Groff v. DeJoy, Postmaster General, No. 22-174. June 29, 2023.
“You’ll want all day to-morrow, I suppose?” said Scrooge.
Dickens, A Christmas Carol.“If quite convenient, sir.”
Employers must accommodate employees’ religious practices unless doing so would impose an “undue hardship” on business, a term which seems to have fallen by the wayside during the more than 40 years since a Supreme Court decision remarked that more than a “de minimus” (minimal) burden on business operations could excuse refusal to grant an employee a religious exemption. Trans World Airlines v. Hardison, 432 U. S. 63 at 84 (1977).
For some time courts feared that employment policies that favored religious accommodations would offend the Establishment Clause, but as the “de minimus” burden supplanted the “undue hardship” standard, religiously observant persons, particularly those of minority faiths, found it difficult to enter into or to remain employed without setting aside beliefs in service of labor, itself offensive to sincerely held beliefs.
Plaintiff Groff had already begun employment with the United States Postal Service (USPS) when the Postal Service contracted with Amazon for Sunday and holiday deliveries. USPS drew on employees from specific locations and regional hubs, allocating assignments by employment status. Groff requested and was granted a transfer to a location where Sunday work was not required, yet not long thereafter, it was.
Other employees filled in for Groff, who was progressively disciplined for refusal to work on Sundays.
Groff resigned and sued.
The trial and, subsequently, the appellate court found that the “de minimus” standard could be met in Groff’s case because of the scheduling adjustments needed to be made, which adjustments imposed on others. Groff v DeJoy, 35 F. 4th 162 (3rd Cir.2022).
“Undue hardship” language does not appear in Title VII of the Civil Rights Act of 1964, but was added to EEOC regulations in 1968. 29 C.F.R. 1605.1. Early decisions observed that Establishment Clause concerns would be raised were employers found to accede to employees’ religious practices, prompting revision to Title VII in 1972 to include “undue hardship.” 42 U.S.C. Section 2000e(j) (1970 ed., Section II).
TWA v. Hardison, supra, came before the U.S. Supreme Court in between statutory and regulatory reform.
At that time, employee issues were thought to conflict with the Establishment Clause’s preclusion of laws which had a principal or primary purpose of advancing religion, such as by compelling employers to accommodate employee religious interests.
The Court in Hardison sidestepped Establishment Clause issues in favor of analysis of deprivation of seniority rights, concluding that accommodating religious rights did not include deprivation of seniority rights. As adherence to seniority rights would be disruptive in that case, the Court concluded religious accommodation was not required, particularly where, if volunteers would not step up, being short handed would affect the employer’s central mission.
In Groff, the Supreme Court observed that ‘de minimus’ as mentioned in Hardison was never intended to be so important as to supplant the undue hardship standard, but this appears to have occurred after years of being pressed into service in religious accommodation cases. The actual value of the “de minimus” comment was not apparent, even within Hardison, the Court has now observed.
Requiring no more than a “de minimus” disruption of business to justify denial of employee requests for religious accommodations facilitiates such denieals, particularly where religious minorities are concerned.
Eve while the EEOC has construed “de minimus” costs to exclude administrative costs such as scheduling, courts have overlooked that guidance and relied on such costs to rule i favor of employers.
In Groff, the Supreme Court has agreed with the position of the Solicitor General that the “de minimus” language cannot be used to obscure the more significant standard requiring that an employers’ hardship must be substantial if accommodation may be denied without violating employees’ rights.
“Substantial” hardship, the Court has now concluded, requires an overall context, fact based analysis.
If the language of Title VII requires that accommodations are to be permitted absent “undue hardship,” this means more than “a mere burden,” which would allow employers to avoid accommodations based on additional costs. Adding thereto the “undue” modifier, an employer must pint to ‘excessive’ or ‘unjustifiable’ measures required to accommodate religious beliefs in order to avoid violating Title VII.
Clearly this parsing of “undue hardship” reveals that more than “de minimus” burdens are involved.
The Court in Groff declined to choose between the new rules proffer by the petitioner, holding instead that an employer bears the burden of demonstrating that permitting accommodation wound result in substantial costs relative to the employers business, bearing in mind that all relevant factors and the practical impact of accommodation bust be born in mind. Slip op. at 18.
The Court declined to adopt EEOC guidance notwithstanding its recognition of its value and declined to adopt standards derived from Americans with Disabilities Act cases.
As guidance, the Supreme Court in Groff has announced that it is an employer’s, not an employee’s, burden that is to be examined with respect to accommodations, but that would include burdens on other employees which in the aggregate affect business. An accommodation per se is not material to the undue hardship inquiry nor is dislike of religion or religious practices.
The Court stressed that accommodation not the reasonableness of the request to accommodate is the lodestar, for to hold otherwise would result in denials of accommodation where only one measure would cause hardship where others would not.
Justice Sotomayor, with Justice Jackson, in concurrence have observed that the Court’s refusal to overturn Hardison, to craft a new standard is significant and apt, as stare decisis is of significant importance in statutory cases and particularly as Congress has declined multiple opportunities to refine statutory language.
Just Lawful 