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Employment Law Update: Supreme Court Adjusts Standard for Determining when An Employer Is Obligated to Allow an Employee’s Request for A Religious Accommodation

John Russell July 17, 2023

For a half century, federal law has prohibited employers from discriminating against their workers based on religion. Title VII of the Civil Rights Act made it clear that employers must “reasonably accommodate. . . an employee’s 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.” 42 U.S.C §2000e(j).

The question for an employer has been “Where is the line drawn?” If an employee’s religious practices require the employer to change its policies or make some special exception, at what point does it become an “undue burden?”

In 1977, the U.S. Supreme Court decided Trans World Airlines v. Hardison, 432 U.S. 63 (1977). The case involved a Seventh-Day Adventist employee, whose religious beliefs required that he not work on their Sabbath Day – which was Saturday. The employee asked to have every Saturday off. Because the employer operated seven days a week, and scheduled its workers according to seniority, more recent hires like this employee were assigned to work on Saturday. Attempts were made to accommodate the employee, but if the employee didn’t work his assigned Saturday shift, the employer was forced to fill the shift with a supervisor, shift another employee over (which left that department undermanned), or pay premium wages for overtime. The employee was fired for refusing to work his assigned shift and brought an action against the employer via Title VII for failing to make a “reasonable accommodation.” Id. at 67-69.

While the Court ruled in the employer’s favor, it was not the decision itself that made the most impact, but what the court said about “undue hardship.” “To require [the employer] to bear more than a de minimus cost” to provide the accommodation “is an undue hardship.” Id. at 84. Courts that have interpreted Title VII since then have understood that an employer has no duty to accommodate an employee’s sincerely held religious beliefs if the employer could demonstrate that the proposed accommodation would result in more than a minimal cost or expense for the business. Even when the Equal Employment Opportunity Commission investigated claims of religious discrimination, it adopted this position.

However, in an opinion released June 29, 2023, the U.S. Supreme Court announced that this was all wrong.

In Groff v. DeJoy, the Court ruled that a “small or trifling” burden is not the kind of “undue hardship” that justifies an employer refusing to accommodate an employee’s religious beliefs. Id. at 17. Instead, employers must accommodate employee religious beliefs unless they can show that “granting an accommodation would result in substantial increased costs in relation to the conduct of” employer’s business.  Id. at 18.

The facts of Groff are similar to Hardison. The employee was an evangelical Christian who believed that Sundays must be reserved for rest and worship. He began working for the employer (the U.S. Postal Service) in 2012, He was disciplined for refusing to come to work when scheduled to work on Sundays and resigned in 2019. Id. at 2-3.

The Court, in a unanimous opinion, spent a great deal of space explaining the Hardison decision. Justice Alito’s opinion explained that courts interpreting Hardison have construed “undue hardship” to mean “any effort or cost that was more” than minimal, but that this interpretation is “a mistake.” Id. at 19. Hardison’s focus had been on whether federal employment discrimination laws required an employer and labor union to accommodate employee religious practices at the expense of bargained-for seniority rights of the established employees. Hardison barely discussed the question of what constituted an “undue hardship.” Id., 16-18. Indeed, Hardison relied on an express finding of the District Court that the employee’s proposed accommodations “would have created an undue burden on the conduct of [employer’s] business (Hardison, 42 U.S., at 84, n.15) and that “accommodation is not required when it entails “substantial” “costs” or “expenditures.” Groff at 3.

The Court noted that the phrase “undue hardship” required a higher standard. “Hardship” itself is a term that means “something hard to bear,” and “more than a mere burden.”  Id. at 16. With the additional modifier, “undue,” the concept must be “excessive” or “unjustifiable.” Id. The Groff employee argued that employers must accommodate religious practices unless the employer would experience “significant difficulty or expense.”  The Government argued that an “undue hardship” meant an employer would suffer” substantial expenditures” or “substantial additional costs.”  The Court concluded that “it is enough to say that 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.” Id. at 18.

So, if “undue hardship” does not mean “de minimus” anymore, but rather means “substantial increased costs,” how are employers to interpret that?

The Court, while refusing to establish any kind of clearly established “bright line” test, noted that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” Id. at 18 (emphasis added). This is not a one-size-fits-all standard. A small business operating at one location with 15 employees might face substantial increased costs accommodating an employee like the one in Groff, while a Fortune 500 company could allow this same employee the leeway necessary to accomplish the basic functions of his job while not violating his conscience.

The Court also noted that the employee/plaintiff wanted the Court to apply the same standards used to determine when a suggested accommodation becomes an undue hardship from the standards under the Americans with Disabilities Act (“ADA”). Id. at 18. Under the ADA’s Enforcement Guidance, “undue hardship” also means “significant difficulty or expense.” The guidance encourages an analysis “which focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.” EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act. [Washington, D.C.]  EEOC, Notice No. 915.002 (October 17, 2002).  The Groff decision seems to suggest the Title VII standard for establishing undue hardship is lower than the ADA standard, noting that the suggestion that decades’ worth of ADA caselaw should serve to guide the courts “goes too far.” Groff, at 19.

I think it’s a closer call than Justice Alito suggests. I guess we will wait for the lower courts to figure this out.

But the Groff Court has made it clear that employers must do more than simply determine if a particular possible religious accommodation suggested by an employee is reasonable. For example, in the Groff example, giving the Sabbatarian employee every Sunday off will force other employees to work overtime, meaning an increased payroll, which the employer concludes is an “undue hardship.” Id. at 20. The employer will need to consider other options, such as voluntary shift swapping, incentive pay, or shifting employees from one worksite to another. Id. at 20-21. “Title VII requires that an employer reasonably accommodate an employee’s practice of religion, not merely that it assesses the reasonableness of a particular possible accommodation or accommodations.” Id. at 20.

Other factors that might be relevant when an employer considers the impact of a religious accommodation is how it will affect the productivity or morale of the other employees. However, “a hardship that is attributable to employee animosity to a particular religion, to religion in gen­eral, or to the very notion of accommodating religious practice, cannot be considered “undue.” Bias or hostility to a religious practice or accommodation cannot supply a defense.” Id. at 5.  

The Court remanded the case back to trial, specifically instructing the District Court to consider all possible accommodations, some of which may have been overlooked because of the “de minimus” threshold. Id. at 21. The Groff employee’s high court victory may prove hollow. The evidence that there were multiple efforts by the employer to accommodate the employee’s request to have Sunday off that were not considered at trial, and that the trial court found there to a be genuine issue of material fact regarding whether the employee’s resignation was an “adverse employment action” for purposes of Title VII indicate a strong possibility that the employer will still prevail. Id. at 3, n.2.

But the Groff Court’s clarified standard for what constitutes an “undue burden” for religious accommodation under Title VI will offer employees who seek religious accommodations more negotiating power, and force employers to take such requests more seriously.