Employment litigators and Constitutional Law attorneys alike should pay close attention to the United States Supreme Court’s calendar, as the Court recently agreed to take up a case that has the potential to change the way employers are required to accommodate employees based on an employee’s sincerely held religious beliefs. On January 13, 2023, the SCOTUS granted certiorari in Groff v. DeJoy, 35 F.4th 162 (3d Cir. 2022), a case involving an evangelical Christian postal worker who claims his religious freedom was violated when he was forced to resign from his job as the only means of avoiding delivering Amazon packages on weekends. Critics and commentators have begun to weigh in, stating that the case has the potential to overturn the long-standing precedent for religious accommodations established in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).
THE LAW
Title VII of the Civil Rights Act of 1964 makes it unlawful “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … religion.”[1] Additionally, the Act dictates that an employer, short of an “undue hardship,” make “reasonable accommodations” to the religious needs of its employees.[2] A plaintiff claiming religious discrimination is required under Title VII to establish a prima facie case of discrimination.[3] To do that, an employee must show that he: (1) holds a sincere religious belief that conflicts with a job requirement; (2) informed his employer of the conflict; and (3) was disciplined for failing to comply with the conflicting job requirement.[4]
Once a plaintiff establishes a prima facie case, the burden shifts to the employer to show “either it made a good-faith effort to reasonably accommodate the religious belief, or such an accommodation would [create] an undue hardship upon the employer and its business.”[5] The analysis begins with whether the employer offered a reasonable accommodation to the employee.[6] If the employer did, then “the statutory inquiry is at an end.”[7] If the employer did not offer a reasonable accommodation, the inquiry is now whether the employee’s requested accommodation would cause the employer an undue hardship.[8] It is important to note that whether the employer provided a reasonable accommodation and whether the accommodation would cause an undue hardship are separate and distinct inquiries.[9]
THE LANDMARK CASE: TWA v. Hardison, 432 U.S. 63 (1977)
Plaintiff Larry Hardison (Hardison) was employed by Trans World Airlines (TWA) in a department – an airplane maintenance and overhaul base – that operated 24 hours a day throughout the year. TWA employees were scheduled to work based on a seniority system in which employees bid on shifts, with the most senior employees having the first choice of shift assignments. The seniority system was negotiated in a collective-bargaining agreement between TWA and the employees’ union. Because Hardison’s religious beliefs prohibited him from working on Saturdays, TWA accommodated him mainly because his seniority status allowed him to select shifts on days other than Saturdays.
However, Hardison applied for and was transferred to a different position at TWA. In his new position, he now had little seniority. As a result, TWA could no longer accommodate his request to not work on Saturdays. TWA agreed to permit the union to seek a change of work assignments, however the union was not willing to violate the seniority system. After TWA rejected a proposal that Hardison work only four days a week, no accommodation could be reached, and Hardison was discharged for refusing to work on Saturdays. Hardison brought an action for injunctive relief against TWA and the union, claiming that his discharge constituted religious discrimination in violation of § 703(a)(1) of the Civil Rights Act of 1964. The District Court ruled in favor of both TWA and the union, holding that the union’s duty to accommodate Hardison’s religious beliefs did not require it to ignore the seniority system, and that TWA had satisfied its “reasonable accommodations” obligation. The Court of Appeals affirmed the judgment for the union but reversed the judgment for TWA, holding that TWA had not satisfied its duty to accommodate Hardison’s religious needs under the Equal Employment Opportunity Commission (EEOC) guidelines. Both the union and TWA sought certiorari review.
In a 7-2 decision, the SCOTUS reversed the Court of Appeals decision and held that TWA did in fact make reasonable efforts to accommodate Hardison. These efforts included (1) meeting with Hardison several times in an effort to work together towards a solution; (2) accommodating Hardison any time there was a religious holiday that he needed off; (3) authorizing the union steward to search for employees willing to swap shifts with Hardison; and (4) attempting to find Hardison a different position within the organization that did not require Saturday work.[10] The opinion, authored by Justice Byron White, notes that neither the EEOC nor Congress have ever suggested “what sort of accommodations are ‘reasonable’ or when hardship to an employer becomes ‘undue.’[11] The Court attempted to address this statement in part by announcing that “[t]o require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.”[12]
RELIGIOUS DISCRIMINATION’S RECENT PATH TO SCOTUS: Groff v. DeJoy
Plaintiff Gerald Groff (Groff) is a Sunday Sabbath observer whose religious beliefs dictate that Sunday is meant for worship and rest. In 2012, Groff began working for the United States Postal Service (USPS). In 2013, the USPS contracted with Amazon to deliver Amazon packages, including on Sundays. Groff informed his Postmaster that he would not be reporting to work on Sundays due to his religious beliefs. The Postmaster offered Groff several options to accommodate him, including allowing Groff to come in late after church on Sundays and finding other employees to cover his shift. When those options to accommodate Groff proved unsuccessful, the Postmaster himself would work the Sunday shift or another employee would be assigned to work an extra shift. The combination of the Postmaster trying to find coverage for Groff’s scheduled Sundays, along with the Postmaster himself and other USPS employees having to work extra shifts, created a tense atmosphere. Groff was formally disciplined multiple times and eventually resigned from his position in January 2019. In his resignation letter, he stated that he decided to leave his job because he was unable to find an “accommodating employment atmosphere with the USPS that would honor [his] personal religious beliefs” and would instead pursue “more rewarding work/service interests.”
Groff filed suit, and the District Court ruled in favor of the USPS on cross motions for summary judgement. Groff then appealed to the Third Circuit Court of Appeals.[13] In a rather lengthy opinion, the court engaged in a linguistic analysis of the words “reasonable accommodations.”[14] The court determined that the USPS did not “reasonably accommodate” Groff because it did not successfully eliminate the conflict. The court then analyzed whether exempting Groff from Sunday work—which would eliminate the conflict—would result in an undue hardship. The court held that “Groff’s proposed accommodation of being exempted from Sunday work would cause an undue hardship. Exempting Groff from working on Sundays caused more than a de minimis cost on USPS because it actually imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale . . .”[15] Accordingly, the court affirmed the District Court’s decision.
GROFF’S PETITION TO SCOTUS AND WHAT COMES NEXT
In August of 2022, Groff filed a Petition For A Writ of Certiorari with the SCOTUS, asking the Court to address the following issues:
- Whether this Court should disapprove the more-than-de-minimis-cost test for refusing Title VII religious accommodations stated in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977); and
- 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.[16]
On January 13, 2023, the SCOTUS granted certiorari.[17] Critics and commentators have begun to weigh in on how the Court might decide these issues, floating the idea that overruling or extending Hardison could result in chaos in the workplace.[18] Some argue that no one should have to sacrifice their religious beliefs in order to keep their job, and non-religious employees may have to sacrifice time with their families to pick up the slack for religious employees who cannot work certain shifts. While others point out that a new precedent could result in employees exploiting religion as a means of getting certain days – particularly weekends – off. This could result in more businesses opting to close on weekends. Only time will tell what a post-Groff weekend will look like.
[1] 42 U.S.C. § 2000e-2(a)(1).
[2] 42 U.S.C. § 2000e(j).
[3] See, e.g., Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 481 (2d Cir. 1985), aff’d and remanded, 479 U.S. 60, (1986)
[4] See, e.g., Groff v. DeJoy, 35 F.4th 162, 168 (3d Cir. 2022), cert. granted, No. 22-174, 2023 WL 178403 (U.S. Jan. 13, 2023); Goldmeier v. Allstate Ins. Co., 337 F.3d 629, 633 (6th Cir. 2003).
[5] See Webb v. City of Phila., 562 F.3d 256, 259 (3d Cir. 2009).
[6] See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69 (1986).
[7] Id. at 68.
[8] Id. at 67.
[9] Id.
[10] Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 77, (1977).
[11] Id. at 73.
[12] Id at 84-5. (The lower court stated that reasonable accommodations available to TWA to accommodate Hardison included: (1) TWA could have allowed Hardison to work a four-day week; (2) TWA could have replaced Hardison on Saturday with an employee from another department; and (3) TWA could have paid premium wages to another employee willing to work on Saturday in place of Hardison. The SCOTUS responded to these suggestions by highlighting that “each of these alternatives would involve costs to TWA, either in the form of lost efficiency in other jobs or higher wages.” The Court also noted that “to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion.”)
[13] Groff v. DeJoy, 35 F.4th 162, 168 (3d Cir. 2022).
[14] The Court first cited to Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986) where the SCOTUS announced “that an accommodation is reasonable if it “eliminates the conflict between employment requirements and religious practices.” However, the Court discussed how this definition is consistent with the word “accommodate” only. The Court reached the conclusion that “[i]n the Title VII religious discrimination context, the word ‘accommodate’ requires the employer to offer an adjustment that allows the employee to fulfill the religious tenet but requires nothing more from the employer. The word ‘reasonably’ informs how an employer provides an accommodation that eliminates the conflict, but it does not obligate the employer to choose any particular reasonable accommodation, or grant an employee’s preferred accommodation.”
[15] Groff, 35 F.4th at 175.
[16] See Gerald E. GROFF, Petitioner, v. Louis DEJOY, Postmaster General, United States Postal Service, Respondent., 2022 WL 3701768 (U.S.).
[17] See Groff v. DeJoy, No. 22-174, 2023 WL 178403, at *1 (U.S. Jan. 13, 2023).
[18] See Ian Millhiser, A new Supreme Court case could turn every workplace into a religious battleground, VOX (Jan. 18, 2023 10:00 AM), https://www.vox.com/policy-and-politics/23559038/supreme-court-groff-dejoy-religion-twa-hardison-workplace.
