Supreme Court

Supreme Court Clarifies 'Undue Hardship' Standard for Religious Accommodations in the Workplace

Plus: Perspectives on the affirmative action ruling, how U.S. policy is thwarting Cuban capitalists, and more...


Everyone is talking about the Supreme Court's Thursday decision striking down affirmative action in college admissions (more on that below in the "Free Minds" section). But it wasn't the only decision the Court handed down yesterday. SCOTUS also ruled in a religious freedom case we've covered previously in the Reason Roundup. The case centers on an evangelical Christian postal carrier who didn't want to work on Sundays.

Gerald Groff was employed delivering mail for the U.S. Postal Service (USPS) in Quarryville, Pennsylvania, a job that didn't initially require Sunday work. But this changed after the USPS began facilitating Sunday deliveries as part of a deal with Amazon. Groff's petition for a transfer to a facility that didn't require Sunday work was granted, but in 2017 this facility began doing Sunday deliveries as well.

The USPS continued to accommodate Groff's scheduling preference but "throughout this time, Groff continued to receive 'progressive discipline' for failing to work on Sundays," Justice Samuel Alito noted in the Court's June 29 opinion. In January 2019, Groff resigned and, a few months later, sued.

A U.S. district court sided with the USPS and the U.S. Court of Appeals for the 3rd Circuit affirmed that decision, stating "that requiring an employer 'to bear more than a de minimis cost' to provide a religious accommodation is an undue hardship."

The Supreme Court has now vacated the appeals court's decision and remanded the case for further proceedings.

The case turned on what could be considered an "undue hardship" for an employer.

Under Title VII of the Civil Rights Act of 1964, employers must accommodate the religious beliefs of their employees when it doesn't create an "undue hardship on the conduct of the employer's business." The Supreme Court has previously said anything more substantial than a "de minimis cost" can be used to justify the denial of religious accommodations.

Depending on the size and structure of a particular business (or branch of that business), letting employees unilaterally refuse to work on Sundays or some other day of the week could certainly pose more than a de minimis burden. But is it an "undue hardship"? And, if not, what is?

That's what SCOTUS was asked to decide in this case. Groff argued that a religious accommodation should have to involve "significant difficulty or expense" before an employer can legally deny it.

The Court rejected Groff's formulation. But it also rejected the de minimis cost standard. Instead, it held "that 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's June 29 opinion takes a lengthy look at the 1977 case—Trans World Airlines, Inc. v. Hardison—from which the de minimis standard arose. The case turned on a dispute between Trans World Airlines (TWA) and clerk Larry Hardison over whether Hardison should have to work on the Sabbath. But the Court in this case paid very little attention to constitutional concerns, instead focusing on the union-backed seniority rights of employees, noted Alito. And the de minimis cost line—"viewed by many lower courts as the authoritative interpretation of the statutory term 'undue hardship'"—contradicts other statements in the same opinion. Ultimately, the 1977 Court was not clear on "its guidance on 'undue hardship' in situations not involving seniority rights."

In the Groff case, the Court decided "that showing 'more than a de minimis cost,' as that phrase is used in common parlance, does not suffice to establish 'undue hardship' under Title VII." So how should it be defined?

In this case, both parties agree that the "de minimis" test is not right, but they differ slightly in the alternative language they prefer. Groff likes the phrase "significant difficulty or expense." The Government, disavowing its prior position that Title VII's text requires overruling Hardison, points us to Hardison's repeated references to "substantial expenditures" or "substantial additional costs."…We think it is enough to say that 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….

What matters more than a favored synonym for "undue hardship" (which is the actual text) is that courts must apply the test in a manner that takes 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."…

Faced with an accommodation request like Groff's, 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.

Having clarified this standard, the Court did not rule further on the particulars of Groff's situation with the USPS ("we think it appropriate to leave the context-specific application of that clarified standard to the lower courts") and stated that there was still a "possibility that USPS will prevail."

You can find the full decision here.


Perspectives on the affirmative action ruling. In a 6–3 ruling released yesterday, the Supreme Court said colleges using race-based affirmative action schemes to decide who gets in violates the 14th Amendment. Reason's Emma Camp has more about the decision itself here. It's obviously spawned a lot of commentary; here are a few takes worth considering…

Some—including Rep. Alexandria Ocasio-Cortez (D–N.Y.)—have complained that the Court should tackle legacy admissions programs, which give preference to the children of alumni. "This is an extremely silly point," Reason's Robby Soave writes:

The reason the Supreme Court weighed in on race-based admissions rather than legacy admissions is that the former was the issue being litigated. For the Supreme Court to consider legacy admissions, someone would have to bring a lawsuit about this issue.

But supporters of nondiscrimination can further overcome this criticism by conceding a basic point: Legacy admission—the widespread practice of giving preferential treatment to the scions of alumni—is, in fact, unfair and should be abolished….

The very fact that legacy admissions still exist is not whatsoever a reason to oppose the curbing of affirmative action; eliminating explicit racial discrimination is obviously a noble goal in and of itself. But to any naysayer who disdains the Harvard and UNC ruling by saying that legacy admissions should face the same fate: Your terms are acceptable.

"Yes, of course legacy admissions are ridiculous," writes author Freddie deBoer. "But college admissions never existed to satisfy some ideal of perfect meritocracy."

In a wide-ranging post, deBoer goes on to suggest we should be more worried about the number of black students who don't even apply to college than "about a theoretical Black student who would get into Harvard with a racial preference but wouldn't without" and criticizes the disingenuous way many talk about affirmative action programs at colleges:

  • …It's simply not disputable that the system as it exists acts as a massive enterprise in systemic discrimination against Asian applicants to elite colleges. If we're going to have this conversation, I insist we have it honestly. And the honest truth is that it's way, way harder for Asian students to get into elite institutions than those from other racial categories. Which is racial discrimination. Period.
  • This framing enrages people, but this is very much a first-world problem: elite colleges are a tiny part of the overall college landscape, by number of institutions and especially by number of students; a majority of Americans still don't have a college degree; the students of color who get into elite colleges are a tiny sliver of the overall population of people of color and are not remotely representative of that population.
  • …It remains profoundly weird that people who want to defend affirmative action can't straightforwardly say what it does. Affirmative action is a system in which students of color who would not ordinarily gain entry to a given college are given a slot thanks to consideration of their racial background, on grounds of diversity or addressing systemic bias. But if you say "these college kids got in because of affirmative action," that's a horrible, racist thing to say. I can't think of another progressive program where the defenders of that program have forbidden people from saying that the system is working as it is intended to work. Very strange.
  • It's a truly bizarre thing, to look at elite college admissions, and say "this can be made equitable and egalitarian." It can't be. The whole system exists to create an elite! That's the system's most basic function!

Matthew Yglesias makes a similar point:

  • I think professors at top universities face a conceptual problem in that they want to affirm values like "diversity, equity, and inclusion," but the whole point of top universities is to be elitist, hierarchical, and exclusionary. I'm not 100 percent sure what to tell people in this situation. But if you want to be equitable and inclusive, go teach in a community college or a public high school. If you want to cultivate excellence among a social elite, then own up to that as a mission in life. I don't think there's one right thing to do, but it's deeply confusing to try to do both of them simultaneously.

Yglesias adds:

  • Eugene Scott writes that this decision will "likely jeopardize the representation of Black and Latino students on campuses nationwide." I think this is wrong. Some campuses will see representation of Black and Hispanic students decline, but other campuses like the University of Michigan and the Berkeley will see representation go up. Affirmative action does not magically create additional Hispanic students with good enough SAT scores to attend selective colleges, it just shifts them around.
  • To the extent that you take seriously the educational benefits of diversity, ending affirmative action will redistribute diversity away from the most selective schools to a set of somewhat-less-selective schools which seems … fine.

If, however, one worries "about Black and Hispanic underrepresentation in selective colleges in general and the downstream consequences of that for representation in skilled professionals generally (and I think we should worry about this), you really do have to care about the pipeline problem" and embrace the fact that K-12 school quality matters," writes Yglesias.

Many have pointed out that doing away with affirmative action programs will just lead elite colleges to embrace other schemes for accomplishing the same goals, such as putting increased emphasis on personal essays as part of the admissions process. Harvard University already seems to imply as much in a statement highlighting the Court stating that schools could still consider "an applicant's discussion of how race affected his or her life." This "loophole will make all the bad aspects of current admissions (the extreme weight given to personal essays) worse, in the sense of more arbitrary and subjective," suggests The Nation's Jeet Heer.


Restrictive U.S. policies make life more difficult for Cuban capitalists. WLRN looks at the rise of the Cuban pyme ("Cuba's Spanish acronym for a small- and medium-sized private enterprise")—and how U.S. restrictions are thwarting them:

Cuba's communist economy is in catastrophic collapse today. The government legally recognized privately owned businesses only two years ago, after a decade of letting them operate informally on a very small scale. Now it wants them to play a larger role. Pymes can import raw materials, for example, and receive foreign investment.

And aspiring capitalists like [Idián] Chávez are responding with larger pymes.

Chávez points out Cuba has to import more than half its toilet paper. Since he specializes in industrial process, he says he's designed a more streamlined assembly system that will help meet the island's demand — which is more acute because the state has to direct so much of its own toilet paper production to Cuba's crucial tourism sector….

But Chávez also points out he had to import his factory equipment from China — because the U.S. embargo against Cuba doesn't allow licensing for that kind of heavy U.S. export to the island.

He says the $200,000 to buy it, build his factory and purchase raw materials like paper pulp came from a Cuban-American friend in Miami, whom he declined to name, via a convoluted cash remittance process, and not through normal investment channels — since the embargo also prohibits banking between the U.S. and Cuba.

"I totally would have preferred to do all this directly with the U.S.," Chávez says, "but U.S. policy still makes it very difficult."

More here.


• The Supreme Court is supposed to issue a decision soon in 303 Creative LLC v. Elenis, a case concerning a website designer who refused to build a gay wedding website for a couple named Stewart and Mike. But this couple might not exist.

• "Federal law has put thousands of women on anti-addiction medications like Suboxone into an impossible bind: Give up your treatment or risk losing your child," Reveal reports.

• Following the filing of an antitrust action against Amazon last week, the Federal Trade Commission is reportedly planning to file an even larger antitrust lawsuit against the company soon. The "far-reaching antitrust suit" will focus "on Amazon's core online marketplace," according to Bloomberg. "The main allegation is expected to be that Amazon leverages its power to reward online merchants that use its logistics services and punish those who don't."

• Larry Householder—"once one of the most powerful politicians in Ohio," as The Columbus Dispatch points out—was sentenced yesterday to 20 years in prison for his role in an illegal bribery scheme.

• "Google joined Meta in preparing to block all Canadian news content from its platforms" following the passage of Canada's Online News Act, notes the Toronto Star.

• The tech industry association NetChoice is suing over Arkansas' Social Media Safety Act, also known as S.B. 396. (The law "emulates Utah's law, banning kids from social media unless they get express parental consent," as we noted in this rundown on attempts to childproof the internet.)