Call Me by My Name: The Future of Religious Accommodations under Groff v. DeJoy

by Parker Herren, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin.¹Gender identity is also protected, meaning that employers may not discriminate against employees based on the sex they identify as, including their preferred pronouns.² Additionally, on June 25, 2021, President Biden issued the Executive Order on Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce.³ This order expresses that all federal employees shall be able to openly express their gender identity without discrimination from their employer.⁴

This article explores the impact that Groff v. Dejoy may have on the future of workplace religious accommodations, particularly in the diversity, equity, and inclusion context. Part II provides background on the pre-Groff de minimus standard for religious accommodations, and the post-Groff substantial burden standard. Part III discusses how the lack of clarity in Groff has left employers with the difficult task of responding to religious objections to their diversity, equity, and inclusion policies. Finally, Part IV concludes by discussing how the Court has the opportunity to clarify itself in Kluge v. Brownsburg Community School Corp. by establishing a more workable framework.

II. Background

A. Title VII of The Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 states “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”⁵ Section (j) of Title VII specifies that religion includes “all aspects of religious observance and practice, as well as belief, unless an employer can demonstrate that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”⁶ A plaintiff claiming undue hardship under Title VII must show he: “(1) holds a sincere religious belief that conflicts with a job requirement; (2) informed his employer of the conflict; and (3) was disciplined for failing to comply with the conflicting job requirement. (4) Once a plaintiff establishes a prima facie case, the burden shifts to the employer to show ‘either it made a good faith effort to reasonably accommodate the religious belief, or such an accommodation would [create] and undue hardship.’”⁷

The Court affirmed the undue hardship requirement in Trans World Airlines, Inc. v. Hardison, and held that requiring Trans World Airlines (“TWA”) to bear more than a di minimis cost to accommodate Hardison would be an undue hardship.⁸ In Trans World Airlines, respondent Hardison was hired as a clerk for TWA.⁹ Due to the nature of TWA’s business, they operate 24 hours a day 7 days a week.¹⁰ If an employee’s job in a specific department is not filled, an employee from another division must be assigned to cover the job, even if this may be detrimental to other areas of the company.¹¹ Hardison is a member of the World Wide Church of God, which observes the Sabbath and refrains from working during the time between sunset on Friday and sunset on Saturday.¹² Hardison informed his manager that due to his religious beliefs, he would not work on Saturdays or on any religious holidays.¹³ Initially, Hardison’s request to not work on his Sabbath was accommodated, but after being transferred to a new building, Hardison started to be scheduled for Saturday shifts.¹⁴ Hardison refused to report for work on Saturdays and was subsequently terminated for insubordination for refusing to work during his designated shift.¹⁵

The Supreme Court reasoned that because it was essential that TWA’s business operate 24 hours a day, 7 days a week, it was a detrimental expense to accommodate Hardison.¹⁶ To accommodate Hardison, TWA would need to allocate his work to other employees in the company, at the expense of decreasing production.¹⁷ Additionally, allowing Hardison accommodations would have forced TWA to adopt a policy allowing their employees to have the necessary days off for strict observance of their religion at the expense of other employees who had strong, nonreligious reasons for not working on the weekend.¹⁸

B. The New Standard of Religious Discrimination and Undue Hardship

In Groff v. DeJoy, Petitioner Gerald Groff worked as a mail delivery person for the United States Postal Service (“USPS”).¹⁹ As an Evangelical Christian, Groff believes that Sundays should be a period of worship and rest.²⁰ When Groff learned that his position would require him to begin making deliveries on Sundays, he transferred to a USPS location that did not make Sunday deliveries.²¹ However, his new location also began implementing a Sunday delivery policy.²² When Groff refused to work on Sundays due to his religious beliefs, USPS redistributed Groff’s deliveries to other employees and served Groff with “progressive discipline” for failing to work on Sundays.²³ Groff resigned and brought suit under Title VII of the Civil Rights Act of 1964, claiming that USPS could have accommodated his religious request “without undue hardship on the conduct of [USPS’s business].”²⁴

In assessing claims of undue hardship, the Court relied on Trans World Airlines, Inc. v. Hardison, which held that an undue hardship required an employer to bear more than a de minimis cost to provide a religious accommodation.”²⁵ The de minimis standard played a significant role in determining undue hardship, until 50 years later when the Court revisited this standard in Groff.²⁶ The Supreme Court in Groff rejected the de minimis test and held that “employers rejecting religious accommodations must demonstrate that the accommodation ‘would result in substantially increased costs in relation to the conduct of its particular business.’”²⁷ The standard under Groff has established a new definition of undue hardship and indicates that it will be substantially more difficult for employers to deny employees’ requests.

C. The Aftermath of Groff

Following Groff, schoolteacher John Kluge brought suit against Brownsburg Community School Corporation for religious discrimination and retaliation after he refused to follow the school’s guidelines for addressing transgender students.²⁸ Brownsburg requires its teachers to address their students by the names and pronouns they are registered under in the school’s database.²⁹ Kluge refused to comply with this policy for religious reasons, stating that he would only call students by the names they were assigned at birth.³⁰ Kluge stated that “God created mankind as either male or female,” and that “gender is fixed in each person from the moment of conception.”³¹ Additionally, he believes that “being transgender is a sin” and promoting gender dysphoria is a sin as well.³² Initially, Brownsburg allowed Kluge to address transgender students by their last name only; however, the school withdrew this policy upon discovery that this was harming transgender students and adversely impacting their learning environment.³³ According to one of Kluge’s colleagues, he overheard two transgender students in Kluge’s class say they felt isolated and targeted by Kluge’s last name policy.³⁴ Specifically, one of Kluge’s students, Aidyn, stated that Kluge’s behavior made him feel “alienated, upset, and dehumanized.”³⁵ Another student, Sam, reaffirmed this stance, stating that the practice made the transgender students in Kluge’s class stick out.³⁶ Additionally, several other colleagues raised concerns about Kluge’s practice and the harm it was causing students.³⁷

The district court found in favor of Brownsburg, stating that if the school district continued to accommodate Kluge’s last name only policy it would suffer from undue hardship.³⁸ Justice Department attorney Jason Lee stated “The evidence was clear in the court below…the harm to two transgender students in Kluge’s music and orchestra class was personal, educational, and social. And all students were made to feel uncomfortable by Kluge’s practice. That interfered with the school’s educational mission.”³⁹

The Seventh Circuit affirmed this ruling, stating “[t]his Court and others recognize that undue hardship arises when an employee’s accommodation causes emotional or psychological harm to coworkers, and when it results in a non-speculative risk of undermining customer relations.”⁴⁰ However, in July 2023, the Seventh Circuit issued an order stating that in light of the Supreme Court’s clarification in Groff, the case would be sent back to the district court to apply the clarified standard to the religious accommodation claim.⁴¹

This case looks to be one of the first to adopt the new standard of undue hardship as implemented in Groff.⁴² However, many attorneys criticize the Supreme Court, arguing that the Court did not leave clear guidance on when a religious accommodation would constitute a “substantial burden” on the employer.⁴³ Elizabeth Sepper, a law professor at the University of Texas at Austin, adds that “[t]he analysis of whether a religious accommodation imposes an undue hardship, which is the language of Title VII, will depend on things like the size of the employer, its enterprise, and the kinds of workers it has.”⁴⁴

III. Discussion

A. The Future of Religious Accommodations Under Groff

The aftermath of Groff has left many employers in a precarious situation, as an increasing number of employees are seeking faith-based accommodations with respect to diversity, equity, and inclusion policies.⁴⁵ Before Groff, it was a relatively low burden for an employer to deny a religious accommodation.⁴⁶ However, post-Groff, an employer may not deny a religious accommodation without showing that the burden of granting that accommodation would result in substantially increased costs to the business.⁴⁷ With little precedent and application of the new standard in Groff, employers are now faced with the difficult challenge of complying with employees’ religious beliefs and protecting the rights of protected classes.⁴⁸

Brownsburg has the potential to be a monumental clarification for the standard articulated under Groff. Without a clear definition in Groff, lower courts will likely struggle with applying this new standard. Hardison served as long-standing precedent for what undue hardship meant in claims of religious accommodations under Title VII. One lawyer asserts: “we’re in a challenging position where employers may have made accommodation decisions based on the Hardison standard, and then now, those decisions are going to be assessed potentially under the Groff standard.”⁴⁹ This is potentially the reason why the Kluge court remanded the decision back to the lower court.

While the Supreme Court appears to be waiting for developments in the lower court following its ruling, this may cause more harm than good. Without clear guidance from the Court on how to apply the new standard, there will be a lack of consistency in the courts. When overruling a decade long precedent, the Court should clearly outline the standards for lower courts to apply the new ruling. Not only would this allow for more consistency in all lower court decisions, but it would allow for plaintiffs to receive equal restitution for similar situations. Kluge provides the Court with a vital opportunity to rule on how the new Groff standard should apply to faith-based accommodations for diversity, equity, and inclusion efforts. To protect plaintiffs, and unnecessary time spent in lower courts, clarification on how to apply the Groff standard is essential.

IV. Conclusion

The new ruling in Groff has the potential to have massive effects on employers’ compliance with religious accommodations. With little guidance on how to apply the new standard, the Court must use these upcoming cases to set an example. It is imperative that the court preserves the balance between religious accommodations and protected classes. Kluge presents the Court with an opportunity to clarify the ruling in Groff and set a standard for employers when it comes to religious accommodations for diversity, equity, and inclusion efforts.

Cover Photo by Alexander Grey on Unsplash.

Parker Herren

References

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Civil Rights Act of 1964, 42 U.S.C. §2000e (1964).
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Tom Spiggle, Striking the Delicate Balance: Navigating Religious Accommodations and Preferred Pronouns In Today’s Workplace, Forbes (Apr. 4, 2023, 12:43 PM), https://www.forbes.com/sites/tomspiggle/2023/04/04/striking-the-delicate-balance-navigating-religious-accommodations-and-preferred-pronouns-in-todays-workplace/?sh=4e24059a3e3d.
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Exec. Order No. 14035, 86 Fed. Reg. 34593 (June 25, 2021).
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42 U.S.C. § 2000e-2(m).
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42 USCA §2000e(j).
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Adler Pollock & Sheehan P.C., SCOTUS to Take Another Look at Religious Accommodations, Casetext (Feb. 2, 2023), https://casetext.com/case/trans-world-airlines-inc-v-hardison/analysis?citingPage=1&sort=relevance.
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