Religious Accommodations: The New Standard for South Carolina Employers Following Groff v. DeJoy
By
By
Dorothy Jane P. Modla[1]*
For almost fifty years,[2] South Carolina employers have understood that under Title VII, they are not required to provide their employees with a religious accommodation where it would “result[] in ‘more than a de minimis cost’ to the employer.”[3] However, this is no longer the reliable standard.[4] In the 2023 case of Groff v. DeJoy, the United States Supreme Court upended this interpretation of the undue hardship defense.[5] Now, to be relieved of liability for failure to provide a religious accommodation, an employer must establish undue hardship by demonstrating that the “accommodation would result in substantial increased costs” in the employer’s business.[6]
This Note examines the development of the “erroneous”[7] interpretation of the undue hardship standard that developed under the precedential authority of Trans World Airlines v. Hardison.[8] Following this discussion, this Note analyzes how the Supreme Court “bush[ed] away,”[9] the de minimis standard through the “clarifications”[10] provided in Groff v. DeJoy.[11] Next, this Note highlights the implications of Groff for South Carolina employers, applying Groff’s heightened[12] standard to prior Fourth Circuit and South Carolina District Court decisions in which the de minimis standard was upheld.[13] Finally, this Note concludes by evaluating how South Carolina employers may ensure compliance with Groff’s “substantial increased costs” standard[14] going forward.[15]
Title VII of the Civil Rights Act of 1964 “prohibits employment discrimination based on race, color, religion, sex and national origin.”[16] Thus, Title VII specifically identifies religion as a protected class.[17] This provision applies to all U.S. employers “engaged in an industry affecting commerce” with fifteen or more employees.[18] As a result, most workers are protected against religious discrimination in employment decisions, including hiring, firing, compensation, and promotions.[19] Further, employers are prohibited from invoking religion in any manner that “would deprive or tend to deprive a[n] individual of employment opportunities” or “adversely affect [their] status as an employee.”[20]
Under Title VII, the statutory term ‘religion’ is defined as “all aspects of religious observance and practice, as well as belief, 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.”[21] Pursuant to this statutory definition, an employer’s failure to reasonably accommodate an employee’s religious practice is a violation of Title VII, resulting in liability.[22]
Finally, it is important to note that the Equal Employment Opportunity Commission’s (EEOC) regulatory guidelines for religious discrimination define “religious practices” as “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”[23] Therefore, just as Title VII protects workers that identify with “traditional, organized religions” such as “Buddhism, Christianity, Hinduism, Islam, [or] Judaism,”[24] it also protects workers whose religious practices or beliefs may be considered “non-traditional” or unique.[25] The regulatory guidelines specify that a religious organization’s promulgation of—or adherence to—a specific belief is not required for a belief to be considered religious.[26] Thus, unconventional beliefs or practices are afforded equal protection under Title VII.[27]
Traditionally, an employee’s claim for failure-to-accommodate was considered an individual cause of action under Title VII.[28] However, in EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court specified that only two causes of action exist under Title VII, classified as “disparate treatment” or “disparate impact.”[29] In Abercrombie, the court evaluated a failure-to-accommodate claim under the theory of disparate treatment,[30] concluding that an employer’s failure to accommodate results in disparate treatment.[31] Furthermore, to bring a claim, a plaintiff is not required to prove their employer had “actual knowledge” of their need for a religious accommodation.[32]
Under the Abercrombie framework, to state a cause of action the plaintiff is only required to demonstrate that they suffered an “adverse employment action” due to their religious practices or beliefs.[33] Once this is established, the burden shifts to the employer to present an affirmative defense; by demonstrating it provided the employee with a reasonable accommodation, or by proving that the reasonable accommodation would have resulted in an undue hardship on “the conduct of the employer’s business.”[34] Therefore, under Abercrombie, the provision of a reasonable accommodation is only relevant in regards to the employer’s defense.[35]
Notably, several courts have failed to adopt this interpretation of Abercrombie and continue to evaluate failure-to-accommodate claims as separate causes of action,[36] thus requiring the plaintiff to “satisfy additional burdens of proof.”[37] Under this framework, the plaintiff must establish that they “ha[ve] a bona fide religious belief [or] practice that conflicts with an employment requirement,” in addition to evidencing that they “suffered an adverse employment action as a result of the conflict.”[38] Irrespective of which framework is applied, once the plaintiff establishes their claim, the employer has “the burden” and ability to raise the “‘undue hardship’ defense.”[39] The challenging question then becomes: what constitutes an “undue hardship” under Title VII?
In 2023, the Supreme Court of the United States significantly altered the judicial interpretation of “undue hardship” in the case of Groff v. DeJoy.[40] Prior to this ruling, it was understood that a religious accommodation resulting in “more than a de minimis cost” constitutes an undue hardship under Title VII.[41] However, in an unanimous decision, the Court held that under Title VII, “‘undue hardship’ is only shown when a burden is substantial in the overall context of an employer’s business.”[42] The Court highlighted the magnitude of this ruling in its opinion, asserting that the holding “bush[ed] away”[43] a “mistaken”[44] fifty-year precedent.[45]
Prior to the Groff decision, the Court has addressed the issue of an employer’s “failure to accommodate” only three times.[46] The first occurrence was in the case of Trans World Airlines v. Hardison,[47] from which the language of “de minimis” was first articulated and the precedential standard was subsequently derived.[48] In this case, the Court evaluated if accommodating an employee’s observance of the Sabbath in violation of a collective-bargaining agreement constituted an undue hardship under Title VII.[49]
While working for Trans World Airlines (TWA), Hardison converted to a new religion.[50] As a result, Hardison began to observe the Sabbath, which required him to refrain from working “from sunset on Friday to sunset on Saturday.”[51] This religious practice interfered with Hardison’s scheduled working hours.[52] As an employee, Hardison was governed by a collective-bargaining agreement between TWA and his union.[53] This agreement established a “seniority system” in regard to the allocation of employee shift assignments,[54] and Hardison “did not have enough seniority to avoid work during his Sabbath.”[55] Unfortunately, all attempts to provide a scheduling accommodation for Hardison were unsuccessful.[56] Hardison was continually absent from scheduled Saturday shifts, and he was subsequently fired for “insubordination.”[57] In response, Hardison filed an employment discrimination action against TWA under Title VII.[58]
The district court held that TWA met Title VII’s reasonable accommodation requirement, concluding that “any further accommodation” would have placed an “undue hardship” on the company.[59] On appeal, however, the Eighth Circuit reversed.[60] In TWA’s petition for certiorari, it asserted that if Title VII required TWA to provide Hardison with further accommodations, Title VII violated the Establishment Clause of the First Amendment of the Constitution.[61] However, as articulated in Groff, the Supreme Court did not address this constitutional argument.[62] Instead, the Court focused its ruling on determining if Title VII requires an employer to provide a religious accommodation if it would deny workers of their seniority rights under a collective-bargaining agreement.[63]
In rendering its decision, the Court reasoned that requiring employees to work on Saturdays and Sundays was “essential” to TWA’s business, and that collective bargaining was an appropriate process for allocating that burden.[64] The Court highlighted that as Title VII prohibits employment discrimination, it “would be anomalous” to assert that the statute demands an employer deny the contractual rights and scheduling preferences of senior employees in order to provide junior employees with religious accommodations.[65] Further, the Court emphasized that Title VII recognizes the importance of “seniority systems” by “afford[ing]” them “special treatment.”[66]
As a result, the Supreme Court reversed, holding that “TWA made reasonable efforts” to provide Hardison with accommodations, and that the alternatives suggested by the Eighth Circuit went too far.[67] In expounding upon its ruling, the Court articulated its famous line: “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.”[68]
Similar to the facts of Hardison, the issue presented before the Court in Groff v. DeJoy was to determine if the United States Postal Service (USPS) was liable for religious discrimination after adhering to a union agreement governing Sunday work scheduling; and in accordance, failing to provide an employee with a religious accommodation for Sabbath observance.[69]
In 2012, Gerald Groff began working for USPS as a Rural Carrier Associate (RCA).[70] Groff identified as an Evangelical Christian and observed Sunday Sabbath.[71] Therefore, his religious beliefs required him not to work on Sundays.[72] In 2013, USPS contracted to begin delivering packages on behalf of Amazon.[73] This agreement required USPS to deliver Amazon packages on Sundays.[74] At that time, it was within the Postmaster’s discretion to exempt an RCA employee from participating in Sunday deliveries.[75] Due to Groff’s religious beliefs he received an exemption, and he was allowed to “cover[] for other shifts throughout the week” instead.[76]
In 2016, USPS and Groff’s union signed an agreement governing Sunday and holiday deliveries.[77] The agreement dictated the order by which USPS employees would be scheduled, requiring Groff to participate in Sunday deliveries “on a rotating basis.”[78] As a result, the Postmaster informed Groff that he could no longer be exempted from working on Sundays.[79]
Groff subsequently transferred to a smaller USPS station that did not complete Sunday Amazon deliveries.[80] However, in 2017, the smaller station was required to participate as well.[81] Groff reiterated that he was unable to complete Sunday deliveries due to his observance of Sabbath.[82] Consequently, the Postmaster and other RCAs were required to cover Groff’s Sunday assignments, and Groff continued to “fac[e] progressive discipline” for his absences.[83] Ultimately, in 2019, Groff resigned.[84]
Following his resignation, Groff filed an action for religious discrimination against USPS, asserting “disparate treatment and failure to accommodate.”[85] The district court granted summary judgment in favor of USPS.[86] On appeal, the Third Circuit affirmed the district court’s decision, invoking the language of Hardison and asserting that “an ‘undue hardship’ is one that results in more than a de minimis cost to the employer.”[87] The Court held that an accommodation allowing Groff to avoid Sunday shift scheduling resulted in “more than a de minimis cost” because it “actually imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale,”[88] factors which “negative[ly] impact[]” an employer’s operations.[89] Therefore, the Third Circuit concluded that although USPS failed to provide Groff with a religious accommodation, USPS was not liable under Title VII.[90]
When the Supreme Court granted certiorari for Groff v. DeJoy, it emphasized the significance of the decision, highlighting that the case “present[ed] [the] first opportunity in nearly 50 years” to “explain the contours” of the Hardison opinion[91] and clarify what “Title VII requires.”[92] To contextualize the Hardison decision and support the legal conclusions of Groff, the Supreme Court began by providing a detailed, historical analysis of religion as a protected class under Title VII.[93] In addition, the Court explained the development of the EEOC’s guidance regarding religious discrimination, and the EEOC’s influence upon Title VII’s current statutory language.[94]
The Court asserted that the original statutory provisions of Title VII did not articulate what constitutes discrimination on the basis of religion.[95] Rather, the EEOC provided meaning for employers, interpreting the statute to require employers to “make reasonable accommodations to the religious needs of employees.”[96] As this understanding developed, the EEOC opined that employers must make such accommodations “whenever [it] would not work an ‘undue hardship on the conduct of the employer’s business.’”[97] The Supreme Court highlighted that the EEOC also portrayed their interpretation of “undue hardship” through a series of decisions concerning contested employment policies.[98] Specifically, these actions demonstrated the EEOC’s assertion that under Title VII, employers must provide religious accommodations such as allowing an employee to “wea[r] a religious garb” or take “time off from work to attend religious observations.”[99]
The Groff Court emphasized that irrespective of the EEOC’s guidance, in 1971 the Sixth Circuit held that Title VII “did not require an employer ‘to accede or accommodate’ religious practice because that ‘would raise grave’ Establishment Clause questions.”[100] In response, Congress amended Title VII, implementing the EEOC’s prior “regulatory language” and codifying it in the federal statute as written today.[101]
After providing this historical analysis, the Court analyzed its decision in Hardison regarding the standard for religious accommodations under Title VII. The Court explained that “[b]ased on a line in . . . Hardison . . . many lower courts . . . have interpreted ‘undue hardship’ to mean any effort or cost that is ‘more than . . . de minimis.’”[102] As a result, the Court found it necessary to “clarify what Title VII requires.”[103]
The Court argued that instead of “reducing Hardison” to its “de minimis” language[104] and interpreting that “single, but oft-quoted, sentence in the opinion . . . literally,” the holding must be ascertained by evaluating the opinion in its entirety.[105] Firstly, the Groff court highlighted that the footnotes of Hardison describe the “governing standard quite differently, stating three times that an accommodation is not required when it entails ‘substantial’ ‘costs’ or ‘expenditures.’”[106] The Court asserted this language implies that under Title VII, employers are required to incur costs “that are not ‘substantial,’” articulating a higher standard and diminishing the weight of the opinion’s single reference to “de minimis.”[107] In addition, the Groff court emphasized that the “undue hardship” issue in Hardison centered upon Title VII’s statutory deference to “seniority rights.”[108] Thus, the Court asserted the Hardison holding was not predicated upon a general undue hardship analysis.[109]
Furthermore, the Court supported its rejection of the de minimis test by citing other legal authorities. Firstly, the Groff court argued that the EEOC has attempted to “soften [the] impact” of the de minimis test by identifying specific accommodations and asserting that they meet the de minimis standard.[110] Secondly, the Court highlighted that in oral arguments, the Solicitor General conceded to their interpretation of Hardison.[111] Finally, the Groff court supported its position by referencing amici curiae briefs written by “diverse religious organizations” which attested that the “de minimis test” has allowed for the “denial of even minor accommodation[s],” increasing the difficulty for “members of minority faiths to enter the job market.”[112]
In conclusion, the Court applied a textual argument, defining the words “undue” “hardship” and “de minimis” to distinguish each term.[113] The Court asserted that while “a ‘hardship’ is, at a minimum, ‘something hard to bear,’”[114] “de minimis” is “something … ‘small or trifling.’”[115] Further, the Court argued that “the modifier ‘undue’” connotes that the hardship must be “excessive” or “unjustifiable.”[116] The Court asserted that this juxtaposition supports the “substantial additional costs . . . or expenditures” interpretation conveyed in the footnotes of Hardison.[117] As a result, the Court contended that the Hardison decision demonstrates that an “‘undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business.”[118]
Following Groff, for an employer to avoid liability under Title VII it must now evidence that “the burden of granting an accommodation would result in substantial increased costs” for their business.[119] The Court specified that the undue burden defense is “fact-specific,”[120] in which all “relevant factors” [121] must be considered in a “common-sense manner.”[122] Further, the analysis must include the accommodation’s “practical impact” upon the employer’s business, “in light of the nature, ‘size and operating cost[s] of [the] employer.’”[123]
The Groff court also provided guidance regarding two common issues presented in lower court decisions applying the undue hardship standard.[124] Firstly, the Court held that if the accommodation’s impact upon coworkers is a factor in the undue hardship analysis, “employee animosity” towards religion or the provision of a religious accommodation never results in an undue hardship.[125] As such, employee “bias or hostility” towards a religious practice or accommodation may not establish undue hardship.[126] Secondly, the Court specified that Title VII requires an employer actually attempt to accommodate an employer’s religious practice or observance.[127] Thus, an assessment or conclusion that an accommodation would result in an undue hardship is not alone sufficient to avoid liability.[128]
As the substantial costs analysis is highly “context-specific,” the Groff court vacated and remanded the Third Circuit’s decision, concluding that it was most suitable for the lower court to apply the “clarified standard . . . in the first instance.”[129]
The Supreme Court’s decision in Groff v. DeJoy is highly significant due to the renowned and “mistaken”[130] application of the de minimis standard for half a century.[131] Notably, following Hardison, the Supreme Court was asked rule upon the provision of a religious accommodations once again, in the 1986 case of Ansonia Board of Education v. Philbrook.[132] In discussing the requirements of Title VII, the Philbrook Court affirmed the ‘de minimis’ language of Hardison, reiterating that “an accommodation causes ‘undue hardship’ whenever that accommodation results in ‘more than a de minimis cost’ to the employer.”[133] The Philbrook Court also established that under Title VII, if an employer demonstrates it provided a reasonable accommodation, the statutory requirement is satisfied.[134] Thus, an undue burden analysis is “only” relevant if an employer fails to provide an accommodation and asserts an undue hardship defense.[135] In conclusion, the case was remanded.[136] However, Philbrook established that by offering a reasonable religious accommodation to its employee, the employer has fulfilled the statutory requirements of Title VII.[137] Further, the case solidified the use of ‘de minimis cost’ to define undue hardship.[138] Markedly, the Supreme Court does not discuss Philbrook’s citation of the de minimis test in Groff, omitting Philbrook from its opinion entirely.[139] However, Philbrook has contributed greatly to the promulgation of the de minimis standard.[140] Lower court opinions evaluating failure-to-accommodate claims under Title VII cite the opinion, including those of the Fourth Circuit.[141]
Additionally, following Hardison, the EEOC began to assert the authority of the de minimis standard.[142] For example, in 2021, the EEOC published the Compliance Manual on Religious Discrimination, in which it asserted:
“Undue hardship” under Title VII is not defined in the statute but has been defined by the Supreme Court as ‘more than a de minimis cost’ – a lower standard for employers to satisfy than the “undue hardship” defense under the Americans with Disabilities Act (ADA), which is defined by statute as “significant difficulty or expense.”[143]
Similarly, the EEOC’s regulatory guidelines cite the de minimis standard.[144] These sources portray the pervasiveness of the “mistaken”[145] interpretation of the Hardison opinion, as the agency empowered to enforce Title VII also “reduced [Hardison] to one phrase.”[146]
Importantly, following the Groff decision, the EEOC placed a notice upon its Compliance Manual and other online resources,[147] indicating that Groff “supersedes” any information on the website and articulating the new standard for religious accommodations.[148] This notice reflects the immediate impact of Groff upon the regulatory interpretation of the standard. Thus, a similar amendment to the regulatory guidelines is likely eminent.
As the Philbrook decision and the EEOC’s guidelines demonstrate, Groff significantly alters the established legal understanding of the obligation Title VII creates for employers in the provision of religious accommodations. These impacts are also exhibited in the judicial decisions of the Fourth Circuit and the South Carolina District Court.[149]
Following Abercrombie, the Fourth Circuit Court of Appeals determined that to establish a prima facie case for disparate treatment based on a failure to accommodate, the plaintiff must demonstrate that their “bona fide religious belief or practice . . . conflicts with an employment requirement,” and that “the need for an accommodation . . . served as a motivating factor in the employer’s adverse employment action.”[150] Accordingly, in order for a claim to succeed, the rule requires evidence of an actual conflict that results in a detrimental action related to the plaintiff’s employment.[151] If the plaintiff presents a prima facie case, the court set forth a “two-prong inquiry” to determine if the employer “satisf[ied] its burden” under Title VII:
[T]he employer must demonstrate either (1) that it provided the plaintiff with a reasonable accommodation for his or her religious observances or (2) that such accommodation was not provided because it would have caused an undue hardship—that is, it would have “result[ed] in ‘more than a de minimis cost’ to the employer.”[152]
Thus, in articulating what constitutes “undue hardship,” the Fourth Circuit cited the “oft quoted”[153] line from Hardison, expressly upholding “more than de minimis cost” as the defining legal standard.[154] This rule language was articulated in the court’s 2008 decision, EEOC v. Firestone Fibers Textiles Co.[155] In this case, although the standard was articulated, it was not applied, as the court determined that the employer provided the plaintiff with a reasonable accommodation.[156] For this reason, the court did not conduct an undue hardship analysis.[157] However, the rule language of Firestone demonstrates the Fourth Circuit’s adherence to the de minimis standard, establishing precedential authority for its use.[158]
For example, in EEOC v. Thompson Contracting, the Fourth Circuit conducted an undue hardship analysis, directly applying the de minimis cost standard and granting summary judgment for the defendant, Thompson Contracting (Thompson).[159] In this case, the EEOC filed a Title VII action on behalf of Yisreal, asserting that Thompson failed to accommodate Yisreal’s “Saturday Sabbath observance” as a member of the “Hebrew Israelite faith.”[160] Yisreal worked as a dump truck driver for Thompson, a business that served as a contractor for transportation building projects.[161]
As a dump truck driver, Yisreal was one of eight Thompson employees that possessed a commercial driver’s license.[162] To assist in construction operations, Thompson would also hire independent contractors to drive dump trucks, if necessary.[163] At times, Thompson employees were required to work on Saturdays to meet construction project deadlines.[164] However, on his employment application, Yisreal indicated that his religion required him to abstain from Saturday work.[165] Additionally, when Yisreal’s supervisor asked him to work on a Saturday, he reiterated his religious obligation to observe the Sabbath.[166] After two Saturday absences, Yisreal received a written warning, indicating that an additional “infraction [would] result in termination.”[167] After his third Saturday absence, Yisreal was fired.[168]
The district court held that Thomspon provided Yisreal with a reasonable religious accommodation, asserting that employees could utilize “shift swapping” or take “paid personal leave” for religious obligations.[169] Further, the court found that Thompson attempted to accommodate Yisrael “personally” by only asking him to work on Saturdays when all the dump truck drivers were needed.[170]
During the proceedings, the EEOC proposed three other religious accommodations, requesting that “Thompson Contracting excuse Yisrael from Saturday work, create a pool of substitute drivers, or transfer Yisrael to the position of general equipment operator.”[171] On appeal, the Fourth Circuit focused its analysis on undue hardship.[172] Citing Firestone, the Court of Appeals held that such accommodations “would impose more than a de minimis cost on Thompson, resulting in an undue hardship on the conduct of its business.”[173]
In its analysis, the court first asserted that dump truck drivers were considered “essential” when they were requested to work on Saturdays.[174] The court reasoned that if a dump truck was left “idle” Thompson could not charge its clients for its use, resulting in lost revenue.[175] Further, the court found that Yisreal’s operation of a dump truck cost Thompson an estimated one-hundred dollars a day, while the use of an independent contractor in his absence cost fifty to one-hundred dollars an hour.[176] Alternatively, the court found that requiring Thompson’s other dump truck drivers to fill in for Yisrael on Saturdays was “unacceptable” because it would directly burden other employees.[177] For these reasons, the court held that exempting Yisrael from Saturday work would “impose more than a de minimis cost on Thompson.”[178]
Similarly, to form a group of substitute drivers, the court found that the costs of obtaining, training, and insuring drivers with commercial driver’s licenses would also “result in a cost that was more than a de minimis.”[179] Therefore, the court held that Thompson presented an affirmative defense and satisfied its burden of demonstrating that the proposed accommodations would result in an undue burden.[180]
Applying the “substantial increased costs” standard set forth in Groff,[181] the issue presented in Thompson may have been decided differently. In Groff, the Supreme Court highlighted that an undue hardship is “something hard to bear,” that “rise[s] to an ‘excessive’ or ‘unjustifiable’ level.”[182] It is unlikely that the cost of providing the EEOC’s recommended accommodations for the limited occasions in which Yisrael required a substitute would meet this definition.[183] “In light of the nature, size and operating cost[s]”[184] of Thompson’s business operations, the additional cost incurred would likely be considered immaterial. For example, for a single workday, Thompson would employ up to forty-five independent contractors if needed.[185] Under the Groff interpretation of undue hardship, it is highly likely these facts would be considered in the court’s decision, rendering the cost of a single substitute driver insubstantial. Thompson Contracting demonstrates that under the Groff standard, it is much more difficult for an employer to avoid liability by invoking the undue hardship defense.
Importantly, there have been failure-to-accommodate claims in the Fourth Circuit in which the Court of Appeals has not referenced the de minimis language of Hardison.[186] However, it is often the case where an undue burden analysis was not required.[187] This does not undermine the influence of the rule set forth in Firestone and the significance of Groff. The Fourth Circuit has given precedential authority to Hardison’s and Philbrook’s reference to de minimis,[188] and as a result, it has also promulgated the “erroneous”[189] application of the standard in the South Carolina District Court.[190]
In as early as 1991, the South Carolina District Court began interpreting Hardison’s reference to de minimis as the defining standard for undue hardship.[191] In Miller v. Drennon, the court asserted that under Hardison an employer is not “required to incur anything more than de minimis cost in an effort to accommodate the religious practices or observances of employees” as “requir[ing] anything more. . . is an undue hardship.”[192] In this case, the plaintiff alleged that his employer, Lexington County Emergency Medical Services (Lexington), violated Title VII by assigning him to shifts with female partners, and failing to accommodate his religious belief that it was impermissible to “sleep unsupervised in a room with another woman other than his wife.”[193] Similar to Firestone, the Court did not conduct an undue burden analysis, holding that Lexington provided the plaintiff with a reasonable accommodation.[194] However, Drennon is significant in that within the opinion, the district court referenced the de minimis standard from Hardison,[195] creating a precedent for subsequent South Carolina District Court decisions.[196]
For example, in Carter v. Centura College, the South Carolina District Court granted summary judgment for the defendant, holding that the plaintiff’s proposed religious accommodation would result in an undue burden.[197] In this case, Carter filed a failure-to-accommodate claim under Title VII, alleging that her employer, Centura College, required her to teach night classes in conflict with religious services she was obligated to lead as an ordained minister.[198]
Carter served as the coordinator of Centura’s legal assistant program.[199] Due to budget constraints, Centura began enforcing a policy that required coordinators to teach classes if student enrollment numbers dropped below a certain threshold, in order to reduce the school’s salary expenses.[200]
Centura did not claim to have provided Carter with a reasonable accommodation, but raised the affirmative defense of undue hardship.[201] The court found that accommodating the plaintiff’s request and excusing her from teaching two nights a week would have “reduced her availability to teach evening classes by approximately 50% and have cut her availability to teach classes at any time by approximately 25%.”[202] Additionally, the court asserted that the cost of hiring a substitute instructor (an estimated forty to sixty dollars a week) “was not a de minimis expense” for a seemingly “unprofitable” education program, in which a substitute would not provide the caliber of instruction Centura desired.[203] Therefore, the court held that Centura demonstrated the requested accommodation would have required it to “bear more than a de minimis cost . . . creat[ing] an undue burden.”[204]
If this case had been decided applying Groff’s “substantial increased costs” standard,[205] the court may have ruled in favor of the plaintiff. As discussed supra,[206] Groff demands the court consider the religious accommodation’s “practical impact” upon the overall business.[207] In this context, a court may not consider the additional cost of a substitute instructor “substantial,” as the estimated cost of a substitute teacher was relatively low.[208] Further, as Carter’s primary role was to serve as a program coordinator rather than an instructor,[209] a “common sense”[210] inquiry would likely give weight to Carter’s preexisting obligations as a minister.[211] Thus, under Groff the provision of the accommodation may not be considered a significant cost, rendering Centura liable for religious discrimination under Title VII. Carter portrays the legal and practical implications of Groff’s undue hardship analysis in South Carolina.
It is important to note a South Carolina District Court case that does not cite the de minimis standard, but perhaps still misaligns with Groff’s reinterpretation of Hardison. In Newton v. Potter, the South Carolina District Court granted summary judgment to the defendant, holding that the religious accommodation was an undue hardship due to a collective-bargaining agreement.[212] Strikingly similar to the facts of Groff, Newton filed an action against Potter, the Postmaster General, alleging that USPS violated Title VII by denying Newton’s transfer request to avoid working on Saturdays, pursuant to her observance of the Sabbath.[213] Here, the court asserted that its decision was controlled by Hardison.[214] However, instead of invoking the opinion’s de minimis language, the court rendered its decision by focusing on the collective-bargaining agreement that limited employee transfers based on staffing levels.[215]
The district court asserted that pursuant to Hardison, “the duty to accommodate d[oes] not require an employer to take steps inconsistent with a collective-bargaining agreement.”[216] Further, the court held that under Hardison, requiring USPS to pay overtime wages to employees to substitute on Saturdays was considered an undue hardship.[217] As a result, the court granted summary judgment for Potter and USPS, holding that Newton’s transfer could not be accommodated “without violating the collective-bargaining agreement,” which would constitute an undue hardship.[218]
However, in Groff, the Supreme Court clarified the holding of Hardison, asserting that although Hardison expressly protects “seniority rights” outlined in collective-bargaining agreements, the cost of other accommodations must still be considered—highlighting the Hardison court’s failure to adequately address the proposed recommendations made by Justice Marshall in his dissenting opinion.[219] Therefore, it is likely that in view of Groff, USPS would be required to consider the cost of alternative accommodations that could possibly relieve Newton of working on Saturdays.[220] Following Justice Marshall’s reasoning,[221] is likely that other reasonable accommodations would not have resulted in a “substantial additional costs” for USPS.[222] Therefore, under Groff, even failure-to-accommodate claims featuring collective-bargaining agreements could result in liability for employers.[223]
In conclusion, like the Fourth Circuit, the South Carolina District Court has adhered to the faulty[224] interpretation of Hardison, determining that a religious accommodation was not required where it would result in “more than a de minimis cost” to an employer.[225] Additionally, many other districts courts within the Fourth Circuit have adhered to this interpretation of Hardison—also relying upon Philbrook and Firestone—and further emphasizing the importance of the Supreme Court’s decision in Groff.[226]
Considering the significant shift in the authoritative interpretation of “undue hardship,” it is likely that many South Carolina employers will be concerned with how to ensure compliance for the provision of religious accommodations under Title VII. Although the future remains uncertain (as the District Court of South Carolina has not yet been presented with a failure-to-accommodate claim following Groff) there are several sources of authority South Carolina employers can reference in attempt to conform to the heightened standard.
In Groff, the Supreme Court distinguished the new “substantial increased costs” standard from the Americans with Disabilities Act’s (ADA) “significant difficulty or expense” definition for undue hardship.[227] Specifically, the Court asserted that the use of ADA case law to interpret religious accommodations “go[es] too far.”[228] As a result, the “substantial increased costs” standard is likely less burdensome than the ADA’s “significant difficulty or expense” requirement.[229] Therefore, South Carolina District Court opinions interpreting the undue hardship standard under the ADA may provide a statutory requirement “ceiling” for religious accommodation jurisprudence.
Similarly, in Groff, the Supreme Court refrained from adopting the EEOC’s guidance to give further meaning to the undue burden standard for religious accommodations.[230] However, in making this distinction, the court specified that Groff “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.”[231] This statement aids in shaping the meaning of “substantial increased costs” by giving credence to the EEOC’s assertion that employers must provide such accommodations to avoid liability.[232] Thus, South Carolina employers may anticipate that under Groff, the District Court or the Fourth Circuit Court of Appeals will hold them liable under Title VII if they fail to follow the EEOC’s guidelines, and employers must give greater deference to such recommendations. Specifically, South Carolina employers can look to EEOC resources, such as the EEOC’s Compliance Manual,[233] for practical guidance in evaluating their compliance with Title VII.
Similarly, the South Carolina Human Affairs Commission’s (SCHAC) guidance for religious accommodations under Title VII provides that “[a]n accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”[234] Although the SCHAC remains a valuable source for South Carolina employers, they must be cognizant that under Groff, what is considered “costly” has changed significantly, and cost must be evaluated considering all other factors relevant to business operations.[235] Furthermore, it is likely that pursuant to Groff, “requir[ing] other employees to do more than their share” may be required.[236] For this reason, the accommodations that SCHAC cited as creating an “undue hardship” may not be sufficient to avoid liability under Groff’s “substantial increased costs” standard.[237] Rather, South Carolina employers may be required to meet, if not exceed, such accommodations.[238]
Lastly, South Carolina employers can consider a very recent judicial opinion applying Groff. In September 2023, the first decision in the Fourth Circuit citing the Groff standard, Stroup v. Coordinating Center, was published by the District Court of Maryland.[239] In pertinent part, the district court denied the Coordinating Center’s motion for summary judgment and motion to dismiss, holding that there was not sufficient evidence of an undue hardship to relieve the Coordinating Center of liability under Title VII.[240] In this case, Stroup filed a religious discrimination claim against her employer, alleging that Coordinating Center failed to accommodate her religion after terminating her for failing to receive a COVID-19 vaccine.[241] Stroup worked as a Nurse Consultant for Coordinating Center’s Community First Choice Program.[242] After Coordinating Center notified all of its employees of its COVID-19 vaccination requirement, Stroup submitted an Accommodation Form, requesting a religious exemption as an adherent of Catholicism.[243] Stroup’s accommodation request was denied, and she was subsequently fired after failing to receive the vaccine.[244]
Here, Coordinating Center filed a motion for summary judgment, raising the affirmative defense of undue hardship against Stroup’s COVID-19 vaccine exemption.[245] Coordinating Center asserted that allowing Stroup to meet with clients unvaccinated would create a health risk, and that requiring other employees to fulfill Stroup’s job duties to mitigate such risk would result in an undue burden.[246] Specifically, Coordinating Center cited Hardison, asserting that “undue hardship for purposes of Title VII is that which imposes more than a de minimis cost.”[247] In rendering its decision, the district court cited Groff’s new standard and held that “showing ‘more than a de minimis cost’” no longer “suffice[s] to establish ‘undue hardship’ under Title VII.”[248]
In conclusion, the court held that the evidentiary record was insufficient to determine if Stroup’s vaccine exemption “would result in ‘substantial increased costs’” in Coordinating Center’s business operations.[249] Therefore, Coordinating Center’s motion for summary judgment was denied.[250]
Conversely, considering prior case law, it is likely the motion would have been granted upon application of the ‘de minimis’ standard.[251] For example, applying the Fourth Circuit’s reasoning in Thompson Contracting, such an accommodation could be considered “unacceptable,” as requiring other employees to substitute for Stroup would impose a burden directly upon them.[252] Thus, the inherent health risks and related economic costs of maintaining unvaccinated employees would likely be considered a de minimis cost for the business, resulting in summary judgment for Coordinating Center.[253] Stroup further exemplifies the consequences of Groff and demonstrates how the Fourth Circuit and the District Court of South Carolina may apply the heightened standard for religious accommodations going forward—granting significant deference to religious accommodation requests.
The impact of the Supreme Court’s decision in Groff v. DeJoy cannot be understated. For South Carolina employers, the “authoritative interpretation of the statutory term undue hardship”[254] has been completely altered, significantly increasing the burden on employers in the provision of religious accommodations for their employees.[255]
Conversely, the heightened standard for the provision of religious accommodations under Title VII may empower workers to make accommodation requests without fearing retaliation or subsequent economic loss.[256] Thus, the standard may help ensure that workers from all religious backgrounds receive the accommodations they need to achieve equality in employment.[257] As the Supreme Court has opined, Title VII “‘does not demand mere neutrality with regard to religious practices’ but instead ‘gives them favored treatment’ in order to ensure religious persons’ full participation in the workforce.”[258] In line with this objective, Groff v. DeJoy has substantially increased Title VII’s protections for employees regarding their religious beliefs and practices, for better or worse.