Title VII’s legislative framework includes a prohibition against discrimination based on religion as well as race, sex, color, and national origin. Distinctively amongst these categories, however, religion is defined to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that [it] 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.” 42 U.S.C. § 2000e(j). In Trans World Airlines v. Hardison, 432 U.S. 63 (1977), the Supreme Court seemed to set a low bar for Title VII’s accommodation mandate, defining an undue burden as anything more than “de minimis” costs. Compared to the colloquial understanding of the term, Hardison’s feeble definition seemed discordant with the textual meaning of “undue burden.” Indeed, it was not surprising when the Supreme Court unanimously rejected the de minimis approach in Groff v. DeJoy, 600 U.S. 447 (2023), redefining undue burden to mean the imposition of “substantial increased costs.”
There is more going on here than might appear at a glance, however. As James Nelson insightfully describes in Disestablishment at Work, the Supreme Court’s original “de minimis” standard endeavored to balance the principles of free exercise of religion(s) with the fear that too heavy a hand would infringe upon Establishment Clause principles. Now that Groff has upended the old equilibrium, courts must recalibrate to protect the interests of both the religious practitioner and their coworkers. Disestablishment at Work thoughtfully looks to the original compromise and its enforcement over the years to develop a set of deeper principles to guide the new framework.
Professor Nelson’s approach has something of a common law flavor to it, combing through dozens of past cases to discern underlying precepts. As he explains in an early footnote, Nelson uses “an interpretative methodology, seeking to put existing doctrine in its best light” (citing to Ronald Dworkin and Nelson Tebbe). (P. 6 n.24.) He seeks to recover and sustain the long-standing efforts to avoid religious establishment that the new definition of “undue burden” could rupture.
The article unearths the three principles intended to defend against overweening religious interests: non-disparagement, reciprocity, and proportionality. Nelson illustrates each principle through case references, demonstrating how courts safeguarded workers against religious establishment while considering accommodation interests.
Non-disparagement applies to employees’ efforts to proselytize amongst their co-workers; courts do not view hateful or demeaning messages to be protected through accommodation. Reciprocity asks that the employee seeking the accommodation be willing to compromise or pick up an alternative share of the burden, rather than pushing the costs on the accommodation solely onto others. And proportionality measures the magnitude of the burden to be imposed against the distribution of those costs and the importance of the religious observance. These three principles rebut the claim that co-worker concerns about fairness in the context of accommodations are just griping or even bias or prejudice against religion; instead, there can be legitimate concerns about the imposition of a certain religion on the workplace.
Disestablishment at Work is focused on the nuts and bolts of workplace interactions, both in the past and the future. The article provides vivid examples of the types of co-worker concerns that judges have protected in the past, such as avoiding harassment over LGBTQ+ identities, managing other employee Sabbath obligations against the general desire not to work weekends, and balancing religious instructions about dress with safety precautions for all.
Nelson also looks forward to how courts will address accommodation claims that “sound in the culture wars,” such as vaccine exemptions, permission to misgender coworkers, and conflicts with corporate diversity policies and training. (P. 6.) Nelson deftly uses the three principles to raise concerns about these types of accommodations: as to vaccination, reciprocity and proportionality; as to misgendering, non-disparagement and proportionality; and as to diversity efforts, all three principles. This review provides a foundation for courts reviewing these claims and trying to assess how the new undue burden test would apply.
One potential critique of Nelson’s interpretive approach, which he addresses in the article (Pp. 50-52), is that his wellspring of past precedent used the “de minimis” standard that the Groff Court has rejected as insufficient. Since these decisions all potentially underestimated the importance of accommodating the religious practice in question, why would their analyses help us moving forward?
Nelson points out that the de minimis standard was substantially heftier than its terminology would suggest, as seems plain from the cases themselves. Arguably Groff simply recognized a judicial trend towards something more than the bare minimum. But Disestablishment at Work also represents a reminder and a clarion call for the place of disestablishment principles within free exercise protections and accommodations. Recent Supreme Court jurisprudence has tended to diminish the former and overemphasize the latter—an imbalance that Nelson seeks to identify and correct.
Recognizing the costs of establishment are critical in assessing the impact of accommodations on coworkers. The Groff majority and concurrence have a bit of a back-and-forth on the issues of collateral workplace effects. The majority acknowledged that “an accommodation’s effect on co-workers may have ramifications for the conduct of the employer’s business,” but also warned that “a hardship that is 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.’” Groff, 600 U.S. at 472.
Justice Sotomayor’s concurrence specifically pointed out that “if there is an undue hardship on ‘the conduct of the employer’s business,’ 42 U.S.C. § 2000e(j), then such hardship is sufficient, even if it consists of hardship on employees.” Raising up one religion, or religious sentiments more generally, because of Title VII’s accommodation command risks providing undue state support for religious practice. The three principles of non-disparagement, reciprocity, and proportionality will aid courts in striking the proper equilibrium.
Read one way, the Groff decision is simply a recognition of a more substantively justifiable approach to religious accommodation—an approach that was already in evidence in lower court opinions. Read another way, the shift in standards will lead the way to a marked acceleration in workplace accommodations, pushing the costs of religious observance onto the shoulders of co-workers. The individual interpretations of Groff by myriad workers, practitioners, and courts will determine the meaning of this opinion going forward. James Nelson’s work is designed to aid in this important endeavor. I strongly recommend Disestablishment at Work as a guide to courts, litigants, and human resources departments on the need to balance great protection for religious employees against the need to avoid a new era of religious establishment.
