Title VII of the Civil Rights Act of 1964 is the primary piece of federal legislation that protects individuals from discrimination in the workplace. And since 1964, it has been doing its job, slowly chipping away at discriminatory behavior in the workplace. Among its many protections, it protects employees from discrimination “because of… religion.” Naturally, this may seem like a rather appealing cause to the average Conservative. Republicans and Democrats alike are keen to protect religious freedoms, but no one takes up that crusade quite like some of the more Conservative members of our country’s highest courts. However, it is also no secret that Conservative ideology almost unerringly favors employers and disfavors government intervention in the workplace in general. Chipping away at Title VII has been one of the primary goals of this country’s Conservative employers since its enactment. Title VII prohibits discrimination because of religion, but also requires employers to accommodate an employee’s religious practices unless doing so would impose an “undue hardship on the conduct of the employer’s business.” Until last year, the definition of “undue hardship” had not changed since 1977. But now SCOTUS has finally had the opportunity to set the record straight.
For almost 50 years, a body of case law grew from a single line in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), which, if read literally (as many Circuit courts did since 1977) defined an “undue hardship” as any accommodation that would require “more than a ‘de minimis’ cost” to the employer. But in Groff v. DeJoy, 600 U.S. 447 (2023), SCOTUS unanimously rejected the old, very low standard of what constitutes an “undue hardship” to an employer and raised that bar back up to where Congress intended back in 1964. SCOTUS held that “undue hardship is shown when a burden is substantial in the overall context of an employer’s business,” “tak[ing] into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of an employer.” (Groff at 470-71). This requires an “assessment of a possible accommodation’s effect on the conduct of the employer’s business.” (Groff at 472). The Court returned to the statutory text and concluded:
under any definition, a hardship is more severe than a mere burden. So even if Title VII said only that an employer need not be made to suffer a ‘hardship,’ an employer could not escape liability simply by showing that an accommodation would impose some sort of additional costs. Those costs would have to rise to the level of hardship, and adding the modifier “undue” means that the requisite burden, privation, or adversity must rise to an ‘excessive’ or ‘unjustifiable’ level.
(Id. at 469 (emphasis added)). Since Groff was decided (June 29, 2023), only two courts have applied the new definition set out in Groff and, from my quick research, the 5th is the only Circuit Court to explicitly adopt Groff(yet), in Hebrew v. Texas Dep't of Crim. Just., 80 F.4th 717 (5th Cir. 2023). But more will come, and in the coming years more circuits will be faced with the unsavory task of acknowledging that they have been overruled.
In Hebrew v. Texas Department of Criminal Justice, a corrections officer and was terminated after refusing to cut his beard because of his religious vows. The employee sued under Title VII for both substantive religious discrimination and failure to accommodate the employee’s reasonable exercise of his religious beliefs. The lower court accepted the employer’s proffered reason for termination, which was “to promote the safety of officers and security of prisons,” and found the employer acted legitimately and non-discriminatorily. The lower court also accepted the employer’s excuse for failure to accommodate– that they “would have to bear more than a “de minimis” cost because coworkers would have to perform extra work.” But that “de minimis” standard was barely a standard at all—a “more than de minimus” burden functionally means almost any burden at all (except for the most trivial expense) would exempt an employer from accommodating their employee’s religious practice.
The 5th Circuit reversed on both the substantive religious discrimination case and the claim of failure to accommodate his religious exercise. It based its decision entirely on Groff v. DeJoy, which was decided by SCOTUS while the appeal was pending.
The 5th Circuit rejected all of the employer’s arguments. The employer’s first argument was that the employee would be able to hide contraband in his beard and that they would need to change the way searches are performed if everyone requested an accommodation for a beard. But the Court noted that the prison could simply search the employee’s beard, and that Groff instructed them to only “look at the case at hand” and “the particular accommodations at issue,” and not to bother with how a workplace policy would be implemented in some infinite number of situations. Second, the prison offered the very common “gas mask” argument (that should there be a prison riot or situation in which tear gas would need to be used to control prisoners, the correction’s officers would need to wear gas masks, and their beard would theoretically get in the way of that) which failed because they already allowed a medical exception for officers with skin conditions to have a quarter-inch beard, which wouldn’t allow the gas mask to seal properly either. Third, the prison argued inmates could grab the officer’s beard and attack him. But the prison already allowed female guards to have long hair, which presents the same safety concern. Since the employer did not mention costs to them of accommodating the beards, nor did the prison consider other possible ways to accommodate their employee’s religious exercise, the 5th circuit reversed.
That’s right folks, SCOTUS forced the 5th Circuit to do the unthinkable– find in favor of the employee in an employment discrimination case! (the ghost of Sandra Day O’Connor is clutching her pearls while RBG’s performs a perfectly choreographed dance to CeCe Peniston’s 1991 hit “Finally”).
Groff also explicitly abrogated established 11th Circuit precedent that relied on the old, erroneous interpretation of Hardison. Groff (footnote 13) disapprovingly cites a list of cases in various Circuits that applied the incorrect interpretation, including three cases in the 11th Circuit. Westlaw acknowledges that these cases have been abrogated. So now seems the perfect time to bring a religious accommodation claim to the 11thCircuit. It seems the 11th Circuit will have no choice in light of Groff but to acknowledge its problematic precedent. This means that, eventually, the 11th Circuit will be forced to follow their brethren in the Texas and side with employees in an employment discrimination case. But perhaps they will sleep soundly after all since these decisions also do so much to strengthen individual rights to religious exercise, which last time I checked, both sides of the aisle are cool with.
