There’s A[nother] New Accommodation Standard in Town: Supreme Court Unanimously Rejects De Minimis Cost Test for Title VII Religious Accommodations, and Confirms Limitations on Coworker Impact Evidence in Undue Hardship Analysis
As we wrote earlier this year, the United States Supreme Court agreed to consider a case challenging the standard by which an employer may refuse to accommodate an employee’s religious beliefs. Since the Court’s 1977 decision in Trans World Airlines, Inc. v. Hardison, many lower courts have held that employers could deny a requested religious accommodation if providing it would result in “more than a de minimis cost.” For years, critics have argued that the de minimis cost test does not appear anywhere in the language of Title VII, and effectively eliminates the statute’s protections against religious discrimination. On June 29, 2023, a unanimous Supreme Court agreed.
In Groff v. DeJoy—a case involving an employee who was denied a religious accommodation of not working on Sundays because it “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale”—the Supreme Court stated that “the de minimis reading of Hardison is a mistake,” and held that Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in “substantial increased costs” in relation to the conduct of its particular business.
The Court anchored its analysis to the plain language of Title VII. When originally enacted, Title VII made it unlawful for employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges [of] employment, because of such individual’s . . . religion.” 42 U.S.C. § 2000e(2)(a)(1) (1964). After courts questioned whether requiring employers to accommodate certain religious practices would violate the Establishment Clause, Congress amended Title VII to clarify that employers must “reasonably accommodate . . . an employee’s or prospective employee’s religious observance or practice” unless the employer is “unable” to do so “without undue hardship on the conduct of the employer’s business.” Id. at § 2000e(j) (1972).
Turning to the plain meaning of the term “undue hardship,” the Court explained that a “hardship” is commonly defined, at a minimum, as “something hard to bear”—and, by any definition, is something “more severe than a mere burden.” Meanwhile, something de minimis is, by definition, “something very small or trifling.” Against this definitional backdrop, the Court found that a de minimis cost test cannot be reconciled with Title VII’s requirements:
So even if Title VII said only that an employer need not be made to suffer a “hardship,” an employer could not escape liability simply by showing that an accommodation would impose some sort of additional costs. Those costs 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.
After deciding that the de minimis test gleaned from Hardison is wrong, the Court next considered what standard should be adopted for religious accommodations. The Court declined the invitation to adopt or incorporate the accommodation standard from the Americans With Disabilities Act and related caselaw, and instead held that “[w]e think it is enough to say 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.” Somewhat ironically, the Court cited Hardison as the basis for this standard, after noting that the de minimis language in Hardison was more of a passing comment that lower courts had taken out of context than an actual accommodation standard, given that the opinion made numerous references to “substantial additional costs” and “substantial expenditures” in its overall discussion of religious accommodations.
The Court did not decide whether Groff himself was entitled to the accommodation he requested, and instead remanded the case back to the lower courts to apply the correct standard to the specific facts of the case. But the Court did provide some guidance to employers on what they can—and cannot—consider before denying a religious accommodation, particularly with respect to a proposed accommodation’s impact on the employee’s coworkers:
[B]oth sides agree that the language of Title VII requires an assessment of a possible accommodation’s effect on “the conduct of the employer’s business.” As the Solicitor General put it, not all “impacts on coworkers . . . are relevant,” but only “coworker impacts” that go on to “affect[t] the conduct of the business.” So 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 that further logical step is shown in a particular case.
On this point, the Solicitor General took pains to clarify that some evidence that occasion is used to show “impacts” on coworkers is “off the table” for consideration. Specifically, a coworker’s dislike of “religious practice and expression in the workplace” or “the mere fact of [an] accommodation” is not “cognizable to factor into the undue hardship inquiry.” To the extent that this was not previously clear, we agree. An employer who fails to provide an accommodation has a defense only if the hardship is “undue,” and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered “undue.” If bias or hostility to a religious practice or a religious accommodation provided a defense to a reasonable accommodation claim, Title VII would be at war with itself. (citations omitted)
The Court also emphasized that, when assessing the reasonableness of a particular accommodation requests, employers must not forget their overall duty to accommodate an employee’s religion:
Title VII requires that an employer reasonably accommodate an employee’s practice of religion, not merely that it assess the reasonableness of a particular possible accommodation or accommodations. This distinction matters. Faced with an accommodation request like Groff’s, it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary. (citations omitted)
The practical result from Groff is that employers need to keep in mind the differing accommodation standards when addressing disability-related accommodations under the ADA, pregnancy-related accommodations under the newly-enacted Pregnant Workers Fairness Act, and religion-related accommodations under Title VII. Be sure to keep an eye out for further information and webinars on these competing standards as Thompson & Horton continues to monitor these important and still-developing legal issues.