LEGAL 101: The Standard for Title VII Religious Accommodations May Be Changing, and Every Employer Should be Paying Attention

It’s no secret that the current majority on the United States Supreme Court is focused on expanding certain religious liberties.

In Kennedy v. Bremerton School District, the Court significantly expanded religious freedoms in the First Amendment context when it held that a school district could not discipline a football coach for publicly engaging in prayer on the football field immediately after games.  The Court’s opinion rejected decades’ worth of cases that had attempted to balance the competing rights secured by the Free Exercise Clause and the Establishment Clause, and also demonstrated the majority’s willingness to cherry-pick the facts of a case when analyzing religious freedoms.

Just one week before Kennedy, the Court held in Carson v. Makin that a state’s tuition assistance program violated the Free Exercise Clause because it excluded financial assistance for students attending private religious schools.  Relying on its recent decisions in Trinity Lutheran Church of Columbia, Inc. v. Comer, and Espinoza v. Montana Department of Revenue—both of which struck down limitations on financial assistance to religious schools—the Court reaffirmed its belief that “[a] State need not subsidize private education,” “[b]ut once it decides to do so, it cannot disqualify some private schools solely because they are religious.”

Next up on the Court’s agenda may be the standard by which employers are required to provide religious accommodations under Title VII of the Civil Rights Act of 1964.

Under Title VII, an employer must accommodate an employee’s religious observances and practices unless the requested accommodation would impose an undue hardship on the employer’s business.  When the Supreme Court previously considered the scope of this requirement in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), it held that “[t]o require [an employer] to bear more than a de minimis cost . . .  is an undue hardship.”  The Court reasoned that the employee’s request to have Saturdays off for religious reasons amounted to an impermissible preference:

It was essential to TWA’s business to require Saturday and Sunday work from at least a few employees even though most employees preferred those days off.  Allocating the burdens of weekend work was a matter for collective bargaining . . . [T]o give Hardison Saturdays off, TWA would have had to deprive another employee of his shift preference at least in part because he did not adhere to a religion that observed the Saturday Sabbath.

Title VII does not contemplate such unequal treatment.  The repeated, unequivocal emphasis of both the language and the legislative history of Title VII is on eliminating discrimination in employment, and such discrimination is proscribed when it is directed against majorities, as well as minorities . . . It would be anomalous to conclude that, by “reasonable accommodation,” Congress meant that an employer must deny the shift and job preference of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others, and we conclude that Title VII does not require an employer to go that far.

Although employers have been able to rely on Hardison’s “more-than-de minimis-cost test” for nearly 50 years, the standard may soon change.

On January 13, 2023, the Supreme Court agreed to take up Groff v. DeJoy, a case that asks the Court to reconsider its holding in Hardison.  Similar to the employee in Hardison, Groff alleges that his employer violated Title VII by failing to accommodate his request to have Sundays off due to religious reasons.  Groff argues that the de minimis test is contrary to the plain language and purpose of Title VII.  He also challenges an employer’s ability to demonstrate an “undue hardship on the employer’s business” by showing that a requested accommodation burdens the employee’s co-workers, as opposed to the business itself.

Any change to Title VII’s standard for religious accommodations, or to the evidence that can be used to establish an undue hardship, can have a significant impact on an employer’s business operations and its risk for legal liability.  The current majority’s recent expansions of religious liberties in other contexts—and its willingness to depart from well-established precedent in various different contexts—could signal that a change in this area of the law is more likely than not.  In fact, Justices Gorsuch and Alito have already hinted at Hardison’s fate.

In April 2021, the Court denied review in a case that similarly challenged the de minimis test for religious accommodations.  In a dissent joined by Justice Alito, Justice Gorsuch wrote that Hardison “dramatically revised—really, undid—Title VII’s undue hardship test . . . Hardison’s de minimis cost test does not appear in the statute” and “cannot be reconciled with the ‘plain words’ of Title VII, defies ‘simple English usage,’ and ‘effectively nullif[ies]’ the statute’s promise.”

Whether Justice Gorsuch’s dissent in Small v. Memphis Light, Gas & Water is a roadmap for Hardison’s undoing is yet to be seen, but Thompson & Horton will continue to monitor this important legal issue.

If you have any questions about Title VII religious accommodations or other employment issues, please contact Stephanie Hamm at