In an important case, the U.S. Supreme Court recently clarified generally the costs or expenditures an employer would have to incur before it can show that a particular accommodation of religious beliefs constitutes undue hardship under Title VII of the Civil Rights Act. In a unanimous opinion, the Court held that an employer denying a religious accommodation to an employee must show that the burden of granting the accommodation would result in substantial increased costs in relation to the conduct of the employer’s business.
In that case, Gerald Groff is an Evangelical Christian who worked for the United State Postal Service. A tenant of Groff’s religious belief is that Sunday should be devoted to rest and worship -not work. When he started working at the postal service, his job did not generally require Sunday as the USPS did not ordinarily deliver mail on Sunday. However, when the USPS entered into an agreement with Amazon to facilitate Amazon’s Sunday deliveries, the USPS began requiring employees to assist with Sunday deliveries. To avoid Sunday work, Groff transferred to different USPS facilities. However, eventually, he was unable to avoid working at facilities that did not require, at least on a rotating basis, work on Sunday. When Groff was subjected to progressive discipline rather than work on Sunday, Groff resigned his employment and claimed constructive discharge.
The Court revisited the fifty-year old Hardison test for determining what constitutes undue hardship under Title VII. The Hardison test had been interrupted by many lower courts as holding that an employer need not incur more than “de minimus” expense to accommodate an employee’s sincerely held religious belief. The Supreme Court explained how the “more than de minimus cost” language found its way into their earlier decision and went on to state lower courts has misconstrued their holding by latching on the “de minimus” language while ignoring other references in Hardison to “substantial” “costs” or “expenditures. And, the Court observed, Hardison’s principal issue was whether Title VII required an employer and union who agreed on a seniority system had to deprive senior employees of their seniority rights to accommodate a junior employee’s religious practices; not whether the costs incurred by the employer constituted undue hardship.
To clarify Hardison, the Court held that “’undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business” when taking “into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of an employer.”
The Court rejected Groff’s suggestion that the Court should incorporate the decades of jurisprudence construing “undue hardship” under the American’s with Disabilities Act jurisprudence into its Title VII undue hardship jurisprudence. Similarly, the Court maintained its view that employers with bona fide seniority systems need not deprive more senior employees of their seniority rights to accommodate the religious beliefs of more junior employees. And, the Court suggested (and the concurring opinion confirmed) that in evaluating an accommodation’s effect on the employer’s business, a court may consider the effect the proposed accommodation has on co-workers. What will not constitute undue hardship, however, are the effects on the employer’s business caused by co-worker dislike of religious practice or expression in the workplace of the mere fact of accommodations in the workplace. Other effects on co-workers, however, may well be considered.
Finally, the Court suggested that certain proposed accommodations may not satisfy the new undue hardship test like offering voluntary shift swapping, offering incentive pay for co-workers to pick up shifts where the costs are not substantial or the administrative costs of coordinating work coverage. But at the end of the day, the Court left it to the lower court to work through these issues in the first instance and otherwise provided little guidance for employers.
The unanimous opinion in Groff v. Dejoy is available here.