by N. Brenda Adimora, Dionysia Johnson-Massie, James Paretti, Jr., and Laura Saracina
at Littler
- In Groff v. DeJoy, the Supreme Court provided “clarification” on the undue hardship standard in religious accommodation claims.
- The Court heightened the burden on employers to defend against such claims and effectively requires that employers overhaul their own procedures for analysis of religious accommodations.
In its June 29, 2023, unanimous decision in Groff v. DeJoy, the United States Supreme Court upended nearly 50 years of precedent by “clarifying” the undue hardship standard in religious accommodation claims under Title VII of the Civil Rights Act of 1964,1 as amended. In doing so, the Supreme Court effectively dismantled the “de minimis” framework and the precedent set in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), and created a new, and much higher, standard. The heightened standard requires employers assessing religious accommodations requests to deny such requests only if there is evidence that providing the accommodation would result in “substantial increased costs in relation to the conduct of [an employer’s] particular business.” This is a markedly enhanced requirement for an employer assessing whether religious accommodation requests constitute an undue hardship on its business.
By specifically declining to apply the “significant expense or difficulty” analysis and precedent established in cases decided under the Americans with Disabilities Act, and conceding the application of the “clarifying” standard requires case-by case factual analysis, the Court leaves employers without clear guidance on how to apply its new standard and creates significant uncertainty in the religious accommodations landscape.
Since the Supreme Court’s 1977 decision in Hardison, courts across the country have analyzed undue hardship by determining whether an employer would be required to “bear no more than a de minimis cost” if it granted an employee’s religious accommodation request. If more than a de minimis cost was required, then the request was deemed to cause an “undue hardship” on the employer’s business and the employer could lawfully deny the request. With the ruling in Groff, however, the Supreme Court requires an employer seeking to deny religious accommodation requests to demonstrate that the “burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”
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.” As discussed briefly above, in 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 how undue hardship should be defined in practice, as it pertains to religious accommodation claims.
The plaintiff, an Evangelical Christian, believes Sundays should be reserved for worship and rest. He began working for the defendant, the United States Postal Service (USPS),2 in 2012 in a position that typically did not require Sunday work. In 2013, however, USPS entered into an agreement to begin facilitating Sunday deliveries, which was approved by the union in 2016 with a memorandum of understanding defining “peak” season, determining where each post office would use its own staff to deliver packages, and outlining the order in which USPS employees would be utilized in deliveries during off-peak season.
Pursuant to this agreement, during the off-peak season, the plaintiff (and other carriers in his group) would be called to work on Sundays on a rotating basis after part-time employees (working only on Sundays and holidays) and another group of volunteer employees. After becoming aware of the potential that he may work on Sundays, the plaintiff requested a transfer to a rural USPS station in Holtwood, Pennsylvania that employed a total of seven employees, and, at the time, did not make any Sunday deliveries.
By March 2017, the plaintiff’s Holtwood site also began requiring Sunday deliveries. In an attempt to accommodate the plaintiff’s religious observance, USPS required the other six employees, including an employee who did not normally make any deliveries, to make the Sunday deliveries during “peak” season, and during off-peak season, USPS made efforts to have volunteer employees from a more central hub complete the deliveries. The plaintiff, however, began receiving progressive discipline for his failure to work on Sundays and, in January 2019, the plaintiff resigned.3
Shortly after his resignation, the plaintiff sued USPS under Title VII, arguing that USPS could have accommodated his religious observance “without undue hardship on the conduct of [USPS’s] business.” 12 U.S.C. §2000e(j). The district court granted summary judgment to USPS, and the Third Circuit affirmed, explaining that it was bound by the de minimis precedent set in Hardison and that the plaintiff’s exemption from Sunday work “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.” In reviewing the burden imposed on his co-workers, which, historically, has been sufficient to show undue hardship under this standard, the Third Circuit stated in its decision, this was “not a difficult threshold to pass.”
While textually this decision reads as a “win” for the plaintiff, the Supreme Court vacated the ruling of the Court of Appeals and remanded the case for further proceedings consistent with this opinion.
Supreme Court’s Rationale
In its decision, the Supreme Court applied a textualist approach, explaining its intent is to clarify, rather than overrule, Hardison, and that Title VII’s text warrants a standard higher than de minimis for undue hardship.
In doing so, the Court states that a singular sentence in Hardison mentioning de minimis was not intended to outweigh the “substantial costs or expenditures” discussion mentioned three times in the same opinion. According to the Court, lower courts improperly latched onto de minimis as the governing standard. The Court further states the plain meaning of the words “undue” and “hardship” in Title VII’s text mitigates using de minimis as the standard because “in common parlance,” a “hardship” is “something hard to bear,” and, under any definition, the use of the word “hardship” indicates something greater than a “mere burden.” Using the definition of hardship, the Court concluded that even if Title VII merely stated “hardship,” “an employer could not escape liability simply by showing that an accommodation would impose some sort of additional costs.” Further, adding the modifier of “undue” means that this requisite burden must rise to an “‘excessive’ or ‘unjustifiable’ level.” These words – in substance – are markedly different than “de minimis,” which merely requires, per Black’s Law Dictionary, a “very small or trifling” hardship. Further, the Court explained that EEOC guidance has suggested the standard is greater than de minimis, as it has cautioned against using administrative costs or the infrequent or temporary payment of premium wages as satisfying undue hardship.
In essence, the Court explains that lower courts reduced Hardison to a singular phrase, and continued emphasis of de minimis over time modified the undue hardship standard in such a way that it strayed from the original intent of Title VII, as well as the intent of the Court in issuing the Hardison decision. As such, the Court concludes that “undue hardship” is shown when a burden is “substantial in the overall context of an employer’s business” putting the term in line with both Hardison’s intent and “ordinary speech.” Now, to establish the undue hardship defense, an employer “must show that the burden of granting an accommodation would result in substantial increased cost in relation to the conduct of its particular business.” [emphasis added].
Conduct of Business
In determining what would cause an “undue hardship” on the conduct of business, the Court provided little guidance, focusing its discussion on the importance of case-by-case analysis in such a way that courts “must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, “size and operating cost of [an] employer.”4
The Court insists that this clarification will cause “little, if any, change in the [EEOC’s] guidance explaining why no undue hardship is imposed by temporary costs, voluntary shift swapping, occasional shift swapping, or administrative costs.” Yet, the Court makes clear that it is not adopting the EEOC’s guidance by emphasizing that it would “not be prudent to ratify in toto a body of EEOC interpretation that has not had the benefit of the clarification [the Court] adopt[s]] today.”
Significantly, the focus on “conduct of [an employer’s] business” shifts the analysis of undue hardship specifically as it pertains to whether a particular religious accommodation request causes hardship on other employees. Where, pre-Groff, impacts on coworkers had more significance, the Supreme Court requires post-Groff, that employers demonstrate that any impact on other employees must directly relate to the “conduct of [its] business” and their analyses must “examin[e] whether that further logical step is shown in a particular case.” In essence, the expectation is that employers assessing how religious accommodation claims impact other employees demonstrate, at a minimum, how other employees are impacted, how that impact affects the “conduct of its business,” and whether such impact constitutes a “substantial increased cost.” This approach is clearly more rigorous and heightened than the de minimis analysis.
In her concurrence, Justice Sotomayor (joined by Justice Jackson) observed that “[b]ecause the ‘conduct of [a] business’ plainly includes the management and performance of the business’s employees, undue hardship on the conduct of a business may include undue hardship on the business’s employees.” Notably, this sentiment was not expressed in the majority’s opinion.
This new standard, including the more rigorous analysis that is now required when assessing the impact of religious accommodations requests on other employees, will clearly impact the religious accommodations landscape and make denial of religious accommodations requests more difficult. Further, determining what constitutes a “substantial increased cost” is currently undefined and will necessarily differ depending on an employer’s size, the nature and scope of its operations, etc. It is reasonable to surmise that this decision may impose a greater obligation on larger employers because demonstrating “substantial increased cost” may be more difficult when there is a large workforce with talent presumably available to perform others’ work tasks and significant revenues or profits where the ability to bear the costs of accommodations are presumed.
Implication for Employers
While the court states that its “clarification” of the undue hardship standard in the Groff decision will “prompt little, if any change in the [EEOC’s] guidance” regarding employers’ approach to religious accommodations, it is likely to bring an avalanche of religious accommodation requests.
To prepare for such circumstances, employers should begin considering various options:
- Re-educating and training managers, human resources professionals, recruiters and all involved with making religious accommodations decisions on this heightened standard and how best to apply it within the context of their unique businesses.
- Re-evaluating policies and procedures used when assessing religious accommodation requests.
- Applying more rigor to assessing religious accommodation requests by analyzing their impact on the “conduct of the business.” The analysis should include details about what the “substantial increased costs” are, including, but not limited to, how the business is impacted (which operations cannot run with a person absent, how a store may not open during business hours, how certain processes or work cannot be performed, lost revenues as a result, impact on customer expectations – failure to complete orders or increased customer complaints, impact on coverage for patients needing vital care, inability to meet certain regulatory requirements, etc.) and how other employees are impacted (i.e., inability to have adequate rest between shifts, inability to provide days off, increased errors, potential departures, etc.). These issues should be well documented and supported by workplace evidence.
- Considering – now – operational changes or modifications below the “substantial increased costs” threshold that could be offered as reasonable accommodation alternatives.
- Employing a practice of offering accommodation options – even if not the one the employee requests. This way, an employer demonstrates that it was not opposed or hostile to an employee’s religious accommodation request and may have mistakenly concluded a particular request would cause a “substantial increased cost.” At this juncture, until courts better define the contours of what constitutes “substantial increased costs” under this new standard, an employer may be in a better defensive posture to offer “something” as an option.
Footnotes
1 Notably, the Supreme Court avoided any discussion of the intersection of the Religious Freedom Restoration Act (RFRA) with Title VII, by stating in footnote 14 that because Groff did not bring an RFRA claim, the Court “need not resolve…whether… RFRA claims arising out of federal employment are not displaced by Title VII.” Slip. Op. at Fn. 14.
2 USPS employs approximately 600,000 people.
3 As the Court notes, the plaintiff represents that he resigned due to anticipation of termination, and the district court found “a genuine issue of material fact” as to whether the plaintiff suffered an adverse employment action. 2021 WL 1264030, *8 (ED Pa., Apr. 6, 2021).
4 Significantly, the Court rejected the contention that this standard is akin to the Americans with Disabilities Act.
