On April 18, 2023, the United States Supreme Court will hear oral argument on Groff v. DeJoy, a case that concerns whether an employer must accommodate its employee’s request not to work on Sunday because of his religious beliefs. For more than 50 years, Federal courts have held that employers need not accommodate the religious practice of their employees in the event such requested accommodation would impose an “undue hardship” on the employer. Courts have applied a “de minimis cost” standard to determine when a requested accommodation might constitute an undue hardship under Title VII. Given the arguments on appeal, the Groff case could establish a new, higher, “undue hardship” standard in religious accommodations cases. Should that happen, the higher standard would impose a greater duty for employers to accommodate religious practice of their employees in the workplace and make it much more difficult for employers to deny any request for religious accommodation. Here is where we are:
Gerald Groff began working for the United States Postal Service (“USPS”) in 2012 as a Rural Carrier Associate or “RCA.” It is the job of an RCA to cover for national career postal service employees who must be absent from their regular delivery duties. Groff identifies as Christian. He observes a Sunday Sabbath, believing that the day is meant solely for worship and rest, and he accordingly sought an exemption from any work on Sundays. For a period of time Groff’s Postmaster exempted Gross from Sunday work so long as he covered other shifts throughout the week. But, in 2013, USPS signed a contract to deliver packages for Amazon including on Sundays. A few years later, USPS and all national carrier employees entered into an agreement that established the process of scheduling employees for Sunday and holiday Amazon delivery. The process prevented the post office from continuing to offer Groff the option of working extra shifts during the week to avoid Sunday shifts. In lieu of this option, the Postmaster offered to send emails each time Groff was scheduled to work on Sundays asking for volunteers to cover the shifts. But this approach failed to consistently accommodate Groff’s desire not to work on Sundays. Furthermore, when Gross did not show up for his scheduled shifts, other RCAs were required to deliver more mail than they otherwise would have on Sundays due to Groff’s absence. The Postmaster himself even had to deliver mail on Sundays because of Groff’s absences. Groff faced progressive discipline as a result and he eventually resigned. Groff sued USPS for failing to provide a reasonable accommodation for his religious practice of not working on Sunday.
Title VII Of the Civil Rights Act of 1964 prohibits an employer from discriminating against an individual because of that person’s religion. It also requires employers to provide reasonable accommodations for employee’s religious beliefs unless doing so could cause an “undue hardship on the conduct of the employer’s business.” In Trans World Airlines, Inc. v. Hardison, the Supreme Court in 1977 established what constitutes an “undue hardship” in the context of a request for a religious accommodation. In a 7-2 decision, the Court ruled that an employer suffers an “undue hardship” to accommodate an employee’s religious practices and beliefs whenever doing so would require an employer to “bear more than a de minimis cost.” This standard requires employers to establish relatively minimal economic or efficiency cost in order to avoid having to grant a religious accommodation.
Applying the Hardison “undue hardship” standard, the lower courts all ruled against Groff. In essence, those Courts found that exempting Groff from Sunday work required more than a de minimis cost on USPS because it imposed disproportionately on his coworkers, disrupted the workplace and workflow and diminished employee morale, because other workers had to disproportionately bear the burden of Sunday work and give up their family time and ability to attend church services if they would have liked to.
On appeal, Groff seeks, not only to overturn the lower courts, but to change the entire standard for establishing undue hardship for religious accommodations under Title VII. In essence, Groff asks the Court to replace the relatively low “de minimis cost” standard with a much higher “significant difficulty” standard. Groff specifically asks that the Court require employers to prove that a requested religious accommodation would impose significant costs difficulty or expense to the Company before they can lawfully deny a religious accommodation. In this way, Groff advocates for aligning the undue hardship standard already used for disability accommodations to the religious accommodation settings. For Groff, this properly puts the two situations on equal footing and avoids unfair results.
What does this mean? Under the law today, it is much easier for an employer to prove “undue hardship” in the religious accommodation context as compared to a disability accommodation case. For example, an employer might well be legally required to alter the snack break schedule for a diabetic employee who must maintain blood sugar levels, while lawfully denying a requested change in the meal break schedule for a Muslim employee seeking accommodation for Ramadan. If Groff succeeds at the Supreme Court, the employees’ respective requests for accommodation would be scrutinized under the same standard, and both might be required to enjoy their desired break schedule absent a showing of “significant difficulty or expense.” Groff argues that this is the only way for religious employees to enjoy the “preferential” treatment intended from Title VII. (“Title VII commands employers to afford ‘favored treatment’ – not ‘mere neutrality’ – to employees’ religious practices.”)
Groff also requests that the new standard require an employer to show not only that the religious accommodation has a significant impact on the employee’s co-workers, but also on the conduct of the employer’s business itself. In other words, a significant burden on co-workers alone without a showing of actual, significant harm to the employer’s business, could not establish undue hardship, if Groff succeeds at the USSC.
So, how will the case impact employers? Given its present composition, it seems quite likely, that the Supreme Court will change the law. We have seen in recent decisions the Court’s explicit lack of regard for stare decisis, the principle that calls upon courts to follow the principles established by rulings in past cases. The Court’s current understanding of its uninhibited power is not limited to Constitutional questions such as those addressed in Dobbs v. Jackson Women’s Health Organization (2022), where the Court struck down Roe v. Wade and the 50 years of Constitutional jurisprudence concerning abortion. Justice Thomas in several of his concurring opinions, including Gamble v. United States (2019), has made it clear that “precedence does not supersede the original meaning of a legal text” and may be disregarded where it is “demonstrably erroneous.” What is “demonstrable” may well be in the eye of the judicial beholder, but the fact that the Court accepted the case in the first place, after 50 years of precedent, suggests its desire to reject 50 years of precedence protecting employers and to adopt a stricter approach than the “undue hardship” standard in the context of workplace religious accommodations.
The resulting ruling could well impose greater burden on employers to provide religious accommodations. With the “de minimis” standard gone, employers will have to prove a significant financial cost, or a major burden to productivity, or great administrative or scheduling burden, or a tangible, sizable impact on morale, or a great impact on administration in order to deny religious accommodation. Requests not to work on Sabbath days, or for prayer breaks, or schedule demands to allow religious holidays may become standard. For those whose business focusses on weekends and holidays, including retail and hospitality establishments, a new, higher, “undue burden” standard could create significant challenges. Employers should pay close attention to how the Supreme Court ultimately rules. If decided on a schedule similar to past sessions, employers can expect a decision is sometime later this year, likely in June 2023.