More Than “De Minimis” — The Supreme Court Clarifies Title VII Undue Hardship Standard

Historically, courts have relied on a line from the Court’s decision in Trans World Airlines, Inc. v. Hardison (1977), holding that any accommodation that would require an employer to bear more than a “de minimis” cost amounts to an undue hardship when considering potential religious-related accommodations under Title VII. As a result, there has been a relatively low bar for employers to lawfully avoid providing accommodations to their employees’ religious beliefs. But those days are likely over following Groff.

In Groff, the Court “clarified” that the “more than de minimis” language in Hardison to which lower courts have cleaved for nearly 50 years is not actually what the Court held in Hardison, nor is it the proper interpretation of the undue hardship standard under Title VII. Instead, the Court held that employers can only establish an undue hardship under Title VII if they can show that providing an accommodation “would result in substantial increased costs in relationship to the conduct of [the employer’s] particular business.” While the Court did not provide much guidance on what constitutes a “substantial increased cost[],” it did provide some instruction as to what does not amount to an undue hardship under Title VII. Specifically, the Court stated that “hardships” that are attributable to employee animosity to a particular religion or to the concept of making religious accommodations cannot be “undue.” Nor can accommodations that do not affect the conduct of the employer’s business be deemed to impose an undue hardship under Title VII. On the other hand, Justice Alito (who authored the Court’s unanimous opinion) suggested that religious accommodations that would interfere with seniority-related scheduling within a collective bargaining agreement might constitute an undue hardship unless an employee with greater seniority was willing to voluntarily switch shifts with an employee who objected to working on a particular day. In short, the “substantial increased cost” does not necessarily require a dollar value.

To understand their obligations under Title VII moving forward, employers may be tempted to turn to case law interpreting the Americans with Disabilities Act (the “ADA”), given that the ADA defines an undue burden as something that imposes “significant difficulty or expense” – a standard that sounds quite similar to the “substantial increased cost[]” standard discussed in Groff. But that would be a mistake, as the Court expressly refused to instruct lower courts to “draw upon decades of ADA caselaw” when interpreting Title VII. Instead, when applying the clarified standard, the Court directed lower courts to “take 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 an employer.”

While the exact contours of what constitutes an undue hardship under Title VII remain ambiguous and will depend on a fact-specific analysis, what is clear is that it will be harder for employers to deny religious accommodations going forward. As a result, employers might expect an increased amount of requests for religious accommodations. Employers would be wise to consult with an employment lawyer to discuss their heightened obligations under the “clarified” undue hardship standard announced in Groff.