Photo: Jocelyne Cesari, Radicalization and Religion: How it Happens?, Politics Today, https://politicstoday.org/radicalization-and-religion-how-it-happens/ (Mar. 4, 2021) (using a stock photo from Getty Images).
Authored by Drake T. Conway
The Civil Rights Act of 1964 prohibits employers from discriminating against their employees due to their religious beliefs.[1] To conform to the law, employers must provide their employees with reasonable accommodation, provided that it does not create undue hardship for the business.[2] But what is an undue hardship? The answer to that question has been subject to a host of litigation, which created an erroneous precedent that was remedied by the recent Supreme Court decision Groff v. DeJoy.[3] To understand the importance of Groff v. DeJoy, an analysis of statutory law, administrative law, and prior case law is necessary.
42 U.S.C. § 200e-2(a)(1) is clear on what it prohibits; namely, it restricts an employer from failing to provide reasonable accommodations for their employees’ religious practices that do not create undue hardship for the employer.[4] The Equal Employment Opportunity Commission’s (“EEOC”) interpretation of § 200e-2(a)(1) mirrors the statute’s own language in requiring the accommodation to not create undue hardship.[5] Therefore, both the statute and the EEOC’s interpretation expressly state that an employer can only reject a reasonable religious accommodation when an employer is faced with an undue hardship.[6]
In Trans World Airlines, Inc. v. Hardison, the United States Supreme Court applied § 200e-2(a)(1). The appellee, Hardison, requested an accommodation to observe the Sabbath.[7] For the most part, the Court “sidestepped” 42 U.S.C. § 200e-2(a)(1) due to a seniority issue.[8] Nevertheless, in the limited amount the Court did discuss § 200e-2(a)(1), they opined that undue hardships meant something akin to “substantial burdens.”[9] However, one sentence within the opinion stated, “[t]o require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.”[10] The term “de minimis,” when translated, most closely means something that is “very small” or “trifling.”[11] Because of this single sentence, many courts adopted a de minimis test that formed an insurmountable hurdle for plaintiffs seeking religious accommodations.[12]
The Hardison test was the leading precedent between 1977 and 2023. During this period, attorneys who filed suit seeking religious accommodations for their clients were limited to accommodations that cost the employer little to nothing.[13] This strict standard forced those attorneys to balance whether seeking such minimal accommodations was of worth to the client, considering any accommodation exceeding a minor burden was often denied. The complicated accommodations process resulted in a few cases being decided in a plaintiff’s favor, primarily those related to religious dress.[14] This is mainly due to the fact that wearing something such as a Hijab or Kippah does not impose additional costs on an employer.
Consider this example: an employer is a large company that produces many types of widgets. Due to the location of their facility, the employer builds an on-site cafeteria to facilitate easier lunches for their employees. The cafeteria does not serve any kosher meals, but the cafeteria can order a kosher meal for the same price as non-kosher meals. These kosher meals, however, require a particular oven that would ultimately cost the employer $100. Under the Hardison test, this would have created more than a de minimis cost to the employer. Therefore, a court would have rejected any plaintiff who sought a similar religious accommodation at their place of employment.[15] Luckily for plaintiffs, the Supreme Court remedied this strict standard in Groff v. DeJoy.
In 2019, Groff filed suit because the post office where he was employed would not give him Sundays off so that he could observe the Sabbath.[16] Groff’s suit failed both in the district court and the Third Circuit Court of Appeals because Groff was unable to show that his accommodation would pose merely a de minimis cost to the post office.[17] The United States Supreme Court granted certiorari.
In Groff, the Supreme Court followed a two-step process to resolve this matter. First, they examined whether the de minimis test created in Hardison was erroneous.[18] Second, they determined the proper test to be applied instead of the improper de minimis test.[19] The Supreme Court swiftly found that the de minimis test created in Hardison was erroneous.[20] In fact, neither party attempted to defend Hardison’s de minimis test as a correct statement of law in oral arguments.[21] After deciding that the de minimis test was improper, the Supreme Court had to identify the correct test to supplant the erroneous de minimis test.[22]
Identifying the correct test was not a challenging task for the Supreme Court. The Court simply used dictionaries to define “undue” and “hardship.”[23] When defining these terms, the Court found “undue” to mean “excessive or unjustified” and “hardship” to mean something akin to “more severe than a mere burden.”[24] Therefore, the Court opined that an “undue hardship” is something that creates an excessive or unjustified burden on an employer’s business.[25] For example, it is not enough to show that an employee’s religious accommodation would create a mere additional cost (a de minimis cost); rather, an employer must show that an employee’s religious accommodation would cause them “substantial additional cost or substantial expenditure.” [26]
As a result of the Court’s decision in Groff, the example situation above will have a much different result. In the hypothetical case, the kosher meals do not cost the employer any extra money, but the oven will cost the employer a hundred dollars. Under the de minimis test, a court would likely find that the kosher meals do not create an undue hardship because the meals did not create extra cost to the employer.[27] However, because the oven would cost the employer $100, the court would have to reject this accommodation because the cost of the oven ultimately created an undue hardship.[28] Since the de minimis has been overturned, attorneys may now successfully argue for religious accommodations that may cost employers money.[29] Plaintiff(s) religious accommodations are now judged based on whether or not they will cause an employer substantial expenditure.[30] In this hypothetical, neither accommodation would create a substantial expenditure because a $100 oven is unlikely to constitute a substantial expenditure on a big corporation. This hypothetical case illustrates how Groff v. DeJoy allows plaintiffs to bring successful suits for religious accommodations because companies now face a tougher test to refuse religious accommodations to their employees.[31]
[1] 42 U.S.C § 2000e-2(a)(1).
[2] Id.
[3] 143 S. Ct. 2279 (2023)
[4] See 42 U.S.C § 2000e-2(a)(1) (“unable to reasonably accommodate . . . without undue hardship on the conduct of the employer business.”).
[5] 29 C.F.R. § 1605.1.
[6] See 42 U.S.C. § 200e-2(a)(1); 29 C.F.R. § 1605.1.; see also Groff, 143 S. Ct at 2294 (defining the term “undue hardship”).
[7] 432 U.S. 63, 67 (1977).
[8] Hardison, 432 U.S. at 79.
[9] See Groff, 142 S. Ct. at 2294 (discussing how in Hardison, a majority of the opinion talked about substantial expenses).
[10] Hardison, 432 U.S. at 84.
[11] Groff, 143 S. Ct. at 2294-95
[12]Id. at 2291-92 (“Although this line would later be viewed by many lower courts as the authoritative interpretation of the statutory term ‘undue hardship,’ it is doubtful that it was meant to take on that large of a role.”).
[13] Hardison, 432 U.S. at 84 (explaining that an accommodation could be denied if it made more than a de minimis cost).
[14] See Selected List of Pending and Resolved and Resolved Cases Alleging Religious and National Origin Discrimination Involving the Muslim, Sikh, Arab, Middle Eastern and South Asian Communities, U.S. Equal Emp’t Comm’n, last updated Sep. 8, 2021, https://www.eeoc.gov/selected-list-pending-and-resolved-cases-alleging-religious-and-national-origin-discrimination (listing numerous cases involving religious dress before the decision of Groff).
[15] See id.
[16] Groff, 143 S. Ct. at 2286-87.
[17] Id. at 2287.
[18] Id. at 2295.
[19] Id.
[20] Id.
[21] Id.
[22] Id. at 2294-95.
[23] Id.
[24] Id.
[25]Id.
[26] Compare. id. with Hardison, 432 U.S. at 67. (showing that Groff’s test is a harder test to meet to reject accommodations).
[27] See Hardison, 432 U.S. at 84.
[28] See id.
[29] See id. 2295 (rejecting the Hardison de minimis test).
[30] See Groff, 143 S. Ct. at 2295.
[31] See id.
American Journal of Trial Advocacy 