Somewhat surprisingly, the Supreme Court managed to achieve unanimity in Groff v. DeJoy, holding that an employer must accommodate the religious practice of an employee unless the employer can show that “granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”

It appears that to obtain unanimity, the Justices decided not to resolve the actual dispute in the case before them.  Groff was a postal worker, whose religious beliefs prevent him from working on Sundays.  Groff’s job initially did not involve Sunday work.  Then, the Postal Service entered into an agreement with Amazon, and it began requiring workers in Groff’s position to make Sunday deliveries.  The Postal Service reached an agreement with the National Rural Letter Carriers’ Association that addressed how Sunday work would be assigned.  The agreement provided that if there were an insufficient number of volunteers, the other employees would be required to perform the work on a rotating basis.  When Groff refused to work on Sundays, other workers had to work more Sundays and one of those workers filed a grievance.  The Postal Service settled the grievance by reaffirming its obligation to rotate Sunday work if there were insufficient volunteers.  When Groff was scheduled for Sunday shifts, he refused to work, and the Postal Service disciplined him for those absences.  Groff eventually resigned, and then sued, alleging that the Postal Service had violated Title VII of the Civil Rights Act by failing to accommodate his religious practice.

The relevant statutory language provides that an employer must accommodate an employee’s religious observance or practice unless the accommodation will impose an “undue hardship on the conduct of the employer’s business.”  In a 1977 case, Trans World Airlines, Inc. v. Hardison, the Supreme Court had held that an employer is not required to accommodate an employee’s religious practice where that accommodation would impose “more than a de minimis cost” on the employer.  Justices Alito, Gorsuch, and Thomas had invited litigants to bring a case that would enable the Court to reconsider that holding.  Hardison also involved a collectively bargained agreement – in that case, the employer and the union had agreed to give preference for weekend days off based on seniority.  The Court held that “Title VII does not require an employer and a union who have agreed on a seniority system to deprive senior employees of their seniority rights in order to accommodate a junior employee’s religious practice.”

In Groff, the Court unanimously agreed that the language in Hardison stating that employers are not required to agree to an accommodation that would impose more than a de minimis cost should be set aside.  The Court characterized its ruling as clarifying, rather than overruling, Hardison; the Court pointed to a footnote in Hardison that stated that the employer in that case would have had to incur “substantial costs” to accommodate Hardison’s request to have Saturdays off, and, according to the Court “that formulation better explains the decision.” 

The Postal Service argued that even if the Court rejected the “de minimis” standard, Groff should still lose based on the district court’s determination that allowing Groff to skip all of his Sunday assignments would violate the terms of the agreement between the Postal Service and the union.  On the other hand, Groff argued that an employer should not be able to deny an accommodation by pointing to the burden the accommodation would place on his co-workers.  Groff argued that relying on a co-worker’s grievance as a justification for denying him every Sunday off would amount to giving his co-worker a “heckler’s veto.”  The American Postal Workers Union (APWU) filed an amicus brief explaining why this was a mischaracterization.  When Groff’s co-workers complained that giving Groff every Sunday off would force them to work more Sundays it wasn’t because they were hostile to Groff’s religious practice.  Instead, they were advocating for their own right to have Sunday as a day of rest. 

The Supreme Court made clear that a co-worker’s dislike of religious practice or expression is not a valid basis for denying an accommodation, but the Court rejected Groff’s argument that an accommodation’s impact on co-workers is irrelevant.  Instead, the Court announced a fairly murky test:  “an accommodation’s effect on co-workers may have ramifications for the conduct of the employer’s business,” and a court must “examin[e] whether that further logical step is shown in a particular case.”  Justices Sotomayor and Jackson filed a concurring opinion making the point that hardship on co-workers can, by itself, constitute “undue hardship on the conduct of the employer’s business.”  While the majority opinion does not reject this notion, it would have been more comforting if it had expressly endorsed it.

The Justices failure to apply the newly clarified standard to the facts in this case could simply be viewed as standard operating procedure – the Court often remands a case for the lower courts to apply a new rule.  But, the failure to apply the rule to the facts in this case may indicate a division in the Court below the surface.  Nothing in the opinion suggests that the Postal Service should have disregarded its agreement with the union in order to accommodate Groff.  The examples the Court gave of potential ways the Postal Service might have accommodated Groff were offering incentive pay to workers to take on additional Sunday shifts or coordinating with other nearby stations to expand the pool of available employees.  The Court noted that Groff was not challenging the holding in Hardison that Title VII does not require an accommodation that deprives other workers of their collectively bargained seniority rights.  Yet it’s hard not to be troubled by the Court’s silence on a collective bargaining agreement that assigns work by rotation rather than seniority.  It’s true that the text of Title VII specifically references seniority systems, authorizing employers to apply “different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system.”  But, if an employer can deny an accommodation because a collective bargaining agreement assigns shifts based on seniority, there is no principled reason why the employer shouldn’t also be able to deny the accommodation because the collective bargaining agreement assigns shifts by rotation.

When an employer and a union agree that all workers must share the burden of working on weekends, the employer and the union are not acting out of hostility to religious practice.  Instead, as APWU pointed out, they are acting on the same principle that has led the Court to hold that Sunday closing laws do not violate the Establishment Clause:  “People of all religions and people with no religion regard Sunday as a time for family activity, for visiting friends and relatives, for late sleeping, for passive and active entertainments, for dining out, and the like.”  If Title VII just requires employers to facilitate shift-swapping or offer incentives to workers to take an occasional extra Sunday shift, then the decision is a victory for workers’ rights.  But, there is still a risk that a lower court will find that religiously observant workers get to override union contracts that distribute undesirable weekend work evenly among all workers.