The United States Supreme Court has significantly raised the bar for employers arguing that accommodating religious activities creates undue hardships.

Title VII of the Civil Rights Act requires employers to accommodate “all aspects of religious observance and practice as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

In Hardison v. Trans World Airlines, Inc., a 1977 case, the Supreme Court clarified the definition of “undue hardship.” Larry Hardison objected to working on Saturdays because he considered it a day of religious observance. TWA agreed to permit the union to seek a change of work assignments. But the union wasn’t willing to violate the seniority system, and Hardison had insufficient seniority to bid for a shift with Saturdays off.TWA rejected a proposal that Hardison work only four days a week on the grounds it would impair critical functions in airline operations, and Hardison was discharged. Hardison then brought a civil action for religious discrimination against both TWA and his union.

The Supreme Court stated it would not “require an employer to discriminate against some employees in order to enable others to observe their sabbath” and held that to require an employer to “bear more than a de minimis cost in order to give [an employee] Saturday off is an undue hardship.” Hardison’s claim failed.

While TWA ceased to exist more than 20 years ago, the rule an employer need not bear more than a de minimis — too small to consider — cost when accommodating religious practices and beliefs stood for 46 years — until June 29, 2023. That’s when the Supreme Court issued its ruling in Groff v. DeJoy.

The case was factually similar to Hardison. A United States Postal Service letter carrier believed for religious reasons that Sundays should be devoted to worship and rest. Gerald Groff worked in a small rural USPS station that had only seven employees and that, at the time, didn’t make Sunday deliveries. But in March 2017, the station began making Amazon deliveries on Sundays. The station distributed Sunday deliveries among other employees, including the station postmaster. Eventually, it distributed more Sunday deliveries to carriers in nearby stations. But USPS took progressive discipline against Groff for missing work on scheduled Sunday workdays.

Groff brought a civil action against the USPS for failing to accommodate his religious practices. The United States District Court decided in favor of the USPS. The Third Circuit court held it was obligated to follow the Hardison rule. The court held Groff’s refusal to work Sundays created more than a de minimis effect on his coworkers, and excusing Groff from working on Sundays created an undue hardship on the postal station.

The Supreme Court welcomed the opportunity to revisit Hardison. Both Groff and the USPS agreed the Hardison “more than a de minimis cost” test was flawed, but disagreed on a new standard. The court noted a “patent clash between the ordinary meaning of ‘undue hardship’ and ‘more than … de minimis.’” The court pointed out that even Hardison mentioned in passing “substantial” costs three times and questioned whether the Hardison court ever intended to institute such a low standard for determining undue hardship.

The court held “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.” But the court stated that more important than finding the “favored synonym” for undue hardship, courts must apply the undue hardship 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 [the] employer.”

Where does this leave employers? Much as when employers reasonably accommodate disabilities, the employer’s burden depends on the totality of the circumstances accompanying each accommodation request. No one-size-fits-all answers exist. Still, it’s clear an employer now needs to bear greater levels of inconvenience, financial costs and adverse effects on other employees.

Cases with similar facts could result in drastically different employer obligations.  An employee might argue, for example, a large employer has plenty of employees who can share the workload on a day of religious observance. The Hardison Court pointed out TWA had a pool of 200 employees qualified to do Hardison’s work. But a large employer also could have a large number of employees who want the same day off for worship. Of course, this is speculative. No undue burden exists until large numbers of employees actually request the same day off. Employers should focus on the effects of the request at the time it receives an individual request, not on speculative or vague fears as to what could or might happen in the future.

Finally, the Groff ruling doesn’t change the fact that while Title VII protects all aspects of religious observance and practice as well as belief, the belief must be a legitimate, sincerely held religious belief. The Equal Employment Opportunity Commission stated in its compliance manual on religious discrimination: “Social, political or economic philosophies, as well as mere personal preferences, are not religious beliefs protected by Title VII.” Nothing in Groff forces the EEOC to revisit this guidance.

The Employers Council offers guidance to members on accommodating religious practices in the workplace. Employers Council attorneys and human resource professionals are available to advise enterprise and consulting level members on resolving workplace issues involving religious beliefs and practices.