The Supreme Court recently clarified the standard governing an employee’s request for religious accommodation in the decision of Groff v. DeJoy. Whereas the old standard for undue hardship gave employers a simple basis for declining employees’ requests for accommodation, the Court held in Groff that the standard for showing undue hardship is a much more difficult burden to satisfy. Given the Court’s decision, as well as the Trump administration’s recent emphasis on accommodating religious rights in the workplace, employers need to know how to navigate requests for religious accommodation in a post-Groff world.

Quick Hits

• In 2023, the United States Supreme Court held that employers who reject an employee’s request for religious accommodation on the basis of “undue hardship” must show more than a “de minimis” impact on or cost to the operations of the employer’s business.
• After the Supreme Court’s decision, employers can claim undue hardship only where granting an accommodation request would result in substantial increased costs in the operations of the employer’s business.
• Given the significance of the Groff decision, and the EEOC’s recent emphasis on protecting religious freedom in the workplace, employers should reevaluate their practices for responding to requests for religious accommodation.

Introduction

Title VII of the Civil Rights Act of 1964 generally prohibits employers from discriminating on the basis of an employee’s religion. This prohibition, as it applies to an employee’s religious beliefs, also requires that employers reasonably accommodate an employee’s religious observances or practices, unless doing so would cause undue hardship on the employer’s business. The undue hardship defense has historically allowed employers to deny an employee’s requested religious accommodation on the grounds that doing so would cause excessive disruption to the operations of the employer’s business.
For nearly fifty years, employers needed to satisfy only a minimal burden to successfully deny the accommodation request based on undue hardship. However, in 2023, the United States Supreme Court clarified that the term “undue hardship” is actually defined in a way that significantly increases employers’ burdens when evaluating adverse effects as a result of accommodating an employee’s religious practice or observance.

Background – The Old Standard

In 1977, the Supreme Court established the undue hardship standard in TransWorld Airlines, Inc. v. Hardison, holding that requiring employers to “bear more than a de minimis cost” in response to accommodating an employee’s religious practices “is an undue hardship.”

In Hardison, the employee requested time off work from sunset on Fridays to sunset on Saturdays in order to observe his religious Sabbath. Instead of granting Hardison’s accommodation request, his manager suggested that Hardison try to swap shifts with another employee or apply for a role that did not have to work on Saturdays. Hardison’s subsequent request to work only four days per week was rejected by the company, because Hardison was the only person available on Saturdays that could perform the responsibilities for his role. Hardison eventually stopped reporting to work on Saturdays and was later terminated for the same reason.

The Court held that the company made reasonable efforts to offer alternative accommodations to Hardison and that it was not required to give Hardison every Saturday off from work. To do so would force the company to bear a “de minimis” (i.e., more than minimal) cost, which constituted an undue hardship under Title VII. Thus, the prevailing standard for undue hardship following the Hardison decision was that the employer could deny a religious accommodations request merely by showing that the employee’s absence would be inconvenient to the employer and/or coworkers.

The New Standard – Groff v. DeJoy

In Groff v. DeJoy, the employee was an Evangelical Christian who believed that Sundays should be devoted to worship and rest, not work. Groff worked for the United States Postal Service and initially held a job that did not require Sunday work. However, after the Postal Service began facilitating Sunday deliveries for a third party, Groff was required to work on Sundays. Groff still refused to work on Sundays, leading to disciplinary actions and his eventual resignation. He then sued the Postal Service under Title VII, claiming that USPS failed to reasonably accommodate his Sunday Sabbath religious practices.

Clarifying the burden required to assert undue hardship under Hardison, the Supreme Court held that to show that undue hardship, the company must prove that granting the accommodation would result in substantial increased costs in operating its particular business.

The Court emphasized that determining undue hardship requires a fact-specific inquiry considering the overall impact of the accommodation on the business. This includes evaluating the nature, size, and operating costs of the specific employer’s business. If accommodating an employee’s religious practice leads to significant disruptions in the workplace or workflow due to the certain unavailability of other workers, or if an accommodation would cause substantial increased personnel costs on the employer, these factors could be considered in determining whether the accommodation can be denied on the basis of undue hardship.

The Groff decision caused an upheaval in Title VII religious accommodations precedent. The “de minimis” cost standard established by the Hardison court was the prevailing standard for decades, whereas now the undue hardship standard is far more difficult for employers to meet. In other words, an employer who might have validly shown undue hardship under the lesser “de minimis” cost standard often will be unable to meet the “substantial increased costs” test under the new Groff standard.

Practical Impacts for Employers

The Groff decision has completely changed what may be required of employers when evaluating requests for religious accommodation. Instead of the employer-friendly “de minimis” cost standard from the Hardison decision, employers now must conduct thorough and fact-intensive investigations to show that an undue hardship exists.

Under the new Groff standard for asserting undue hardship in response to employee requests for religious accommodation, employers should keep some key tips in mind when evaluating such requests.

First, within reason, assume that the employee’s asserted religious belief is genuine and sincere. In early stages of litigation, federal courts will rarely question the authenticity or sincerity of a religious belief or the religion itself. In most cases, employers may better utilize internal resources by initiating an interactive process with the employee.

Second, employers should engage in good faith in a robust interactive process with the employee (much like ADA accommodation requests). This means that the employer should initiate a back-and-forth dialogue with the employee to determine a variety of things, including a discussion about what exactly the employee is asking for or needs, whether their requested accommodation is reasonable, whether alternative accommodations exist, and the effects of any proposed accommodation on the operations of the employer’s business. This step is especially important given the EEOC’s recent guidance on committing to a robust interactive process in response to religious accommodation requests.

Third, whether the employer is engaging with the employee in the interactive process, investigating potential undue hardships, or both, ensure that all interactions with the employee, and all efforts to investigate, are documented in writing. Place any documentation related to the employee’s request as part of their personnel file and maintain these documents the same way you would any other business-related documents. Moreover, when investigating undue hardships, do not consider the preferences of the employee’s coworkers or their perceived reactions to granting an accommodation request. The Court in Groff specifically warned against this.

Fourth, whenever engaging in the interactive process with an employee, try to propose alternative accommodations to the employee that might have a less drastic effect on the operations of the business. Employers do not have to “take it or leave it” with the employee’s initial request, and may offer alternative accommodations to the employee. Doing so will show good faith and participation in the interactive process as well as give employers a strong legal defense in the event of subsequent litigation. However, employers should not be quick to immediately reject an employee’s initial request and offer alternative solutions. Employers should give careful consideration to any request by the employee to show that they engaged in the interactive process in good faith.

Fifth and last, if the employee stops engaging with the employer in the interactive process, employers should continually follow up with the employee to ensure that the breakdown in the process cannot be attributed to the employer. Employers should always follow up with employees requesting accommodations and document such attempts in writing. Just because the employee has failed to communicate does not mean that the employer may continue with business as usual.

Conclusion

The new undue hardship standard announced by the Court in Groff is a significant departure from the “de minimis” cost standard established by the Court in Hardison. Not only that, but the Groff decision standing alone has important implications for employers moving forward as they evaluate accommodations requests from employees. When coupled with the fact that the EEOC is prioritizing the protection of employees’ religious rights in the workplace, it’s important for employers to keep these key tips in mind when evaluating these requests in a post-Groff world.