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Religion and the Law

S. Ct. Unanimously Broadens (Somewhat) Employees' Rights to Religious Exemptions from Neutral Work Rules

The decision, which interprets Title VII's reasonable accommodation provision (enacted in 1972), applies to private employees as well as government employees.


From Justice Alito's opinion in today's Groff v. DeJoy:

Since its passage, Title VII of the Civil Rights Act of 1964 has made it unlawful for covered employers "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges [of] employment, because of such individual's … religion."  As originally enacted, Title VII did not spell out what it meant by discrimination "because of … religion," but shortly after the statute's passage, the EEOC interpreted that provision to mean that employers were sometimes required to "accommodate" the "reasonable religious needs of employees." … [But] EEOC decisions did not settle the question of undue hardship. In 1970, the Sixth Circuit held (in a Sabbath case) that Title VII as then written did not require an employer "to accede to or accommodate" religious practice because that "would raise grave" Establishment Clause questions….

Responding to [this] …, Congress amended Title VII in 1972. Tracking the EEOC's regulatory language, Congress provided that "[t]he term 'religion' includes all aspects of religious observance and practice, as well as belief, 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."

This thus created a duty on employers to exempt religious objectors from generally applicable rules (e.g., work schedules, dress and hairstyle codes, particular job tasks, etc.) when that can be done "without undue hardship," but what does that mean? The Court's leading precedent interpreting this, Hardison v. Trans World Airlines (1977), has been requiring only accommodations that would involve only "a de minimis cost"—i.e., a very small cost—but the Court's opinion today concludes that this was an offhanded remark that didn't capture the true scope of the Title VII provision:

We hold 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. Hardison cannot be reduced to that one phrase. In describing an employer's "undue hardship" defense, Hardison referred repeatedly to "substantial" burdens, and that formulation better explains the decision. We therefore, like the parties, understand Hardison to mean that "undue hardship" is shown when a burden is substantial in the overall context of an employer's business. This fact-specific inquiry comports with both Hardison and the meaning of "undue hardship" in ordinary speech…. [U]nder any definition, a hardship is more severe than a mere burden…. [I]t means something very different from a burden that is merely more than de minimis, i.e., something that is "very small or trifling." … [C]ourts 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." …

[T]oday's clarification may prompt little, if any, change in the [EEOC's] guidance explaining why no undue hardship is imposed by temporary costs, voluntary shift swapping, occasional shift swapping, or administrative costs. But it would not be prudent to ratify in toto a body of EEOC interpretation that has not had the benefit of the clarification we adopt today. What is most important is that "undue hardship" in Title VII means what it says, and courts should resolve whether a hardship would be substantial in the context of an employer's business in the commonsense manner that it would use in applying any such test….

The court also specially discussed the question when harms to coworkers may qualify as "undue hardship":

[T]he language of Title VII requires an assessment of a possible accommodation's effect on "the conduct of the employer's business." As the Solicitor General put it, not all "impacts on coworkers … are relevant," but only "coworker impacts" that go on to "affec[t] the conduct of the business." So an accommodation's effect on co-workers may have ramifications for the conduct of the employer's business, but a court cannot stop its analysis without examining whether that further logical step is shown in a particular case.

On this point, the Solicitor General took pains to clarify that some evidence that occasionally is used to show "impacts" on coworkers is "off the table" for consideration. Specifically, a coworker's dislike of "religious practice and expression in the workplace" or "the mere fact [of] an accommodation" is not "cognizable to factor into the undue hardship inquiry." To the extent that this was not previously clear, we agree. An employer who fails to provide an accommodation has a defense only if the hardship is "undue," and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered "undue." If bias or hostility to a religious practice or a religious accommodation provided a defense to a reasonable accommodation claim, Title VII would be at war with itself. Contra, EEOC v. Sambo's of Georgia, Inc. (ND Ga. 1981) (considering as hardship "[a]dverse customer reaction" from "a simple aversion to, or discomfort in dealing with, bearded people").

Second, as the Solicitor General's authorities underscore, Title VII requires that an employer reasonably accommodate an employee's practice of religion, not merely that it assess the reasonableness of a particular possible accommodation or accommodations. This distinction matters. Faced with an accommodation request like Groff's [which sought an exemption from having to work Sundays], 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 left to lower courts to decide whether Groff's particular request for exemption from having to work Sundays  (delivering mail) would indeed impose an "undue hardship" to the post office:

The Third Circuit assumed that Hardison prescribed a "more than a de minimis cost" test, and this may have led the court to dismiss a number of possible accommodations, including those involving the cost of incentive pay, or the administrative costs of coordination with other nearby stations with a broader set of employees. Without foreclosing the possibility that USPS will prevail, we think it appropriate to leave it to the lower courts to apply our clarified context-specific standard, and to decide whether any further factual development is needed.

Justice Sotomayor, joined by Justice Jackson, joined the Court's opinion but added, among other things:

Petitioner Gerald Groff asks this Court to overrule Hardison and to replace it with a "significant difficulty or expense" standard. The Court does not do so. That is a wise choice because stare decisis has "enhanced force" in statutory cases. Congress is free to revise this Court's statutory interpretations. The Court's respect for Congress's decision not to intervene promotes the separation of powers by requiring interested parties to resort to the legislative rather than the judicial process to achieve their policy goals. This justification for statutory stare decisis is especially strong here because "Congress has spurned multiple opportunities to reverse [Hardison]—openings as frequent and clear as this Court ever sees." Moreover, in the decades since Hardison was decided, Congress has revised Title VII multiple times in response to other decisions of this Court, yet never in response to Hardison.

The Court also flagged but didn't resolve the question whether the Religious Freedom Restoration Act provides even more protection for federal government employees. RFRA, which applies to federal government generally (without separately discussing federal employment) mandates religious exemptions from government action unless denying the exemption "is the least restrictive means of furthering [a] compelling governmental interest"—on its face, a much more pro-claimant test than "undue hardship." The Court wrote,

Courts have not always agreed on how RFRA's cause of action—which does not rely on employment status—interacts with Title VII's cause of action, and the Third Circuit has treated Title VII as exclusively governing at least some employment-related claims brought by Government employees. Compare Francis v. Mineta (CA3 2007), with Tagore v. United States (CA5 2013) (federal employee's RFRA claim could proceed even though de minimis standard foreclosed Title VII claim). Because Groff did not bring a RFRA claim, we need not resolve today whether the Government is correct that RFRA claims arising out of federal employment are not displaced by Title VII.

And the Court seemed to reject the argument that the Establishment Clause precluded employee religious exemption rights: The Court noted, seemingly approvingly, that EEOC v. Abercrombie & Fitch Stores, Inc. (2015) had "clarified that 'Title VII does not demand mere neutrality with regard to religious practices' but instead 'gives them favored treatment' in order to ensure religious persons' full participation in the workforce."