Supreme Court to Revisit De Minimis Cost Test for Religious Accommodations Under Title VII

January 18, 2023

On Jan. 13, 2023, the U.S. Supreme Court agreed to consider whether the de minimis cost test for religious accommodations under Title VII of the Civil Rights Act of 1964 should endure. The Supreme Court granted the petition for writ of certiorari in Groff v. DeJoy, No. 22-174, which asks the Court to reconsider its holding in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1973), which established the de minimis cost test for religious accommodations.

Many employers, including colleges and universities, have relied on this test recently in denying religious accommodations for vaccine mandates. It can arise in many other contexts as well, including Sabbath observance, religious garb and moral conduct objections.

Under Title VII, an employer must accommodate an employee or prospective employee’s religious observance or practice unless the employer demonstrates that the accommodation would impose an undue hardship on the employer’s business. The Supreme Court in Hardison interpreted “undue hardship” to mean anything that has more than a de minimis burden or cost on the employer.

The specific issue in Hardison was whether Trans World Airlines (TWA) had to accommodate an employee’s observance of the Sabbath on Saturdays in a department that operated 24 hours a day throughout the year in connection with a large airplane maintenance and overhaul base. The Supreme Court reasoned that requiring TWA to incur additional costs to accommodate an employee’s religious observance would result in unequal treatment of employees on the basis of their religion. The Supreme Court ultimately ruled that requiring TWA to bear more than a de minimis cost to give Hardison Saturdays off constituted an “undue hardship” under Title VII.

Similar to Hardison, Groff argues that USPS violated Title VII by disciplining him for missing work on Sundays, and USPS asserts that it could not find anyone to trade shifts with Groff. Groff relies principally on a textualist argument that the Supreme Court should give “undue hardship” its ordinary public meaning when Title VII was enacted. According to Groff, “undue hardship” means that the accommodation must impose significant costs on the company, since “hardship” ordinarily means “a condition that is difficult to endure.”

Groff also argues that employers cannot demonstrate undue hardship by showing a burden on the employee’s co-workers. According to Groff, Title VII requires the employer to show undue hardship “on the conduct of the employer’s business.”

Earlier this year, Justice Neil Gorsuch and Justice Samuel Alito stated in a dissent to a denial for a petition for a writ of certiorari in Small v. Memphis Light, Gas, & Water: “Hardison’s de minimis cost test does not appear in the statute,” i.e., in Title VII. They pointed to Justice Thurgood Marshall’s dissent in Hardison, which argued the de minimis cost test “effectively nullif[ies]” the statute’s protection of religious practice. Justice Clarence Thomas also previously joined a concurrence, expressing this same interpretation, with respect to the denial of a petition for a writ of certiorari in another matter in 2020.

McGuireWoods is monitoring this case, which may significantly impact almost all employers. For questions on this case or any of the recent Supreme Court cases concerning religious liberty issues and employment issues, please contact the authors of this alert.