Henry L. Chambers, Jr.

In Undue Hardship after Groff, Professor Dallan K. Flake considers an issue raised in the Supreme Court’s recent revision of the meaning of undue hardship in Groff v. DeJoy, 600 U.S. 447 (2023). He proposes a corrective to the Court’s requirement that an employer who claims that an accommodation triggers an undue hardship on its business because of the accommodation’s negative effects on the non-accommodated employees must prove those effects have “a negative impact on their business.” (P 3.) Flake suggests courts take judicial notice that lowered employee morale stemming from workplace accommodations for religious practices negatively affects an employer’s business. He argues that social science studies are so clear that lower employee morale leads to negative effects on an employer’s business that the Court’s requirement should essentially be ignored.

Flake’s solution is simple and intriguing. Reading the article will encourage those who care about religious discrimination to wrestle with the changing landscape of workplace accommodation. Students learning the law, lawyers counseling clients, and courts interpreting the law must consider practical issues of proof that the Supreme Court may not have fully considered when reshaping the law. This article takes a big swing at one of the issues. Given the lack of clarity that remains around what constitutes undue hardship, many issues will need to be litigated to flesh out the contours of the new doctrine. If courts take Flake’s proposal seriously, the Supreme Court will need to revisit the relationship between employee morale and harm to an employer’s business.

The Court remade the law on reasonable accommodation in Groff by redefining the undue hardship test as interpreted in TWA v. Hardison, 432 U.S. 63 (1977). Under Title VII, employers must provide reasonable accommodation for an employee’s religion if such accommodation does not trigger undue hardship on the employer’s business. In Hardison, the Court considered whether TWA needed to accommodate an employee whose religious beliefs did not allow him to work on his Sabbath. The relevant workplace had to be staffed 24 hours a day. Accommodating the employee would have required limiting fellow coworkers’ use of their earned seniority rights or having TWA pay overtime wages or other additional costs.

The Hardison Court decided that rearranging seniority rights or requiring TWA to pay more than de minimis costs would be an undue hardship. However, in Groff, the Court explained that notwithstanding Hardison’s reference to de minimis costs, the burden necessary to trigger undue hardship must be “substantial in the overall context of an employer’s business.” (600 U.S. at 468). The Court then noted that a religious accommodation that negatively affects employee morale might trigger undue hardship but only if it would negatively affect the employer’s business.

Flake argues the link between lower employee morale and negative effects on business are so clear that proving the link is unnecessary. He considers different types of accommodations and how those accommodations can affect coworkers and their morale. Then, he considers social science research on worker morale and organizational outcomes, arguing that the research indicates worker morale affects absenteeism, burnout and turnover, organizational citizenship behavior, and task performance. All these factors drive performance and business results. Flake argues: “While the link between morale and organizational outcomes is complex and nuanced, the ultimate conclusion is straightforward and unequivocal: When worker morale decreases, employers pay a hefty price.” (P. 32.) Consequently, using judicial notice – which treats an issue that is readily apparent as if it has been proven without additional evidence – is a sensible response to the Court’s directive.

Even if courts adopt Flake’s approach, the inquiry’s focus merely shifts to why morale declined and how much it declined. The Groff Court noted that decreases in morale that are based on religious animus cannot trigger undue hardship. Rather, the decrease in morale must be linked directly to the effect the accommodation has on the coworker. This distinction can be difficult to make, especially if the decrease in morale is based on concerns about the sincerity of an employee’s religious belief. However, that is an issue that future litigation must resolve.

As important, an employer must prove that accommodating the employee would cause coworker morale to sink so low that the effect on the employer’s business would be substantial. Barring such an effect on the employer’s business, hardship may exist, but it would not be undue. Determining when and how the threshold for substantial harm is met will be difficult. However, Flake would almost certainly argue that issue is more important to the accommodation analysis than the Court’s requirement of proof that lowered morale triggers harm to the business.

The article trenches on a broader question: How burdensome must accommodating an employee’s religion be before doing so is deemed to cause undue hardship? The question matters because the Groff Court changed the answer. Flake’s article does not attempt to solve the whole issue but addresses a piece of it. He covers the piece at a nice pace and level that is accessible to those steeped in employment discrimination law and those who do not practice in the area. There is much more in the article for experts and novices alike to consider but, at forty pages, it is not exhaustively long. Given that, I recommend this article to all.