Employers must consider a new, more rigorous standard before concluding that a proposed accommodation for a religious belief or practice presents an undue hardship, following the U.S. Supreme Court's ruling in Groff v. DeJoy. No longer may an accommodation be rejected if it creates more than a "de minimis" cost. Instead, employers must accommodate an employee's religious beliefs unless the burden of granting the accommodation would result in "substantial increased costs in relation to the conduct of its particular business." This is a departure from the commonly understood de minimis standard set forth in the Court's 1977 decision in Trans World Airlines, Inc. v. Hardison. For employers operating in states that already had a higher-than-de minimis standard, the Groff ruling may not impact day-to-day accommodation decisions.
Jump to: What Does This Mean for Employers?
The Requirement to Accommodate
Title VII of the Civil Rights Act of 1964 ("Title VII") requires employers to accommodate an employee's religious beliefs and practices unless doing so would impose an "undue hardship" on the employer. For nearly fifty years, relying on language in Hardison, courts have interpreted the term "undue hardship" as not requiring an employer to grant a religious accommodation that imposes "more than a de minimis cost" on the employer. The Supreme Court has now ruled that courts have incorrectly interpreted Hardison.
Groff v. DeJoy
The plaintiff, Gerald Groff, is an Evangelical Christian employed by the United States Postal Service (USPS) who would not work on Sundays in observance of the Christian Sabbath. His refusal to work on Sundays became an issue when the USPS began facilitating regular Sunday deliveries in 2016 and he was ordered to work at least some Sundays. The USPS was initially able to accommodate him by transferring him to a small station that did not operate on Sundays. When that station began making Sunday deliveries and Groff continued to refuse to work Sundays, the USPS disciplined him multiple times. In 2019, Groff resigned and sued under Title VII.
The USPS argued that it could not accommodate Groff's religious practices without bearing an undue hardship. The Third Circuit agreed, finding that Groff's absences "imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale," which the Third Circuit found clearly met the low bar of the de minimis standard.
The U.S. Supreme Court accepted review to address the de minimis standard. Both Groff and the USPS argued that the de minimis standard needed to be revisited, and was too low a bar, but the parties disagreed over the appropriate standard. Groff argued for "significant difficulty or expense," mirroring the standard for accommodations under the Americans with Disabilities Act (ADA). USPS recommended "substantial expenditures" or "substantial additional costs."
The Court, in an opinion authored by Justice Alito, ultimately concluded 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." It did not determine whether the USPS had met that standard and instead remanded to the lower court to make that determination under this new threshold.
Justice Sotomayor, joined by Justice Jackson, wrote separately to make two key points. First, she noted that the EEOC's interpretation of the undue hardship standard has aligned with the majority opinion "for seven consecutive Presidential administrations." She also emphasized that effects to co-workers can result in substantial costs to an employer, observing that "[i]ndeed, for many businesses, labor is more important to the conduct of the business than any other factor."
Groff and COVID-19 Accommodations
The COVID-19 pandemic led to an increase in Title VII religious accommodation cases, many tied to religious opposition to vaccine requirements. Groff does not directly address whether the new "undue hardship" standard would be met by religious accommodations that would expose employers to health risks to co-workers and clients, reputational harm or potential liability, but the opinion's logic indicates that the costs associated with these risks may be factored into the undue hardship analysis. Even under the Groff undue hardship analysis, employers may still argue that unvaccinated employees pose health risks to co-workers, patients, nursing home residents, and other customers or clients. Further, nothing in the opinion suggests that Title VII requires employers to violate emergency orders or statutes issuing vaccine mandates.
Groff does foreclose certain arguments. While remote work or testing requirements may involve some administrative costs, these costs are likely too insignificant standing alone to justify a failure to accommodate an employee's religious beliefs.
What Does This Mean for Employers?
The Court left employers without clear guidance as to where the new line lies – at what point does an employee's request for a religious accommodation become so burdensome that an employer is not required to provide it? That was left for the lower courts to determine, based on the facts of each case. Several points are clear, however:
- Impact on co-workers can be a factor if that impact results in cost to the employer. The Court explicitly stated, however, that a co-worker's animus towards a particular religion is not sufficient to create an undue hardship for the employer.
- Employers must still engage in an interactive process, similar to that for accommodation requests under the ADA. If an employee's requested religious accommodation creates an undue hardship, employers must determine if another accommodation is possible.
- The standard for determining an undue hardship for religious accommodations under Title VII is not synonymous with the standard under the ADA.
- The size of the employer matters. Courts will look at the costs the requested accommodation would impose on the employer, taking into account the employer's size and resources.
- Much of the EEOC's guidance to date regarding what is and is not an undue hardship, which used a more stringent test than the de minimis standard, is likely still correct. While the Court declined to officially adopt the EEOC's current rationale, it did state that its decision in Groff required "little, if any, change in the agency's guidance."
Given this guidance, employers should continue to look to guidance issued by the EEOC in determining whether an accommodation imposes an undue hardship. The EEOC has long advised that "temporary costs, voluntary shift swapping, occasional shift swapping, or administrative costs" do not constitute undue hardships, even if they technically inflict some burdens on employers. The Supreme Court also recognized that substantial costs extend beyond financial expenditures and can also include effects on co-workers that "have ramifications for the conduct of the employer's business." For example, the Court affirmed their holding in Hardison that violating employees' contractual seniority rights would pose an undue hardship to the employer.
The Supreme Court has left it to lower courts to "resolve whether a hardship would be substantial in the context of an employer's business in the common sense manner it would use in applying any such test." This means that, going forward, courts are likely to intensify their analyses of employers' assertions of undue hardship when considering religious accommodation cases.
In determining whether to grant a religious accommodation, employers must now use the standard set forth in Groff which will involve a fact-based analysis that takes into account the effect an accommodation may have on the conduct of its particular business. Accommodations for religious beliefs that involve some costs should not be automatically rejected, and employers are advised to seek legal counsel before concluding whether an accommodation imposes an "undue hardship."
Jandee Todd* is a summer associate at DWT.