The United States Supreme Court’s last term was a blockbuster. The Groff v. DeJoy decision has not received the level of attention as the other cases that came down this term, but it is critically important to employers. In a unanimous decision, the Court established a new, heightened standard that will impose a much greater burden for employers to provide religious accommodations for employees under Title VII.
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate “because of” religion (among other bases). As originally drafted, Title VII’s prohibition against religious discrimination did not explicitly establish a duty to accommodate religious practices. But the Equal Employment Opportunity Commission (EEOC), the Federal agency that enforces Title VII, has long interpreted the statute to include that very duty. About 50 years ago, Congress followed suit, and amended Title VII to include language that made clear once and for all that that there was indeed a duty to accommodate all aspects of religious observance, practice, and belief. A religious accommodation could only be denied, according to the new language, if an employer could demonstrate that accommodating an employee’s religious observation or practice would cause “undue hardship on the conduct of the employer’s business.”
The critical question, then, for employers deciding on religious accommodations became what was an “undue hardship.” For decades, relying on language in Trans World Airlines, Inc. v. Hardison, Courts have applied a “de minimis cost” standard to evaluate when a requested accommodation constitutes an undue hardship under Title VII. In that case, the Court sided with the employer who denied an employee his request for special scheduling to accommodate his religious practice. In doing so, the Court noted a number of “substantial” hardships for the employer, including impacts on its seniority system, in its ruling. But, the Court also mentioned that an employer need not show “more than a de minimus cost” in order to prove “undue hardship”. In the nearly 50 years that followed that decision, courts have held that employers need not “bear more than a de minimis cost” to meet the “undue hardship” standard.
The Court in Groff v. DeJoy essentially has said that the Court in TWA v. Hardison didn’t really mean it. Or, more precisely, that the “de minimus cost” language has been taken out of context from the TWA v. Hardison case which expressly relied in large part on the “substantial” burdens the employer showed in its position to deny the requested accommodation. From the current Court’s perspective, the EEOC and the lower courts have misunderstood TWA v. Hardison from the beginning.
The facts in the case were not much different from what many employers face every day. Mr. Groff, a self-proclaimed Evangelical Christian, sued his employer, the United States Postal Service (“USPS”) for failing to provide a reasonable accommodation for his religious practice of not working on Sunday. Groff lost at all of the lower courts. The lower courts found that exempting Groff from Sunday work required more than a de minimis cost on USPS that justified denying the accommodation. Essentially because Mr. Groff’s accommodation imposed disproportionately on his coworkers, disrupted the workplace and workflow and diminished employee morale, there was an undue hardship to USPS. Mr. Groff challenged the decision arguing for a new, higher, “undue hardship” standard in religious accommodations cases.
The Court agreed with Mr. Groff. In a unanimous decision, the Court asserted that the EEOC and the lower courts have been misconstruing its 1977 decision in TWA v. Hardison for years, and held that employers must accommodate an employee’s religious practice unless it “would result in substantial increased costs in relation to the conduct of the business.”
The Court explained that “[c]ourts must apply the test to take into account all relevant factors in the case at hand, including the particular accommodation at issue and their practical impact in light of the nature, size, and operating cost of the employer.”
So, what is the new standard precisely? The Court wouldn’t say, other than to send it back to the lower courts to wrestle with these issues on a “case by case basis”. What will the new standard will grow into under the care of the lower courts and the EEOC remains to be seen.
We do know that, whatever the new standard is, it is not the “undue burden” test that is applied under the Americans with Disabilities Act and it is not the de minimus standard the EEOC has applied under Title VII since the TWA v. Hardison decision.
We also know from this recent decision that the negative attitudes of co-workers cannot serve as the basis for an undue hardship defense and that “impacts on coworkers are relevant only to the extent those impacts go on to affect the conduct of the business.”
The Court also made clear that in order to satisfy the new undue hardship standard, the employer must do more than merely assess the reasonableness of a particular, possible accommodation. An employer now must consider alternatives before denying a religious accommodation on the basis of undue hardship. Faced with an accommodation like Mr. Groff’s to not work the Sabbath, “it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute undue hardship. Consideration of other options, such as voluntary shift swapping would also be necessary.”
What does all of this mean now? In the short term, the challenge for employers will be the lack of clarity the new standard provides. It will be years before we have sufficient case law to truly understand what does or does not constitute an undue burden under this new standard. Meanwhile, the heighted undue hardship standard, whatever it is, has been imposed.
It will now be much harder for an employer to prove “undue hardship” in the religious accommodation context. Employee requests for religious accommodations must now be scrutinized much more carefully than previously required over the last half century. 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 that actual impacts the actual conduct of the employer’s business in order to deny religious accommodation.
Get ready for it. Requests not to work on Sabbath days, or for prayer breaks, or schedule demands to allow religious holidays, will become far more common place. Employers will need to tread carefully or else risk a Title VII suit. The new standard without a standard will serve as a full employment act for employment lawyers in the next few years. Regardless, employers must now take extra care when considering employee requests for religious accommodation. The above is for news and information only. Of course, seek guidance from counsel.