Employer Alert: Supreme Court Heightens Title VII’s “Undue Hardship” Standard for Denying Religious Accommodations

By: Jacob M. Abrahamson

Employers that get a request for a religious accommodation can only deny the accommodation if it would impose a substantial burden on the business.            

Title VII requires that an employer “reasonably accommodate” the “religious observance or practice” of its employees.  42 U.S. § 2000e(j).  But the employer can avoid the requirement if it determines that the accommodation would cause “undue hardship on the conduct of” its business.  Id.  Since 1977, when the Supreme Court decided Trans World Airlines, Inc. v. Hardison, employers have been able to successfully demonstrate “undue hardship” by simply showing that an accommodation would force them “to bear more than a de minimis cost[.]”  432 U.S. 63, 84 (1977). That employer-friendly standard has allowed employers to deny religious accommodations in numerous circumstances.  Now, in a clarification of the Hardison decision, the Supreme Court has held that “‘undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business.”  Groff v. DeJoy, 600 U.S. ___ (June 29, 2023) (slip op. at 15–16).

To get an idea of what’s changed (and what hasn’t), let’s compare the basic facts in Hardison and Groff.  Larry Hardison practiced a religion that required observance of the Sabbath from sunset Friday to sunset Saturday—that meant no work during that 24-hour window.  Because of a union-negotiated seniority structure at the workplace, Hardison and his employer could not reach an accommodation.  Subsequently, when Hardison refused to report to work, he was discharged.  Gerald Groff’s story is somewhat similar.  A postal carrier for USPS, he observes Sabbath on Sundays and, when USPS began delivering Amazon packages on Sundays, he informed USPS he could not take Sunday shifts.  However, USPS was unable to fill Groff’s shifts for more than 20 days. Thus, Groff was disciplined and as a result, resigned from USPS. 

Both Hardison and Groff sued their employers for religious discrimination under Title VII.  And both lost at the trial level and eventually found themselves before the Supreme Court.  Hardison lost at the high court—it refused to “construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath.”  Hardison, 432 U.S. at 85.  Accordingly, anything above a de minimis cost was considered an undue hardship.  That reading of Title VII proved controversial.  In Justice Marshall’s dissenting view, the Supreme Court had “seriously eroded” Title VII and made “[a]ll Americans . . . a little poorer until [this] decision is erased.”  Id. at 97 (Marshall, J., dissenting).  Modern judges have continued to question Hardison’s reasoning, and both Justice Alito and Justice Gorsuch have called for the Court to overrule it.

Gerald Groff’s case presented that opportunity, but the Supreme Court, in a unanimous opinion written by Justice Alito, elected instead to clarify that “the de minimis reading of Hardison is a mistake.”  Groff (slip op. at 1).  In its view, the “de minimis” language in Hardison was an offhand comment on a secondary issue in the case—the Hardison Court’s real concern was disrupting the seniority structure agreed to by the employer and the union.  That means the “de minimis” language has been cited by the EEOC and lower courts in error. 

Going forward, employers cannot point to “more than a de minimis cost” to deny a religious accommodation under Title VII.  Instead, courts will engage in a “fact-specific inquiry” to assess whether an asserted burden is “substantial in the overall context of an employer’s business.”  Groff (slip op. at 15–16). 

So what does Title VII require of employers?  It depends on the specific request and the specific employer.  When an employer denies a religious accommodation based on an “undue hardship,” courts must look to “all relevant factors in the case at hand[.]”  Groff (slip op. at 18).  That means, in each case, an employer should analyze the particular accommodation requested and the impact it will have on the business, based on the nature, size, and cost of the operation.  They must also consider all other possible accommodations.  Finally, employers can consider how the accommodation affects coworkers, but one related factor is off the table: a coworker’s animosity to the employee’s religion or to religious accommodations generally is not a valid hardship. 

Employers must be on notice that the requirements for denying a religious accommodation are stricter than previously thought.  But how those requirements will be applied is still up in the air.  Groff’s case, and others like it, will now work their way through the lower courts.  In the meantime, employers faced with requested religious accommodations should contact one of Wyatt’s Labor and Employment attorneys for up-to-date advice on Title VII’s requirements.

Be sure to visit the Wyatt Employment Law Report for more updates on Title VII and other employment law issues.