Title VII of the Civil Rights Act of 1964, as amended in 1972, prohibits discrimination on the basis of a series of categories, including religion and “all aspects of belief, observance, and practice.” The U.S. Equal Employment Opportunity Commission regulations enforcing Title VII are clear that an employer must provide “reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer’s business.” 29 CFR § 1605.1 (1968). But the meaning of the terms “reasonable accommodations” and “undue hardship” has been the topic of argument for the past 50 years.
In its June 29, 2023, unanimous decision in Groff v. DeJoy, the U.S. Supreme Court “clarified” that meaning, discarding a definition that had been operative for 46 years and bringing the definition of those terms into better harmony with other employment accommodation contexts. The decision is a welcome protection for a worker’s expression of religious practice. However, two other decisions from the last term may signal an expansion of the right to religious expression at work far broader than ever seen before.
USPS Accommodation of Sabbath Observer
Groff was an Evangelical Sabbath observer who would not work on Sundays. For many years, his job with the United States Postal Service (USPS) did not require Sunday work, but that changed in 2013 when new services were added that required Sunday deliveries. His employer made minor efforts to accommodate him, but when that did not work, Groff received progressive discipline for his failure to work on Sundays and resigned. He sued the USPS for failing to reasonably accommodate his Sabbath observance.
The lower courts found direct authority in a 1977 case, Trans World Airlines, Inc. [TWA] v. Hardison, 432 U.S. 63 (1977). There, too, TWA employee Hardison asked to have the Sabbath off for his religious observance, and TWA’s needs for round-the-clock staffing could not always accommodate that. The Hardison Supreme Court ruled in favor of TWA, finding that an “undue hardship” exists if an employer must “bear more than a de minimis cost.” That analysis controlled the legal burden of religious accommodation for the past 46 years. This definition differed substantially from the more stringent test under the Americans with Disabilities Act (ADA), which defines undue hardship as imposing “significant expense or difficulty.”