like Groff’s, it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary.” It remanded the case for the lower courts to determine whether further factual development was necessary to apply its clarified, context-specific standard. However, it did not address what further factual development might be necessary in this case, where the record already established that USPS incurred a variety of costs in its attempts to accommodate Groff and previously allowed him to voluntarily swap shifts until the employee who agreed was injured and could no longer cover for him.
Justice Sotomayor joined the opinion of the Court, but wrote separately to emphasize that, contrary to Groff’s assertion that hardship on coworkers cannot be considered undue hardship on the conduct of the business, “[t]here is no basis in the text of the statute [Title VII], let alone in economics or common sense” to support such an argument. “Indeed, for many businesses, labor is more important to the conduct of the business than any other factor.” It is notable that the opinion of the Court rejected the formulation proposed by Groff and the one proposed by the Solicitor General.
The Court’s reference to substantial increased costs could lead one to wonder whether financial cost is the only factor a company can consider. Reading the decision as a whole, that does not appear to be the case. Rather, the reference to substantial increased cost appears to be intended to contrast with the Hardison statement that an employer need not accommodate anything other than a de minimis cost. In the years since Hardison, however, courts and the EEOC have recognized that factors other than cost may relieve an employer of the obligation to accommodate a particular request. We expect the same to be true here, particularly in light of the Court’s statement that “an ‘undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business.”
As it stands, the Court’s “clarifying” decision makes it less clear today how much cost or other burden an employer is expected to incur in order to accommodate an employee’s religious practices, but it is clear that employers should be prepared to meet a higher standard to deny a religious accommodation request than they have for the last 45 years. The Court observed, however, that the EEOC’s guidance has already “softened” the de minimis standard, and “that a good deal of the EEOC’s guidance in this area is sensible and will, in all likelihood, be unaffected by our clarifying decision today.”
The decision also reminds employers that determining a particular accommodation is an undue hardship does not end the inquiry. Rather, employers must discuss whether there are other accommodations that are possible. Until additional court decisions or revised EEOC guidance are issued, employers should be prepared to review religious accommodation requests in a manner similar to the way that requests are treated under the Americans with Disabilities Act.
Ballard Spahr frequently advises employers on questions related to Title VII, accommodations, and developments in the law.