Groff v. DeJoy: A paradigm shift for religious workplace accommodations
Vol. 80, No. 1 / Jan. - Feb. 2024
Kirk Davis, J.D., SPHR, SHRM-SCP, is the HR director for Enterprise Client Relations at Tandem HR, a full-service professional employer organization offering outsourced HR solutions, brokerage services, and employee assistance programs to businesses of all sizes since 1998. He has 25 years of combined employment law and human resources experience.
The U.S. Supreme Court ruled that employers cannot refuse to accommodate an employee’s request for religious accommodation under Title VII of the Civil Rights Act of 1964 unless they can demonstrate that it would have a substantial increase in the cost of doing business.
For employment law practitioners and human resource professionals, a significant U.S. Supreme Court decision recently changed the game regarding religious workplace accommodations.
The Groff v. DeJoy decision establishes a new definition of “undue hardship,” making it fundamentally more difficult for employers to brush aside employees’ requests because they either inconvenience the employers or have expenses associated with the requests. This decision not only changes the standard for evaluating these cases, but will also likely increase the number of requests made by employees and cases filed by lawyers as the courts determine how to apply the Groff decision.
In a unanimous opinion, the U.S. Supreme Court addressed the “undue hardship” standard which religious accommodation requests have been evaluated against under Title VII of the Civil Rights Act of 1964.1 On June 29, 2023, Justice Samuel A. Alito wrote the decision for the Court which rejected the de minimis cost test previously used to consider “undue hardship.” The Court held that employers rejecting religious accommodation requests must demonstrate that the accommodation “would result in substantial increased costs in relation to the conduct of its particular business.”2
Gerald Groff was a U.S. postal worker who, due to his firmly held religious beliefs, wanted to be off on Sundays. While the post office does not ordinarily deliver on Sundays, it recently had entered into a contract with Amazon, which does. Groff argued that he could not work on Sundays because his Sabbath should be set aside for rest and worship. Groff refused to work on Sundays. The United States Postal Service reallocated his work to other mail carriers and disciplined Groff. Groff later resigned and filed suit, alleging there was no undue hardship to USPS in granting his request. USPS countered that Groff worked in a small branch and allowing one employee to be exempt from the Sunday work requirement placed a burden on other employees.3
The district court awarded summary judgment to USPS.4 The 3rd U.S. Circuit Court of Appeals then affirmed the ruling based on the precedent established in Trans World Airlines, Inc. v. Hardison, that requiring an employer “to bear more than a de minimis cost” to provide a religious accommodation “is an undue hardship.”5 The court found that allowing Groff to be off on Sundays indeed “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.”6 The U.S. Supreme Court granted certiorari and overturned the appellate court decision.7
So, how did we get to this point?
Title VII prohibits discrimination based on an individual’s chosen religion. It defines religion to include “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.”8 It is the definition of “undue hardship” that was at issue in this case.
In Hardison, the Court interpreted the term “undue hardship” to mean anything more than a de minimis cost.9 Even though there has been much debate over the years regarding whether the Court intended this de minimis standard to play such a significant role when interpreting the statutory term “undue hardship,” lower courts latched onto the phrase de minimis as the law of the land for decades. Over time, multiple U.S. Supreme Court justices have articulated that the Court should revisit this standard.10 Groff provided them with the opportunity to do so.
There are basically two fundamental questions posed in Groff: (1) Should the Court throw out the de minimis cost standard for evaluating Title VII religious accommodation requests under Hardison; and (2) can an employer establish “undue hardship” by proving the burden on the employee’s co-workers instead of on the business as a whole?
With respect to the first question, the Court concluded that an “undue hardship” was one that would result in “substantial increased costs in relation to the conduct of its particular business.”11 The Court articulated this would result in a unique “fact-specific inquiry” for each case. It further offered that the analysis would hinge on a fundamental understanding of the word “hardship.” Alito explained that “[i]n common parlance, a ‘hardship’ is, at a minimum, ‘something hard to bear.’”12
Employers clearly will not meet this standard by simply demonstrating they incurred any expense. It must be substantial. There are unique factors to consider in the analysis, like the size of the business, revenues, profitability, number of employees, and the overall impact to business operations. What is clear from the opinion is things like the regular payment of premium wages, hiring of additional employees, or whether the requested accommodation violated other employees’ contractual seniority rights would cause increased safety risks or expose the employer to claims or the risk of legal liability would fall into the realm of “substantial.”13 This new standard not only approaches the analysis from a more holistic viewpoint of business operations, but also considers these unique variables of the business that make a fact-specific inquiry (thus, a detailed conversation with the employee) necessary before reaching a conclusion.
Regarding the second question, the Court fundamentally narrowed the scope of the analysis. Not all effects on co-workers are relevant, but only those that “go on to affect the conduct of the business.” Moreover, the Court added that hardship due to employee animosity to a specific religion, religion in general, or to the idea of accommodating religious practices cannot be considered “undue.”14
Quite interestingly, the court went on to explain that the analysis does not stop there. It is simply not enough for an employer to determine whether a proposed accommodation was an undue hardship; the employer must also consider other alternatives. In this case, shift swapping was the proposed alternative, but other options were not fully explored. Alito expounded that “it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship.”15
This requirement is similar to the Americans with Disabilities Act interactive process frequently used to evaluate the reasonableness of requests for disability accommodations. There, as long as an employer engages in the interactive process with a disabled employee to offer a reasonable accommodation that equips the employee to perform the essential functions of the job, the employee has no claim that the proposed accommodation is not specifically the preferred or requested accommodation.16
What are the takeaways for practitioners? There is no doubt that we will see an increase in religious accommodation requests and resulting litigation. This new rule will encourage some plaintiffs to see where courts will side in culture disputes with their employers or co-workers.
Employers should be put on notice that the prior de minimis cost test is no longer viable; the revised substantial “undue burden” analysis should be applied on a case-by-case basis; and in doing so, organizations should evaluate all factors relevant to whether a requested religious accommodation would result in substantial increased costs in conducting their business operations.
Employers are advised to engage in the interactive process to discover alternatives if the requested accommodation is decided to, in fact, result in an undue burden. While the Court does impose a more rigorous standard here, this is less of a burden on the employee in the Title VII religion context than the ADA disability context. Also, the analysis hinges upon helping employees understand the difference between a “reasonable” accommodation and their “preferred” accommodation. Employers are not obligated to provide the latter if it truly results in an undue hardship.
“It is against my religion to work on Sundays.”
Before Groff, an employer could respond, “Unless you can have someone pick up your shift, it’s an undue burden to redo the schedule and unexcused absences can be counted against you.” After Groff, the employer’s response should be, “Let’s talk about this.”
Undue hardship is now much more difficult to establish, and employers will be advised to think hard about relying on it as a defense except in the most obvious cases. It is likely that the focus will now shift to the reasonableness of the request itself as it has been under the ADA for years. But we will have to wait to see how lower courts begin to interpret and apply Groff.
1 42 U.S.C. § 2000e(j).
2 Groff v. DeJoy, 600 U.S. 447 (2023).
3 Id. at 455.
4 Groff v. DeJoy, No. 19-1879, 2021 WL 1264030, at *5 (E.D. Pa. Apr. 6, 2021).
5 TWA v. Hardison, 432 U.S. 63 (1977).
6 Groff v. Dejoy, 35 F.4th 162, 175 (3d Cir. 2022).
7 cert. granted (Jan. 13, 2023).
8 42 U.S.C. § 2000e(j).
9 Hardison, 432 U.S. at 69.
10 See Small v. Memphis Light, Gas & Water, 952 F.3d 821, 825 (6th Cir. 2020) (per curiam). Hardison’s de minimis cost test does not appear in the statute. The Court announced that standard in a single sentence with little explanation or supporting analysis. Neither party before the Court had even argued for the rule. Patterson v. Walgreen Co., 589 U.S. ___ (2020) (ALITO, J., concurring in denial of certiorari). Justice Marshall highlighted all these problems at the time, noting in dissent that the de minimis cost test cannot be reconciled with the “plain words” of Title VII, defies “simple English usage,” and “effectively nullif[ies]” the statute’s promise. Hardison, 432 U.S., at 88, 89, 93, n. 6 (Marshall, J., dissenting).
11 Groff, 600 U.S. at 470.
12 Id. at 468.