By Dawn Reddy Solowey

Seyfarth Synopsis: Yesterday the Supreme Court held oral argument in Groff v. DeJoy, a case in which the Court is considering whether to overturn decades of precedent established by the seminal religious accommodation case, Trans World Airlines Inc., v. Hardison.  Decided in 1977, Hardison is the seminal case establishing that an employer is not obligated to accommodate an employee’s religion if the accommodation would create more than a “de minimis” burden on the employer’s operations.  While it is never wise to make predictions from oral argument, the argument featured a search for “common ground” among the Justices as to an undue hardship standard, and a window into how they might apply that test to common accommodation request scenarios. 


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 coworker was available to swap with him.  When Groff refused to work on Sundays, USPS disciplined him.  Groff resigned and sued USPS under Title VII, alleging failure reasonably to accommodate his religion.

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. 

In the decision below in Groff v. USPS, the Third Circuit 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 Supreme Court established the “de minimis” standard in TWA v. Hardison in 1977.  The Hardison decision also referred, in a footnote, to “substantial costs” to the employer imposing an undue hardship.

Issues Before the Supreme Court

There are two issues presented: (1) Whether the court should disapprove the more-than-de-minimis-cost test for refusing religious accommodations under Title VII stated in Hardison; and (2) whether an employer may demonstrate “undue hardship on the conduct of the employer’s business” under Title VII merely by showing that the requested accommodation burdens the employee’s coworkers rather than the business itself.

The Oral Argument

The Parties’ Arguments

Petitioner’s counsel argued that Hardison’s de minimis standard “violates [Title VII’s] promise that employees should not be forced to choose between their faith and their job,” and “makes a mockery of the English language,” on the grounds that it cannot be squared with the term “undue hardship.”  He argued that the standard should be replaced by the ADA’s “significant difficulty or expense” test. 

The Solicitor General argued that Hardison, in defining undue hardship, used the term “de minimis” interchangeably with “substantial cost,” and needed to be understood in the context of the facts of that case.  She argued that the Court should uphold Hardison so as not to disrupt almost 50 years of decisions and EEOC guidance, on which employers and courts have relied.  

The Search for “Common Ground”

Some of the conservative Justices openly searched for a compromise as to how to define “undue hardship.”  Justice Gorsuch repeatedly tried to find “common ground,” noting that both sides agree that the undue hardship inquiry is context-dependent, based on factors including the size of the employer, the nature of the request, and what reasonable options are available to the employer.  And, he noted, both parties agreed that a de minimis standard should not be the test in isolation, because it inaccurately suggested that a mere “trifling” could be considered an undue hardship.

Justice Kavanaugh seemed open to the notion of leaning into Hardison’s reference to “substantial cost,” but noted that “the hard thing is going to be how to apply it.”  Justice Kavanaugh asked the Solicitor General whether – if the Court says that “substantial cost” is the same as “de minimis” – would that destabilize precedent?  The Solicitor General indicated that it would not, as long as decisions are context- based and the Court were to uphold Hardison on its facts.

Discussion as to Whether the Case Law Since Hardison Is Adequately Protective of Employees’ Religious Rights

Justice Alito pointed to amicus briefs from minority religions who complained that under Hardison, their religious liberties have been violated.  The Solicitor General responded that “they’re not accurately portraying how Hardison has actually played out in the lower courts and the substantial zone of protection for religious exercise that lower courts have recognized in light of Hardison.”

In attempting to reassure the Court that the existing case law and guidance under Hardison is adequately protective, the Solicitor General pointed to “three buckets” where workplace accommodations are frequently granted and undue hardship defenses rejected:  scheduling (such as Sabbath observance); religious dress or grooming; and religious expression.  Multiple Justices said that they found the framing of these buckets to be helpful.  But the liberal Justices elicited clarification from the Solicitor General that these three buckets are not categorically required accommodations, as each is still context-specific.

Skepticism about the ADA Standard

Multiple Justices expressed skepticism about the notion of importing the ADA disability accommodation standard into the Title VII religious accommodation context.

Justice Roberts expressed concern that while the ADA addresses a “discrete category of individuals,” Title VII has a broader scope since there are many more religious employees.  Justice Barrett expressed similar concerns, noting that in the ADA context, there may be fewer accommodation requests.  Justice Jackson elicited from the Solicitor General an argument that it is not legally or practically workable to import the ADA standard into the Title VII context. 

Both Justice Sotomayor and Justice Kagan asked Petitioner why the Supreme Court should adopt the “significant difficulty or expense” standard used in other statutes when Congress has declined to do so.

And Petitioner conceded that he would be “fine with an opinion that doesn’t say anything about the ADA” but that interprets the “plain text” of undue hardship – seemingly providing more potential common ground.

Premium Pay, Collective Bargaining, and Effect on Coworkers

Much of the argument focused on application of whatever “undue hardship” standard is adopted to three particular issues addressed in Hardison: (1) whether and when premium pay (such as to entice a coworker to swap for an undesirable shift) presents an undue hardship; (2) whether and when an accommodation that would require violation of a Collective Bargaining Agreement or Memorandum of Understanding is an undue hardship; and (3) whether and when impact of an accommodation on the requestor’s coworkers is an undue hardship.  The Justices probed both counsel as to the legal and practical implications of setting parameters around these issues.    

In particular, the Justices had many questions for both parties about when impact on coworkers rises to the level of undue hardship.  When Petitioner argued that impact on coworkers can only create an undue hardship when those impacts affect the business as a whole, Justice Kagan pushed back, asking whether impact on coworkers isn’t always disruptive to the business as a whole.  Justice Barrett asked a line of questions as to when impact on morale would be sufficient to constitute undue hardship – would an employee need to quit to rise to that level?  Or would bad morale be enough?   Justice Sotomayor observed that Amazon employees delivering in the holidays are visibly exhausted – to emphasize that costs of undesirable or additional shifts may not always be monetary.  Justice Kavanaugh commented, “I mean, anyone running a business in America knows that morale of the employees is critical to the success of the operation.”  And Justice Barrett questioned whether the Petitioner’s position was that the employer “has to wait until morale is so bad that [] employees actually quit?”

A decision is expected in the summer.

Practical Takeaways for Employers

If the Supreme Court changes the standard as to what constitutes an “undue hardship” under Title VII, employers will have to adjust their approach to employee requests for religious accommodation.  This should be done in consultation with a counsel with specific experience with religious accommodation requests. 

Employers should make sure promptly to provide training about the new standard to those who review and make decisions on accommodation requests. 

Employers are encouraged to reassess their employee handbook policies to ensure that they contain a policy addressing religious accommodations that complies with any new standard. 

Employers should closely review job descriptions to ensure that the descriptions include all essential job functions that may factor into religious accommodations. 

Employers who have threatened or pending Title VII cases will need to review whether the new standard will affect their cases, including what the Court says (if anything) about whether a new standard would apply retroactively to Title VII cases currently pending in the courts.

For advice on how to prepare your business now for the likely change in the religious accommodation landscape, contact Dawn Solowey or your favorite Seyfarth attorney.