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In a unanimous decision, the Supreme Court in the case of Groff v. DeJoy[1]jettisoned the long-held de minimis cost standard for religious accommodation claims under Title VII. The Third Circuit, like most circuits,[2]had construed the Supreme Court’s 1977 decision in Trans World Airlines, Inc. v. Hardison[3] to mean that “requiring an employer to bear more than a de minimiscost to provide a religious accommodation is an undue burden.”[4] Rather than completely overruling Hardison, the Court clarified the undue hardship standard to mean that “an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”[5]

Although the Supreme Court’s decision did not reach the merits of the case, the essential facts are as follows. Gerald Groff was a postal carrier whose religious beliefs prohibited him from working on Sunday. USPS offered to facilitate shift swaps for Groff on each Sunday that he was scheduled to work, but that offer did not eliminate Groff’s religious conflict because USPS could not find co-workers to cover all of Groff’s Sunday shifts. When Groff did not work on those Sundays, he was disciplined. Groff received eight performance deficiency interviews and three official disciplinary actions for not working on Sundays. Following the last disciplinary action – a 14-day suspension – Groff resigned. USPS argued that it could not fully accommodate Groff’s religious beliefs because doing so would impose an undue hardship. Specifically, USPS cited the increased workload on coworkers and low employee morale as evidence of undue hardship.

As discussed in a previous article by Heather Moore Collins, the de minimis cost standard has been under severe scrutiny for years.[6] Therefore, it is no surprise that the Supreme Court cast aside the lenient standard for a more stringent one. It did so based on two grounds. First, it noted that the majority opinion in Hardisonincluded language that suggested that an accommodation is not required when it entails substantial costs or expenditures.[7] Second, applying the plain meaning of the statutory term “undue hardship,” the Court noted that the costs of granting an accommodation “would have to rise to the level of hardship, and adding the modifier ‘undue’ means that the requisite burden, privation, or adversity must rise to an ‘excessive’ or ‘unjustifiable’ level.”[8]  Clearly, an undue hardship is far more than a burden that is merely more than de minimis.

While the Court articulated a more stringent standard for undue hardship, it refused to adopt the undue hardship definition[9]set forth in the Americans with Disabilities Act.[10] It likewise refused to adopt the EEOC’s guidelines construing Hardison,[11]although it did note that “a good deal of the EEOC’s guidance in this area is sensible.”[12] The only practical guidance that the Court gave for evaluating undue hardship under the new standard “is that courts must apply the test in a manner that takes 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 [the] employer.”[13]

Additionally, the Court addressed whether an employer may demonstrate undue hardship merely by showing a burden upon co-workers rather than the business itself. According to the Court, “an accommodation’s effect on co-workers may have ramifications for the conduct of the employer’s business, but a court cannot stop its analysis without examining whether that further logical step is shown in a particular case.”[14] Evidence merely showing a co-worker’s dislike of religious practices or religious expression in the workplace, or evidence of a coworker’s dislike of accommodations in general are insufficient.[15] In other words, evidence of co-worker impact may be relevant only if such impact is shown to negatively affect the employer’s business operations.

Finally, the Court noted that an employer’s duty under Title VII must go further than simply assessing the reasonableness of a particular religious accommodation proposed by the employee. If the accommodation proposed by the employee constitutes an undue hardship, then the employer must consider alternatives to fulfill its duty to reasonably accommodate an employee’s religious belief or practice.[16]

The Groffdecision has far-sweeping ramifications for religious accommodation claims. No longer will employers have a relatively light burden in proving an affirmative defense to such claims. But what are the practical contours of the “clarified standard” – a showing of substantial increased costs in relation to the conduct of its particular business? Will courts begin to analyze these claims in a light similar to the ADA’s undue hardship framework even though the Supreme Court expressly refused to adopt the ADA framework? Time will tell. For now, the Supreme Court has left “the context-specific application of [its] clarified standard to the lower courts.”[17] For Gerald Groff, that means his case is being remanded to the Third Circuit to review the record afresh and to decide whether any further factual development is needed.

[2]The Sixth Circuit also adopted the de minimis cost standard. See Smith v. Pyro Min. Co., 827 F.2d 1081, 1098 (6th Cir. 1987) (“[A]n an employer is not required to bear more than a de minimis cost in order to accommodate his employees’ religious beliefs.”) (citing Harbison, supra.)

[3]432 U.S. 63 (1977).

[4] EEOC v. GEO Grp., Inc., 616 F.3d 265, 271 (3rd Cir. 2010).

[5] Groff, 2023 WL 4239256 at *10.

[6] See, e.g., Small v. Memphis Light, Gas & Water, 141 S.Ct. 1227 (2021) (Gorsuch, J., dissenting from denial of certiorari); Patterson v. Walgreen Co., 140 S.Ct. 685 (2020) (Alito, J., concurring in denial of certiorari); Small v. Memphis Light, Gas & Water, 952 F.3d 821, 827 (6th Cir. 2020) (strongly criticizing the de minimis cost standard).

[7] Groff, 2023 WL 4239256 at *8.

[8] Id. at *10.

[9] See 42 U.S.C. § 12111(10)(A) (undue hardship means “an action requiring significant difficulty or expense” in light of the employer’s financial resources, the number of individuals it employs, and the nature of its operations and facilities). 

[10] Id. at *11.

[11] See29 C.F.R. § 1605.2(d) (no undue hardship imposed by temporary costs, voluntary shift swapping, occasional shift swapping, or administrative costs).

[12] Groff, 2023 WL 4239256 at *11.

[13] Id.

[14] Id. at *12.

[15] Id.

[16] Id.

[17] Id.

Have you recently been terminated from a job and you think your employer may have violated the law? Do you think you are about to be fired and it just feels wrong? Oftentimes when people find themselves facing a potential or recent job loss, they are afraid and not sure what to do. Here are some practical pointers and tips about what to do (and what not to do) if you find yourself in this situation.*

• First, do not delay in getting legal advice. Certain employment issues can be resolved before they turn into lawsuits if they are given prompt attention, if the proper steps are followed, and if the correct language is used to request redress. In fact, in certain circumstances, employees can later be faulted if they did not follow the correct path or use the proper terminology at the time the issue arose. Some employers have also implemented agreements in the workplace that actually shorten the time you have to file a claim. Do not delay in reaching out to an attorney if you think you might go that route.
• Second, make sure you keep or copy all documents and communications that are important to your employment or the termination. If you do lose your job, you may no longer have access to emails you sent or received, for example. Be mindful of any workplace policies that may apply, of course. But maintain any materials that might be important while you still have access to them. Likewise, keep any cell phones that you used to communicate with your employer or any that contain evidence. Many clients who find themselves in a financial bind after a job loss are tempted to get rid of costly cell phones. Unfortunately, many items of evidence are not kept on the cloud or available through your cell phone provider and your original cell phone may be your only source of that evidence. You can also be accused of destroying evidence if you trade in an old cell phone.
• Third, do not try and “create” evidence without advice. If you send an email to your employer complaining about issues/circumstances, that email will most likely improve your legal position, but you may also unknowingly say something that harms your position. If you try and record your employer, there are similarly right and wrong (possibly illegal) ways and times to do that. 
• Fourth, do not try and play lawyer. When you are ill, do you use Google to diagnose you or do you go to the doctor?  You go to the doctor because they have the education and experience to identify what is wrong and treat the situation. The same holds true with legal issues. 
• Finally, be careful what you say publicly, privately, and on social media about the employment situation. Anything you say could be used against you and you never know if someone who is your friend today is still going to be on your side tomorrow if you file suit against the company for whom they still work. At some point, you also may be in a position where you are negotiating a severance or settlement agreement. One item ordinarily requested by the employer is a confidentiality agreement. Do not ruin your opportunity to negotiate that item by diminishing the value of confidentiality. 

Employment law is a complex area of the law and not many general practitioners actively litigate employment matters. You should not try to do so either. Find a lawyer whose practice focuses on employment law and let he or she help navigate if you find yourself on a sinking ship with your job.  

*The general guidance herein is not considered legal advice and does not establish an attorney-client relationship.  Each situation is unique and very fact-specific, so please consult an attorney for advice regarding your own circumstances.