Bloomberg Law
Jan. 19, 2023, 10:45 AM

Religious Accommodation Test on Thin Ice With Justices’ New Case

Khorri Atkinson
Khorri Atkinson
Senior Labor & Employment Reporter
J. Edward Moreno
J. Edward Moreno

A decades-old US Supreme Court precedent making it easy for businesses to deny workers’ religious accommodation requests will be under the microscope now that the justices have a vehicle to reevaluate the standard.

Under the high court’s 1977 decision in Trans World Airlines, Inc. v. Hardison, employers only need to show that a requested accommodation under Title VII of the 1964 Civil Rights Act would impose a minimal, “undue” burden to be able to reject it.

But the justices agreed last week to revisit that legal test in a case involving a Christian letter carrier’s religious objection to delivering packages for Inc. on Sundays. A divided US Court of Appeals for the Third Circuit panel relied on Hardison to affirm a lower court ruling in favor of the US Postal Service.

The Supreme Court has repeatedly declined to review the standard, drawing rebuke from some justices who publicly advocated to overturn Hardison amid concerns by religious groups that it’s too broad and unfairly limits workers’ rights.

But the court’s conservative supermajority—combined with its greater tendency to credit allegations of religious liberty violations—suggests a more employee-friendly interpretation of religious accommodation requirements is on the way, legal observers said.

“I think religious public interest groups have seen a Supreme Court that they believe is sympathetic to religious claims and they’re going to push their agenda at this point,” said Michael Foreman, a professor at Penn State Law.

Genova Burns LLP partner John C. Petrella agreed that Hardison is on shaky ground. A ruling in favor of letter carrier Gerald Groff will reshape the litigation landscape by inviting more Title VII religious workplace bias claims and making it more difficult for employers to challenge them, said Petrella, who chairs the firm’s Employment Law and Litigation Practice Group.

“That’s a concern,” Petrella said. Such a standard would cause “an enormous interference” in private employers’ ability to run a business, he said.

The case could also serve as a means for the justices to offer guidance on the level of inquiry an employer can make when questioning whether a worker’s religious belief is sincerely held, some attorneys say.

‘Undue Hardship’

Title VII, which bars employers from discriminating against workers based on religion and other protected characteristics, requires reasonable accommodations for a worker’s religious beliefs as long as those accommodations don’t present an “undue hardship” on a business.

Hardison defined that term as “more than de minimis cost,” meaning that employers need not accommodate a worker if doing so would cause more than a minor burden on the business.

Since then, courts have varied in how to interpret “de minimis,” turning it into an extremely fact-specific inquiry, said Erika Todd, an attorney with Sullivan & Worcester. “Sometimes there will be a perfect solution that makes everyone happy, sometimes the solution may not be ideal for the employee,” Todd said.

In Groff’s case, the Third Circuit majority found undue hardship because exempting him from Sunday Amazon deliveries created tension among employees and caused his co-workers to carry more than their share of the workload. The Postal Service also showed that it reasonably offered instead to let Groff swap Sunday shifts with others and helped to find someone for him, the appeals court added.

Groff, who resigned in 2019, said USPS disciplined him for missing work on Sundays when he couldn’t find someone to trade shifts with him.

He and religious public interest groups—such as the Rutherford Institute and the National Jewish Commission on Law and Public Affairs—are advocating for a standard more like that of the Americans with Disabilities Act, which also requires accommodations for disabled workers unless doing so presents an “undue hardship” on the employer. The ADA, however, defines “undue hardship” as an “action requiring significant difficulty or expense,” and provides factors for courts to consider.

“Under the ADA employers could be required to undertake certain burdens to make sure disabled individuals can still perform their job and succeed in the workplace,” Todd said. “The burden on employers under the religious discrimination rubric is actually a lot lower.”

Stephanie Taub, senior counsel for the First Liberty Institute,which represented Groff before the Third Circuit, said employees of faith stand to be “pushed out from wide swaths of the workforce because they have religious objections.”

First Liberty has also taken on similar federal cases, including one recently filed against CVS Health Corp. on behalf of a Christian nurse who allegedly refused to prescribe contraceptive or abortifacient drugs because of her faith.

Balancing Act

The justices’ ultimate decision has implications for scheduling or time-off requests for holy day accommodations, dress and grooming codes and workplace expressions like the wearing of a religious insignia that promotes a certain cause or message, legal observers say. The ruling would be applied to all faiths.

For attorneys like Kevin L. Owen, a partner at Gilbert Employment Law PC, the question is how the justices will balance the two competing interests at stake: a worker’s religious accommodation request and an employer’s desire to control operating costs.

“The court often does not want to get involved with telling an employer how to run their business,” Owen said. “So what I’m going to be looking at is how are they going to balance the competing interest of not burdening employers while also giving employees greater protections for their religious beliefs.”

The court also may need to consider the potential burden an employee’s religious accommodation request might have on other workers to ensure that those seeking an accommodation don’t get preferential treatment, Petrella said.

The US Equal Employment Opportunity Commission has guidance on when a religious objection under Title VII is based on a sincerely held religious belief. But Dee Anna D. Hays of Ogletree, Deakins, Nash, Smoak & Stewart, PC said the Supreme Court should use this case to provide more clarity in this area even though the sincerity of Groff’s religious belief isn’t in question.

“I often see clients struggle with whether someone’s religious beliefs are sincerely held,” she said.

To contact the reporters on this story: Khorri Atkinson in Washington at; J. Edward Moreno in Washington at

To contact the editor responsible for this story: Laura D. Francis at; Rebekah Mintzer at

Learn more about Bloomberg Law or Log In to keep reading:

Learn About Bloomberg Law

AI-powered legal analytics, workflow tools and premium legal & business news.

Already a subscriber?

Log in to keep reading or access research tools.