As everyone knows, I don’t usually blog twice a week. You wouldn’t think I would do that the Friday before the July 4 weekend. However, two Supreme Court decisions came down yesterday. The most notable one that came down yesterday was the decision involving Harvard and the University of North Carolina with respect to race-based admissions practices. As everyone knows, the majority opinion threw out those practices quite emphatically. It was very interesting reading the concurring opinion of Justice Thomas and comparing that to the dissenting opinions of Justice Sotomayor and Justice Jackson. It is Justice Gorsuch’s opinion that may have thrown a grenade into affirmative action generally when he reasons that affirmative action for those receiving federal funds is prohibited by title VI of the Civil Rights Act. Makes me wonder whether affirmative action for federal contractors isn’t dead. It will be interesting to see what the labor and employment lawyers on the management side think of the broader impact of this decision.
Two other things happened this week. First, the Pregnant Workers Fairness Act (PWFA), went into effect. The EEOC will be issuing regulations before too long one hopes. They did issue a brief question and answer document, here. Second, yesterday the Supreme Court came down with the decision in Groff v. DeJoy, here, where they unanimously threw out the de minimis standard for undue hardship established in Hardison. It is the PWFA and Groff that is the subject of today’s blog. As usual the blog entry is divided into categories and they are: Pregnant Workers Fairness Act; Groff v. Dejoy, which is divided into the categories of: Facts; Hardison in Historical Context; What Did Hardison Actually Say; What Is the Standard Going Forward and Fleshing out That Standard; Justice SotoMayor Concurring Opinion in Which Justice Jackson Joined; and Thoughts/Takeaways for the entire blog entry. The reader is free to concentrate on any or all of the categories throughout this blog entry.
Pregnant Workers Fairness Act (PWFA)
- PWFA went into effect June 27.
- PWFA applies to employers of 15 or more employees.
- The EEOC is now taking charges for violations of that act. Any charges for violations of that act would have to stem from an occurrence on June 27 or later. The PWFA does require exhaustion of administrative remedies with the EEOC prior to filing suit.
- PWFA protects employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions. It requires reasonable accommodations for person with a limitation related to pregnancy, childbirth, or related medical conditions.
- A reasonable accommodation is a change to the work environment or the way things are usually done at work.
- Requires an interactive process.
- A covered employer cannot require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working.
- Has a retaliation and an interference provision.
- EEOC will be issuing regulations before too long it is hoped.
Groff v. DeJoy
Gerald Groff is an Evangelical Christian who believes for religious reasons that Sunday should be devoted to worship and rest, not “secular labor” and the “transport[ation]” of 2 GROFF v. DEJOY Opinion of the Court worldly “goods.” App. 294. In 2012, Groff began his employment with the United States Postal Service (USPS), which has more than 600,000 employees. He became a Rural Carrier Associate, a job that required him to assist regular carriers in the delivery of mail. When he took the position, it generally did not involve Sunday work. But within a few years, that changed. In 2013, USPS entered into an agreement with Amazon to begin facilitating Sunday deliveries, and in 2016, USPS signed a memorandum of understanding with the relevant union (the National Rural Letter Carriers’ Association) that set out how Sunday and holiday parcel delivery would be handled. During a 2- month peak season, each post office would use its own staff to deliver packages. At all other times, Sunday and holiday deliveries would be carried out by employees (including Rural Carrier Associates like Groff) working from a “regional hub.” For Quarryville, Pennsylvania, where Groff was originally stationed, the regional hub was the Lancaster Annex.
The memorandum specifies the order in which USPS employees are to be called on for Sunday work outside the peak season. First in line are each hub’s “Assistant Rural Carriers”— part-time employees who are assigned to the hub and cover only Sundays and holidays. Second are any volunteers from the geographic area, who are assigned on a rotating basis. And third are all other carriers, who are compelled to do the work on a rotating basis. Groff fell into this third category, and after the memorandum of understanding was adopted, he was told that he would be required to work on Sunday. He then sought and received a transfer to Holtwood, a small rural USPS station that had only seven employees and that, at the time, did not make Sunday deliveries. But in March 2017, Amazon deliveries began there as well.
With Groff unwilling to work on Sundays, USPS made other arrangements. During the peak season, Sunday deliveries that would have otherwise been performed by Groff were carried out by the rest of the Holtwood staff, including the postmaster, whose job ordinarily does not involve delivering mail. During other months, Groff ’s Sunday assignments were redistributed to other carriers assigned to the regional hub.1 Throughout this time, Groff continued to receive “progressive discipline” for failing to work on Sundays. Finally, in January 2019, he resigned. A few months later, Groff sued under Title VII, asserting that USPS could have accommodated his Sunday Sabbath practice “without undue hardship on the conduct of [USPS’s] business.”
In two different footnotes, the Supreme Court noted that other employees complained about the plaintiff’s absences, including at least one filed a grievance. Also, plaintiff’s resignation was done, according to the plaintiff (the District Court found a genuine issue of material fact on this question), in light of his expected termination.
Hardison in Historical Context
- In 1968, the EEOC issued final regulations obligating employers to make reasonable accommodation to the religious needs of employees whenever that would not work an undue hardship on the conduct of the employer’s business.
- In 1972, Congress amended title VII to provide that the term religion includes all aspects of religious observance and practice, as well as beliefs, unless an employer demonstrates 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.
- Hardison arose during the time between the issuance of the EEOC’s undue hardship regulation and the 1972 amendments to title VII.
- Hardison is at its core a collective bargaining case and must be read with that in mind. It is not clear that any of the possible accommodations would have actually solved Hardison’s problem without infringing upon seniority rights.
What Did Hardison Actually Say
- In the briefs and at oral argument, little space was devoted to the question of determining when increase costs amount to an undue hardship under the statute. Nevertheless, a single sentence in the opinion for the Supreme Court, if taken literally, suggested that even a pittance might be too much for an employer to be forced to endure. In particular, the line said, “to require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.”
- De minimis took on a world of its own with courts saying it was the standard for religious accommodations.
- Hardison referred repeatedly to substantial burdens and that formulation better explains its decision.
What Is the Standard Going Forward and Fleshing out That Standard
- Even the Solicitor General disavows its prior position that Hardison should be overruled, but only on the understanding that Hardison does not compel courts to read the more than de minimis standard literally or in a manner undermining Hardison’s references to substantial costs.
- More than a de minimis cost does not suffice to establish undue hardship under title VII as Hardison cannot be reduced to that one phrase.
- Undue hardship is shown when a burden is substantial in the overall context of an employer’s business. This formulation is a fact-specific inquiry comporting with both Hardison and the meaning of undue hardship in ordinary speech.
- Turning to the dictionary, a hardship is at a minimum something hard to bear.
- Adding the modifier “undue,” means that the requisite burden must rise to an excessive or unjustifiable level.
- Even the government agrees that undue hardship must mean something greater than hardship.
- Nothing in the history of title VII suggests that undue hardship should be read to mean anything less than its meaning in ordinary use.
- No factor discussed by the parties (the ordinary meaning of undue hardship, the EEOC guidelines that Hardison concluded the 1972 amendment ratified, the use of that term by the EEOC prior to those amendments, and the common use of that term in other statutes), supports reducing Hardison to nothing more than a de minimis costs line.
- Undue hardship for purposes of religious accommodation occurs where an employer shows that the burden of granting an accommodation results in a substantial increase costs in relation to the conduct of its particular business. In figuring that out, courts must apply this formulation in a manner taking into account all relevant factors in the case, including/such as: the particular accommodations at issue; and the practical impact in light of the nature, size and operating costs of an employer.
- As for the way forward, plaintiff suggested that the Supreme Court draw upon decades of ADA case law. On the other hand, the government suggested that the Supreme Court say that the EEOC’s construction of Hardison has been basically correct. Both of those suggestions go too far.
- No reservation in saying that a good deal of the EEOC’s guidance in the area of religious accommodation is sensible and will in all likelihood be unaffected by the decision. So, this decision may prompt little if any change in the agency’s guidance explaining why no undue hardship is imposed by temporary costs, voluntary shift swapping, occasional shift swapping, or administrative costs. That said, it is imprudent to ratify the body of the EEOC’s interpretation when there has not been the benefit of the clarification of undue hardship from this opinion.
- Undue hardship in title VII means exactly what it says, and it should be up to the courts to resolve whether hardship would be substantial in the context of an employer’s business in the common sense manner used in implying the test formulated here.
- Title VII requires an assessment of a possible accommodation’s effect on the conduct of the employer’s business.
- It is not a question of whether all impacts and coworkers are relevant, rather it is the coworker impacts that go on to affect the conduct of the business. A court has to look at the effect on the conduct of the business.
- A coworker’s dislike of religious practice and expression in the workplace or the mere fact of an accommodation is not something that can be factored into the undue hardship inquiry. That is, an employer failing to provide an accommodation has a defense only if the hardship is “undue,” and a hardship attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered, “undue.” To hold otherwise, would set title VII at war with itself.
- Title VII requires that an employer reasonably accommodate an employee’s practice of religion, and not merely that it assessed the reasonableness of a particular possible accommodation or accommodations.
- It will be up to the lower courts to come up with the context specific applications of the standard set forth in this opinion.
Concurring Opinion of JusticeSotoMayor in Which Justice Jackson Joined
- Justice SotoMayor and Justice Jackson wrote a concurrence saying that the approach taken by the majority opinion of clarifying Hardison rather than overruling it was absolutely correct.
- Title VII requires undue hardship on the conduct of the employer’s business. Since conduct of the business plainly include the management and performance of the business’s employees, undue hardship on the conduct of a business may include undue hardship on the business’s employees.
- As the majority opinion mentioned, animus toward a protected group is not a cognizable hardship under any antidiscrimination statute.
- Some hardships, such as the labor costs of court nearing voluntary shift wipes, are not undue because they are too insubstantial.
Thoughts/Takeaways for the Entire Blog Entry
- It is going to be very interesting to see whether the EEOC final implementing regulation for the PWFA with respect to undue hardship, track the ADA final implementing regulations in some way or whether they will track the Supreme Court decision in Groff v. DeJoy.
- I see it all the time on the ADA side where leave is forced on an employee instead of exploring a reasonable accommodation. The PWFA is yet another reason why this is not a good idea on either the ADA or the PWFA side.
- The EEOC final regulations implementing the PWFA are going to be a critical factor in understanding just what undue hardship means. Keep in mind that those regulation will go through the Administrative Procedure Act process. So, it may be some time before a definite answer exists. In the meantime, we might see enforcement guidances and the like.
- Employers will definitely have to reconfigure how they have been dealing with religious accommodations as de minimis is no longer the standard.
- In many ways, the Supreme Court opinion closely approaches but does not necessarily get there, the ADA concept of fundamental alteration on the operation of the business.
- Similarly, the Supreme Court opinion closely approaches but does not necessarily get there, the ADA concept of undue hardship in the financial sense, which looks to the entire resources of the financial entity.
- The ADA concept of fundamental alteration while a higher level than undue hardship under title VII, may be an excellent preventive law tool for employers to use with respect to granting religious accommodations.
- Undue burden is fact specific. Whenever you see wording like that, it is music to plaintiff attorneys ears and not something that would make defense attorneys very happy.
- When the Court suggested all relevant factors include: 1) the particular accommodations at issue; and 2) the practical impact in light of the nature, size, and operating costs of an employer, the Court was not clear whether these are the only two factors to consider or whether these two factors are part of a nonexclusive list. We will have to stay tuned for further developments.