SCOTUS and Groff v. DeJoy: Religious Accommodations in the Workplace

UPDATE: as of June 29th, 2023, the Supreme Court has ruled in favor of Groff, extending religious accommodations protections in the workplace. 

You want to keep your employees happy and feeling respected in their workplace—which can boost your retention. Sometimes doing that means keeping up with new legislation and carefully noting when big-ticket items hit the marble steps of the Supreme Court.  

Religious protections are a tricky mess of potential compliance issues, and you’re right (and smart!) to cross your t’s and dot your i’s regarding your employees’ requested religious accommodations.  

So, here's BerniePortal to give you the scoop on your newest paranoia-inducing compliance test: SCOTUS is revisiting religious accommodations in the workplace, and your organization may be impacted.   

Is Religion Protected in the Workplace? 

Religion is protected in the workplace by the Civil Rights Act of 1964. Let’s break down the previous ruling, which we use as the standard today, into digestible pieces, so we know how exactly this change will affect your workplace policies.  

The Civil Rights Act of 1964 covered classes protected from discrimination in the workplace based on race, sex, religion, etc. Here’s the language from the bill:

U.S.C. §§ 2000e-2(a)(l), (2). The statute defines "religion" to include "all aspects of 

religious observance and practice, as well as belief, unless an employer demonstrates

that he is unable to reasonably accommodate to an employee's or prospective

employee's religious observance or practice without undue hardship on the conduct of

the employer's business."  Id. § 2000e(j).  

In 1977, the Supreme Court case Trans World Airlines, Inc. v. Hardison expanded on the part of the Civil Rights Act that concerned religion. Here is what the court back then determined:

In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), this Court stated that an employer suffers an "undue hardship" in accommodating an employee's religious exercise whenever doing so would require the employer "to bear more than a de minimis cost." Id. at 84. 

That’s a little dense, as most lawyers tend to write, but this is a blog. So let’s skip the Scrabble-winning words and identify the key parts: 

1. 1. 1. Religion is defined as observance (think Sunday morning church or ritual afternoon prayer, for example) and practice (eating only Kosher foods, following halal dietary restrictions, dressing in religious attire, etc.) as well as belief.    
         
      2. An employer does not have to reasonably accommodate a current or potential employee’s religion if it could negatively impact the success of their business. An example would be if an employee of a small organization requested an accommodation that guaranteed Wednesdays and Saturdays off every week for religious observances. Due to the organization’s small size, losing the ability to schedule an employee for two full days a week could impact the success of the organization, so they wouldn’t have to accommodate that request because it is unreasonable.    
         
      3. The employer is not expected nor obligated to do anything above the “de minimis cost,” which means that the cost of a reasonable accommodation for religion doesn’t have to be anything more than a minor or trifling amount. 

So for about 45 years, this has been the lens through which businesses consider religion. With the potential ruling change, you may need to trade those glasses in for a different prescription. Let’s take a look. 

What Is Groff v. DeJoy About, and What Will It Change?

The case we should all be watching is Groff v. DeJoy. A USPS worker has brought suit against USPS for failing to accommodate his religious needs for Sundays off, claiming that scheduling conflicts led to disciplinary action against him. USPS is falling back on the de minimis reasoning that USPS is not legally obligated to provide accommodation for Sundays off as it could impact business.   

• You can follow the court case on the SCOTUS blog here: Groff v. DeJoy Timeline. 

Counsel for the employee, Aaron Streett, has a potential solution to narrow the broad spectrum of de minimus reasoning. States like New York have enacted a requirement that employers must pass a test to determine if accommodations are reasonable. His point is: there is a solution, and it is already working in other parts of the United States.     

• If you want to read Aaron Streett’s thoughts on his Supreme Court appearance, check out his notes.

In the case of this document, “test” does not mean a literal test—no multiple-choice or other graded responses are required. This sort of test is a legal document filled and filed according to the state laws of New York to ensure a requested religious accommodation is accepted or denied precisely as the law dictates. 

The purpose of New York’s test is to protect religious accommodations further, whereas some dissidents of Groff v. DeJoy argue that the de minimis clause is satisfactory for religious protections. Using this case to challenge the original 1977 ruling may push lawmakers to clarify the language of Trans World Airlines, Inc. v. Hardison rather than throw de minimis around without structure or standardization. 

Now that SCOTUS has ruled in Groff's favor (in a 0 - 9 vote), HR at small employers should consider revisiting how they currently handle religious accommodations. Maintaining compliance is critical to organizational success, and it may be a huge headache for HR to ensure everyone is up to date on compliance requirements in your organization. 

While the SCOTUS ruling does change things on a macro scale, lower courts may interpret the ruling differently, depending on your jurisdiction. Also, keep in mind that SCOTUS did clarify that the Equal Employment Opportunity Commission (EEOC) has acceptable guidance on this topic: "We have no reservations in saying that a good deal of the EEOC’s guidance in this area is sensible and will, in all likelihood, be unaffected by our clarifying decision today." 

Until the ruling trickles down, the way it may affect your workplace is still unclear. However, you can take steps today to protect yourself—and your organization—in case of significant changes to religious protections in the workplace.

How Can I Reasonably Accommodate Religion?

As an HR professional at a small or midsized employer, you want your employees to feel that your organization is accepting and accommodating of their needs. Ensuring your organization remains successful means understanding the needs of your workforce and keeping in mind the needs of the business. Accommodating religious needs reasonably for your business and adequately for your employees intersects at the crossroads of culture, compliance, and hitting KPIs. 

So, this question is tricky because it depends on your organization's size, needs, and location.  But we can start you off with some actionable steps so you can be best prepared and rest easier so that compliance police aren’t about to knock on your door. 

Step 1: Audit your current processes and policies for when employees make religious accommodations requests. This will give you background on to-date responses for religious accommodations and tell you what you have to work with. You may notice things that need immediate attention, or your processes and policies may be ironclad. It never hurts to check things over—and logging how often you audit this sort of information may be a “good faith” effort to ensure your organization complies with federal and state regulations.  

A “good faith” effort typically applies to Affirmative Action policies, but in HR, you know how important it is to at least try—and have a record of doing so. How often have you discussed employee performance and said, “Well, we know that they’re trying!”? Auditing your current policies and trying to keep your organization compliant is your best bet for preparing for changes now and in the future.  

Step 2: Update yourself on local and federal laws. Some states have different compliance regulations than others, so you want to ensure you follow the rules for your location. Sometimes, laws are changed or updated, and the news doesn’t kick up a fuss that you notice. A quick Google search every so often can save you a lot of pain down the line. Or, you can subscribe to our blog to receive timely HR news updates.   

Step 3: Build a culture of compliance. Don’t stop at doing the legal minimum—encourage your people to get involved in understanding their own rights and responsibilities. Abe Turner, a multi-industry voice behind company culture and workers’ health and development, says,  

“Business owners in the United States today must abide by and stay compliant with more laws and regulations than at any other point in history…If you establish and ingrain your company’s values into the fabric of the culture, then your business is likely more risk averse” (Source). 

If your people are just as dedicated as you to keeping your organization running right, then most of the work is already done. And employees who see you making an effort to educate and enforce their rights will have more trust in you and your HR role. 

Step 4: Make sure everyone with a stake in this knows what's up. You can use an HRIS like BerniePortal to notify employees about changed religious accommodation policies and require them to sign their acknowledgment. If compliance police came knocking, a feature like that would go a long way toward proving your efforts to maintain compliance.   

With the ruling passing on June 29th, 2023, in a unanimous vote, Groff v. DeJoy may affect your workplace sooner rather than later. Keep yourself compliant and keep an eye on the news—or subscribe to our blog and follow us on LinkedIn for more legal breakdowns of the ongoing case. It’s your choice, of course (but I’m biased, so follow us!).  

Additional Resources

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