Groff Should Prompt Employers to Review Accommodation Policies

In Groff v. DeJoy, the US Supreme Court increased the burden employers must meet to establish that a religious accommodation imposes an undue hardship.

To examine the increased burden, I focus on the two questions for which the Supreme Court had granted certiorari in the first instance. One is whether the court should disapprove the “more than-de-minimis-cost” test for refusing Title VII religious accommodations stated in Trans World Airlines, Inc. v. Hardison. The other is 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 co-workers rather than the business itself.

The court answered the first question in the affirmative but without overruling Hardison.

For 46 years, the EEOC and the lower courts have cited the Supreme Court’s 1977 decision in Hardison for the proposition that, to meet the undue hardship, an employer must establish only that the accommodation would result in “more than a de minimis cost.”

In Groff, the Supreme Court concluded that this long-standing interpretation of Hardison was a misinterpretation. The Groff court then held that Hardison actually set a higher standard for establishing undue hardship, one that requires a showing of “substantial” burdens for the employer’s business.

The Supreme Court provided little guidance on how an employer meets this higher standard. Instead, it labeled its newly clarified standard “context-specific” and has left lower courts with the task of applying its ruling to particular sets of facts.

The court answered the second question in the negative but without ruling out the possibility that a substantial burden on employees could result in a substantial burden on the business.

In Groff, the employee’s requested religious accommodation was to be exempt from Sunday work so that he could observe his Sabbath. In finding that the proposed accommodation would impose an undue hardship, the Court of Appeals for the Third Circuit relied heavily on the impact of the proposed accommodation on Groff’s co-workers, stating that allowing Groff not to work on Sundays “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.” Agreeing with Judge Thomsa Hardiman’s partial dissent in the Third Circuit case, the Supreme Court held the Third Circuit didn’t go far enough in its analysis.

More specifically, the Supreme Court held that an employer can’t meet the undue hardship standard by relying solely on the impact of the proposed accommodation on the employee’s co-workers. Instead, employers must go one step further and demonstrate how the burden on the co-workers substantially burdens the employer’s business.

Again, it isn’t entirely clear from Groff how an employer will meet this burden. What must an employer do if, as was the case in Groff, there aren’t employees willing to volunteer to cover every Sunday an employee can’t work? The Third Circuit will have to answer this question on remand.

While Groff leaves open many issues, it clearly makes it harder for employers to meet the undue hardship standard. Therefore, employers should assume and prepare for an increase in religious accommodation claims.

Employers will want to change many of their policies and practices. Following are recommendations for accommodation policies.

Many reasonable accommodation policies I have reviewed cover physical or mental disabilities but not religious beliefs, practices, or observances. This sends the wrong cultural and legal message. Review and revise your reasonable accommodation policy as necessary to include religious beliefs, practices, and observances. Also, address pregnancy, childbirth, and related medical conditions under the 2023 Pregnant Workers Fairness Act (now in effect).

To avoid legalese, some employers omit language on undue hardship from their accommodation policies. This omission is legally dicey, as it may then be argued that an employer has committed to make reasonable accommodations regardless of whether they impose an undue hardship. So review and revise your policy to make sure it references undue hardship.

Should you define undue hardship in your policy? No. You need only a placeholder so you don’t waive the defense.

One reason you shouldn’t define undue hardship in your policy is that there are different standards under different laws. While the Supreme Court in Groff rehabilitated Hardison to establish a substantial burden test for religious accommodations, the Americans with Disabilities Act by statute defines undue hardship for disability accommodations to be “significant difficulty or expense.”

The Supreme Court specifically declined to import the ADA definition, however, instead directing lower courts to make these determinations “in a commonsense manner” based on Title VII’s statutory language and not seemingly analogous ADA case law.

It will take some time for the courts to resolve whether “substantial” and “significant” are different, and if so, whether those differences are significant or perhaps substantial. In the interim, I pray the EEOC will provide some updated guidance to employers.

The case is Groff v. DeJoy, U.S., No. 22-174, 6/29/23.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Jonathan A. Segal is a partner with Duane Morris. A former litigator, he focuses on legal compliance, risk, and culture.

Write for Us: Author Guidelines