By Darien C. Harris and Dawn Reddy Solowey
Seyfarth Synopsis: Gerald Groff was a carrier for the United States Postal Service, but his religious beliefs prohibited him from working on Sundays in observation of the Sabbath. USPS offered to find employees to cover Groff’s shifts, but on more than twenty Sundays no co-worker was available to swap with him. When Groff nonetheless refused to work on Sundays, USPS disciplined him. Consequently, Groff resigned and sued USPS for violating Title VII of the Civil Rights Act of 1964 by failing reasonably to accommodate his religion. The Third Circuit ruled in favor of USPS.
The United States Supreme Court has now accepted Groff’s petition to review the Third Circuit’s ruling. The three-judge appellate court had relied on precedent stating that an employer is not required to accommodate an employee’s religious practices if such accommodation would create more than a de minimis burden on the employer’s business. The application of this “de minimis” standard to religious discrimination claims first arose in Trans World Airlines, Inc., v. Hardison, a seminal 1977 U.S. Supreme Court case.
Larry Hardison was a union member employed by Trans World Airlines under a collective bargaining agreement that granted scheduling privileges based on seniority. As an observant Sabbatarian, he requested an accommodation to be excused from working on Saturdays and certain religious holidays. TWA accommodated his beliefs by staffing other workers on Saturday and agreeing to let him have his religious holidays off if he agreed to work traditional holidays when asked. That arrangement fell apart when Hardison voluntarily transferred to a department where he lacked the requisite seniority to be off on Saturdays. When an accommodation was not reached, TWA terminated him for refusing to report to work. Hardison sued TWA under Title VII for religious discrimination.
Title VII makes it unlawful to discriminate against any individual with respect to her compensation, terms, conditions, or privileges of employment because of that individual’s religion. Under Title VII, the term “religion” includes all aspects of religious observance, practice, or belief, unless an employer demonstrates that it is unable reasonably to accommodate an employee’s religious observance or practice without undue hardship on the employer’s business. Hardison supported his claim with a 1967 guideline from the Equal Employment Opportunity Commission requiring employers “to make reasonable accommodations to the religious needs of employees” whenever such accommodation would not work an “undue hardship.” Because neither the guidelines nor Title VII’s 1972 amendments defined what accommodations were “reasonable” or when hardship became “undue,” the Court defined the latter to mean “more than de minimis cost.”
The Hardison decision ruffled feathers, not just among the lawyers appearing before the Court, but also from fellow justices on the bench. Legendary civil rights icon, Justice Thurgood Marshall, joined by Justice William Brennan, derided the Hardison opinion in a pointed dissent, stating that the decision “[dealt] a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices.”
In the decades since Hardison, employers have relied on the seminal case, and the de minimis standard when evaluating requests for religious accommodations. In recent years, Hardison has been the subject of scrutiny from legal professionals, including several justices who make up the high court’s current conservative supermajority.
For example, in 2020 the U.S. Supreme Court denied a petition to reconsider Hardison. Justice Samuel Alito, joined by justices Clarence Thomas and Neil Gorsuch, agreed with the majority’s denial because the case did not “present a good vehicle for revisiting Hardison,” but reiterated that “review of the Hardison issue should be undertaken when a petition in an appropriate case comes before us.” A year later, Justice Gorsuch dissented against the majority’s refusal to hear another religious discrimination case that would have put Hardison on the chopping block, noting that the de minimis cost test does not appear in the statute, that the Hardison opinion provides little supporting analysis, and finally stating “it is past time for the Court to correct it.”
Gorsuch also gives readers an idea of what approach the Court might take by citing three other civil rights statutes which use and define the term “undue hardship”: the Americans with Disabilities Act, the Uniform Services Employment and Reemployment Rights Act, and the Affordable Care Act. Under those three statutes, 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.
If the Supreme Court borrows the undue hardship standard from the ADA then employers will have to address religious accommodations with the same rigor as disabilities.
Today’s U.S. Supreme Court has a conservative supermajority that has frequently ruled in favor of protecting religious liberties. Recent decisions touching on Hardison and the accommodation requirements of Title VII suggest that the Court’s conservative wing is itching for a case that will enable them to soundly overturn Hardison. This latest appeal from the Third Circuit would seem to present the ideal vehicle in which the Court could replace Hardison’s de minimis standard with that found in statutes such as the ADA.
If the Supreme Court adopts an “undue burden” standard under Title VII that aligns with the ADA, then employers will have to adjust their approach to employee requests for religious accommodation. There is also the question of whether a new standard would apply retroactively to Title VII cases currently pending in the courts.
Employers are encouraged to reassess their employee handbook policies to ensure that they contain a policy addressing religious accommodations. Additionally, employers should closely review job descriptions to ensure that the descriptions include all essential job functions that may factor into religious accommodations. Lastly, employers are advised to engage in an interactive process with both its employees and with trusted management-side attorneys to design workable accommodations for employees’ religious practices.
For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team.