Walter Olson
The result of today’s Supreme Court opinion in Groff v. DeJoy is to load private, not just public, employers with new practical burdens in the name of accommodating employees’ religious beliefs. The Court does so by nimbly reinterpreting, as opposed to overturning, the longstanding standard set forth in TWA v. Hardison (1977), which interpreted Title VII as requiring accommodation of this sort by employers only when the costs were “de minimis.” Whatever the standard appropriate for government workplaces, there are high stakes in imposing a standard on private workplaces. Today’s decision leaves private employment relations in America less free.
As Justice Sonia Sotomayor points out in a concurrence joined by Justice Ketanji Brown Jackson, Congress has consistently passed up the opportunity to adopt a standard more burdensome to employers than Hardison, even though it has not hesitated to revisit and correct many other high court decisions on Title VII workplace discrimination that it saw as mistaken. We may hope that the Court’s newly announced standard, which shifts focus from the question of whether burdens are “de minimis” to that of whether they are “substantial,” will in practice not amount to a drastic change.
Sotomayor makes a further point worth noting in her concurrence. It has been known to happen that a private employer’s compelled acceptance of religious accommodation requests will adversely affect the interests of co‐workers. While Title VII will not allow these interests to enter into the balance when based on mere animus or prejudice toward a religion, it is legitimate for an employer to weigh other sorts of harm to co‐workers when they work to impair the management of the workplace. If a workplace divided by differential treatment based on religion or any other identity is a less efficient and unified workplace, it will often be legitimate for employers to say no to that differential treatment.