Work rules can’t override faith: The United States Supreme Court should grant protection to employees’ religious preferences

One of the many perks of serving as a justice of the United States Supreme Court is the lack of a boss to answer to. When the court convenes this morning, it will take up the case of a postal employee who was forced to leave his job because of an irreconcilable conflict between what his bosses demanded and what his faith required.

Groff vs. DeJoy presents the question of how far a business must go to accommodate its religious employees.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of religion, among other things. The law requires the reasonable accommodation of employees whose sincerely held religious beliefs and practices conflict with work requirements unless doing so would create an “undue hardship.”

In Trans World Airlines, Inc. v. Hardison (1977) the Supreme Court held that anything “more than a de minimis cost”—in that case, just $150 to the country’s largest airline —constituted an undue hardship.

That ruling is difficult to square with the text of Title VII. Undue is generally defined as “excessive,” which is the opposite of de minimis. Accommodation absent “undue hardship” means that employers must bear more than any de minimis cost to provide a religious accommodation.

As Justice Thurgood Marshall recognized in his Hardison dissent, “I seriously question whether simple English usage permits ‘undue hardship’ to be interpreted to mean a ‘de minimis cost.’ ”

The question that confronts the Supreme Court today is whether to overrule its decision in Hardison and define “undue burden” to mean a significant difficulty or expense, rather than a de minimis one. The experience of the states that have enacted a more stringent accommodation obligation should lead to the adoption of a similar standard nationwide.

The data shows that Gerald Groff is far from alone in having to choose between his career and his conscience by refusing to work on Sundays while instead covering other weekend shifts. From 1998 to 2008, the EEOC received fewer than 2,400 religious discrimination complaints a year. But that number grew to more than 3,500 complaints annually from 2009 to 2019.

While the most common complaints relate to a refusal to accommodate Sabbath or religious holiday observance, religious discrimination claims come in many forms.

And monetary costs are not the only rationale employers offer to support their assertions of undue hardship. Courts have found concerns about workplace morale more compelling than an employee’s faith. One court relied on a restaurant’s concern about the negative impact on its public image in dismissing the claim of a Sikh employee fired after refusing to shave his beard.

To combat the increase in workplace religious discrimination, several states have enacted religious accommodation protections similar to those urged by Groff. In the early 2000s, New York State brought a series of cases against employers discriminating against their religious employees.

One well-known case involved Hasidic and Seventh Day Adventist employees at Sears — both Sabbath observers — who were denied jobs as repairmen because of their unavailability to work on Saturdays. Sears claimed that Saturday was their busiest day of the week, but an analysis found that wasn’t true. Other cases involved a hair salon terminating an employee who wore a yarmulke, and the refusal of Federal Express to allow employees with dreadlocks to hold positions involving customer contact.

As a result of these cases, New York amended its law to expressly provide that accommodations must be provided unless doing so would require a significant difficulty or expense. Several other states have similar laws. These states have all seen religious discrimination claims fall or remain flat in the face of the national increase in claims.

After California amended its law in 2013 to adopt the “significant difficulty or expense” standard, the number of religious discrimination claims fell sharply. There were about 550 charges annually in the six years immediately before the new law went into effect, but fewer than 400 annually in the subsequent six years.

Claims filed with the EEOC over the past decade in New York, New Jersey, Arizona and Oregon — which have enacted similar protections — have either decreased or remained flat. That is a stark contrast with the experience in the rest of the country. The significant increase in religious discrimination cases nationally occurred even as claims were falling or flat in several of the most populous states.

The Supreme Court often refers to the states as laboratories of experiment. The results of the experiments already conducted are clear: a narrower reading of the undue burden exemption will lead to broader protections for religious employees and less discrimination in the workplace.

Schick and Smith are lawyers at Troutman Pepper. Schick previously served as a deputy attorney general in New York.