How far must an employer go to accommodate the religious requirements of its workers under the Civil Rights Act of 1964? On April 18, the Supreme Court of the United States will consider that question when it hears oral arguments in Groff v. DeJoy — a case that Joshua McDaniel, faculty director of Harvard Law School’s Religious Freedom Clinic, says could restore Congress’s intent to protect religious individuals from having to choose between their job and their faith.
The case centers on Gerald Groff, a Christian who observes the Sunday Sabbath and is therefore unable to work on that day. Groff began working at the United States Postal Service in 2012. After the Postal Service made a deal with Amazon to deliver some of the company’s packages on Sundays, Groff initially received an exemption from working on that day, but was later told he would have to do so. Instead, Groff transferred to another post office location that had not yet implemented Sunday deliveries.
In 2017, when the new post office also began requiring delivery on Sundays, Groff offered to work extra shifts to avoid working on Sunday. The postmaster tried to find volunteers to replace Groff on the Sunday schedule, but often was unable to do so. Groff faced escalating discipline when he refused to report to work on scheduled Sundays, and, believing he would soon be terminated, eventually resigned and sued the USPS for failing to accommodate him under Title VII of the Civil Rights Act of 1964.
The statute provides that employers may not discriminate against workers because of their race, color, religion, sex, or national origin. In 1972, Congress amended the Act to include even greater protections for workers, requiring companies to “reasonably accommodate” all religious practices by employees that can be achieved without “undue hardship” on the business. Then, in 1977, the Supreme Court decided Trans World Airlines v. Hardison, interpreting the term “undue hardship” to mean that religious employees’ beliefs need not be accommodated if doing so would require a business “to bear more than a de minimis cost.”
Since then, advocates for religious freedom have argued that Hardison incorrectly undermined Congress’s intent to protect workers’ religious needs by setting the bar for accommodations far too low. Groff gives the Court an opportunity to revisit that decision, says McDaniel.
In an interview with Harvard Law Today, McDaniel explains why his clinic filed a friend of the court brief on behalf of the Muslim Public Affairs Council, and how a decision in favor of Groff would give workers — particularly those who are low-income and religious minorities — a “fighting chance in court to prevail on their religious discrimination claims.”
Harvard Law Today: What was the purpose of Title VII of the Civil Rights Act?
Joshua McDaniel: Title VII was passed to protect individuals from workplace discrimination based on a variety of characteristics, ranging from race to sex to religion. It’s a broad-based civil rights protection statute focused on employment. As it has been amended over time, the law now requires employers not only to treat religious employees fairly and equally, but to provide reasonable accommodations affirmatively when an employee’s religion requires it, unless doing so would impose an undue hardship on the conduct of the employer’s business.
HLT: How did the Supreme Court’s decision in Trans World Airlines, Inc. v. Hardison interpret the statute?
McDaniel: Hardison interpreted the statute’s “undue hardship” term narrowly to let businesses avoid accommodating religious practices in most cases. It held that employers could avoid providing an accommodation when doing so would impose “more than a de minimis cost.” In my view, that “de minimis” standard set the bar lower than the statute’s language suggests, and as a predictable result, employers can almost always show more than a “de minimis” cost and avoid their Title VII responsibilities to religious employees.
HLT: You and your colleagues and students at the Clinic submitted an amicus brief on behalf of the Muslim Public Affairs Council. Could you summarize the Council’s position on the case currently before the Court?
McDaniel: Our brief highlights the impact Hardison’s “de minimis” standard has had on underprivileged communities — not only on minority religious groups like Muslims, but also more broadly on racial and ethnic minorities as well as low-income workers. To that end, our students combed through Title VII religious discrimination cases from the past couple of decades, and in their review of a sample of those recent cases, they found, for example, that nearly three-quarters were brought by non-professional or blue-collar workers. What they found was the overwhelming majority of plaintiffs in these cases likely don’t have the economic freedom to simply walk away from the job if an employer asks them to violate their religion. Legal recourse is really their only other option, and Title VII is the key statute to protect their religious rights in the workplace.
The problem is that even something as minimal as a desire to maintain uniformity or avoid customer discomfort could exempt the employer from having to accommodate religion under the current “de minimis” standard, and that puts low-income and workers with minority religious beliefs in the difficult position of choosing between their livelihood and their religion. Our brief details how this is not only spiritually harmful, but physically, mentally, and economically harmful for these employees as well.
HLT: What are Groff’s best arguments in this case?
McDaniel: Groff’s main argument is a textual one. He argues that the “de minimis” test that Hardison adopted is incompatible with the words “undue hardship” in Title VII. In ordinary usage, most people understand “undue hardship” to mean something more than just a minimal cost or inconvenience, and this plays out in other statutes. For example, the Americans with Disabilities Act also has “undue hardship” language in its statute, and courts in that context have required employers to show that compliance would impose significant costs before they are excused from compliance.
What are the Postal Service’s best arguments?
McDaniel: The Post Office argues that Hardison is precedent, and that it shouldn’t be overturned, given the deference courts typically give to precedents under a principle called stare decisis. The Post Office also argues that because Hardison was interpreting a statute, Title VII, even greater deference is owed to that interpretation because Congress could have amended Title VII to reject the de minimis standard and hasn’t yet done so.
But even the Post Office seems to agree that the standard should have more teeth than the term “de minimis” might suggest. Its brief before the Court recognizes that there are a number of cases out there that seem to not reach correct results where courts are applying a watered-down version of “undue hardship” that strongly favors employers. They’re recognizing that there does need to be some guidance from the Supreme Court; they’re perhaps disagreeing on how robust that standard should be.
HLT: How will the Court think through its decision in this case?
McDaniel: The Court will be weighing whether to give deference to the “de minimis” standard of undue hardship set by the Court in Hardison using typical principles of stare decisis. On the other hand, it will be weighing whether it should return to the plain meaning of “undue hardship” as being something more than de minimis. The Supreme Court tends to look to the ordinary meaning of statutory language when interpreting a statute, and that ordinary meaning approach will likely lead the Court to reject Hardison’s “de minimis” test, which seems inconsistent with the language Congress chose.
The Court may also factor in the fact that Hardison itself was interpreting the phrase “undue hardship” in the context of agency guidance that predated Title VII’s adoption of the term. Arguably, the Court’s interpretation in Hardison was non-binding.
Finally, the court will likely consider the confusion Hardison is causing in the lower courts and the reality that the “de minimis” test tends to disproportionately hurt the claims of low-income, blue collar, and minority employees who struggle to obtain these types of accommodations in the workplace. Ultimately, those are the employees that Title VII was intended to protect.
HLT: If the Court decides to reject Hardison’s “de minimis test,” what kind of test might replace it? How should a court determine the point at which an accommodation might be unreasonable?
McDaniel: Groff has asked the Court to adopt a different interpretation of undue hardship, to align it with its interpretation in the context of the Americans with Disabilities Act and other federal statutes. That interpretation would require employers to accommodate religious practice unless doing so would impose significant difficulty or expense. Courts typically make that determination by looking at the nature and cost of accommodating compared to the employer’s size, resources, the nature of the employment, etc.
HLT: What impact would a decision in favor of Groff have?
McDaniel: The research in our students’ brief showed that the current standard disproportionately affects adherents of minority faiths, people of color, and low-income wage earners. To give one example, Muslims file nearly 20% of Title VII claims, but they make up less than 1% of the population. That’s why this issue is so important to our client, the Muslim Public Affairs Council, as well an array of other organizations affiliated with minority religious groups who likewise filed briefs asking the Court to overturn Hardison’s de minimis standard.
As I mentioned before, nearly three-quarters of Title VII cases in our students’ analysis were brought by non-professional employees. These workers currently face a difficult choice between their livelihoods and their religion, and a favorable decision in Groff adopting a more robust interpretation of Title VII’s “undue hardship” test would help to ease that burden and give those workers a fighting chance in court to prevail on their religious discrimination claims.
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