A Big Change for Undue Hardship in Religious Accommodation … or Not?
By Deborah J. Hopkins, July 18, 2023
On June 29, the Supreme Court upended decades of precedent in its unanimous decision Groff v. DeJoy, No. 22–174 (Jun. 29, 2023).
Under Title VII, employers are required to accommodate the sincerely held religious beliefs or practices of employees unless doing so would cause an “undue hardship” on the employer. For years, the definition of “undue hardship” for religious accommodation has been “anything more than a de minimis burden,” which is a much lower threshold than proving undue hardship for the purposes of disability accommodation – and, quite recently, pregnancy accommodation.
The new SCOTUS case looked at a USPS mail carrier, Gerald Groff, who requested to be excused from work on Sundays because his religious beliefs required that day to “be devoted to worship and rest.” The agency required Sunday work because of a new partnership with Amazon.
The agency said granting Groff Sundays off would be more than a de minimis burden on his coworkers’ schedules. Also, it would require the USPS to pay overtime, which would be an undue hardship on the agency. After being disciplined for refusing to work on Sundays as ordered, Groff resigned. He filed a failure-to-accommodate religious accommodation claim against USPS.
From the SCOTUS syllabus:
Title VII requires an assessment of a possible accommodation’s effect on “the conduct of the employer’s business.” §2000e(j). Impacts on coworkers are relevant only to the extent those impacts go on to affect the conduct of the business…
Title VII requires that an employer “reasonably accommodate” an employee’s practice of religion, not merely that it assesses the reasonableness of a particular possible accommodation or accommodations. Faced with an accommodation request like Groff’s, an employer must do more that conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options would also be necessary. (citation omitted). Having clarified the Title VII undue-hardship standard, the Court leaves the context-specific application of that clarified standard in this case to the lower courts….
While this seems like a major change to the “undue hardship” analysis, there’s a school of thought that indicates this might not actually change much for Federal agencies.
I asked FELTG Instructor Bob Woods, who will present How are Religious Accommodation Requests Different from Disability Accommodation Requests? on August 17, what he thought about Groff. Here’s what Bob said:
[W]hile Groff is clearly an important decision, I don’t think it will have a significant impact on Federal agencies. I don’t have a crystal ball, but I say this based upon the nature of the types of accommodations typically requested in such cases and the EEOC’s existing guidance (in both 29 CFR 1605.2 and EEOC Guidance, Section 12: Religious Accommodation) and their Federal sector caselaw. While the Supreme Court has now clarified its decision in Hardison v. TWA, it also noted that the EEOC already minimized the impact of the term “more than a de minimis cost” in its guidance and decisions. Although the Groff decision does not limit the EEOC to its current guidance, I believe that they already hold Federal agencies to standards that comport with the plain language of the law.
I also note, as does the Court, that the Postal Service went to fairly substantial lengths to accommodate Mr. Groff. The 3rd Circuit found exempting Groff for Sunday work would result in an undue hardship that would clearly be more than a de minimis cost. The Supreme Court has vacated and remanded for “further proceedings consistent with this decision.” Given the asserted impact on the Postal Service discussed in these decisions, it’s possible that the 3rd Circuit may still find an undue hardship.
Agencies would certainly be well advised to review (or create) Religious Accommodation procedures and policies and confer with counsel to review existing/pending complaints of failure(s) to provide religious accommodations to ensure they are not relying upon the concept of de minimis costs. Agencies should also be on the lookout for updated EEOC guidance. As always, we’ll keep you posted on any relevant information that results from this important SCOTUS decision. Hopkins@FELTG.com.
