Groff v. DeJoy

LII note: The U.S. Supreme Court has now decided Groff v. DeJoy .


Is the Hardison test for undue hardship, which excuses an employer from accommodating a religious employee if the religious accommodation imposes “more than a de minimis cost,” consistent with Title VII? Can USPS demonstrate undue hardship solely by showing that the accommodation would burden the employee’s coworkers with additional work on Sundays?

Oral argument: 
April 18, 2023

This case asks the Supreme Court to reconsider the appropriate standard of undue hardship that an employer must demonstrate before it may be excused from its duty to reasonably accommodate an employee’s religious belief or practice under Title VII of the Civil Rights Act of 1964. This case also asks the Supreme Court whether Title VII permits employers to demonstrate undue hardship solely by showing that any accommodation would burden other employees. Gerald Groff contends that the Hardison de minimis test was incorrect and should be overruled and that the plain language of Title VII requires employers to prove that their businesses directly suffered undue hardship. DeJoy argues that the Hardison de minimis test should be reaffirmed but clarified and that burdens on coworkers can support a finding of undue hardship. The outcome of this case has significant implications for the protection of religious practice and belief in the workplace.

Questions as Framed for the Court by the Parties 

(1) Whether the court should disapprove the more-than-de-minimis-cost test for refusing religious accommodations under Title VII of the Civil Rights Act of 1964 stated in Trans World Airlines, Inc. v. Hardison; and (2) whether an employer may demonstrate “undue hardship on the conduct of the employer’s business” under Title VII merely by showing that the requested accommodation burdens the employee’s coworkers rather than the business itself.


Under Title VII of the Civil Rights Act of 1964, it is illegal to discriminate against someone with respect to their “compensation, terms, conditions or privileges of employment” because of their religion. Groff v. DeJoy at 168. An employer must provide a reasonable accommodation for an employee’s sincere religious practices unless the reasonable accommodation would put an undue hardship “on the conduct of the employer’s business.” Id. In Trans World Airlines, Inc. v. Hardison, the Supreme Court defined undue hardship as a “more than… de minimis cost to the employer.” Id. at 174.

Gerald Groff worked for the United States Postal Service (“USPS”) from 2012 to 2019 as a Rural Carrier Associate (“RCA”), that is, an employee who works on an “as needed” basis to fill in for absent employees. Id. at 165. Groff is a Sunday Sabbath observer who firmly believes he cannot work on Sunday because Sunday is a day of rest. Id. at 164. Shortly after Groff began working as an RCA at the Quarryville Post Office, that location began delivering Amazon packages on Sundays. Id. at 165–66. At first, the Quarryville Postmaster was able to give Groff Sundays off so long as he worked shifts throughout the week. Id. at 166. However, in 2016, USPS entered into a Memorandum of Understanding (“MOU”) with a union that obligated RCAs to work as needed on Sundays under a new scheduling arrangement. Id. at 165. This scheduling arrangement provided that during the “peak season” of the year, each post office was responsible for delivering mail on Sundays, whereas during the “non-peak season,” offices would act as part of a “regional hub” to deliver mail on Sundays. Id. at 165. The Quarryville Postmaster could no longer give Groff Sundays off during the peak season. Id. at 166.

Groff then transferred to the Holtwood Post Office, which had not yet begun deliveries for Amazon on Sundays. Id. When this location began Sunday deliveries, Groff told the Postmaster he would not come to work on Sundays. Id. To accommodate Groff, the Postmaster found other RCAs to cover Groff’s Sunday shifts. Id. Consequently, one RCA was forced to work Sundays alone during the peak season, and the Postmaster himself had to deliver mail on Sundays if another RCA was not available. Id. Groff’s repeated refusal to show up on Sundays for which he was scheduled also created a tense and resentful atmosphere. Id. at 167. During the non-peak season, other carriers were called to the hub more frequently due to Groff’s absences and had to deliver more mail than usual on Sundays. Id. at 166–67. Throughout this time, Groff faced progressive discipline due to his absences and filed a few unsuccessful complaints with an Equal Employment Opportunity counselor at USPS to receive different accommodations. Id. Groff eventually resigned from USPS. Id. at 167.

Groff sued Louis DeJoy, the Postmaster General of USPS, for failure to accommodate his religious practices under Title VII. Id. The District Court found that the opportunity to swap shifts with other employees was a reasonable accommodation. Id. The District Court also found that accommodating Groff placed undue hardship on USPS. Id. at 167–68. The Third Circuit disagreed that shift-swapping was a reasonable accommodation since it did not eliminate the conflict between Groff’s religious practice and employment obligations. Id. at 164. It agreed, however, that giving Groff a total exemption from work on Sundays, as he wanted, would cause undue hardship on USPS, so it affirmed the grant of summary judgment for DeJoy. Id. at 164–65.

The Supreme Court granted Groff certiorari on January 13, 2023



Groff argues that the de minimis cost test of Trans World Airlines, Inc. v. Hardison, which says that an employer suffers an undue hardship when a religious accommodation imposes “more than a de minimis cost,” is inconsistent with Title VII. Brief for Petitioner, Gerald E. Groff at 14. Groff contends that, because the Supreme Court was not interpreting the 1972 Amendment to Title VII in Hardison, but was instead interpreting related U.S. Equal Opportunity Employment Commission (“EEOC”) guidelines, the Court’s discussion of the meaning of undue hardship in the Title VII amendment was dicta, i.e., comments that are unnecessary to resolve the case and therefore not legally binding. Id. at 15.

Groff contends that the Court can interpret the plain language of Title VII without being bound by the de minimis test, which was only dicta in Hardison. Id. at 17. Groff argues that the plain language of Title VII is contrary to the de minimis test. Id. Since “undue” means “excessive” and “hardship” means “suffering,” Groff contends that “undue hardship” cannot possibly mean the same thing as “de minimis,” which is defined as “very small or trifling matters.” Id. at 18–19. Instead, Groff suggests that “undue hardship” means an employer must suffer “significant difficulty or expense.” Id. at 17–18.

To support his position, Groff cites several other statutes, such as the Americans with Disabilities Act (“ADA”), the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), and the Fair Labor Standards Act (“FLSA”), which all define undue hardship as “significant difficulty or expense.” Id. at 20–21. Groff points out that, in bankruptcy law, “undue hardship” means that a student loan debt can only be discharged if the debtor shows “intolerable difficulties.” Id. at 21. Groff also notes that under Rule 26 of the Federal Rules of Civil Procedure, certain documents can only be obtained during discovery if a party shows “undue hardship” of “unusual expense” in obtaining equivalent documents through an alternative means. Id. at 22.

Groff further argues that Title VII’s treatment of religion supports his position that undue hardship means “significant difficulty or expense.” Id. at 20–21. Groff argues that Title VII’s treatment of religion is unique in that it requires employers to provide favored treatment, rather than mere neutrality, as in the case of race and sex, in order to avoid discrimination. Id. at 22–23.

DeJoy disagrees with Groff that Hardison’s standard for undue hardship was dicta. Brief for Respondent, Louis DeJoy, Postmaster General at 18–19. According to DeJoy, even though the Court in Hardison was analyzing EEOC guidelines, it did so “on the express premise” that the amendment to Title VII is essentially the same as the guidelines. Id. at 19.

DeJoy also argues that the de minimis test is consistent with Title VII. Id. at 27. DeJoy contends that the interpretation of “de minimis” must be based on Hardison’s facts and ruling. Id. According to DeJoy, the Court in Hardison equated “de minimis” with “substantial expenditures.” Id. at 29. DeJoy illustrates this by pointing out that, in Hardison, the infrequent payment of premium wages to accommodate an employee was deemed to be a de minimis cost, whereas the regular payment of premium wages would be an undue hardship. Id. at 29. Thus, DeJoy maintains that, when read in context, “de minimis” gives protection to religious employees beyond its literal meaning. Id. at 28, 30, 35.

DeJoy then argues that the other statutes Groff relies upon for definitions of undue hardship simply indicate that standards do and ought to differ by context. Id. at 34. DeJoy contends that the standard for undue hardship should be seen as a fact-specific inquiry, and as such, Hardison remains consistent with Title VII because, in the context of employment, the regular payment of premium wages would indeed impose a substantial cost and be an undue hardship. Id. DeJoy also asserts that Congress’ refusal to adopt other statutes’ definition in the context of Title VII suggests that the terms are used differently. Id. at 36–37.

Additionally, DeJoy argues that Hardison is consistent with the principle that Title VII gives favored treatment to religion because Hardison recognized that employers must accommodate religious practices in the absence of undue hardship. Id. at 23. In contrast, employers are never required to accommodate nonreligious practices, even when there is no burden to do so. Id. Thus, DeJoy maintains that the de minimis test, when correctly construed and applied, is appropriate for the Court to rely on in the Title VII context. Id. at 27, 38–40.


Groff argues that the Supreme Court need not adhere to its decision in Hardison for several reasons. Brief for Petitioner at 28. First, Groff contends that the Court in Hardison was not fully briefed on the issue of undue hardship and the test was never widely accepted. Id. at 28–30. Second, Groff opines that the case has not resulted in reliance interests because employers frequently change their “human-resources arrangements” and have long known of the Court’s dissatisfaction with the de minimis test. Id. at 31–32. Third, according to Groff, the de minimis test is unworkable because the outcome almost always favors the employer. Id. at 33–34. Fourth, Groff points out that recent cases have eroded the logic underlying Hardison by holding that Title VII requires favored treatment for religion. Id. at 35. Finally, Groff argues that Hardison is a “relic” of a time when the court focused less on the statutory text. Id. at 37. Groff contends that rather than Hardison, the plain meaning of undue hardship should govern. Id. at 37–38.

DeJoy counters that departing from precedent requires a showing beyond simply arguing that the precedent was erroneously decided. Brief for Respondent at 16, 20-21. DeJoy argues that stare decisis applies with extra force to statutory interpretations because Congress can easily correct the Court’s mistakes. Id. at 16–17. DeJoy emphasizes that while Congress has amended Title VII multiple times in the past half-century, it has never legislatively reversed Hardison. Id. at 18. In response to Groff’s points, DeJoy first argues that the Court in Hardison was fully briefed on the issue when it heard the case. Id. at 25. Second, according to DeJoy, employers have long relied on Hardison when creating “corporate policies and employment agreements.” Id. at 26. Third, DeJoy points out that Groff’s contention that Hardison is “unworkable” has nothing to do with consistency and predictability, but only that it affords employees too little protection; it is also not true that the outcome almost always favors the employer. Id. at 20–23. Fourth, DeJoy argues that recent cases have not eroded Hardison because requiring favored treatment for religion is consistent with Hardison. Id. at 23. Finally, DeJoy emphasizes that stare decisis is required even where precedents are not strictly focused on the statutory text. Id. at 24.


Groff argues that the Third Circuit erred in holding that undue hardship could be established through evidence that Groff’s religious accommodation imposed a burden on Groff’s coworkers. Brief for Petitioner at 38. Groff maintains that equating coworker “dissatisfaction or inconvenience” with undue hardship on the employer’s business has no support in the text, history, or purpose of Title VII or in the Court’s precedents. Id. at 39–40. While Groff acknowledges that the burden on coworkers is a factor in the analysis, Groff opines that the text of Title VII requires that the business itself suffer undue hardship. Id. at 39. Groff asserts that the Third Circuit’s error stems from a failure to recognize that religion receives favored treatment under Title VII and an employer will almost always be able to show undue hardship under the Third Circuit’s approach, effectively nullifying the protections of Title VII. Id. at 40–41. Ultimately, Groff concludes that since DeJoy only showed burden on Groff’s coworkers, there was insufficient evidence to establish that the USPS suffered undue hardship to accommodate Groff. Id. at 42.

DeJoy disputes Groff’s framing of the Third Circuit’s opinion. Brief for Respondent at 40. DeJoy asserts that the Third Circuit correctly recognized that burdens on coworkers can affect the conduct of the employer’s business, including the management of employees. Id. at 41. Although not every effect on coworkers will be an undue hardship on the conduct of the business, DeJoy contends that the “readily foreseeable effects” of some burdens on coworkers suffice to show undue hardship. Id. at 42, 45. DeJoy notes that Groff’s absences increased the workloads of other carriers and resulted in increased turnover at USPS, thereby impeding the ability of USPS to make its “critically important” Sunday deliveries for Amazon. Id. at 49–50. DeJoy thus concludes that accommodating Groff caused undue hardship on USPS. Id. at 46.



The Church of Jesus Christ of Latter-Day Saints and other religious groups (collectively “the Church”), in support of Groff, argue that adopting a more demanding undue hardship standard would not encourage frivolous claims. Brief of Amici Curiae Church of Jesus Christ of Latter-Day Saints et al., in Support of Petitioner, at 9–11. The Church argues that most religious accommodation claims are brought by members of religious minority groups who together comprise only a small percentage of the population. Id. at 10. Thus, the Church claims that the total potential number of religious accommodation cases is inherently limited by the “small pool of likely… claimants.” Id.

A group of twenty-two states (collectively “the states”), in support of Groff, argue that the fear of a “swarm of accommodation requests” (the so-called “floodgates” concern) is speculative and cannot justify retaining the de minimis cost test. Brief of Amici Curiae States of West Virginia et al., in Support of Petitioner at 7. According to the States, there is no empirical evidence demonstrating that employees will falsely claim religious grounds to obtain special treatment. Id. at 8–11. The States further contend that judges can easily ferret out and dismiss insincere religious accommodation claims. Id. at 10.

The Center for Inquiry and American Atheists (collectively “the Center”), in support of DeJoy, counters that a more demanding undue hardship standard would prove unworkable. Brief of Amici Curiae The Center For Inquiry and American Atheists, Inc., in Support of Petitioner at 24. The Center acknowledges that, under Title VII, employees must demonstrate a sincerely held religious belief in order to qualify for a reasonable accommodation. Id. The Center opines that courts would need to evaluate an employee’s sincerity of belief in a greater number of cases if dismissing a religious accommodation claim on the basis that no reasonable accommodation was available becomes more difficult. Id. at 24–26.

The Center contends that courts are ill-suited to determining whether and when an employee’s belief is subjectively sincere. Id. at 26. The Center observes that the EEOC does not recommend making a demanding inquiry into whether an employee’s belief is sincerely held. Id. at 25–26. The Center argues that, absent a “smoking gun” confession from the employee, it is almost impossible for a court to find the alleged religious belief insincere. Id. at 27. The Center thus concludes that, under Groff’s proposed standard, it would be too easy for an employee to lie about their religious practice in order to claim undue workplace benefits. Id. at 26–27.


The Church, in support of Groff, further argues that Hardison’s de minimis cost test has eroded Title VII’s intended prohibitions against religious discrimination. Brief of Amici Curiae Church of Jesus Christ of Latter-Day Saints et al., in Support of Petitioner, at 12. The Church claims that Hardison mistakenly prioritizes employers’ economic self-interests above employees’ rights to religious accommodation. Id. at 13. The Church further claims that, because employers can so easily satisfy the de minimis cost test, they have little incentive to settle religious accommodation claims. Id. The Church concludes that Hardison burdens employees who seek to observe holy days, wear religious apparel, or conform to religious grooming standards, all of which the Church claims Title VII was intended to protect. Id. at 15–17.

The American Hindu Coalition (the “Coalition”), in support of Groff, argues that the de minimis cost standard disproportionately harms religious minorities. Brief of Amicus Curiae The American Hindu Coalition, in Support of Petitioner, at 12–14. The Coalition contends that members of minority religions are particularly likely to have religious beliefs that differ from “prevailing cultural practices and conventions” and are in greater need of Title VII’s protections. Id. at 14–15.

DeJoy counters by arguing that the de minimis test provides adequate protection for religious exercise as long as it is properly applied. Brief for Respondent at 27–28, 30. While DeJoy concedes that the “de minimis” language itself might suggest a low barrier for excusing the duty to accommodate, he argues that what counts as a more-than-de-minimis cost remains a context-specific inquiry. Id. at 28–30.

DeJoy further asserts that the de minimis test does impose real limits: employers cannot cite mere “co-worker ‘grumbling’” or administrative difficulties to escape their duty to accommodate; they must instead make a concrete showing of actual harms. Id. at 30–33. Still, DeJoy acknowledges that the Supreme Court could clarify the de minimis test to make clear that it requires a fact-intensive and significant showing from employers. Id. at 38–40.



The authors would like to thank Professor Stewart Schwab for his guidance and insights into this case.