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SCOTUS Puts the “Hard” Back In “Undue Hardship”

June 30, 2023

On June 29, 2023, the U.S. Supreme Court – in a rare unanimous decision – redefined an employer’s Title VII duty to accommodate the religious beliefs and practices of employees.  The case, Groff v. DeJoy, held that an employer must allow a religious accommodation for employees unless the employer can show the burden of doing so “is substantial in the overall context of an employer’s business.”  In so holding, the Court moved away from the long-standing “de minimis cost” standard.

The Background

Gerald Groff was an employee of the U.S. Postal Service (“USPS”), whose religious beliefs prohibited work on Sundays.  Initially, his employer did not require him to work on Sundays but that began to change in 2016 when USPS signed an agreement with Amazon that involved Sunday deliveries.  The employer and the union representing postal carriers reached an agreement on how Sunday deliveries would take place. Under that agreement, Mr. Groff could be required to work on Sundays.

Mr. Groff requested, and was granted, a transfer to a different facility.  However, that facility soon began Sunday deliveries as well.  Consistent with his beliefs, Mr. Groff did not work on Sundays and other employees were required to cover his Sunday deliveries.  The Court noted that Mr. Groff “continued to receive ‘progressive discipline’ for failing to work on Sundays” and eventually resigned.

The lower courts, applied the traditional test that an employer must reasonably accommodate an employee’s religion unless doing so would be an “undue hardship on the conduct of the employer’s business.”  Consistent with long-standing case law, the lower courts applied the Supreme Court’s 1977 decision in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), which had stated that an accommodation was an undue hardship if it would be more than a “de minimis” cost for the employer.  The lower courts noted that other employees had been impacted by Mr. Groff’s decision not to work and that at least one union grievance had been filed.  Those courts found Mr. Groff’s request to be excused from Sunday work was an imposition on other employees, disrupted the workplace, and reduced employee morale. Applying the then-current understanding of Hardison, the lower courts determined Mr. Groff’s request was an undue hardship as it involved more than an de minimis cost to the employer.

The New Standard

Mr. Groff appealed to the Supreme Court where everything changed.  Or, according to the Supreme Court, it really did not change at all.  The Court examined Hardison and concluded that courts around the nation had been incorrectly reading that opinion – for over forty-five years.  The Court announced that the de minimis standard was never really the standard at all.

The Court held that the correct standard required an employer to show not only a hardship, but that the hardship is “undue.”  The Court held this meant the costs of the accommodation “must rise to an ‘excessive’ or ‘unjustifiable’ level.”  Specifically, the Court explained, “an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” The Court instructed lower courts to take “into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, ‘size and operating cost of [an] employer.’”

The Court also noted that an employer must do more than consider an employee’s requested accommodation.  Rather, the Court stated, “it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary.”  The Court did not take this point further, though one can expect further development on this front.

Employers’ Next Steps

Ultimately, the Supreme Court did not decide the case.  Rather, after announcing the new reading of the law, the Court remanded the case to the lower courts for further consideration.  Of course, employers do not have the luxury of waiting for lower courts to further develop this new standard and must be ready to address requests for religious accommodations in real time.  Employers should be aware of the following when considering employee requests for accommodation of a sincerely held religious belief or practice:

  • The de minimis cost test no longer applies to determine if the accommodation constitutes an undue hardship.
  • A higher standard is now in place that requires employers to show that a requested religious accommodation would result in “substantial increased costs” to the business. Employers should make sure anyone involved in consideration of religious accommodations are trained on this new standard.
  • Impacts on coworkers are relevant only to the extent such impacts affect the conduct of the business. A co-worker’s animosity to a particular religion, religion in general, or accommodations for religious beliefs does not constitute an undue hardship for the employer.
  • Employers should be prepared to show they have considered other accommodations even where the employee’s requested accommodation would meet the substantially increased costs standard.

Clark Hill attorneys are prepared to partner with employers to navigate the challenges posed by this new decision. For more information, please contact Rick Fanning at or the Clark Hill attorney with whom you regularly work.

The views and opinions expressed in the article represent the view of the author and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is it intended to be a substitute for professional legal advice. 

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