S4, Ep. 17: Is ‘de minimis’ enough? Previewing Groff v. DeJoy

While not all employee requests for religious accommodations must be granted, Amanda and Holly say the current standard is too low. 

Apr 6, 2023

A spring Supreme Court case is bringing together some unlikely allies. Amanda and Holly preview Groff v. DeJoy, which examines the federal statutory protection against religious discrimination in the workplace. They review the facts of the case, which involves a postal worker who has a religious belief he cannot work on the Sabbath, and they share why a “de minimis standard” set in a 1977 case is way too low. Not all impacts on coworkers are “undue hardships,” and Amanda and Holly share why we need a standard that works for everyone. 

Segment 1: The facts of this case (starting at 00:37)

Visit BJConline.org/Groff for a full list of resources on Groff v. DeJoy

Holly wrote an article for our spring magazine on the case: The Supreme Court’s latest religion case offers opportunity to restore statute’s meaning


Segment 2: Considering a better standard (starting at 14:55)

BJC joined an amicus brief in this case, led by the Church of Jesus Christ of Latter-day Saints. Other organizations joining the brief are the United States Conference of Catholic Bishops, National Association of Evangelicals, Ethics and Religious Liberty Commission of the Southern Baptist Convention, and ADL (Anti-Defamation League). 

Segment 3: What do we expect in oral argument? (starting at 25:06)

The Supreme Court will hear this case April 18, and we’ll have an episode dedicated to the oral argument.

Respecting Religion is made possible by BJC’s generous donors. You can support these conversations with a gift to BJC.

Transcript: Season 4, Episode 17: Is ‘de minimis‘ enough? Previewing Groff v. DeJoy (some parts of this transcript have been edited for clarity)


Segment 1: The facts of this case (starting at 00:37)

AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.

HOLLY: And I’m general counsel Holly Hollman. Today we’re going to preview a case that will be heard by the Supreme Court this month called Groff v. DeJoy. It’s a case that examines the federal statutory protection against religious discrimination in the workplace.

Now, unlike many cases that arrive at the High Court that we’ve discussed on Respecting Religion, this case really unites most religious groups that get involved in Supreme Court litigation, including those who disagree on where lines should be drawn in important constitutional cases.

As our regular listeners know, in the last few years the Supreme Court has made some pretty significant shifts in how it addresses religion clause cases, and we’ve discussed those in prior episodes, and we think that this case is also likely to result in another significant change in the law of religion.

But it’s different. This one is about the interpretation of a federal statute. Specifically, what is an employer’s duty to avoid religious discrimination against employees and potential employees?

AMANDA: And, Holly, you have already written about this case for our quarterly magazine, Report from the Capital. You have also worked to have us join an amicus brief — a friend-of-the-court brief — in support of the employee petition for this case. Both of those explain what this case is about, and we will link to them as additional resources in the show notes to this episode.

But as you noted, an important starting point for our conversation today is that this case involves a federal statute that protects against religious discrimination, and that statute includes a duty to accommodate religious practice and the limits of that requirement on an employer when the accommodation would create a, quote, “undue hardship” for the business.

All of this comes from Title VII of the Civil Rights Act that prohibits discrimination in the workplace. And this particular part of Title VII treats religion in a unique way because religion is something different. Religion is something that you practice or observe and therefore is a different circumstance than other protected categories like race or sex, for example.

And, you know, at the outset, I think that some people are rightly concerned about this Court’s overreach when it comes to accommodating religion in other instances — in other cases that we’ve seen come before this Court — that go beyond what we would consider to be religious practice or observance, things like wearing religious garb or religious grooming or observing Sabbath and other religious holidays, that the Court has strayed into belief and other matters of conscience that may interfere with a person’s ability to complete their job.

HOLLY: Yes. And, of course, it’s much more difficult when you start thinking about the wide range of beliefs. But, now, you know, we have to protect people’s religious beliefs, and what good is protecting religious beliefs if you can’t act on them?

So we’re just recognizing that that is more complicated and that a lot of people might approach this case thinking about the most difficult situations. But we should first start with the point that you made, Amanda, which is prohibiting discrimination based on religion includes making accommodations for religious practices.

There are a lot of different facts and disputes that can arise in the workplace, but this case reviews the test that we have long thought is wrong under the statute’s language. So, putting aside all the multiple situations that will arise, what does it mean to prohibit discrimination in the workplace based on religion and to accommodate religion?

I think it’s fair to note that the vast majority of disputes really are about religious garb, grooming, and the recognition of holy days. And so everyone can imagine, okay, we need to make sure that we accommodate those aspects of religion, and how do we do that? Well, the statute that the Court is interpreting prohibits discrimination based on protected categories, including religion.

And the statute defines religion explicitly to say, “The term ‘religion’ includes 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.”

So the statute provides this framework, but as this case demonstrates, an earlier court interpreted this language in a way that really took away a lot of the protection for employees. And this case gives the Court an opportunity to revisit how this statutory language has been interpreted.

AMANDA: So, Holly, let’s talk about this case. What are the facts involved in this particular case, Groff v. DeJoy, at the U.S. Supreme Court?

HOLLY: Well, it was a case brought by Gerald Groff, someone who identifies as an evangelical Christian who believes that he must refrain from work on the Sabbath. He celebrates his Sabbath on Sunday, and he went to work for the United States Postal Service. And as he did that, he had a job that at first did not require him to work on Sundays.

And before we talk more about exactly how this employment dispute arose, we probably should take a minute and talk about just recognizing that ‑‑ I said that it’s normal that a religious duty might include holy days. It’s also quite normal that people would know about Sabbath observance among religious people. There are, of course, different days that different religions acknowledge the Sabbath, and there are different ways of keeping Sabbath.

But this particular employee sincerely believes that he cannot work on Sundays at all — his Sabbath — and that was part of what he made clear when he began his employment. One of the briefs described it ‑‑ I think this is just going to give some context ‑‑ acknowledging that while Mr. Groff is a Christian, which we think of, of course, as a majority faith in our country, his strict Sabbath observance decidedly is not a majority practice.

One poll recently reported that only 18 percent of Christians consider resting on the Sabbath as essential to their faith, including only 28 percent of those who consider themselves highly religious. And I think most people will acknowledge that. They think of some particular religious groups as being very committed to a certain keeping of the Sabbath and others who have different views of how they can take that time for rest and worship that does not preclude all activity or all working activity on that day.

AMANDA: And so Mr. Groff, in some ways, finds himself in the minority here. He is one of those 18 percent of Christians who do consider it essential to his faith to completely rest on his Sabbath and not work, not engage in work. But he does work on other days, and in fact, in 2012, he took a job at the United States Postal Service as a Rural Carrier Associate.

That’s a noncareer, nonunionized job with the USPS that does require flexibility. It requires weekend and holiday work in order to fill in for career postal employees who have earned the right not to work on those days. When he took the job, the USPS was not delivering mail on Sundays, so he didn’t see this job as being in conflict with his religious observance.

But then there’s this small business called Amazon that has totally changed the way that commerce works in this country, including on what days mail is delivered.

HOLLY: That’s right. So he began work in 2012, but the following year, his employer signed a contract with Amazon that does require Sunday delivery, so that changed the expectations for his job and made this need to work on Sundays an issue that had to be dealt with from the employer’s standpoint.

AMANDA: And as you might assume from the title “Rural Carrier Associate,” Mr. Groff works in a rural area of America, specifically in Pennsylvania, and so it wasn’t until 2015 that the particular area that he served started doing Sunday delivery.

At first it wasn’t a problem for Mr. Groff because it was a relatively large post office for that area and others could be scheduled for those shifts. But then Amazon started picking up more business. They needed more carriers on those days. And so he actually got a transfer to another station that wasn’t doing Sunday delivery.

But then in 2017, that even more rural facility started doing Sunday delivery, and it was then that he started to come into conflict with his religious observance and his ability to complete the job with the USPS.

HOLLY: That gives a quick look into this case. Of course, every employment dispute involves a lot of facts, and this case was brought and initially decided at summary judgment based upon these agreed upon facts. We’ll be hearing about those. But I think that’s a fair summary in that what wasn’t a problem became a problem. There were ways that he was accommodated, but then eventually that was not ‑‑ that did not happen.

And then on the other side, you have the U.S. Postal Service. When Mr. Groff eventually was pushed to work Sunday or lose his job, he resigned and sued the Postal Service. The case is Groff v. DeJoy. You might recognize that name [DeJoy], U.S. Postmaster General, whose name is more familiar, I think, than previous postmasters general.

AMANDA: I don’t think I could name another postmaster general, Holly.

HOLLY: Yeah. And that’s because as he was appointed, one of his early acts was to change some rules on mail delivery, leading to charges that he was trying to prevent or reduce mail-in voting for the 2020 election. Perhaps, surprising to some, has been how he has cooperated with the Biden administration, ensuring delivery of COVID testing kits, agreeing to make the Postal Service fleet all electric by 2026, and helping secure the Republican votes needed to pass the Postal Service Reform Act in 2022. So, yes. More stories to come about Postmaster DeJoy.

Mr. Groff sues under this Title VII that we described, and Mr. Groff lost his case below, because the courts found that it would pose an undue hardship to accommodate him. And applying the statutory language of “undue hardship” to the conduct of a business, the lower courts followed Supreme Court precedents.

Supreme Court precedents include an important case called Trans World Airlines v. Hardison from 1977, and that’s the case that interpreted that statutory language of undue hardship to be anything more than a de minimis burden, so that’s a pretty low standard. It basically made it very easy for employers to get out of their duty to provide a reasonable accommodation.

And that’s what I was referring to in the beginning in saying that a lot of religious organizations are going to agree in this case because of the problems with that standard, and that has had a big impact on the interpretation of Title VII now for many, many years.

AMANDA: Yeah. Really since 1977, there has been outcry from the religious liberty community that this standard was much too low, that just on its face “undue hardship” doesn’t seem to match a de minimis standard — that is, any kind of showing of cost or difficulty on behalf of the employer.

The 3rd Circuit Court noted that this is not a difficult threshold to pass. And some examples of undue hardships from the past have included negative impacts on the employer’s operations, such as on productivity or quality, personnel and overtime costs, increased workload on other employees, and reduced employee morale. It’s just not difficult for an employer to show that at all, so it’s not surprising if that’s the standard that the courts are applying ‑‑ and there isn’t another standard at this point for them to apply ‑‑ that Mr. Groff would lose.

HOLLY: I think importantly there are examples that the Court noted of what is undue hardship, but there’s not a lot of requirement that there be strong evidence to show that kind of impact on the employer, and that’s what, I think, the Court is going to have a chance to revisit here. It makes sense that the employer would have to show that providing an accommodation has some real negative impact on the employer’s business in order to satisfy undue hardship.

And so, I really think that this case is going to get the Court to talk about this standard, this Hardison standard, and how it is at odds with the statutory language.

And one important point that I know will come up in argument comes from the dissenting ‑‑ one dissenting judge on the circuit panel who really was concerned about this effect on other employees and whether if you just say accommodating an employee’s religion might affect another employee, then, you know, that that totally takes the power out of this statute.

And so there needs to be more evidence and understanding of what that means, what “effects on other employees” actually would amount to an undue hardship on the business.

AMANDA: Right. And just going to that next logical step of the Postal Service showing this impact on employees will create an undue hardship for the business because [pause]‑‑ and then introduce the facts that show that, which, again, on the record that we have here, was not done by the courts below.


Segment 2: Considering a better standard (starting at 14:55)

HOLLY: We can talk more about these impacts on other employees. It’s an important issue to understand, and it’s not as simple as sometimes people think — that you can’t affect someone else’s employment or affect some other employee when you get an exception to a work rule or an accommodation for a religious practice.

But we shouldn’t stop there. You shouldn’t assume that every accommodation for religion — just like any accommodation when your co-worker is sick for medical leave or other purposes — is not going to have some effect on the employees. So there’ll be some discussion about what kind of effect on employees could, in fact, be an undue hardship on the employer.

But before we get to that, the Court will first look at the two issues that they granted cert to review. After Mr. Groff loses at the 3rd Circuit, he then joins with First Liberty, an organization that is well-known to the Supreme Court, and is represented by First Liberty to seek cert in this case, and the Court decides to grant review and will look at two issues in this case.

First, is the Hardison standard too low? Should the Court disapprove of it? BJC says yes, it’s too low. And, secondly, is a burden on co-workers the same thing as a burden on business? And BJC says no, it’s not the same thing. You have to look at the actual impact on co-workers and whether or not that impacts the business. But don’t assume that any impact on co-workers is an undue burden.

And, you know, Amanda, as I reviewed the 3rd Circuit opinion and looked back at Hardison, I was just struck by how similar the issues in this case are to the issues that came up in the Hardison case.

AMANDA: How so?

HOLLY: Well, a couple of things are similar. For one, the employee who is suing is suing over failure to accommodate because of a Sabbath observance. In TWA v. Hardison, I believe it was a Saturday Sabbath observer, but it’s this issue of time off — time off in employment — and whether or not the statute acknowledges that and requires the employer to reasonably accommodate a request that has to do with time off for religious observance.

Secondly, in Hardison, the Court actually considered this idea that to accommodate the Sabbath observer, that would mean someone else has to work. And they question whether or not the statute means that, that that could happen, and in the background is this idea that perhaps that would be unconstitutional — that that would somehow be putting the burden of accommodating someone’s religion on others in a way that might establish religion.

AMANDA: So then my question is: If these cases are so similar, although they’re 46 years apart now, what’s new about this case? Like, what’s different? What would make this outcome different?

HOLLY: Well, you’ve had all of those years of decisions that do not live up to the standard that most people can see on the face of the statute, and I think that’s why you have so much support on the Groff side of this case. Of course, we have a different Court. We have a Court that is very interested in religion cases and that gets repeatedly asked to review a case like this.

We have seen repeated efforts by litigants that thought they had a good case of religious discrimination seeking cert. And maybe after many opportunities to review such cases, it felt like the right time, that the Court saw this case as the right vehicle to do something that most people would agree should have been done a long time ago.

AMANDA: We certainly think it should have been done a long time ago, which led us to join this amicus effort, and we joined with a pretty broad diversity of groups on this brief.

HOLLY: Yes. It was very easy for BJC to join a brief that asked the Court to review the standard and to dismiss or show its disapproval of the Hardison standard. In fact, in the past, we did work with other groups looking for a legislative fix to the problem of Hardison. So there were years where we thought that might be the way to approach this.

But now we have the opportunity to get this Court to review the standard, something that Congress did not do. So it’s not surprising that we were very pleased to join with other religious groups to file a friend-of-the-court brief that really talks about how Hardison is the wrong standard and how the Court has the opportunity to restore this duty of reasonable accommodation to its true statutory meaning.

We joined a brief that was led by attorneys for the Church of Jesus Christ of Latter-day Saints. The brief also was joined by the United States Conference of Catholic Bishops, the National Association of Evangelicals, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and the Anti-Defamation League.

And this group of very different religious entities all came together pretty clearly on our approach in this case, and I can say that these are groups that, while we are certainly familiar with each other — we have certainly worked together in the past — we definitely would come out differently on some cases about religious liberty. In fact, we have. We’ve been on different sides of important religious liberty issues in the past few years.

But we are united here, submitting this brief in support of Mr. Groff and the crucial effort to restore the robust legal protection for religious accommodation in the workplace.

AMANDA: And I am very pleased that BJC is on this religious organization brief, and one point in particular I’d like to note is the argument in the brief that the impact of the low standard from Hardison falls mostly on religious minorities and on the economically vulnerable.

HOLLY: That’s true. And that could easily be missed, I think, in the context of a case where a Christian person — a person in the majority religion — brings the case. But we need one standard, and it will apply to all claims of religious discrimination, regardless of one’s faith, and, of course, generally work rules will reflect the will of the majority and the practices of the majority, so a low standard is going to make it much more difficult for those who have minority religious practices that might conflict with a work rule.

We do note in this brief that, of course, there could be extreme circumstances where accommodating someone’s religious practice would become an unbearable burden on co-workers, some kind of undue hardship that can occur where an accommodation would materially disrupt the operation of the business, such as by exposing it to the risk of legal liability — such as harming other employees having to do too much or having some kind of unfair impact on other employees.

But the brief is very clear that you can’t say just by treating someone differently under the statute, as required by the statute, that that somehow creates an undue hardship because it will have some effect on other employees.

AMANDA: And in the brief itself, we also talk about what the standard should be. So if we no longer have this de minimis standard, if that’s too low, then what are we asking the Court to adopt?

HOLLY: That is an important question. If we are replacing this de minimis standard, what do you replace it with? Well, something that sounds more like “undue hardship.”

And what we say in this brief, consistent with what Petitioner Groff argues, is that the standard for undue hardship should include significant difficulty or expense. Significant difficulty or expense: not just some minimal impact, whether on the business itself in some general operational way or on the fact that an employee is treated differently, but that the business itself is going through some real difficulty or has to spend a proportionate amount of too much money.

I say “proportionate” because it depends on the size of the employer. But there should be some weighing of the difficulty and expense on the employer before the employer is released of its duty to accommodate the employee.

AMANDA: And one thing that was interesting to me in reviewing the briefs in preparation for our conversation today, Holly, and in preparation for our listening to the oral arguments in just a couple of weeks is that no one here seems to be strongly defending this de minimis standard.

HOLLY: That’s right.

AMANDA: I mean, even the government here, who’s representing DeJoy and the USPS, is saying that the Court should clarify that Hardison is consistent with Title VII, and that Hardison provides “substantial protection for religious adherence in the workplace” —  acknowledging that there is a disconnect between this de minimis standard and “undue hardship.”

And some of the amici who filed on the government’s side argued the same thing. They’re urging the Court to reconsider the standard and also urging caution with how we consider the impact on other employees as we are considering undue hardship.

HOLLY: While amicus support doesn’t always correspond with how a case will come out, I do think that in this case, the amicus briefs kind of demonstrate what you said, Amanda, that there is sort of this wide agreement that the Hardison standard is wrong, in that there were 34 amicus briefs filed in favor of Petitioner Groff and only nine amicus briefs that were filed on the side of the U.S. Postal Service.


Segment 3: What do we expect in oral argument? (starting at 25:06)

HOLLY: Well, in the briefs ‑‑ and I think we will also hear it at oral argument ‑‑ Petitioner Groff will really be focused on the history of Title VII, what was intended by that language, and the complaints about how that Hardison standard has operated in all these years in between.

We’ll see that there is an interesting history that was very much aware of taking days off and that that would affect other employees. We learned that the amended language of Title VII actually came from Senator Jennings Randolph, a Seventh Day Baptist and Saturday Sabbath observer. A lot of people don’t know that there are such people. There are Seventh-day Adventists, of course, that worship on Saturdays, but there are also Baptists that worship on Saturdays.

And he is the one that moved for this language and proposed the amendment to Title VII. He expressed concern that there had been a partial refusal at times on the part of employers to hire or to continue employing employees whose religious practices rigidly require them to abstain from work in the nature of hire on particular days.

So this language in the statute actually comes from a need to correct earlier decisions, and I think all of this legislative history will come to bear on the oral arguments as the Court looks at this language and, as we know, this Court also is going to look much more closely at the text in deciding what this means based on the textual language, I think, than the Hardison Court did.

Meanwhile, on the government side, it’ll be interesting to see how much difference there is because, in their brief, the government urges the Court to clarify this standard — not to overturn Hardison, but to clarify. And it seems like they’re concerned with some of the same issues that the petitioner is concerned with here. The government’s asking the Court to just say that more than de minimis might mean substantial, but ‑‑

AMANDA: And my reaction, Holly, to that is: What’s the difference between substantial, the government’s argument, and significant difficulty or expense, which is the petitioner’s argument?

HOLLY: That’s a good question. And they recognize that the burden is on the employer under the statutory language to demonstrate undue hardship with concrete evidence, and they also admit that hypothetical or theoretical concerns about co-worker complaints are not enough in that it is a fact-specific inquiry.

So maybe we’ll get a reconsideration of Hardison and some clarity that might satisfy people on both sides of this case, those that are very concerned that it’s much too easy to dismiss an employee instead of accommodate their religious practice as Title VII requires, as well as those who are concerned about the impact on business and requiring businesses to accommodate religion in ways that are truly problematic, disruptive, hard on operations, when that is clearly not the intent or the language at issue in this Title VII provision.

AMANDA: So we’re very much looking forward to the oral argument on April 18. We will, of course, do a review of that oral argument here on Respecting Religion, but as we close this preview of the case, Holly, some of the things that we expect to see at that oral argument, you know, we think there’s going to be a pretty big debate about stare decisis in oral argument about this case that’s 46 years old. And is the only reason we’re revisiting it because we have new personnel on the Court? Seems familiar from a blockbuster case from last term — in the Dobbs case — and how much of that case’s impact is felt in this other case that’s revisiting a standard from long ago.

HOLLY: I agree. We’re likely to hear a lot of talk about that, particularly because, as I mentioned, we know that Congress did have opportunities to address this language and did not do that.

It’s also going to be interesting to see the Court review Hardison, a case where the liberal justices were in dissent, saying that the majority’s interpretation of the reasonable accommodation and undue hardship provision was not in keeping with the statute. And that’ll be interesting just for people to see, that a lot has changed as far as how the Court as a whole looks at the text and what the assumptions are about the effects of accommodating religion.

We know that this Court is very sympathetic to religious claims, and I think that means it is unlikely that they’ll go too far into the impact on business and what might be the excessive concerns about minor impacts on other employees. But we will certainly see.

AMANDA: And whether some of those concerns — even if the majority of the Court isn’t as concerned about it — whether some of the more liberal justices might focus their questioning on that topic as well.

HOLLY: We’ll be back after the April 18 arguments, but that brings us to the close of this episode of Respecting Religion.

Thanks for joining us for today’s conversation. And for more details on the Groff v. DeJoy case, visit our show notes and our special website page at BJConline.org/Groff.

AMANDA: If you enjoyed today’s show, share this program with others on social media and tag us. We’re on Twitter, Instagram and YouTube @BJContheHill, and you can follow me on Twitter @AmandaTylerBJC.

HOLLY: As always, you can email both of us by writing to [email protected].

AMANDA: Thank you for supporting this program. You can visit our show notes for a link to donate to support the podcast, and for more episodes, you can see a full list of shows, including transcripts, by visiting RespectingReligion.org.

HOLLY: We encourage you to take a moment to find out more about BJC and how we’ve been working for faith freedom for all since 1936. Visit our website at BJConline.org for a look at what we do and some of our latest projects.

AMANDA: Join us on Thursdays for new conversations Respecting Religion.