Seyfarth Synopsis: The U.S. Supreme Court's decision in Groff v. DeJoy clarifies that for employers to deny accommodation to an employee under Title VII, they must demonstrate "substantial increased costs" in conducting their business, a definition going beyond "de minimis" hardship. However, the Court refrained from undermining Title VII's special statutory protection for seniority systems.
Numerous employers, both unionized and non-unionized, that utilize seniority-based bidding systems, are likely seeking clarity on how the United States Supreme Court's Groff v. DeJoy decision affects their employees. Below, we provide a recap of the case and its implications for these employers. For a broader summary of the decision that is not specific to workplaces with seniority-based bidding systems, see Seyfarth's analysis here.
Title VII of the Civil Rights Act forbids discriminating against an employee in relation to their compensation, employment terms, conditions, or privileges on account of their religious beliefs, unless the employer can show that accommodating these religious beliefs would inflict an undue hardship on the operation of their business. That said seniority-based bidding systems have special statutory protection under Title VII. Previously, in a case called Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977), the Supreme Court ruled an employer and a union that had agreed on a seniority system were not required to deprive senior employees of their seniority rights in order to accommodate a junior employee's religious practices. The Court identified no way in which TWA, without violating seniority rights, could have feasibly accommodated the plaintiff in that case. In the wake of that decision, many courts across the country interpreted language in the opinion defining "undue hardship" as anything more than a de minimis cost.
The Groff v. Dejoy case was brought on appeal from the Third Circuit and certiorari was granted on January 13, 2023. The questions presented in the certiorari petition were whether the Supreme Court should disapprove the "more than-de-minimis-cost" test for refusing Title VII religious accommodations stated in Trans World Airlines, Inc. v. Hardison and whether an employer can meet the standard by the requested accommodation burden on the employee's co-workers.
The Court's opinion in Groff clarifies that "undue hardship" means more than "de minimis" hardship and that an employer must show "substantial increased costs in relation to the conduct of its particular business" before denying an accommodation. However, the Groff Court was careful to avoid overruling what it characterized as its "core holding" and the "principal issue" in Trans World Airlines, Inc. v. Hardison: Title VII does "not require an accommodation that involuntarily deprive[s] employees of seniority rights." Plaintiff Gerald Groff was subject to a bargained-for, non-seniority based rotating Sunday shift assignment system at the United States Postal Service. The Court expressly did not decide whether the Postal Service could accommodate his religious accommodation request without undue hardship, remanding that factual determination for further proceedings. It also did not address potential bargaining and labor law-related ramifications in Groff's unionized workforce, using the decision solely to clarify the Court's standard for "undue hardship."
The Groff decision leaves in place Title VII's protections for seniority-based bidding systems. Employers should be careful, though, to ensure their seniority-based bidding system truly cannot be reconciled with the request through an analysis of the specific accommodation request and the specific bidding system. In other words, post-Groff, employers should not assume their seniority-based bidding system protects them from approving religious accommodation requests and should not rely on de minimis cost defenses in case their seniority system does not protect them. Instead, upon receipt of a religious accommodation request, employers with seniority-based bidding systems should consider the facts and specific bidding system, asking questions like:
- Is the bidding system not truly seniority based, such that Title VII protections do not attach?
- Is the employee senior enough to bid another shift to accommodate the employee's religious needs without violating other employees' seniority under an established seniority system?
- Is it possible for the employee to trade shifts with another employee where an employer otherwise permits shift trading and where such actions do not violate other employees' seniority under an established seniority system?
- Is there something that the employer could reasonably do to facilitate such a swap?
- Is it possible for the employer to leave the shift short-staffed, essentially making the absence an excused or unpaid absence?
- Is it possible for the employer to incentivize other employees to pick up the employee's shift (for unionized employers, without running afoul of the collective bargaining agreement or other labor laws)?
- Is there any other way to get the shift covered without the employee?
Many employers when faced with religious accommodation requests were already asking these types of questions in light of EEOC guidance, which the Court cited with approval in Groff even though it stated it would not adopt that guidance wholesale through decisional case law. Groff does nothing to change these inquiries. The difference is that, when the answer to any of these questions is "yes," then the employer may not be able to rely on de minimis costs and must now show that there is undue hardship—"substantial increased costs" in conducting their business—under Groff's higher bar. We predict this will be a case-specific inquiry, likely similar to what these employers have experienced under Americans with Disability Act with respect to accommodation requests for time off (although the Court also expressly declined to adopt ADA standards in the Title VII context in its Groff decision).
Special Considerations for Unionized Employers
Unionized employers with seniority-based bidding systems—or any collectively bargained-for provision at issue with respect to a specific religious accommodation request—may be able to avail themselves of contract interpretation preclusion (preemption) defenses under Section 301 of the LMRA, minor dispute case law under the RLA, and similar public-sector statutes and case law or under labor laws more generally. A successful preclusion defense generally requires an employer to show that the employee's Title VII religious accommodation request requires interpretation of the applicable collective bargaining agreement or otherwise violates labor laws.
We will continue to monitor the effects of this decision on seniority-based bidding systems and unionized workforces and will report any noteworthy developments in the future.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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