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HR Alert: Religion in the Workplace, Groff v. DeJoy and Title VII

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For those conscious of Supreme Court rulings, it might seem like the topic of religious accommodations is in perpetual limelight. But in a country where millions of people practice different religions and faiths, talk about the interaction between law and religion is almost unavoidable. The case of Groff v. DeJoy, which held oral argument on April 18, 2023, continues this conversation.

A Bit of Background. Mr. Groff is an Evangelical Christian who was employed by the United States Postal Service (USPS) until his resignation in 2019. Though he had been able to avoid working on Sundays, his day of religious observance, he ran into issues after the USPS and Amazon signed an agreement that required all employees to report to work on Sunday during non-peak seasons. Despite some successful attempts to avoid scheduling Groff on Sundays, dissatisfaction mounted and the post office eventually stopped their efforts. After missing 24 shifts and receiving 24 corresponding disciplinary actions, Groff resigned. His lawsuit against the USPS followed, alleging a violation of Title VII of the Civil Rights Act of 1964. Both lower courts found in favor of the USPS, with the Court of Appeals stating that giving Groff time off every Sunday would amount to more than a de minimis cost to the employer.

What Does Title VII Say? Groff’s complaint relies on Title VII of the Civil Rights Act which forbids discrimination in employment on the basis of race, religion, sex, and national origin. Section 2000e(j) of the law defines religion as “includ[ing] all aspects of religious observance and practice. . . unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

The Previous Court Case. The source of the de minimis wording, and the case at which Groff takes aim on appeal, is the 1977 case Trans World Airlines, Inc. v. Hardison. By interpreting EEOC guidelines, the U.S. Supreme Court in Hardison found that requiring an employer to bear more than a de minimis cost to accommodate an employee who would not work on Saturdays was an undue hardship that exempted the employer from Title VII’s accommodations requirement. There were additional considerations at play – Hardison had the ability to swap shifts with other employees through an arrangement made between TWA and the employees’ union. Part of this agreement was a system which allowed more senior employees first choice of shifts. This agreement created a major issue at the Supreme Court, as seven justices were unwilling to find religious accommodations superseded collectively-bargained-for arrangements. Nor did they feel comfortable requiring TWA to grant Hardison Saturdays off when the expense of replacing him would be borne by the employer or would require preference shown to employees of one religious belief at the expense of others.

At the time, the Supreme Court’s most liberal justices – Marshall and Brennan – dissented. They took issue with the majority’s ignoring Title VII’s amendments that had been designed to protect religious employees from the exact reasoning that the majority opinion employed – that religious accommodations could not show preference. Instead, Marshall and Brennan argued that Title VII’s amendments were intended, and were constitutionally permitted, to grant employers the right to give religious employees some preferential treatment in order to accommodate their religious beliefs.

What’s at Issue Now? Before the Supreme Court now, Groff argues that the de minimis test is dicta – meaning a comment by the Court not central to its reasoning and thus not binding – and the term undue hardship should be understood by its plain meaning. He offers the following definition as a replacement: “significant difficulty or expense in light of the employer’s operations.”

Groff then argues that this interpretation is the most in line with the Congressional intent in amending Title VII around the same time as the Hardison decision. If this argument finds favor with the Court, it effectively would overrule part of Hardison and instead require employers to make accommodations for religious purposes without regard to the ideas of favoritism and the consequential unequal treatment of employees that the Court in Hardison invoked.

At oral argument, the justices raised a variety of concerns. Justices Kagan and Jackson seemed inclined to leave Hardison as is, giving deference not only to precedent but also to the legislative branch, as Congress could adopt the “significant difficulty” standard offered by Groff if they wanted to.

Justice Sotomayor seemed to take the greatest issue with Groff’s desire to overrule Hardison on the grounds that undue hardship would be interpreted too expansively. For example, overruling Hardison could lead to the conclusion that religious accommodations have priority over the contractual obligations of collective bargaining agreements, and that an employer violating such a contract would not be an undue hardship. At oral argument, Groff’s counsel conceded this point.

Justices Kavanaugh, Gorsuch and Roberts similarly seemed disinterested in explicitly overruling Hardison. Instead, they expressed a desire to redefine the meaning of de minimis or impose a heightened standard that still complied with the reasoning of Hardison but would clarify mistaken reliance on the de minimis wording. Justice Thomas expressed interest in overturning, noting that Title VII has changed since it was at issue for the court in Hardison. In line with the thoughts of the dissenting justices in Hardison, Justice Thomas noted that the Hardison opinion ignored the amendments made to Title VII in favor of adhering to interpretation of EEOC guidance.

What’s Next? The Supreme Court has until June of 2023 to issue a final decision. Looking ahead, it seems likely that at least some changes to the existing standard may happen. A majority of the justices expressed interest in altering the Hardison decision, although whether they will do so with the intensity of overruling a decision is unclear. Indeed, the implications and consequences of such an overruling decision, as Justice Sotomayor pointed out, reach far beyond altering the de minimis wording.

Several justices seem interested in bringing the same type of fervor reserved for disability accommodations to religiously-inclined employees. Although we can’t see the future, employers should keep this case in mind as it could bring significant changes to the way religious accommodations are approached. Rest assured The Coppola Firm will keep its eye on Groff v. DeJoy, and we’ll provide an update when it’s been decided.

For now, keep in mind that our attorneys are available for consultations, advice, employment policy-writing, collective bargaining, and defending employers whenever needed.  Call us at 716.839.9700, email us at info@coppolalegal.com, or stop by our conveniently-located Buffalo, New York office.

Lisa Coppola

Written by Lisa Coppola

Founder of The Coppola Firm

Lisa A. Coppola, Esq. understands the challenges her clients face, whether they’re starting a new business, taking their existing operations in a new direction, or facing a claim or threat.

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