On June 29, 2023 the United States Supreme Court issued its unanimous decision in Groff v. DeJoy, 600 U.S. ___ (2023). This highly anticipated decision changes the individual assessment employers must use when evaluating a request for accommodation for religious reasons and whether the accommodation is reasonable or creates an undue hardship. While this is one of several highly anticipated rulings from the high court this summer, it is not surprising. Many, if not most of us in the employment law world anticipated that this decision would come down the way it did.
Under prior precedent, employers were instructed to provide a religious accommodation unless that accommodation created “more than a de minimis cost” on the employer; this language appeared in the Supreme Court’s decision in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). That “de minimis cost” test was considered by many to be unworkable, ambiguous, and also unfounded from the actual text of the Hardison case. Critics of the de minimis standard, including both parties in Groff, claimed the de minimis cost test allowed employers to make disingenuous attempts to reasonably accommodate employees before claiming a religious accommodation created an undue hardship. Now, the Supreme Court has corrected that ambiguity and has provided employers with a more structured test.
Under Title VII of the Civil Rights Act of 1964, employers have an obligation to reasonably accommodate employees’ sincerely held religious beliefs. Under Groff, employers must “show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” Groff, 600 U.S. at 18. It is not enough to consider an accommodation; employers must make an actual effort to accommodate. “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.” Id. at 20.
Read in conjunction with the facts of Groff, the analysis an employer must go through must be exhaustive and consider alternative options in order to eliminate the conflict between the employee’s religion and workplace requirements. “[I]t 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.” Id.
The Court opined that today’s ruling will have little effect on how the Equal Employment Opportunity Commission (EEOC) will view such cases. The Court stated, in fact, that the EEOC has always focused on Title VII’s accommodation requirements to not only assess whether an undue hardship exists, but whether “temporary costs, voluntary shift swapping, occasional shift swapping, or administrative costs” could alleviate the hardship on employers. Groff, 600 U.S. at 19 (citing 29 C.F.R. *1605.2(d)).
Today’s ruling creates much needed clarification for lawyers and employers alike. Employers should take note that they have a duty to reasonably accommodate employees’ sincerely held religious beliefs, and that duty to accommodate carries a now higher burden to show that such an accommodation will create an undue hardship. While each request requires an individualized assessment, employers should be cautious before they deny any request for accommodation, and should likely seek advice of counsel before making any final decision.