{"id":2877,"date":"2023-09-15T16:06:39","date_gmt":"2023-09-15T20:06:39","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=2877"},"modified":"2025-12-20T17:31:58","modified_gmt":"2025-12-20T21:31:58","slug":"groff-v-dejoy-hardison-is-dead-long-live-hardison","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/groff-v-dejoy-hardison-is-dead-long-live-hardison\/","title":{"rendered":"Groff v. DeJoy: Hardison is dead, long live Hardison! – Nick Reaves"},"content":{"rendered":"\n
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Download a PDF<\/a><\/div>\n<\/div>\n\n\n\n

Groff v. DeJoy: Hardison is dead, long live Hardison!<\/h2>\n\n\n\n

Nick Reaves*<\/a><\/p>\n\n\n\n

For decades, lower courts and litigators labored under the (mis)impression that the Supreme Court meant what it said in TWA v. Hardison<\/em>: that an employer can deny a religious accommodation if it imposes anything more than a \u201cde minimis<\/em>\u201d (or minimal) cost on the employer\u2019s business.[1]<\/a> So understood, Hardison <\/em>cost countless religious minorities their jobs and allowed this country\u2019s largest employers to deny religious accommodations by pointing to the all but trifling administrative burdens of providing such accommodations (like facilitating voluntary shift swaps or permitting religious garb in the workplace). It took 46 years, but the Supreme Court in Groff v. DeJoy<\/em> finally \u201cclarified\u201d that Hardison<\/em>\u2019s de minimis<\/em> standard was, in the words of Justice Sotomayor, merely \u201cloose language.\u201d[2]<\/a> Going forward, this means that lower courts must interpret Title VII\u2019s religious accommodation provision\u2014requiring workplace religious accommodations absent \u201cundue hardship\u201d\u2014consistent with the statute\u2019s plain textual meaning.[3]<\/a> Groff<\/em> therefore corrects Hardison<\/em>\u2019s grave error and helps ensure that all Americans will be treated fairly in the workplace.<\/p>\n\n\n\n

Background<\/h2>\n\n\n\n

In Groff v. DeJoy<\/em>, postal carrier Gerald Groff sought a Sabbath accommodation from the United States Postal Service (USPS) so he could observe his religiously mandated day of rest.[4]<\/a> At first, he was accommodated. But after USPS entered into a contract with Amazon to deliver packages seven days a week, Groff faced progressive discipline for refusing to work on his Sabbath. Groff eventually resigned and sued.[5]<\/a> Both the district court and Third Circuit concluded that Title VII didn\u2019t require USPS to accommodate Groff because any accommodation would impose more than a de minimis<\/em> burden on USPS. Groff petitioned the Supreme Court to hear his case.<\/p>\n\n\n\n

The Supreme Court granted review on January 13, 2023, causing most Court watchers to believe that it would overturn TWA v. Hardison<\/em>. But after oral argument, this conventional wisdom was thrown into doubt. Justice Gorsuch, for example, appeared to focus on the numerous points of \u201ccommon ground\u201d between the parties.[6]<\/a> And forceful arguments from the Solicitor General, combined with concerns over statutory stare decisis<\/em> coming from several corners, suggested a narrower ruling. It was therefore unsurprising that initial reactions to the Court\u2019s opinion in Groff <\/em>were also uncertain: On the one hand, the Court did not<\/em> overturn TWA v. Hardison<\/em>. On the other, the Court repeatedly emphasized that Hardison<\/em>\u2019s most enduring legacy, the de minimis <\/em>standard, was no longer good law.<\/p>\n\n\n\n

So, how can we understand Groff <\/em>and Hardison<\/em> going forward? And what does Groff <\/em>mean for religious minorities? Put simply, Groff<\/em> gave Hardison<\/em> a brain transplant. Instead of overruling the decision, the Supreme Court replaced what every federal court had treated as Hardison<\/em>\u2019s key holding with a brand-new standard. This new legal test is both more consistent with the statutory text and will better protect the rights of religious minorities in the workplace.<\/p>\n\n\n\n

I.               The world before Groff<\/em><\/h2>\n\n\n\n

If you had only listened to oral argument in Groff<\/em> and then read the Supreme Court\u2019s opinion, you would be forgiven for thinking that most courts had been correctly interpreting the phrase \u201cundue hardship\u201d in Title VII, and that \u201cnot all courts, but some courts\u201d had taken Hardison<\/em>\u2019s \u201c\u2018de minimis<\/em>\u2019 language and run with it.\u201d[7]<\/a> Therefore, all the Supreme Court needed to do in Groff<\/em> was \u201cclarify\u201d[8]<\/a> a \u201csingle . . . sentence\u201d[9]<\/a> from Hardison<\/em>\u2014a sentence which had been \u201cleading courts of appeals astray.\u201d[10]<\/a> Further, you might also believe this clarification was hardly controversial, as even the Solicitor General of the United States (representing USPS) agreed \u201cthe \u2018de minimis<\/em>\u2019 language should not be taken literally.\u201d[11]<\/a><\/p>\n\n\n\n

While all technically true, the problem with such a conclusion is that this is not how lower courts have understood Hardison<\/em> for the past 46 years. Before Groff<\/em>, federal appellate courts uniformly read Hardison<\/em> as definitively interpreting Title VII to require evidence of only de minimis<\/em> costs to deny religious accommodations.[12]<\/a> The Justices who decided Hardison<\/em> seemed to read it this way too. Writing in dissent, Justices Marshall and Brennan pointed out (to no avail) that after Hardison<\/em>, employers \u201cneed not grant even the most minor special privilege to religious observers to enable them to follow their faith.\u201d[13]<\/a> They even questioned \u201cwhether simple English usage permits \u2018undue hardship\u2019 to be interpreted to mean \u2018more than de minimis<\/em> cost.\u2019\u201d[14]<\/a><\/p>\n\n\n\n

Nor was Hardison<\/em>\u2019s de minimis<\/em> language simply a case of faulty terminology masking proper application of the law, as the Solicitor General at oral argument seemed to suggest.[15]<\/a> It is clear that Congress enacted statutory text imposing a broad religious accommodation mandate on employers. When Congress amended Title VII in 1972, debate over workplace religious accommodations\u2014and Sabbath observance in particular\u2014took center stage. The Amendment\u2019s author, West Virginia Senator Jennings Randolph, was a Seventh-day Baptist,[16]<\/a> who repeatedly criticized the \u201cpartial refusal at times on the part of employers to hire or to continue in employment employees whose religious practices rigidly require them to abstain from work . . . on particular days.\u201d[17]<\/a> The Amendment\u2019s text reflected these concerns, explaining that accommodation of the employee\u2019s \u201creligious observance and practice, as well as belief,\u201d was required unless the employer \u201cdemonstrates\u201d the accommodation would impose an \u201cundue hardship on the conduct of the employer\u2019s business.\u201d[18]<\/a><\/p>\n\n\n\n

But while Congress enacted a statute whose plain text required robust accommodations, within five years Hardison<\/em> essentially repealed it. The promise of vigorous religious accommodations therefore turned into a paper tiger that employers could subvert by citing minor administrative costs, hypothetical burdens, and imagined or real co-worker displeasure.[19]<\/a> Thus, rather than protecting the rights of religious minorities, Title VII\u2019s religious accommodation framework after Hardison <\/em>dealt loss after loss to religious employees, especially<\/em> religious minorities. Across all religious accommodation appeals decided since 2000, employers prevailed 83.7% of the time when the undue hardship defense was raised.[20]<\/a> Yet claims brought by Christian plaintiffs (excluding Christian faiths that are primarily practiced by racial minorities) were over twice as likely to prevail as claims brought by employees of minority faiths.[21]<\/a><\/p>\n\n\n\n

Indeed, despite Senator Randolph\u2019s best efforts, Hardison<\/em>\u2019s reinterpretation of Title VII made it significantly easier for employers to deny religious accommodation for those employees most likely to suffer from unfair prejudice in the workplace: religious minorities. Instead of increasing religious diversity in the workforce, Hardison<\/em> allowed employers to cite the very administrative costs associated with increasing religious diversity (like flexible dress codes to accommodate religious garb or shift swaps to allow Sabbath observance) to justify restricting<\/em> workplace accommodations. This in turn decreased workplace tolerance for religious diversity. As one federal judge put it before Groff<\/em> was decided, \u201cThe irony (and tragedy) of decisions like Hardison<\/em> is that they most often harm religious minorities\u2014people who seek to worship their own God, in their own way, and on their own time.\u201d[22]<\/a><\/p>\n\n\n\n

II.             Groff<\/h2>\n\n\n\n

Groff <\/em>mercifully corrected this state of affairs. But rather than confront Hardison<\/em>\u2019s error head on, Groff<\/em> took a different tack. It carefully parsed Hardison<\/em>\u2019s text and concluded \u201cit [wa]s doubtful\u201d the Court in Hardison <\/em>intended its gloss on the \u201cundue hardship\u201d standard to constitute an \u201cauthoritative interpretation\u201d of Title VII or \u201cto take on th[e] large role\u201d that lower courts had ascribed to it.[23]<\/a> While scholars can debate whether this revisionist reading of Hardison<\/em> is correct, the bottom line is that Groff<\/em> rejected the lower courts\u2019 unanimous interpretation of Hardison<\/em>. And in doing so, Groff<\/em> explained that \u201clike the parties,\u201d the Supreme Court now \u201cunderstand[s] Hardison<\/em> to mean that \u2018undue hardship\u2019 is shown when a burden is substantial in the overall context of an employer\u2019s business.\u201d[24]<\/a> While the Court justified this reinterpretation by a careful reading of Hardison<\/em>, the test it adopted looked as much to Title VII\u2019s text as to Hardison<\/em> itself, using dictionary definitions to explain that an \u201cundue hardship\u201d was not only a hardship (\u201csomething hard to bear\u201d), but one that rises \u201cto an \u2018excessive\u2019 or \u2018unjustifiable\u2019 level.\u201d[25]<\/a><\/p>\n\n\n\n

Having reinterpreted \u201cundue hardship,\u201d the Court also provided several guideposts for lower courts going forward. First, the Court embraced the EEOC\u2019s position that \u201ctemporary costs, voluntary shift swapping, occasional shift swapping, or administrative costs\u201d do not<\/em> impose an undue hardship in employers.[26]<\/a> Second, the Court suggested that providing \u201cincentive pay\u201d or coordinating across offices \u201cwith a broader set of employees\u201d were accommodations the lower courts should consider on remand, implying that such accommodations would not impose an undue hardship.[27]<\/a> Finally, rather than look to related Americans with Disabilities Act caselaw or simply adopt the EEOC\u2019s existing guidance (as Groff and USPS suggested, respectively), the Court invited lower courts to develop post-Groff<\/em> precedent by using standard tools of statutory interpretation to \u201cresolve whether a hardship would be substantial in the context of an employer\u2019s business in the commonsense manner that [they] would use in applying any such test.\u201d[28]<\/a><\/p>\n\n\n\n

Groff<\/em> also directly addressed a question that often arises in accommodation cases: when and how should courts factor in impacts on coworkers when assessing undue hardship? For instance, what if other employees start grumbling about a religious accommodation\u2014does a decrease in coworker morale count as an undue hardship? Without completely barring courts from considering these impacts, Groff <\/em>significantly narrowed their use in the undue hardship analysis in two ways. First, the Court made clear that some \u201cburdens\u201d on coworkers are simply \u201coff the table.\u201d[29]<\/a> These include a coworker\u2019s dislike or hostility toward \u201creligious practices and expression in the workplace\u201d and the \u201cmere fact of an accommodation.\u201d[30]<\/a> As the Court explained, \u201ca hardship that is attributable to employee animosity . . . cannot be considered \u2018undue.\u2019\u201d[31]<\/a> To hold otherwise would put \u201cTitle VII . . . at war with itself,\u201d as it was enacted to forbid \u201cbias or hostility to a religious practice.\u201d[32]<\/a> Second, the Court emphasized that merely citing an impact on coworkers is insufficient; instead, courts must take the \u201cfurther logical step\u201d seriously and determine how the alleged impact on coworkers would \u201caffect the conduct of the employer\u2019s business.\u201d[33]<\/a><\/p>\n\n\n\n

III.            The world after Groff<\/em><\/h2>\n\n\n\n

So where do things stand now? After Groff<\/em>, there is no question that the de minimis<\/em> standard is out. Instead, courts must apply the \u201cactual text\u201d[34]<\/a> of Title VII\u2019s religious accommodation provision. This will likely result in significantly more religious accommodations in the workplace. For large employers, it is hard to see how the costs of providing an accommodation\u2014like overtime or incentive pay, or the administrative cost associated with shifting schedules\u2014would rise to the level of an undue hardship in all but the most unusual cases (like an NFL quarterback unable to work on Sundays). But even for small employers, many accommodations can be made at little to no cost\u2014they simply require flexibility and the willingness to work with<\/em> religious employees instead of against them. And for Sabbatarians in particular\u2014by confirming that voluntary shift swaps, occasional incentive or overtime pay, and minor administrative costs are not undue hardships–the Court has all but guaranteed more accommodations.<\/p>\n\n\n\n

Conclusion<\/h2>\n\n\n\n

Groff <\/em>on its face carefully \u201cclarifies\u201d (without overturning) existing precedent and adopts an interpretation of Title VII that both parties generally supported\u2014a fact that the Court notes repeatedly throughout the opinion. This modest approach shows why the Court\u2019s opinion garnered the votes of all nine Justices. But make no mistake, Groff<\/em> is also a significant repudiation of nearly 50 years of precedent interpreting Title VII. Lower courts therefore cannot ignore Groff<\/em>; going forward, they must interpret Title VII\u2019s religious accommodation provision according to its text. While only time will tell, this appears to be a significant victory for religious minorities and for all those who seek the opportunity to make a living without sacrificing their faith.<\/p>\n\n\n\n

 <\/p>\n\n\n\n

 <\/p>\n\n\n\n

*<\/a> Nick Reaves is counsel at the Becket Fund for Religious Liberty and visiting clinical lecturer at Yale Law School. The views expressed here do not necessarily reflect the views of Becket and its clients or of Yale Law School. The author thanks Eric Rassbach for his contributions to this piece. Any errors remain his own.<\/p>\n\n\n\n

[1]<\/a> Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).<\/p>\n\n\n\n

[2]<\/a> Groff v. DeJoy, 143 S. Ct. 2279, 2297 (2023) (Sotomayor, J., concurring).<\/p>\n\n\n\n

[3]<\/a> 42 U.S.C. \u00a7 2000e(j).<\/p>\n\n\n\n

[4]<\/a> See <\/em>143 S. Ct. at 2286.<\/p>\n\n\n\n

[5]<\/a> See id.<\/em> at 2286-87.<\/p>\n\n\n\n

[6]<\/a> Transcript of Oral Argument at 61:16\u201318, Groff v. DeJoy, 143 S. Ct. 2279 (2023) (No. 22-174).<\/p>\n\n\n\n

[7]<\/a> Id.<\/em> at 66:15\u201316.<\/p>\n\n\n\n

[8]<\/a> Id.<\/em> at 74:9.<\/p>\n\n\n\n

[9]<\/a> Groff<\/em>, 143 S. Ct. at 2291.<\/p>\n\n\n\n

[10]<\/a> Transcript of Oral Argument at 71:7, Groff v. DeJoy, 143 S. Ct. 2279 (2023) (No. 22-174).<\/p>\n\n\n\n

[11]<\/a> Id.<\/em> at 67:14\u201315.<\/p>\n\n\n\n

[12]<\/a> See, e.g.<\/em>, Lowe v. Mills, 68 F.4th 706, 720 (1st Cir. 2023) (\u201cTitle VII does not define \u2018undue hardship,\u2019 see id.<\/em> \u00a7 2000e, but current law holds that \u2018[a]n accommodation constitutes an \u201cundue hardship\u201d if it would impose more than a de minimis<\/em> cost on the employer.\u2019\u201d (quoting Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 134 (1st Cir. 2004))); Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 486 (2d Cir. 1985) (applying Hardison<\/em>\u2019s de minimis<\/em> standard); United States v. Bd. of Educ. for Sch. Dist. of Philadelphia, 911 F.2d 882, 894 (3d Cir. 1990) (same); EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008) (same); Tagore v. United States, 735 F.3d 324, 330 (5th Cir. 2013) (same); Small v. Memphis Light, Gas & Water, 952 F.3d 821, 825 (6th Cir. 2020) (\u201cBut the company did not have to offer any accommodation that would have imposed an \u2018undue hardship\u2019 on its business\u2014meaning (apparently) anything more than a \u2018de minimis cost.\u2019\u201d (quoting Hardison, 432 U.S. at 84)); EEOC v. Walmart Stores E., L.P., 992 F.3d 656, 658 (7th Cir. 2021) (\u201cTo require [an employer] to bear more than a de minimis<\/em> cost in order to give [an employee] Saturdays off is an undue hardship. (From now on, we\u2019ll use the phrase \u201cslight burden\u201d to avoid the Latin.)\u201d (quoting Hardison, 432 U.S. at 84)); Mann v. Frank, 7 F.3d 1365, 1369 (8th Cir. 1993) (\u201cHardison<\/em> held that any accommodation involving more than de minimis<\/em> costs to the employer constitutes undue hardship.\u201d (citing Hardison, 432 U.S. at 84)); Opuku-Boateng v. State of Cal., 95 F.3d 1461, 1468 n.11 (9th Cir. 1996) (\u201cThe Supreme Court has made it clear that an accommodation that imposes more than a de minimis<\/em> cost to the employer constitutes an undue hardship.\u201d (citing Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 367, 371 (1986))); Graff v. Henderson, 30 F. App\u2019x 809, 810 (10th Cir. 2002) (applying Hardison<\/em>\u2019s \u201cde minimis<\/em>\u201d standard); Dalberiste v. GLE Assocs., Inc., 814 F. App\u2019x 495, 498 (11th Cir. 2020) (same).<\/p>\n\n\n\n

[13]<\/a> Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 87 (Marshall, J., dissenting).<\/p>\n\n\n\n

[14]<\/a> Id.<\/em> at 92 n.6 (Marshall, J., dissenting). As the majority in Groff<\/em> points out, Hardison<\/em> also suggests that the burden on TWA in that case was \u201csubstantial,\u201d but descriptions<\/em> of the burden on TWA do not change the opinion\u2019s legal holding<\/em> that anything more than a de minimis<\/em> burden is an undue hardship. Groff<\/em>, 143 S. Ct. at 2292.<\/p>\n\n\n\n

[15]<\/a> See <\/em>Transcript of Oral Argument at 71:11\u201372:3, Groff v. DeJoy, 143 S. Ct. 2279 (2023).<\/p>\n\n\n\n

[16]<\/a> Debbie N. Kaminer, Title VII\u2019s Failure to Provide Meaningful and Consistent Protection of Religious Employees: Proposals for an Amendment, 21 Berkeley J. Emp. & Lab. L. 575, 584 (2000).<\/p>\n\n\n\n

[17]<\/a> 118 Cong. Rec. S228 (daily ed. Jan. 21, 1972) (statement of Sen. Randolph).<\/p>\n\n\n\n

[18]<\/a> 42 U.S.C. \u00a7 2000e(j).<\/p>\n\n\n\n

[19]<\/a> See <\/em>Petition for Writ of Certiorari at 25\u201331, Dalberiste v. GLE Associates, 141 S. Ct. 2463 (2021) (mem.); Petition for Writ of Certiorari at 22\u201326, Small v. Memphis Light, Gas & Water, 141 S. Ct. 1227 (2021).<\/p>\n\n\n\n

[20]<\/a> See <\/em>Petition for Writ of Certiorari at 29, Dalberiste v. GLE Associates, 141 S. Ct. 2463 (2021) (mem.).<\/p>\n\n\n\n

[21]<\/a> See id. <\/em>at 30.<\/p>\n\n\n\n

[22]<\/a> Memphis Light, Gas & Water, 952 F.3d at 829 (Thapar, J., concurring).<\/p>\n\n\n\n

[23]<\/a> Groff<\/em>, 143 S. Ct. at 2291\u201392.<\/p>\n\n\n\n

[24]<\/a> Id. <\/em>at 2294.<\/p>\n\n\n\n

[25]<\/a> Id. <\/em>at 2294.<\/p>\n\n\n\n

[26]<\/a> Id.<\/em> at 2296.<\/p>\n\n\n\n

[27]<\/a> Id. <\/em>at 2297.<\/p>\n\n\n\n

[28]<\/a> Id.<\/em> at 2296.<\/p>\n\n\n\n

[29]<\/a> Id.<\/em><\/p>\n\n\n\n

[30]<\/a> Id.<\/em><\/p>\n\n\n\n

[31]<\/a> Id<\/em>.<\/p>\n\n\n\n

[32]<\/a> Id.<\/em><\/p>\n\n\n\n

[33]<\/a> Id.<\/em><\/p>\n\n\n\n

[34]<\/a> Id.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Groff v. DeJoy: Hardison is dead, long live Hardison! Nick Reaves* For decades, lower courts and litigators labored under the (mis)impression that the Supreme Court meant what it said in TWA v. Hardison: that an employer can deny a religious accommodation if it imposes anything more than a \u201cde minimis\u201d (or minimal) cost on the employer\u2019s business.[1] So understood, Hardison cost countless religious minorities their jobs and allowed this country\u2019s largest employers to deny religious 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