Religion in the workplace

Supreme Court expands requirements for workplace religious accommodations

The Court said that employers cannot reject religious accommodations unless they show that the accommodations ‘would result in substantial increased costs’

(Photo by Anna Moneymaker/Getty Images)

WASHINGTON, DC - JUNE 29: Police officers with the U.S. Supreme Court detain a man who entered the closed front plaza of the Court on June 29, 2023 in Washington, DC.

Leading Jewish organizations from across the political and denominational spectrum welcomed the Supreme Court’s unanimous ruling Thursday in the Groff v. DeJoy case in favor of a former mailman and evangelical Christian who refused to work on Sundays in observance of the Sabbath, a decision that significantly expands the scope of religious accommodations that employers are required to provide. 

The justices rejected a standard for evaluating religious accommodations — that they may be rejected if they pose more than a “de minimis” cost to the employer — set out in the 1977 case TWA v. Hardison, ruling instead that employers “must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” 

Jewish groups had argued that the Hardison standard disadvantaged religious minorities, especially observant Jews, and potentially provided cover for workplace antisemitism. Thursday’s ruling prompted plaudits from a wide range of Jewish groups.

“The Supreme Court’s unanimous decision will make it possible to adequately enforce religious protections for employees in the workplace,” ADL CEO Jonathan Greenblatt said in a statement. “People shouldn’t have to choose between their jobs and their faith. It is particularly welcome for observant Jews whose religious practice requires them to wear religious clothing, maintain facial hair, and/or not work on certain Jewish holidays. Of course, like all religious freedoms, religious accommodations are meant to be a shield to protect people of faith and not a sword to justify discrimination against others. This Court ruling strikes the right balance.” 

Marc Stern, the chief legal officer of the American Jewish Committee, called Groff “the rare case where religious groups of all stripes agreed that the law had to become more favorable to religious observance.”

Representatives from leading Jewish communal organizations said that the case would prompt re-evaluations by both employers and religious employees of how they approach religious accommodations requests.

“The ‘de minimis’ standard was so low that employers didn’t even bother making accommodations and employees thinking that they were going to lose didn’t even bother asserting their rights,” Rabbi Abba Cohen, vice president of government affairs for Agudath Israel of America, told JI. “I think that there’ll be a realization now [that] employers have real responsibilities and employees have real rights. I think we’ll see a difference in the outcome of cases and we’ll see the difference in how the community decides to assert their rights.”

AJC’s Stern said the decision will drastically change negotiations between employees and employers over accommodations; whereas before the ruling, employers had what was essentially a free hand to reject employees’ requests. 

The new standard “definitely helps the employee against the employer. It really reshapes the balance. That may be more important than court results,” Stern said.

Howard Slugh, the general counsel of the Jewish Coalition for Religious Liberty, said the decision would move the law back toward compliance with the original intent of the underlying statute at issue. 

“The Court moved toward a more textually based reading of Title VII that will allow it to fulfill its purpose of protecting religious Americans,” Slugh said. “Today, the unanimous court reaffirmed that religious Americans play a vital and important role in American life, and that the law recognizes that it is appropriate to bear some costs in order to ensure that Americans can maintain both their faith and their professions.”

The Court remanded the case of petitioner Gerald Groff — a former mailman whose request to have Sundays off of work to accommodate his Sabbath observance was denied — to a lower court to re-evaluate under its new standard. Such cases will likely help elucidate what the new test will mean in practice.

“They still recognized, as we recognize, that this is not a one-size-fits-all situation,” Nathan Diament, executive director of public policy for the Orthodox Union, said. Diament explained that different companies of different sizes and capacities will be able to offer differing accommodations. “It’s still going to depend on the context and the facts of a situation but religiously observant people are in a much better and stronger position today.”

Kenneth Marcus, the chairman of the Louis D. Brandeis Center for Human Rights Under Law, added that the Court left “a lot of room for case-by-case decision-making,” meaning “there will be more unanswered questions and more legal challenges to come.”

Diament also noted that the Supreme Court did not provide specific guidelines for how the standard should be implemented by the Equal Opportunity Employment Commission, lower courts and companies themselves. But he said that the White House’s antisemitism strategy, in concert with this ruling, provides further opportunities for encouraging employers to be more accommodating.

Despite their victory, the court’s ruling fell short of some groups’ hopes that the justices would embrace the high standards for and existing precedent around rejecting accommodations laid out in the Americans with Disabilities Act. In the court’s opinion, Justice Samuel Alito said explicitly that the court would not adopt the ADA standards.

“The court commendably was able to garner a unanimous opinion. That’s always good to see,” Marcus said. “But in order to achieve unanimity, you can’t be as bold as one might be in a splintered decision.”

Cohen said that Agudath Israel had recommended applying the ADA standards because of the “decades long history and precedent” under that law of determining undue hardship to employers, but said that not doing so would not necessarily “lead us to a different place than the ‘substantial increase in costs’” standard.

“They’re clearly putting in place a higher standard, so in the real world, this is a great win,” Diament concurred.

Nathan Lewin, a constitutional lawyer who helped author the underlying statute at issue in the case and who argued in the Hardison case, expressed frustration that the Court’s decision did not explicitly overturn Hardison.

“I’m gratified by the results, but disappointed in Justice Alito’s opinion, and the fact that they did not, for once and for all, bury the Hardison dictum,” Lewin said. “So long as it’s not buried, it will be used by employers who want to discriminate against religious observers… The court did not take into consideration what it’s actually like on the battlefield, when the party is an employee and he’s making a claim against the employer.”

Lewin speculated that the court did not overturn Hardison in the interest of maintaining a unanimous decision.

“Even Justice Alito believes that it is beneficial in terms of the appearance of the court for it to have a unanimous decision,” he said. “And in this case, the unanimous decision was gotten not by overruling Hardison because that would have prompted a more vigorous dissent.”

Other observers like Cohen believe the Court “effectively overturned the result of Hardison” in practice.

Even if it did not fulfill all of the hopes of some advocates, many said the Court went further in offering protections for religious accommodations than they had anticipated following oral arguments in the case.

“It is true that the court was reluctant to be as specific and as firm and as detailed as we might have liked to see,” Marcus said, adding that he wished the justices had elaborated further on their new standard. “But they nevertheless provided Mr. Groff and all religiously observant Americans with a bigger victory than many had expected.”

The Religious Action Center of Reform Judaism lauded the ruling but expressed concerns about the potential downsides of the increased religious accommodations that the new standard will permit.

“We are encouraged by the decision in Groff v. DeJoy setting a more reasonable standard for claiming workplace religious accommodations (including time off for Sabbath observance) without imposing undue hardship on employers. This strengthens protections for religious minorities,” the Religious Action Center said in a tweet.

“At the same time, such religious accommodations must be weighed against the state’s compelling interest in ensuring civil rights protections for other workers and customers,” it said.

Writing in the court’s opinion, Justice Samuel Alito quoted from briefs submitted or joined by the Orthodox Union and the National Council of Young Israel, which argued that the previous de minimis standard was insufficient to protect workers’ rights.

“A bevy of diverse religious organizations has told this Court that the de minimis test has blessed the denial of even minor accommodation in many cases, making it harder for members of minority faiths to enter the job market,” Alito wrote.

“We are tremendously proud and gratified that the Court cited our amicus brief,” NCYI board chairman David Schultz said. “We expect the Court’s updated standard will provide much greater protection to observant Jews and other religious minority employees. We are also pleased that the Court stressed that animosity to a particular religion or to particular religious practice and expression in the workplace cannot be considered in evaluating an employee’s religious accommodation claim.”

Diament said OU was “very, very honored to play that role.”

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