Last year, the Supreme Court closed out its term with a major case concerning employee religious rights in Kennedy v. Bremerton School District. The Supreme Court has done the same again this year. While the Court’s decision concerning college admissions will get the lion’s share of attention, employers must not ignore the impact of the Court’s decision about religious accommodation in Groff v. DeJoy, Postmaster General, No. 22-174, June 29, 2023.
The impact of a Supreme Court decision can’t be fully assessed in a blog post the day the decision comes down, but Groff clearly indicates that employers must think differently about religious accommodations.
Factually, the plaintiff, Gerald Groff, believes Sunday should be devoted to worship and rest and not work and transporting worldly goods. Over the years, the United States Postal Service (USPS) expanded mail delivery to include Sundays. The union agreement with USPS created a rotation for Sunday staffing and Groff made arrangements to avoid working on Sundays. This prompted the USPS to engage in progressive discipline. Groff resigned and sued under Title VII of the Civil Rights Act of 1964 claiming USPS did not reasonably accommodate his Sunday religious observance.
The Court’s decision states that it is designed to “clarify” what Title VII requires concerning reasonable accommodations for religious observances and practices. Most employers know that religious accommodation requests have been assessed under a standard in which an accommodation request may be rejected as an undue hardship if the accommodation would result in more than a de minimis cost to the employer.1 The decision describes that the Court’s prior description of rejecting an accommodation that creates more than a de minimis cost resulted in that phrase taking on a larger role than intended. The Court described what it really meant: an undue hardship that allows rejection of a religious accommodation is shown “when a burden is substantial in the overall context of an employer’s business.”
Time and again in the opinion, its author, Justice Samuel Alito, clearly indicates that the use of the phrase “more than a de minimis cost” resulted in rejection of minor accommodation requests and that the substantial burden test would require those accommodations be required. So, while not framed as a change in the law, the decision in Groff is likely to feel like one.
The ultimate result of the case is that the Court sent the case back to the lower courts to apply the standard as described. Justice Alito described that the courts needed to assess, for example, the cost of incentive pay to incentivize others than Groff to work on Sunday or coordination with nearby post stations to allow Groff to be accommodated. The opinion notes that USPS could still prevail—if it does, USPS will have to have made a much more significant record about why it cannot accommodate Groff's Sunday Sabbath observance.
What should employers do:
- Review any handbooks or policies to ensure they do not indicate that requests for religious accommodation will be rejected because the requests create more than a de minimis cost—instead, policies should indicate that the employer will provide reasonable religious accommodations unless they are an undue hardship.
- Employers should ensure that they use the right language and standards when assessing reasonable accommodation requests for religious beliefs, practices, and observances. The analysis for disability accommodation requests is likely much more similar to religious accommodation requests now than it was before the Groff decision.
- Employers should remember that there are unique challenges to inquiring about an employee’s sincere religious beliefs. Employers must be very careful if considering rejecting an accommodation on the grounds that the employer does not consider the employee to have an actual religious belief or practice that is sincere.
1 In Oregon under ORS 659A.033 this de minimis standard has not applied to requests to take time off or to wear religious clothing.
The legal issues impacting this topic are and will continue to be ever-changing (Employment Law in Motion!), and since publication of this blog post, new or additional information not referenced in this blog post may be available.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.