Supreme Court hears oral argument in dispute over workplace religious accommodations

by | Apr 21, 2023

The U.S. Supreme Court heard oral arguments in Groff v. DeJoy on Tuesday, a case brought by a U.S. postal worker under Title VII of the Civil Rights Act over the denial of his request to not work on Sundays in accordance with his religious beliefs. The appeals court agreed with the trial court that requiring the postal service to accommodate Groff’s religious beliefs would be an “undue hardship” and thus was not required under the law.

As I explained in an earlier post, Groff is asking the Court to reconsider the meaning of “undue hardship” and specifically to overturn a case (Hardison) in which the Court ruled that any cost that is “more than de minimis” qualifies as undue hardship. BJC and many other religious advocates filed a friend-of-the-court brief agreeing with Groff that the more-than-de-minimis standard is too minimal a burden for employers to establish, making accommodations more easily denied than Congress intended when enacting the Civil Rights Law.

In reviewing the transcript of the argument, a couple of notable points came to the surface. First, justices questioning Groff’s attorney explained their concern about overturning a previous court ruling interpreting a statute that Congress could change if it desired. In other words, they seemed more interested in defending the principle of statutory stare decisis than they were defending the “more than de minimis” standard established in Hardison. Here is one example in an exchange with Justice Ketanji Brown Jackson:

JUSTICE JACKSON: [P]resumably, Congress … could change the statute now, right?


MR. STREETT: Absolutely. Congress could change the statute now, and the question is just whether this Court should place on Congress’s shoulders the burden of this Court’s error in Hardison.


JUSTICE JACKSON: But …isn’t this a policy question at bottom for Congress? …Hardison has been on Congress’s radar screen for a very long time, and they’ve never changed it. And I guess I’m concerned that, you know, a person could fail to get in Congress what they want with respect to changing the statutory standard and then just come to the court and say you give it to us. Why shouldn’t we wait for Congress?

MR. STREETT: … Congress could address it today, and the question before the Court is, of course … when the government’s not even defending the reasoning of the test, whether this Court should go to the text and interpret [“undue hardship”] in a — in a way according with plain meaning.

Second, on the other side, the solicitor general was also not interested in defending the phrase “more than de minimis” as a test for undue hardship, but she argued that the phrase has generally not been interpreted by courts in a way that conflicts with “undue hardship.” She worried that overturning the Hardison standard would render decades of case law as irrelevant:

GENERAL PRELOGAR: I think, if this Court made clear that the “de minimis” language should not be taken literally to mean every dollar above a trifle is immunizing the employers from liability, that is absolutely a correct statement of the law. It’s consistent with Hardison. It does not require overruling Hardison. And I would be very happy with that clarification.

[T]o the extent any courts out there are reading this literally to mean de minimis means you never have to accommodate, that is wrong, that is inconsistent with the current state of the law, and the Court [should make] clear that’s not what Hardison meant. … I think the way to preserve stability is to make clear that you don’t need to redo all of the work that’s been done for five decades under the Hardison standard as properly understood.

Amanda Tyler and Holly Hollman break down all of the oral arguments – and play clips from the courtroom – in this week’s Respecting Religion podcast, which you can get from your favorite podcasting provider. You can also access resources on the case at

The Supreme Court is expected to issue a decision in this case before the end of June.