Background

On April 18, 2023, the Supreme Court heard oral argument in the case of Groff v. DeJoy and considered whether to overturn the standard governing employee religious accommodation requests under Title VII.

Title VII requires employers to accommodate their employees’ religious beliefs and practices unless doing so would constitute an “undue hardship on the conduct of the employer’s business.” The Supreme Court’s 1977 decision in TWA v. Hardison, which Petitioner Gerald Groff challenges, interpreted “undue hardship” to mean “more than a de minimis cost.”

Parties’ Positions 

Groff is a devout Christian who was forced to resign from his job after the United States Postal Service (“USPS”) refused to consistently accommodate his Sunday Sabbath observance. His counsel first argued that the “de minimis” test—which both the district court and Third Circuit referenced in affirming the denial of Groff’s religious accommodation—“makes a mockery of the English language” and asked the Court to adopt the textually consistent standard of “significant difficulty or expense.” New York and California’s anti-discrimination laws already employ this standard, as do other federal statutes like the Americans with Disabilities Act. Groff’s counsel next contended that under the statutory text, burdens on co-workers alone do not constitute an “undue hardship” and an employer citing such burdens must demonstrate how they disrupt its business operations—which USPS did not do in this case.

The Solicitor General, on the other hand, urged the Court to clarify rather than overturn Hardison. While admitting that “de minimis” is not a proper interpretation of “undue hardship,” she argued that the EEOC and lower courts have nonetheless applied it to provide meaningful protection for religious observance in the workplace by interpreting it “in light of the particular accommodations and the costs that the Court confronted in Hardison.” The SG explained that Hardison used “de minimis” interchangeably with “substantial cost,” a phrase cited in footnote 14 of the case, and cautioned the Court against adopting any new verbal formulation that would call into question the “well-developed body” of case law applying the “de minimis” standard. Instead, she asked the Court to uphold Hardison on its facts, stating that the consistent payment of premium wages, regularly operating shorthanded, or altering a collective bargaining agreement all constituted an undue hardship.

Oral Argument

The argument was lively and fast-paced, with most Justices asking difficult questions of both parties.

Justice Thomas was the first to jump in, inquiring whether the amended text of Title VII was even at issue in Hardison. Counsel for Groff noted what the Justice has said repeatedly in other cases: that Hardison’s de minimis standard was merely dicta because it interpreted the EEOC guideline in effect at the time rather than the statute itself. For her part, the SG argued that the amended statute “carrie[d] the same meaning as the predecessor version as interpreted in light of the EEOC guidance” and cited other cases in which the Court did not treat Hardison’s standard as dicta.

Common Ground?

Justice Gorsuch sought to find common ground between the parties, commenting that both sides agreed that the test is context-dependent, that factors including the size of the employer and the reasonable options available to the employer are relevant, and that “de minimis” in isolation cannot be the test. He questioned whether the Court could simply say the de minimis standard was wrong and “be done with it.” Justice Kavanaugh similarly opined that the Hardison Court’s reference to “substantial cost” seemed “perfectly appropriate,” suggesting that the Court merely make that clarification and allow lower courts to “go forth.”

In response, Groff’s counsel stressed that more guidance was needed, especially given that under the government’s position, it would constitute an undue hardship to require the largest airline in the world to pay an extra $100/week to attract an employee to take a Sabbatarian’s shift. So too would denying a single co-worker’s shift preference or any alteration of a collective bargaining agreement. None of these, he argued, would satisfy Groff’s proffered “significant difficulty or expense” standard. The government did not disagree. While declining to defend the de minimis standard and agreeing she was amenable to a “substantial cost” test “at the abstract level,” the SG urged the Court to ensure that any clarification of Hardison not invalidate lower court decisions applying Hardison as written.

Lower Court Precedents

Such lower court decisions formed the basis of several Justices’ lines of questioning. Justice Barrett asked what the point of retaining the de minimis language was when it has led Courts of Appeals astray, remarking that even the amicus brief from the Americans United for Separation of Church and State did not defend the de minimis standard. Justice Alito pushed back on the notion that lower courts sufficiently protect religious minorities, noting the amicus briefs submitted by Muslims, Hindus, Orthodox Jews, and Seventh Day Adventists that argued the opposite. And Chief Justice Roberts inquired whether lower court precedent could even be trusted, given the fact that the strict neutrality principle underlying Hardison was undermined by EEOC v. Abercrombie & Fitch Stores in 2015. There, as counsel for Groff repeatedly pointed out, the Court stated that Title VII does not demand mere neutrality with regard to religious practices but gives them favored treatment. Justice Sotomayor appeared to disagree, opining that “there’s nothing in Abercrombie that’s remotely inconsistent with Hardison.

Stare Decisis

Justices Kagan, Jackson, and Sotomayor expressed concerns about the Court doing Congress’ job, given that stare decisis is supposed to be at its peak in statutory interpretation cases. The SG made this point in earnest, arguing that Congress has tried and failed multiple times to codify a more stringent standard. While Groff’s counsel agreed “wholeheartedly that this is a policy question for Congress,” he responded that “Congress answered that question” when it enacted the text of “undue hardship” in 1972. Congress, he asserted, should not be burdened with rectifying the Court’s own error.

Burdens on Co-Workers

Several Justices asked about when a burden on a co-worker rises to the level of disrupting the business. Justice Barrett wanted to know whether poor morale is sufficient or if a co-worker must quit to show such a burden. Justice Kavanaugh remarked that all business owners know that morale is critical to a company’s success. Groff’s counsel emphasized that morale is not enough, and the SG agreed, stating that mere “co-worker grumbling, resentment, or even overt hostility to religious practice and expression in the workplace” is not part of the inquiry.

Justice Kagan suggested that a business is affected any time an employee is burdened. Groff’s counsel replied that employee burdens leading to marginal business impacts are insufficient; there must be concrete evidence of disruption to the operation of the business as a whole. The SG offered that the number of workers, whether the burdens can be diffused, and material changes to employees’ work conditions are all relevant. Ultimately, this point could hinge on a factual question, as Groff’s counsel stated that only one co-worker transferred due to USPS’s initial accommodation of Mr. Groff, while the SG stated that one person transferred and another quit.

After nearly two hours of argument, available here, the Court concluded its questioning. A decision is expected by the end of June.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.