Groff v. DeJoy Decision on Religious Accommodation


religious accommodation

By Bill Swan, Principal Consultant

In late June of 2023, the US Supreme Court made a unanimous decision in the Groff v. DeJoy case impacting employer’s policies and practices of providing religious accommodations in the workplace.  Although the ruling still leaves room in application, it does redefine some previous language and create a higher standard for employers to meet.

For decades employers have had to show that the accommodation request created an “undue hardship” on the business to deny the accommodation.  From the 1977’s Transworld Airlines, Inc. v. Hardison case decision, there was a “de minimis” statement, or minimum, mentioned.  Yet despite “substantial costs or expenditures” being stated several times at other points in the decision, “de minimis” became the standard.  A minimum standard is not a high bar.  The new ruling in Groff v. DeJoy sets a higher standard. 

With this past summer’s decision, the employer must show a “substantial increased cost in relation to the conduct of particular business” in making the accommodation.  The standard requires case-by-case analysis and application of the standard, yet the point is the cost must be “substantial.”  So, what might substantial mean?

What it does not mean is simply additional costs. Secondly, “undue” is considerably greater than “de minimis.”  It must be excessive and to a level which cannot be justifiable for the company to bear. 

Application is going to be different for different employers.  Depending on the size of the workforce, the nature of the business and its profitability, “substantial” will have different meanings.  Yet, regardless of the size, nature, and ability to absorb costs, each employer must be able to defend its decision if it decides not to make a religious accommodation and is challenged in that decision.

One important example provided in Justice Alito’s opinion was that employers cannot merely take into consideration a coworker disagreeing with the religious practice.  From Justice Alito, ”An employer who fails to provide an accommodation has a defense only if the hardship is “undue,” and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered “undue.”

So, what should employers do considering the Groff v. Dejoy decision?  Make sure your handbooks and policies are current.  If they have not been reviewed in over a year, get them reviewed by an HR professional or employment law attorney for your state(s).  Secondly, make sure your HR people, managers, supervisors, and others involved in employment related matters are kept up to date on how to apply this decision as well as others. Training pays off.  Third, get used to conducting greater analysis to determine what the cost of accommodation could be to the business, document the business study materials and have them reviewed by your HR and/or legal team. 

Finally, with most working people identify with a religion of some sort, try to find a way to make the accommodation.  Welcoming people from all kinds of backgrounds helps create a more diverse and inclusive workforce which is more in alignment with the global economy. 

If your company could use some help, FIT HR would like to help.  Contact us and let’s discuss your circumstance.