Supreme Court Reverses Standard for "Undue Hardship" in Title VII Religious Accommodation Cases
ABSTRACT: The Supreme Court reversed the standard for “undue hardship” under Title VII. What that means for employers and vaccine requirements.
In a Supreme Court term with many headline-grabbing decisions, the high court’s decision in Groff v. De Joy might be the most immediately consequential for employers. In Groff, the Supreme Court changed the prevailing standard for employers responding to employees’ religious accommodation requests under Title VII. By the plain language of the statute, it is unlawful for employers to deny a religious accommodation unless the accommodation would create an “undue hardship” for the employer. Thanks to language from the Supreme Court’s 1977 decision in Trans World Airlines v. Hardison, the federal courts have consistently interpreted “undue hardship” to mean any accommodation request that causes greater than de minimis expense for the employer. In Groff, a unanimous Court held that the de minimis test is not a proper measure of “undue hardship,” and established a new, more stringent standard. Employers must immediately reassess their policies and procedures for responding to accommodation requests and engage in serious, careful, and fact-intensive consideration of the burdens a requested accommodation would impose.
In Groff, the plaintiff was a mail carrier for the U.S. Postal Service, which did not require rural carriers to work Sundays when he was hired in 2012. Groff, an evangelical Christian, believed that Sunday should be devoted to rest and worship. In 2013, USPS contracted with Amazon for USPS to deliver Amazon packages, including on Sundays. Groff transferred to another rural location, but in 2017, Sunday delivery expanded to that location as well.
Groff was a member of the National Rural Letter Carriers’ Association, and under its labor agreement with USPS, Sunday shifts were covered first by assistant, part-time carriers that only worked Sundays and holidays, then by volunteers, and finally by all other carriers on a rotating basis. Groff refused to work on Sundays, and the deliveries he could have made were instead made by other carriers.
Among other attempts to accommodate Groff’s request, USPS attempted to “swap” Groff’s shifts with other carriers willing to work his rotation. However, on occasions where a replacement carrier could not be secured, Groff was disciplined for failing to work when scheduled. Eventually, Groff resigned.
Third Circuit Opinion
Title VII has a two-pronged approach to religious accommodations. First, the prima facie case for failure to accommodate asks whether the employee holds a sincere religious belief, the employee the informed employer, and the employee was disciplined or terminated for failing to comply with the conflicting job requirement. In affirming the district court’s entry of summary judgment in favor of USPS, the Third Circuit held that USPS acted in “good faith” in attempting to accommodate Groff’s religious beliefs. However, its attempts failed, and as a result the USPS did not accommodate Groff’s request. As to the second prong, the Third Circuit determined that under Hardison, an accommodation that would resolve the conflict (between not working Sundays and working Sundays) would create an “undue hardship,” i.e. a hardship that imposes “more than a de minimis cost to the employer.” The Third Circuit had an easy time finding that the burden of accommodating Groff’s request was “more than de minimis.” The court cited the inconvenience to the Postmaster, who had to find replacements or deliver mail himself, and additional burdens on Groff’s coworkers as examples of the hardship placed on USPS in attempting to accommodate his requests.
Supreme Court Holding
The Supreme Court held that “more than a de minimis cost” does not equate to “undue hardship” under Title VII, and instead the new test is that “‘undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business,” noting that this is a fact-specific inquiry. Additionally, the Court explained that the hardship becomes “undue” when the employer would incur “substantial expenditures” or “substantial additional costs,” and those expenditures create a burden, privation, or adversity that rises to the level of being “excessive” or “unjustifiable.”
Of course, Groff has not been in effect long enough for cases to have made their way through the courts. As a result, we cannot see clearly how this will change the way district courts and courts of appeal will look at religious accommodations under Title VII. However, there is some guidance we can glean from courts’ past treatment of religious accommodations, particularly in the Covid-19 pandemic:
- Importantly, Groff does not address or alter the standard for evaluating whether a religious belief is “sincerely held.” Under appropriate circumstances, an employer may conclude that an accommodation request is not based on an employee’s sincere belief. For example, a request for time off to attend religious services might be denied (or subject to appropriate discipline) if the employee is spotted elsewhere when he’s supposed to be attending religious services. Employers may also consider behavior inconsistent with a claimed religious belief (such as getting a vaccine in prior years and now objecting). However, the EEOC cautions that religious beliefs often evolve.
- With regard to vaccines, which became a political issue during the Covid pandemic, an employer may explore whether an employee’s objection to being vaccinated is religious or political in nature. An employee’s mere personal preference will not be sufficient under Title VII to require accommodation. In its guidance, the EEOC notes that timing or other circumstances may render a request suspect, e.g., prior complaints about vaccines based on political or personal beliefs. For example, in a recent decision from the Eastern District of Pennsylvania, the Court was skeptical of plaintiff’s shifting religious explanations (use of aborted fetal cells) and medical explanations (the plaintiff’s own online “research” and a friend who developed Guillan-Barre syndrome from a flu vaccine).
- Similarly, Groff did not address the “interactive process” for employer/employee discussions of accommodation requests and declined to adopt the body of case law under the Americans with Disabilities Act to determine whether a request creates an “undue hardship.” However, the ADA framework is a sensible approach. By engaging in the interactive process in good faith, employers may avoid litigation by taking a sensible, sensitive, and creative approach to handling employees’ accommodation requests.
- In healthcare facilities, nursing homes, and other places with vulnerable populations, an employee’s refusal to get vaccinated may well meet the Supreme Court’s heightened standard if it creates an “unjustifiable” risk to patients. Employers might also be able to rely on the “direct threat” analysis, borrowed from the ADA, where refusal to be vaccinated would create a direct threat to the health and safety of others.
- It is more important than ever that employers train frontline managers, keep accurate notes and records, engage in the interactive process, and think seriously about the effect a requested accommodation will have on the employer’s business operations.
Many lawsuits involving religious accommodation are resolved in the employer’s favor before even getting to the question of “undue hardship”, because the employee is unable to establish that he holds a sincere religious belief, has informed the employer, and was disciplined or terminated for failing to comply with the conflicting job requirement. But where an employee can satisfy this threshold requirement, there are new rules at play for analyzing undue hardship and the reasonableness of an accommodation. While the Supreme Court’s decision upends the traditional “de minimis” test and raises the bar for an employer to establish hardship, careful employers should be able to successfully navigate these choppy waters by taking the time to understand the new standards and apply them sensibly.