U.S. Supreme Court to review threshold for when employers must accommodate an employee’s religious practices

by | Jan 24, 2023

This month, the Supreme Court announced it would take up the case of Groff v. DeJoy this term. Gerald Groff is a postal worker and Christian who faced discipline after refusing to work on Sundays in accordance with his faith. He filed suit under Title VII of the Civil Rights Acts, which bars employers from discriminating against employees on the basis of religion. Under current law, employers subject to Title VII must accommodate the religious practices of an employee unless it will create an “undue hardship.”

What counts as an undue hardship? That is a central question the Supreme Court will address.

The 3rd U.S. Circuit Court of Appeals ruled against Groff, citing a 1977 Supreme Court ruling, Transworld Airlines v. Hardison. There, the Court established that the undue hardship burden is met whenever there is more than a trivial, or minimal, cost. In this new case, the 3rd Circuit reasoned that the impact on the remaining employees to have to cover Mr. Groff’s shift or deliver more mail rises to the level of undue hardship.

Attorneys for Groff argue that the Hardison decision is an “egregious error.” The threshold excusing employers, they contend, should be triggered only by “significant difficulty or expense.” Further, they maintain that it should not be based on the impact of religious accommodation on other employees.

As Mark Joseph Stern explains in Slate, Hardison may indeed have been a mistake – making it too easy for employers to avoid religious accommodation – but the solution from the current Supreme Court conceivably could be worse:

[T]he Hardison test let employers refuse an accommodation as long as they could cook up some hypothetical reason why it might cost them any real money.

Unfortunately, in recent years, the court … has greenlighted or mandated accommodations that directly injure other people. And it has exacerbated third-party harms by prioritizing religious freedom over everybody else’s interest.

If only we could trust the Supreme Court to replace Hardison with a responsible standard that weighs respect for religion against genuine burdens on the rest of the workplace. The facts of Groff itself show how hard this task can be…. Gerald Groff’s post office employed just four people, and when he took off Sundays, his colleagues had to take on extra work. This led to “resentment toward management” and “morale problems” that created a “tense atmosphere” in the workplace. It seems unfair that some postal carriers had to take on additional duties because they practice a different religion from Groff.

The case has not yet been set for oral argument, but it bears watching and could lead to some unexpected lines of division among the justices. After all, as Stern emphasizes, it used to be the most liberal justices that argued for strong religious accommodations for workers, to protect religious minorities in the workplace, while conservative jurists worried about the impact of such accommodations on employers. Now, it is the conservative wing that seeks greater religious latitude for employees.

How will the Court enhance those freedoms while also accounting for their impact on the workplace? Or on customers? Stay tuned.