Last month, a Petition for Writ of Certiorari in the case of Groff v. DeJoy asked the Supreme Court to overturn the “undue hardship” standard established in TWA v. Hardison—a 45-year-old precedent that a third of the Court has already signaled it would like to revisit.
Under Title VII of the Civil Rights Act of 1964, an employer must accommodate an employee’s religious practices unless it can demonstrate that doing so would constitute an “undue hardship on the conduct of the employer’s business.” In 1977, the Supreme Court in Hardison defined the phrase “undue hardship” to mean “more than a de minimis cost.” This definition set a low bar for employers to deny requests for religious accommodations, much to the chagrin of textualists everywhere, and to the detriment of employees seeking such accommodations.
Supreme Court Justices Alito, Thomas, and Gorsuch have sharply criticized this standard on the basis that it does not represent the natural or ordinary meaning of the phrase “undue hardship,” a point Groff makes in earnest. The “more than a de minimis cost” test was manufactured by the Hardison Court although no party even advanced it; instead, everyone, including the defendant employer and the U.S. government as amicus, assumed that “undue hardship” meant something more than that. And Congress (which, ironically, added the phrase “undue hardship” to the statute to ensure that robust protections for religious workers was “for all time guaranteed by law”) has explicitly distanced itself from the “more than a de minimis cost” standard. Since Hardison, it has specifically defined “undue hardship” in no fewer than three statutes—the Americans with Disabilities Act, the Affordable Care Act, and the Uniformed Services Employment and Reemployment Rights Act—as a “significant difficulty or expense.” Meanwhile, in the employment context, employers can easily reject religious accommodations under Hardison’s atextual standard, which has disproportionately impacted religious minorities who are more likely to need accommodations.
Gerald Groff is a devout Christian who was forced to resign from his job with the United States Postal Service because his employer failed to consistently accommodate his Sunday Sabbath observance. A divided panel of the Third Circuit Court of Appeals found that the requested accommodation would have caused the employer an “undue hardship.” Specifically, the majority reasoned that “[e]xempting Groff from working on Sundays caused more than a de minimis cost on USPS” because it “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale . . . .”
Groff argued in his cert petition that if the phrase “undue hardship” was interpreted pursuant to the more natural definition of “significant difficulty or expense,” then “there would at least be a fact issue over whether the scheduling challenges and morale problems relied on by the court of appeals created an undue hardship on USPS’s business.”
Groff’s petition also challenged one offshoot of the “undue hardship” standard: the tendency of at least seven different Courts of Appeals—including the Third Circuit—to find that an employer may establish undue hardship by showing that an accommodation burdens the plaintiff’s co-workers. Groff maintained that this also contravenes Title VII’s plain text, which requires the “undue hardship” to be on the employer’s business, not merely on the plaintiff’s colleagues. Judge Hardiman, the dissenting Third Circuit panelist, noted that this standard “effectively subject[s] Title VII religious accommodation to a heckler’s veto by disgruntled employees.” Groff reasoned that it is also at odds with the Supreme Court’s holding in EEOC v. Abercrombie & Fitch, a notable Title VII case from 2015 which explicitly stated that “Title VII does not demand mere neutrality with regard to religious practices,” but instead “gives them favored treatment[.]”
Ultimately, Groff v. DeJoy is an important case to watch, as the interpretation of this phrase implicates more than just Sabbath observers like Hardison and Groff. Courts this year have dealt with religious accommodations in the context of vaccination mandates, the medical services related to abortions and gender transitions, and the use of preferred pronouns at educational institutions. Even if certiorari is not granted in Groff, this issue is not going away, and some Justices’ eagerness to address it remains. It is likely only a matter of time before the Supreme Court determines what “undue hardship” actually requires under Title VII.
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