This morning, as the Court nears the end of its term, a unanimous Supreme Court “clarified” the 1977 Hardison “de minimis” standard in religious accommodation cases and, instead, imposed a more onerous standard on employers to accommodate the religious beliefs and practices of their employees unless it imposes a substantial burden on the business. Groff v. DeJoy, No. 22-174 (6-29-23). In this case, a postal worker requested to not work on Sundays due to his sabbath beliefs. His request was accommodated until Amazon began offering Sunday delivery and the employer determined that it was an undue hardship to require his co-workers to work overtime to cover Sundays. The Court held that “’undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business.” It also discussed the extent to which the impact of the accommodation on co-workers may be considered: “Impacts on coworkers are relevant only to the extent those impacts go on to affect the conduct of the business.” Finally, the Court concluded that other options – such as permitting shift swapping -- must be considered in evaluating the employer’s burden.
According to the Court, the plaintiff was a rural mail
carrier subject to a collective bargaining agreement. When he was hired, he was not required to
work on Sundays. However, because of Amazon
deliveries, the employer and union agreed to start Sunday mail delivery, first
using employees hired specifically for weekend deliveries, then by using
volunteers and then by a mandatory rotation among regular employees, like the
plaintiff. When the plaintiff refused to
work on Sundays, he received progressive discipline and his shifts were covered
by other employees, including the postmaster (who otherwise never delivers
mail). He eventually resigned, believing
that he was about to be fired. The
lowers courts ruled in favor of the employer, noting the burden and disruption
to his coworkers and the employer.
Title VII initially only prohibited discrimination "because
of" religion. In 1972, Title VII was
amended to require employers to accommodate employees’ religious practices
unless doing so would constitute an undue hardship on the employer’s business (after
courts had rejected accommodation of Sabbath observances as unconstitutional):
“[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.”
In Hardison,
the Court focused whether the employer’s collectively bargained seniority
system required a junior employee to be granted preferential shifts as a religious
accommodation. After concluding that
Title VII did not affect collectively bargained seniority systems, the Court
noted that Title VII – even as amended - did not require accommodations that were
substantial or more than de minimis.
In this case, the Court adopted a commonsense understanding
of an employer’s obligations.
In common parlance, a “hardship” is, at a minimum, “something hard to bear.” . . . . But under any definition, a hardship is more severe than a mere burden. So even if Title VII said only that an employer need not be made to suffer a “hardship,” an employer could not escape liability simply by showing that an accommodation would impose some sort of additional costs. Those costs would have to rise to the level of hardship, and adding the modifier “undue” means that the requisite burden, privation, or adversity must rise to an “excessive” or “unjustifiable” level.
Refusing to adopt the ADA test, the Court observed: “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.”
With respect to the impact accommodations may have on
co-workers, the Court agreed that this could be a consideration, except to the
extent that the co-workers harbor a religious (or anti-religious) bias:
both parties agree that the 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.”
Finally, the Court found that it is the practice of religion
that must be accommodated, not merely the particular request. In that respect, the parties may have to consider
other options. In this case, that would
include not merely requiring other employees to work overtime, but to also
permit shift-swapping.
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, 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 case was remanded for the trial court to reconsider its
opinion in light of the Court’s new guidance.
In other cases, a divided (6-3) Supreme Court struck down the
student affirmative action practices of Harvard and North Carolina under Title
VI of the Civil Rights Act as violations of the Equal Protection Clause under a
strict scrutiny analysis. Students
for Fair Admissions, Inc. v. Harvard, No. 20-1199
(6/29/23). “Many universities have for
too long wrongly concluded that the touchstone of an individual’s identity is
not challenges bested, skills built, or lessons learned, but the color of their
skin. This Nation’s constitutional history does not tolerate that choice.” The Court reached this conclusion after
reviewing the long history of affirmative action decisions and after finding
that the categories the universities considered to be too broad (not distinguishing
between East and South Asians, or Hispanics, or even categorizing students of Middle
Eastern descent), their goals too vague and that they disadvantaged Asian
students. Finally, it found the programs
engaged in negative stereotyping:
Respondents admissions programs are infirm for a second reason as well: They require stereotyping—the very thing Grutter foreswore. When a university admits students “on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike.”
Earlier, a divided (5-4) Court also held litigation must be
stayed pending appeals of denials of motions to compel arbitration. Coinbase,
Inc. v. Bielski, No. 22-105
(6/23/23).
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
