The scope of the duty to provide religious accommodation to employees may well expand in 2023.
On Jan. 13, the U.S. Supreme Court agreed to hear a case involving a Christian mail carrier who resigned after being told he would have to work on Sundays.
Lower courts ruled against the employee, but there are signs that the Supreme Court will use the case as a vehicle to extend the duty of employers to accommodate employees’ religious beliefs.
The current employer-friendly standard has long been criticized by conservatives as not doing enough to protect the religious rights of employees, and several current Supreme Court justices have said it should be revisited.
Now those justices have gotten their wish, and the stage is set for a new standard that would require employers to do more to accommodate their employees’ religious beliefs.
Religious accommodation sought
The case involves Gerald Groff, a Sunday Sabbath observer who believes Sundays are for worship and rest – and not work.
Groff worked for the postal service as a type of postal carrier called a rural carrier associate. In that non-career role, he worked as needed and provided coverage for career employees when they were absent.
After the postal service contracted with Amazon to deliver Amazon packages on Sundays, it needed all the help from carriers it could get. Despite the need, it did not forget its duty to accommodate Groff and in fact took several steps to do so. For example, it sought out others to work on Sundays, and the postmaster covered some shifts. It also told him he could pick another day of the week to observe the Sabbath.
The postal service said Groff’s refusal to work Sundays created morale problems and resentment toward management among the carriers who had to cover his absences.
The local postmaster added that it was hard and time-consuming to find coverage, lamenting that it increased his workload and the workload of other postmasters.
Groff was disciplined for not working when scheduled on Sundays, and he eventually resigned.
The postal service rejected Groff’s internal complaints, and he sued in court to allege a violation of Title VII.
He asserted two distinct claims under Title VII: disparate treatment and refusal to accommodate.
Lower courts back employer
A federal district court ruled against him, finding that the requested exemption would create an undue hardship for the postal service.
The U.S. Court of Appeals for the Third Circuit agreed. It said that excusing Groff from working on Sundays would result in an undue hardship for the postal service. As a result, there was no unlawful denial of a religious accommodation and no violation of Title VII, the appeals court ruled.
The lower court rulings were guided by a 1977 U.S. Supreme Court ruling that said an employer can prove undue hardship in Title VII religious accommodations cases by showing that granting the requested accommodation would impose more than a “de minimis” cost – which essentially means more than just a little.
Here, the lower courts said that standard was met. The requested accommodation imposed on Groff’s co-workers, disrupted the workplace and hurt employee morale, the appeals court pointed out. “The impact on the workplace here … far surpasses a de minimis burden,” it added.
The de minimis undue hardship standard in religious accommodation cases stands in stark contrast to the undue hardship standard that applies in reasonable accommodation cases brought under the Americans with Disabilities Act. The latter standard requires employers to show that granting a requested accommodation would result in significant difficulty or expense.
In mid-January, the Supreme Court accepted Groff’s petition for further review and is now set to answer two related questions:
- Whether the currently applicable, employer-friendly de minimis should be retained, and
- Whether an employer should be able to establish undue hardship just by showing that an accommodation would burden the requesting employee’s co-workers rather than the business itself.
Reading the tea leaves
The current makeup of the high court – which can fairly be described as having a clear conservative majority – indicates that it is likely to refine or abandon the current accommodation standard in favor of one that imposes a greater duty on employers to accommodate religious accommodation requests.
Another indication that a duty-expanding change is looming: In 2020, three of the high court’s conservative justices (Alito, Thomas and Gorsuch) expressly argued that the current standard should be reconsidered. That argument, delivered while concurring with a decision to deny review in a different case, said the current standard “does not represent the most likely interpretation of the statutory term ‘undue hardship.’”
One final, less persuasive indicator that a more employee-friendly religious accommodation standard is on the way: In June, the Supreme Court ruled that a high school football coach could pray on the field after games.
The Groff case is expected to be argued in April, and a decision is likely to be issued by the end of June.
Groff v. DeJoy, No. 21-1900 (U.S. cert. granted 1/13/23).