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University of Maryland Francis King Carey School of Law DigitalCommons@UM Carey Law Maryland Law Review Online 2024 Groff v. DeJoy: A Wrong Step in the Right Direction Fiona Carmichael Follow this and additional works at: https://digitalcommons.law.umaryland.edu/endnotes    199 NOTE   GROFF V. DEJOY: A WRONG STEP IN THE RIGHT DIRECTION FIONA CARMICHAEL*  The Supreme Court of the United States intentionally misrepresented the precedential case, Trans World Airlines v. Hardison,1 in Groff v. DeJoy2 before claiming to uphold it, thus engaging in covert judicial policymaking.3 In Groff, the Court found that Hardison established a “significant” cost standard to demonstrate an “undue hardship,” which excuses employers from the accommodation requirement for religious employees under Title VII.4 However, Hardison unequivocally established the “more than a de minimis cost” standard.5  The Court nonetheless decided justly in Groff.6 The de minimis standard from Hardison essentially nullified the accommodation requirement in Title VII.7 As a result, observant employees, especially those practicing minoritized faiths, were left vulnerable to discrimination that Congress intended to eliminate in passing Title VII.8 For decades, scholars have  © 2024 Fiona Carmichael. * J.D. Candidate, 2025, University of Maryland Francis King Carey School of Law. I would like to extend my deepest appreciation for the staff of Maryland Law Review, especially Maya Vazquez and Aaron Clemmer, for their invaluable time, dedication, and diligence. Likewise, I would like to thank Professor Brian Miller for his thoughtful guidance and expertise, which brought both this piece and my larger legal writing journey to life. Lastly, I would like to express profound gratitude to my mother Elisabeth for the endless confidence, my mentor and friend Dr. Christopher Rollston for inspiring my love of religion and academia, and all of my marvelous friends, old and new, for their unwavering love and support. It is a privilege to know and be known by you all.    1. 432 U.S. 63 (1977).  2. 143 S. Ct. 2279 (2023).  3. See infra Sections IV.A.–B.   4. See infra Part III.  5. See infra Section IV.B. For brevity’s sake, any usage of “de minimis standard” in this piece refers to the “more than a de minimis cost” standard mentioned in the first sentence of the penultimate paragraph of Hardison and in the sentence above.  6. See infra Section IV.D.  7. See infra Sections IV.B.–C.  8. See infra Section IV.B.2.   200 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 proposed various solutions to revive the accommodation requirement, most often relying on the “significant difficulty or expense” standard supplied in the Americans with Disabilites Act.9 This Note aims to address the gap in existing scholarship created by the Court’s decision in Groff, incorporating an analysis of the Court’s decisionmaking, how its solution compares to those proposed in scholarship, and likely policy outcomes following the resurrection of the protections for observant employees under Title VII. This Note proceeds in four parts. Section IV.A. demonstrates that the Groff Court intentionally misrepresented Hardison in order to effectuate a change in case law it disliked.10 Section IV.B. establishes that the Hardison Court ruled incorrectly in holding for the de minimis standard, which perpetuated workplace religious discrimination that disporoportionately impacts employees practicing minoritized faiths.11  Section IV.C. explores popular fixes to the de minimis standard suggested by scholarship before arguing that the Groff Court’s response provided a better alternative.12 Section IV.D. argues that “undue hardship” standard set by Groff—which held that there must be a substantial burden on “the overall context of an employer’s business”—should result in the promotion of workplace religious diversity, which will improve American workplaces.13 Finally, this Note concludes with two questions left open by the opinion in Groff: What ramifications will the Court’s deceptive decisionmaking have? What types of religious expression in the workplace will be protected under the new standard? I. THE CASE In 2012, Gerald Groff began working for the United States Postal Service (“USPS”) as a Rural Carrier Associate.14 At that time, the position generally did not involve Sunday work, which comported well with Groff’s religious observance of the Sabbath, wherein he refrained from secular work each Sunday.15  In 2013, USPS and Amazon entered into an agreement to facilitate Sunday deliveries.16 In 2016, USPS signed a memorandum of understanding   9. See infra Section IV.C.  10. See infra Section IV.A  11. See infra Section IV.B.  12. See infra Section IV.C.  13. See infra Section IV.D.1.  14. Groff v. DeJoy, 143 S. Ct. 2279, 2286 (2023).   15. Id. The choice to refrain from mentioning the specific religion Groff practices is intentional.  The abstention is meant to reflect the underlying ethos of this piece—religious diversity should be promoted universally, without regard to which religion one observes.   16. Id.   2024] GROFF V. DEJOY 201 with the relevant postal workers’ union detailing how Sunday parcel deliveries would work going forward.17 The memorandum detailed a plan wherein, during the two-month peak delivery season (around the holidays), each USPS office would use its own staff for Sunday deliveries, while only staff (including Rural Mail Carriers) from larger regional hubs would be responsible for deliveries during the off-peak season.18  Shortly after the memorandum of understanding, and the subsequent requirement that he work on Sundays, Groff transferred to a rural station that, at the time, did not make deliveries on Sundays.19 In March 2017, Groff’s new station began facilitating Amazon deliveries on Sundays.20 USPS made accommodations for Groff, relying on other carriers from the same station during peak holiday delivery season and the regional hub during off-peak season.21 During this time, Groff began to receive progressive discipline for his failure to work on Sundays.22 In January 2019, Groff resigned from USPS in anticipation of the termination of his employment.23 Later in 2019, Groff brought suit against USPS under Title VII of the Civil Rights Act of 1964.24 He “assert[ed] that USPS could have accommodated his Sunday Sabbath practice ‘without undue hardship on the conduct of [USPS’s] business.’”25 The district court granted USPS’s motion for summary judgment in 2021, finding that USPS offered reasonable accommodations to Groff and demonstrated undue hardship in accommodating Groff and thus was not obligated to accommodate him in the first place.26 After determining that Hardison bound its decision, the Third Circuit affirmed the district court in 2022.27 The Third Circuit understood Hardison to hold that an “undue hardship” exists when employers “bear more . . . than a de minimis cost” when making a religious accommodation.28   17. Id.   18. Id.   19. Id.   20. Id.   21. Id.  22. Id. at 2286–87; see also Groff v. DeJoy, No. 19-1879, 2021 WL 1264030, at *4 (E.D. Pa. Apr. 6, 2021) (detailing a warning letter, meetings, and suspensions Groff faced at USPS for failing to show on Sunday shifts), aff’d, 35 F.4th 162 (3d Cir. 2022), vacated and remanded, 143 S. Ct. 2279 (2023).  23. Groff, 143 S. Ct. at 2287, 2287 n.2.  24. Id. at 2287.  25. Id. (quoting 42 U.S.C. § 2000e(j)).  26. Groff, 2021 WL 1264030, at *10, *12–13 (finding that USPS reasonably accommodated Groff with shift-swapping, and that nonetheless, the accommodation posed an undue hardship because forcing his fellow Rural Carrier Associate to work every Sunday posed more than a “de minimus” burden on USPS).  27. Groff v. DeJoy, 35 F.4th 162, 174, 174 n.18, 175–76 (3d Cir. 2022), vacated and remanded, 143 S. Ct. 2279 (2023).  28. Id. at 174 n.18 (quoting Trans. World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977)).   202 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 Finding that Groff’s accommodation “actually imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale,”29 the Third Circuit found that USPS “far surpasse[d] a de minimis burden” and thus did not violate Title VII.30 Dissenting, Judge Hardiman found that USPS failed to demonstrate any effect on its “business” 31 and merely demonstrated an impact on its employees—which had yet to be held sufficient as an undue hardship by the Third Circuit or the Supreme Court.32 The Supreme Court of the United States granted certiorari in January 2023.33 II. LEGAL BACKGROUND In passing Title VII of the Civil Rights Act of 1964 (“Title VII”), Congress forbade employers from engaging in workplace discrimination based on an employee’s race, color, religion, sex, and national origin.34 After the Equal Employment Opportunity Commission (“EEOC”) interpreted Title VII to require employers to accommodate employees’ religious observances in 1967,35 and courts resisted applying such an accommodation requirement, Congress amended Title VII to require employers to provide employees36 with reasonable accommodations.37 However, Congress also excused employers from the requirement if providing an accommodation would impose an “undue hardship” on the “employer’s business.”38  Faced with the question of interpreting “undue hardship,” the Supreme Court decided Trans World Airlines v. Hardison.39 In its analysis, the Court mentioned both “substantial costs” and “more than a de minimis cost” to employers.40 Since the Court decided Hardison in 1977, federal courts and the EEOC have interpreted the holding of Hardison to declare that an   29. Id. at 175.  30. Id. at 174 n.18, 175–76.  31. Id. at 176 (Hardiman, J., dissenting) (quoting 42 U.S.C. § 2000e(j)).  32. Id.  33. Groff v. DeJoy, 143 S. Ct. 646, 646 (2023) (granting certiorari).  34. Civil Rights Act of 1964, Pub. L. No. 88-352, § 703(a)(1), 78 Stat. 253, 255 (codified at 42 U.S.C. § 2000e-2(a)(1) (1964) (amended 1972)).  35. 29 C.F.R. § 1605.1(a)(2) (1967).  36. Throughout this piece, the terms “employee” and “employees” refer to both employers’ actual, existing employees and prospective employees, both of whom Title VII covers. Civil Rights Act of 1964 § 703(a)(1) (codified at 42 U.S.C. § 2000e-2(a)(1) (1964) (amended 1972)) (referring to the hiring and discharging of individuals by an employer).  37. See infra notes 56–57; Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 2(7), 86 Stat. 103, 103 (codified at 42 U.S.C. § 2000e(j) (Supp. II 1970)).  38. Equal Employment Opportunity Act of 1972 § 2(7) (codified at 42 U.S.C. § 2000e(j) (Supp. II 1970)).  39. 432 U.S. 63 (1977).  40. Id. at 83–84, 83 n.14.   2024] GROFF V. DEJOY 203 employer demonstrates an “undue hardship” when they can establish “more than a de minimis cost” to their business.41  A. Title VII of the Civil Rights Act of 1964 1. Title VII’s Creation and the Events Leading to its Revision Title VII outlawed employer actions wherein one “fail[s] or refuse[s] to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion.”42 While the original Title VII outlawed religious discrimination by employers, it failed to define what exactly constituted workplace religious discrimination.43 In response, the newly created EEOC promulgated regulations to define the term.44  In 1967, the EEOC interpreted Title VII to require employers to “accommodate . . . the reasonable religious needs of employees and, in some cases, prospective employees.”45 In considering whether to grant an accommodation, the EEOC stated that employers who closed for particular religious holidays faced no obligation to give employees leave for observance of other religious holidays,46 but that employers should attempt to make a reasonable accommodation to the extent they “can do so without serious inconvenience to the conduct of [the] business.”47  A year later, the EEOC reworked its Title VII regulations.48 The EEOC concluded that Title VII mandated that employers must “make reasonable accommodations to the religious needs of employees and prospective employees” as long as doing so would not place an “undue hardship on the conduct of the employer’s business.”49 The EEOC concluded that employers   41. See infra Section II.C.   42. Civil Rights Act of 1964, Pub. L. No. 88-352, § 703(a)(1), 78 Stat. 253, 255 (codified at 42 U.S.C. § 2000e-2(a)(1) (1964) (amended 1972)).  43. Id.   44. 29 C.F.R. § 1605.1(a)(2) (1967). Title VII created the EEOC to enforce and develop regulations on the legislation. Civil Rights Act of 1964, Pub. L. No. 88-352, §§ 705(a), 706(a), 78 Stat. 253, 258, 259 (codified at 42 U.S.C. §§ 2000e-4 to 2000e-5).  45. 29 C.F.R. § 1605.1(a)(2) (1967).  46. Id. §§ 1605.1(a)(3), (b)(1) (“[A]n employer who closes his business on Christmas or Good Friday is not thereby obligated to give time off with pay to Jewish employees for Rosh Hashanah or Yom Kippur.”).  47. Id. § 1605.1(b)(2).  48. 29 C.F.R. § 1605.1 (1968).   49. Id. § 1605.1(b). The EEOC provided one example of an undue hardship—when a similarly qualified employee could not perform the work of the Sabbatarian on the day of their observance. Id. The specific guidelines and examples present in the 1967 edition of the code disappeared from the 1968 guidelines, making the new regulations more employee-friendly. Id. § 1605.1(c).   204 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 carried the burden of proof for establishing the “undue hardship” on their business that makes the accommodation request unreasonable.50  Courts struggled ascertaining what sufficed for employers to establish “undue hardship.”51 Dewey v. Reynolds Metal Co.,52 a 1970 decision by the Sixth Circuit, which the Supreme Court affirmed by an evenly divided vote, dismissed the EEOC’s accommodation requirement.53 Noting that the requirement appeared exclusively in the EEOC’s regulations, the Sixth Circuit stated that Title VII does not force employers “to accede to or accomodate [sic] the religious beliefs of all of his employees.”54 After finding that failure to accommodate an employee’s observance does not constitute religious discrimination, the Sixth Circuit nevertheless concluded that the employer did accommodate the employee’s Sabbath observance by interpreting its collective bargaining agreement to allow the plaintiff to find a replacement for his Sabbath shifts.55 Ultimately, Dewey and a subsequent case, Riley v. Bendix Corp.,56 prompted Congress to revise Title VII in 1972.57   50. Id. § 1605.1(c).   51. See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 86 (1977) (Marshall, J., dissenting) (describing the plentiful, yet conflicting opinions, before and after the 1972 amendments, on the circumstances in which an employer must accommodate the religious observance of an employee); id. at 76 n.10 (majority opinion) (noting that the circuit courts’ decisions after the 1972 amendments provided little guidance on the reasonableness of accommodations, especially considering two circuits’ holdings conflicted with their own precedent with no explanation as to why).    52. 429 F.2d 324 (6th Cir. 1970), aff’d by an equally divided court, 402 U.S. 689 (1971).  53. Id. at 334 (“Nowhere in the legislative history of the Act do we find any Congressional intent to coerce or compel one person to accede to or accommodate the religious beliefs of another. The requirement of accommodation to religious beliefs is contained only in the EEOC Regulations, which in our judgment are not consistent with the Act.”).  54. Id.  55. Id. at 335.   56. 330 F. Supp. 583, 590–91 (M.D. Fla. 1971) (finding that (1) the employer’s ninety-day cycling process of foremen applied universally to employees, and thus did not constitute religious discrimination against the plaintiff under Dewey, and (2) that religious individuals must conform to the work schedule of their employer or find employment elsewhere), rev’d, 464 F.2d 1113, 1117 (5th Cir. 1972) (reversing and remanding, after Title VII’s amendment in 1972, as the amendment and its legislative history supported the EEOC’s earlier interpretation that Title VII required religious accommodations).  57. 118 CONG. REC. 705–06 (1972). Referencing Dewey and Riley, Senator Jennings Randolph, a Sabbatarian, said:  Unfortunately, the courts have, in a sense, come down on both sides of this issue [guaranteeing freedom from religious discrimination in the private workplace]. The Supreme Court of the United States, in a case involving the observance of the Sabbath and job discrimination, divided evenly on this question. This amendment is intended, in good purpose, to resolve by legislation—and in a way I think was originally intended by the Civil Rights Act [of 1964]—that which the courts apparently have not resolved.  Id.    2024] GROFF V. DEJOY 205 2. Revision of Title VII: The Equal Employment Opportunity Act of 1972 Congress materially updated Title VII with the Amendments of 1972 present in the Equal Employment Opportunity Act.58 Congress first defined religion broadly in Title VII, including “all aspects of religious observance and practice, as well as belief,”59 expanding the definition of religion in hopes of providing more expansive protection against all forms of religious discrimination in the workplace.60 Congress also added the EEOC’s affirmative accommodation requirement, in hopes of “assur[ing] that freedom from religious discrimination in the employment of workers is for all time guaranteed by law.”61 With these changes, Congress intended that accommodations be refused only in a “very, very small percentage of cases.”62 Following the 1972 amendments, the Supreme Court failed to reach a conclusion about the newly-codified accommodation requirement.63 Initially, in the Court’s 1975 ruling in Parker Seal Co. v. Cummins,64 an equally divided Supreme Court affirmed the judgment of the Sixth Circuit which found that an employer failed to reasonably accommodate his employee’s Sabbath observance by merely providing him the opportunity for shift swaps.65 Moreover, the Court found that the employer did not demonstrate undue hardship after dismissing the employee after providing the initial accommodation.66 Ultimately, after rehearing, the Court remanded the case to be decided in light of Hardison.67    58. Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103 (codified at 42 U.S.C. § 2000e (Supp. II 1970)).  59. 42 U.S.C. § 2000e(j).  60. Id.  61. 118 CONG. REC. 705 (1972).  62. Id. at 706.  63. See supra notes 52–55 and accompanying text.  64. 429 U.S. 65 (1976), aff’g by an equally divided court 516 F.2d 544 (6th Cir. 1975), vacated and remanded, 433 U.S. 903 (1977).  65. Cummins, 516 F.2d at 550–51 (finding that the previous year of providing the accommodation showed that it was in fact, reasonable and manageable, and that to construe otherwise would equate undue hardship with “an Alice-in-Wonderland world where words have no meaning” (quoting Welsh v. United States, 398 U.S. 333, 354 (1970))).  66. Id.  67. Parker Seal Co., 433 U.S. at 903.   206 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 B. Trans World Airlines, Inc. v. Hardison Before Groff, the Court’s seminal ruling on the meaning of an “undue hardship” in Title VII appeared in Trans World Airlines v. Hardison.68 In Hardison, the Court emphasized that Congress passed Title VII to eliminate workplace discrimination, but nevertheless found that religious accommodations themselves are discriminatory against non-observant employees.69 Guided by an ethos of neutrality, the Court found that accommodating the plaintiff would impose an undue hardship on his employer, using the language “substantial” and “more than a de minimis cost.”70 In Hardison’s sole dissent, Justice Marshall decried the Court’s ruling, finding it directly contravened the intent behind Title VII.71 1. Factual and Procedural Background In June 1967, Trans World Airlines (“TWA”) hired Larry G. Hardison to work in an essential maintenance and repairs department.72 A collective-bargaining agreement between TWA and the relevant union existed at the time of Hardison’s hire, binding each employee at the Kansas City base.73 About a year after his hire, Hardison converted and became observant of the Sabbath from sundown Friday to sundown Saturday.74 Hardison conferred with his manager and transferred to the night shift, which allowed him to observe Sabbath without a work conflict.75  Hardison soon transferred to another building to work the day shift, losing his seniority status in the process and thus losing his ability to avoid working occasional Saturdays.76 While TWA agreed to permit the union to change Hardison’s shift assignment, the union refused to do so as it would violate the provisions of their seniority system.77 With no accommodation   68. See infra Part III. The Groff Court relied on Hardison to guide its decision, performing an in-depth analysis of the case before coming to its conclusion. Groff, 143 S. Ct. at 2288–94 (spanning seven of the eleven pages of the Court’s opinion).  69. See infra notes 91–92 and accompanying text.  70. See infra notes 93–97 and accompanying text.   71. See infra notes 98–102 and accompanying text.   72. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 66 (1977).   73. Id. at 67 (binding employees through a bidding system wherein “[t]he most senior employees have first choice for job and shift assignments, and the most junior employees are required to work when the union steward is unable to find enough people willing to work at a particular time or in a particular job to fill TWA’s needs”).  74. Id.   75. Id. at 67–68.  76. Id. at 68.  77. Id. TWA refused to permit Hardison to work a four-day work week as (1) the position was pivotal to airline operations and could not be left empty, (2) replacing the shift with another employee still left the department underwater, and (3) paying another employee not already scheduled would require the airline to pay overtime. Id. at 68–69.   2024] GROFF V. DEJOY 207 reached, Hardison refused to report on Saturdays, eventually leading to his discharge for failure to work designated shifts.78  Hardison brought suit against TWA and the union under Title VII, claiming that his dismissal and the union’s failure to advocate for him constituted workplace religious discrimination.79 Ultimately, Hardison’s claim rested upon the 1968 EEOC guidelines,80 which were then codified by Congress in 1972 as Title VII amendments.81 The district court ruled in favor of the union after finding that the 1967 EEOC regulations did not require the union to set aside its seniority system to make religious accommodations.82 The district court further found that TWA satisfied the reasonable accommodation obligation and that any alternatives would impose an undue hardship on the company.83 The Eighth Circuit affirmed the district court’s ruling for the union as Hardison did not appear to attack it.84 However, it reversed the judgment for TWA, finding that TWA did not satisfy its obligations to accommodate.85 The Supreme Court granted certiorari.86  2. The Court’s Reasoning In Hardison, the Court held that an employer demonstrates an “undue hardship,” excusing them from making an accommodation for a religious employee as required by Title VII, when doing so would impose “more than a de minimis cost” on their business.87 In coming to its decision, the Court emphasized that “both the language and the legislative history of [Title VII] is on eliminating discrimination in employment,” and in doing so, clarified that this holds true whether discrimination is aimed at minorities or majorities.88 After finding that TWA offered numerous reasonable accommodations to Hardison, including the seniority system (which the Court lauded as a neutral accommodation to all employees),89 the Court held “neither a collective-bargaining contract nor a seniority system may be   78. Id. at 69.   79. Id.   80. Id. The events in question took place after the EEOC’s updated “undue hardship” guidelines from 1968, but before the congressional codification of the standard into Title VII in 1972. Id.; see 29 C.F.R. § 1605.1 (1968); 42 U.S.C. § 2000e(j) (Supp. II 1970).  81. 42 U.S.C. § 2000e(j).  82. Hardison, 432 U.S. at 69. The district court found that the 1967 regulations applied to the union, not the 1968 version. Id.   83. Id. at 70.  84. Id.   85. Id.   86. Trans World Airlines, Inc. v. Hardison, 429 U.S. 958 (1976) (granting certiorari).   87. Hardison, 432 U.S. at 84.  88. Id. at 81.  89. Id. at 78.   208 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 employed to violate [Title VII], but . . . the duty to accommodate [does not] require[] TWA to take steps inconsistent with the otherwise valid agreement” unless there is a “clear and express indication from Congress.”90  The Court also found that requiring religious accommodations to supersede otherwise neutral accommodations, such as a collective bargaining agreements, discriminated against employees who do not observe a particular Sabbath day.91 The Court concluded that allowing religious accommodations to supersede neutral systems would be an “anomalous” conclusion of Congress’s intent in creating Title VII, given the statute’s clear anti-discrimination purpose and the accommodation exception afforded to seniority systems.92 Dismissing the dissent’s contentions that TWA could have accommodated Hardison without undue hardship, the majority, in a footnote, emphasized that Title VII does not require employers to incur “substantial additional costs” or “substantial expenditures” when making religious accommodations.93  Opening its penultimate paragraph, the majority stated that “[t]o require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.”94 In a footnote, the Court expounded, finding that ruling against TWA would require the company not only to incur the costs of accommodating Hardison’s Sabbath observance, but also would mandate that TWA accommodate any Sabbatarian employee’s observance.95 The Court then found that requiring an accommodation for Hardison would require TWA “to bear additional costs when no such costs are incurred to give other employees the days off that they want,” and thus TWA’s required actions “would involve unequal treatment of employees on the basis of their religion.”96 Concluding with an emphasis that Title VII’s ultimate purpose is to eliminate discrimination in the workplace, the Hardison Court held that it would not interpret the statute to require employers to discriminate against some employees in order to accommodate the religion of other employees.97   90. Id. at 79.  91. Id. at 81. The Court reasoned that the employee would otherwise be required to work an undesirable shift to accommodate a Sabbatarian coworker, and it found such a requirement to be unfair. Id.   92. Id. at 81–82. The Court distinguished seniority systems intended to discriminate from those that did not, finding that the former were unlawful and the latter were lawful. Id. (“[A]bsent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences.”); 42 U.S.C. § 2000e-2(h) (1964) (amended 1972).  93. Hardison, 432 U.S. at 83 n.14.   94. Id. at 84.  95. Id. at 84 n.15.  96. Id. at 84.  97. Id. at 85.   2024] GROFF V. DEJOY 209 4. Justice Marshall’s Dissent Justice Marshall dissented from the majority, finding that the Court “seriously eroded” “one of this Nation’s pillars of strength—our hospitality to religious diversity.”98 Justice Marshall found that nullifying an accommodation because it gives preferential treatment to religious employees reduces Title VII to nothing.99 Emphasizing that the amended statute’s text and legislative history plainly require accommodations unless an “undue hardship” were imposed on the employer, Justice Marshall found that the majority decided “in direct contravention” of the intent behind the 1972 amendments to Title VII.100 Applying his findings, Justice Marshall concluded that TWA failed to demonstrate an “undue hardship” because the company failed to take many available options to make a reasonable accommodation, noting that TWA did not (1) make efforts to find volunteers to take Hardison’s Saturday shifts, (2) consider passing the cost of overtime onto Hardison, or (3) transfer Hardison back to his original building (in which he had sufficient seniority statute to avoid working Saturdays).101 Justice Marshall admitted that the latter two options would violate the terms of the collective bargaining agreement, but reasoned that neither would have violated the rights of any other employee or the seniority system.102  C. The Subsequent Embrace of the “More Than a De Minimis Cost” Standard After Hardison, the Supreme Court, federal circuit courts, and the EEOC consistently embraced the de minimis standard.103 From 1986 to 2022, the Supreme Court maintained that Hardison established a de minimis standard, though it began to voice its displeasure with the de minimis standard in 2020.104 Universally, the circuit courts found that Hardison established a de minimis standard.105 Until Groff was decided in 2022, the EEOC also promulgated regulations based on this understanding.106   98. Id. at 97 (Marshall, J., dissenting). Justice Marshall wrote the sole dissent, and only Justice Brennan joined his opinion. Id. at 85.  99. Id. at 87.  100. Id. at 88–89 (stating that the majority elected to follow the precedent set by Dewey, which Congress abrogated through the 1972 amendments to Title VII).   101. Id. at 92–95.  102. Id. at 95–96.  103. See infra Sections II.C.1–3.   104. See infra Section II.C.1.  105. See infra Section II.C.3.   106. See infra Section II.C.2.    210 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 1. The Court Historically Understood Hardison to Establish a De Minimis Standard  Until Groff, the Court consistently found that Hardison established the de minimis standard for undue hardship.107 Nine years after Hardison, the Court decided Ansonia Board of Education v. Philbrook.108 There, the Court found that its earlier opinion in Hardison “determined that an accommodation causes ‘undue hardship’ whenever that accommodation results in ‘more than a de minimis cost’ to the employer.”109 Likewise, as recently as 2019,110 Justice Alito reiterated in a concurrence to the Court’s denial of certiorari that Hardison issued a de minimis cost standard for Title VII accommodations.111 Three years later, in her dissenting opinion in Kennedy v. Bremerton School District,112 Justice Sotomayor applied the de minimis standard, citing Justice Alito’s earlier opinion.113 Finally, in 2021, in Small v. Memphis Light, Gas & Water,114 Justice Gorsuch stated, “Hardison held that an employer does not need to provide a religious accommodation that involves ‘more than a de minimis cost.’”115  2. The EEOC Understood Hardison to Hold for the De Minimis Standard  The 2022 EEOC guidelines (those in effect at the time of Groff) understood Hardison to establish a de minimis standard.116 They allowed “[a]n employer [to] assert undue hardship to justify a refusal to accommodate an employee’s need . . . if the employer [could] demonstrate that the   107. See infra Section II.C.1.   108. 479 U.S. 60 (1986).   109. Id. at 67 (quoting Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977)). The Philbrook Court found that an unpaid leave policy, allowing leave for any purpose—except religious reasons—does not constitute a reasonable accommodation of religion under Title VII. Id. at 71 (describing the defendant’s leave policy as “the antithesis of reasonableness” in religious accommodations).  110. 139 S. Ct. 634 (2019) (denying certiorari). The Court would later grant certiorari in 2022. Kennedy v. Bremerton Sch. District, 142 S. Ct. 857 (2022).  111. Id. at 637 (Alito, J., concurring) (“[I]n . . . Hardison, the Court opined that Title VII’s prohibition of discrimination on the basis of religion does not require an employer to make any accommodation that imposes more than a de minimis burden.” (citation omitted)). Justices Thomas, Gorsuch, and Kavanaugh joined Justice Alito. Id. at 635.  112. 142 S. Ct. 2407 (2022).  113. Id. at 2448 n.5 (Sotomayor, J., dissenting) (using the de minimis standard from Hardison when finding that a football coach’s on-field prayers, which caused individuals to rush the field and knock others over, imposed an undue burden on the school district for which he worked).  114. 141 S. Ct. 1227 (2021) (denying certiorari).  115. Id. at 1228 (Gorsuch, J., dissenting from the denial of certiorari).  116. 29 C.F.R. § 1605.2(e)(1) (2022) (citing Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977)).   2024] GROFF V. DEJOY 211 accommodation would require ‘more than a de minimis cost.’”117 In order to determine this, the regulations stated that the analysis should consider “the identifiable cost in relation to the size and operating cost of the employer, and the number of individuals who will in fact need a particular accommodation.”118 The EEOC also specified what would not contribute to the de minimis calculus: “the infrequent payment of premium wages for a substitute or the payment of premium wages while a more permanent accommodation is being sought” and “the payment of administrative costs necessary for providing the accommodation.”119  3. The Circuit Courts Universally Adopted the De Minimis Standard The federal circuit courts universally found that Hardison held for the de minimis standard when faced with the question of Hardison’s holding.120 The Third Circuit found that Hardison held that the de minimis cost standard determines whether an employer would experience an undue hardship and “strongly suggests that the undue hardship test is not a difficult threshold to pass.”121 Likewise, the Fifth Circuit held that an undue hardship exists as a matter of law when an employer bears more than a de minimis cost.122 The Ninth Circuit found that an employer could establish an undue hardship when there is an impact on employers or coworkers that is “more than de minimis,” giving examples such as lost efficiency for employers or more time doing hazardous work as a coworker.123 Furthermore, the Second Circuit,124 the   117. Id. (quoting Hardison, 432 U.S. at 84).  118. Id.   119. Id. The EEOC provided one example of an administrative cost—“costs involved in rearranging schedules and recording substitutions for payroll purposes.” Id.   120. See infra Section II.C.3.  121. See Webb v. City of Phila., 562 F.3d 256, 259–60 (3d Cir. 2009) (quoting United States v. Bd. of Educ. for the Sch. Dist. of Phila., 911 F.2d 882, 890 (3d Cir. 1990)). The court found that the plaintiff established a prima facie case of religious discrimination when her police force employer refused to permit her to wear a headscarf. However, the court ruled for the defendant as it found that a police force must remain religiously neutral in order to receive public cooperation. Id. at 261–62.  122. See Weber v. Roadway Express, Inc., 199 F.3d 270, 274–75 (5th Cir. 2000) (finding that the plaintiff’s proposed accommodation, to skip paired driving assignments involving women, posed more than a de minimis cost to his employer due to the burdens placed on his coworkers).  123. See Balint v. Carson City, 180 F.3d 1047, 1053–55 (9th Cir. 1999) (remanding for further fact-finding as to whether an undue hardship existed when the possible implementation of a shift-splitting accommodation for the plaintiff’s Sabbath observance did not violate the existing seniority system).   124. See Baker v. The Home Depot, 445 F.3d 541, 547–48 (2d Cir. 2006) (finding that Hardison established the de minimis standard before remanding for fact-finding as to whether the plaintiff established a prima facie case of religious discrimination).    212 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 Fourth Circuit,125 the Eighth Circuit,126 the Tenth Circuit,127 and the Eleventh Circuit128 all uphold the de minimis standard to excuse an employer from an accommodation under Title VII.  Though it seemed to disapprove of the standard, the Sixth Circuit, in Small v. Memphis Light, Gas and Water,129 found that an employer can demonstrate an undue burden through “(apparently) anything more than a ‘de minimis cost.’”130 Similarly, the Seventh Circuit found an undue hardship on the nation’s largest private employer, Walmart, when one prospective assistant manager required an accommodation to allow his once-weekly Sabbath observance.131 The First Circuit, a mere month before Groff, cited circuit precedent and Hardison before reaffirming that the current test for undue hardship under Title VII is the de minimis standard.132    125. See EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312–14, 317 (4th Cir. 2008) (applying the two-prong test described in Philbrook, wherein the second prong required an employer to establish more than a de minimis cost to overcome an accommodation requirement).  126. See Harrell v. Donahue, 638 F.3d 975, 980–81 (8th Cir. 2011) (“[A]n accommodation creates an undue hardship if it causes more than a de minimis impact on co-workers.”). This case also found an undue hardship when the employer, USPS, would need to grant the plaintiff leave on Saturdays to accommodate him, violating the seniority system and forcing his coworkers to work more. Id.   127. See Tabura v. Kellogg USA, 880 F.3d 544, 557–58 (10th Cir. 2018) (remanding for further fact-finding as to whether the defendant’s shift-swapping and vacation day options to miss workdays coinciding with the Sabbath was a reasonable accommodation, after noting that Hardison established a de minimis cost standard).  128. See Lake v. B.F. Goodrich Co., 837 F.2d 449, 450–51 (11th Cir. 1988) (finding that Philbrook established a de minimis cost standard before refusing to question the district court’s finding that the employer suffered undue hardship after it began scheduling the plaintiff, a Sabbatarian, for a seven-day workweek and four hours of one of the plaintiff’s shifts went uncovered after repeated shift swaps).   129. 952 F.3d 821 (6th Cir. 2020) (per curium), cert. denied, 141 S. Ct. 1227 (2021).   130. Id. at 825 (quoting Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977)) (ruling for the defendant on the technicality that the plaintiff did not argue whether an undue hardship would have been imposed on the company if he had been accommodated).   131. EEOC v. Walmart Stores Eastern, L.P., 992 F.3d 656, 658–60 (7th Cir. 2021) (finding such would pose an undue hardship on the megacompany when managerial shifts at one location would occasionally need to be swapped or the existing rotation system modified).  132. Lowe v. Mills, 68 F.4th 706, 720–22 (1st Cir. 2023) (maintaining—given the oral arguments for Groff v. DeJoy occurred the previous month—that a finding of undue hardship suffices “under any plausible interpretation of the statutory text,” before finding that loss of the employer’s medical license from employee refusal to be vaccinated for COVID-19 constituted an undue hardship); see also Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 136–37, 138 (1st Cir. 2004) (finding an undue hardship from the de minimis standard on employer Costco because of the plaintiff’s facial piercings, as they might undermine the “neat, clean and professional image” that the employer sought its employees to convey).    2024] GROFF V. DEJOY 213 III. THE COURT’S REASONING In a unanimous opinion in Groff v. DeJoy, the Court held that an “undue hardship” exists when religious accommodation(s) for an employee result in a substantial burden on “the overall context of an employer’s business.”133 The Court clarified that the de minimis standard for undue hardship analysis, in fact, was insufficient in excusing an employer from making an accommodation for an observant employee under Title VII.134  The Groff Court found that Hardison could not be reduced to its line describing an undue hardship as a de minimis cost, especially given the ordinary meaning of the phrase and Hardison’s use of “substantial” in its opinion.135 Beginning its analysis with statutory interpretation, the Court found that the key statutory phrase in Title VII’s exemption to religious accommodations appeared in the phrase “undue hardship.”136 Finding that a “hardship” could be variably defined as “something hard to bear,” “[e]xtreme privation,” or “adversity,” the Court concluded that the term, however defined, constituted something “more severe than a mere burden.”137 Subsequently, the Court found that the modifier “undue” further supported that the requisite burden an employer shows “must rise to an ‘excessive’ or ‘unjustifiable’ level” in order to be exempt from making a religious accommodation for an employee.138 Thus, the meaning of “undue hardship” is “very different” from a burden that is more than de minimis, which is defined as “very small or trifling.”139 The Court then concluded that the plain language of “undue hardship,” as it appears in Title VII, sets a substantial threshold that an employer must surpass in order to be exempt from making an accommodation.140  The Court then turned to the opinion in Hardison and found that the opinion’s repeated mentions of “substantial costs” and “substantial expenditures” supported the Court’s current interpretation.141 Likewise, the Court reasoned, the pre-1972 amendment decisions from the EEOC, which required employers to demonstrate substantial costs to excuse themselves   133. Groff v. DeJoy, 143 S. Ct. 2279, 2294 (2023).  134. Id.    135. Id. at 2295 (quoting Trans World Airlines v. Hardison, 432 U.S. 63, 83 n.14 (1977)).  136. Id. at 2294.  137. Id. (first quoting RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 646 (1966) [hereinafter RANDOM HOUSE]; and then quoting AMERICAN HERITAGE DICTIONARY 601 (1969) [hereinafter AMERICAN HERITAGE]). Of note, the Court sourced its definitions from dictionaries published within two calendar years, before or after, the codification of the Civil Rights Act of 1968.  138. Id. (first quoting RANDOM HOUSE, supra note 137, at 1547, and then quoting AMERICAN HERITAGE, supra note 137, at 1398).  139. Id. at 2295 (quoting De minimis, BLACK’S LAW DICTIONARY (5th ed. 1979)).   140. Id.  141. Id. (quoting Trans World Airlines v. Hardison, 432 U.S. 63, 83 n. 14 (1977)).   214 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 from a compulsory religious accommodation, supported the Court’s statutory interpretation.142 Given the plain language of Title VII, Hardison, and the EEOC decisions, the Court found that the meaning of “undue hardship” could not be reduced to Hardison’s singular mention of a de minimis cost.143 Following its statutory interpretation, the Court refused to adopt the alternative standards for “undue hardship” that the parties suggested, which relied on language outside of Title VII and Hardison.144 The Court held that “it is enough to say that an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”145 In order to determine whether an undue hardship exists, courts must now conduct a fact-specific inquiry of all relevant factors, including the particular accommodation(s) at hand and the practical impact of said accommodation(s) on the employer in light of the employer’s nature, size, and operating costs.146 The Court also found it unwise to further expound upon the meaning of “undue hardship” outside of Title VII.147 The opinion specifically rejected Groff’s request to endorse the existing EEOC regulations in toto,148 concluding that courts should rely upon the plain meaning of “undue hardship” in Title VII when conducting each fact-based inquiry.149 The Court concluded with clarification on several recurring issues that arise in Title VII claims.150 First, the Court clarified that the undue hardship calculus only includes effects that impact “the conduct of the employer’s business.”151 As such, the Court noted, the impact of an employee’s religious   142. Id.   143. Id.   144. Id.   145. Id. The plaintiff suggested overruling Hardison and replacing its holding with a “‘significant difficulty or expense’ standard,” borrowing language from the Americans with Disabilites Act (“ADA”). Id. at 2297 (Sotomayor, J., concurring) (quoting Brief for Petitioner at 17–38, Groff v. DeJoy, 143 S. Ct. 2279 (2023) (No. 22-174)); id. at 2295 (majority opinion) (detailing how plaintiff proposed the decades of ADA jurisprudence to apply to “undue hardship” as it appears in Title VII). The respondent proposed that the Court should adopt the EEOC’s guidance regarding the meaning of “undue hardship” in place of Hardison. Id. at 2295–96.   146. Id. at 2295.  147. Id. at 2296.   148. The Court concluded that doing so would be unwise as the body of EEOC regulations has not been fully reviewed and clarified by the Court, but it did note that: [A] good deal of the EEOC’s guidance in this area is sensible and will, in all likelihood, be unaffected by our clarifying decision today . . . prompt[ing] 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.  Id.; see 29 C.F.R. § 1605.2(d).  149. Groff, 143 S. Ct. at 2296.  150. Id.  151. Id. (emphasis added) (quoting 42 U.S.C. § 2000e(j)).   2024] GROFF V. DEJOY 215 accommodation on their coworkers only contributes to an undue hardship if they go on to affect the employer’s business.152 However, if the effects on coworkers result from their own biases, such as employee animosity towards (1) a particular religion, (2) religion generally, or (3) religious accommodations, a court cannot factor such effects as “undue” hardships.153 Second, the Court clarified that merely assessing the reasonableness of a proposed accommodation is not equivalent to reasonably accommodating an employee’s practice of religion under Title VII.154 Rather than just dismissing a proposed accommodation as an undue hardship, the Court held that an employer must also consider other options to accommodate the employee’s religious practice in order to comply with the mandates of Title VII.155  Justice Sotomayor authored the only concurrence.156 First, Justice Sotomayor agreed that the majority wisely refused to adopt the plaintiff’s suggested standard for an undue hardship.157 Justice Sotomayor found that stare decisis possessed an “enhanced force” here as the question involved a statute.158 Given that Congress revised Title VII in response to other cases, yet abstained from doing so after Hardison, Justice Sotomayor found that adherence to stare decisis in this case was further justified.159 Second, Justice Sotomayor emphasized that impacts on coworkers may affect the “conduct of the employer’s business,” especially given that “for many businesses, labor is more important to the conduct of the business than any other factor.”160 Justice Sotomayor noted, however, that employee animus towards statutorily protected groups, or labor costs resulting from coordinating voluntary shift swaps, do not contribute to the undue hardship calculus.161  In short, the unanimous majority opinion and the concurrence in Groff asserted that Hardison has been misunderstood for decades.162 The Groff Court averred that rather than setting a “more than a de minimis cost”   152. Id. Courts determine whether the effect goes to the business. Id.   153. Id.  154. Id.   155. Id. at 2296–97.  156. Id. at 2297–98 (Sotomayor, J., concurring).  157. Id. at 2297; see supra notes 145–149 and accompanying text.  158. Id. at 2297 (quoting Kimble v. Marvel Ent., LLC, 576 U.S. 446, 456 (2015)). Justice Sotomayor also noted that respecting the language of the statute promotes both the separation of powers and judicial respect for congressional action. Groff, 143 S. Ct. at 2297.  159. Id. at 2297–98.  160. Id. at 2298 (emphasis added) (quoting 42 U.S.C. § 2000e(j)). Justice Sotomayor emphasized “conduct” as it appears in the statute and Hardison, possibly emphasizing that the majority chose to use the word “context” in the new standard for “undue hardship.” Id. (first quoting 42 U.S.C. § 2000e(j); and then quoting Trans-World Airlines, Inc. v. Hardison, 432 U.S. 63, 79–81 (1977)).  161. Id.   162. See supra Part III.   216 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 standard for “undue hardship,” Hardison established a “substantial” cost standard, setting a much higher bar for employers to reach in order to be excused from Title VII’s affirmative accommodation requirement.163  IV. ANALYSIS Despite the Groff Court’s representations, the Hardison Court did establish a “more than a de minimis cost standard.”164 The Groff Court wished to change the standard for “undue hardship” and found a creative manner—albeit an exceptionally questionable one—to effectuate the substantive change to the law they sought.165 By misrepresenting Hardison, the Groff Court strayed from precedent and ruled incorrectly.166  The Hardison Court ruled incorrectly as well, essentially nullifying Title VII by adopting a standard so low that nearly any accommodation became “unreasonable.”167 As a result, religious discrimination that would have otherwise been banned by Title VII continued, disproportioniately affecting those practicing minoritized religions.168 In response, scholars suggested adopting alternative standards to temper the de minimis standard.169 While the methodology of the Groff Court’s solution is dubious, it nonetheless provides a better solution than that suggested by scholars as the Court’s approach allows Title VII to stand on its own feet.170 As such, the Groff ruling will facilitate religious diversity in American workplaces, accommodating increasing religiosity and strengthening the workplace.171 A. The Groff Court Misrepresented the Holding of Hardison, Thus Ruling Incorrectly Hardison undoubtedly established a de minimis standard to excuse employers from providing their observant employees religious accommodations.172 Members of the Groff Court understood Hardison to establish the de minimis standard for “undue hardship” under Title VII, but they disliked the standard and sought to change it.173 Its own fairy godmother, the current Court fulfilled its wish in Groff by masquerading Hardison’s true   163. Groff, 143 S. Ct. at 2294.  164. See infra Section IV.A.1.  165. See infra Section IV.A.2.  166. See infra Section IV.A.  167. See infra Section IV.B.1.  168. See infra Section IV.B.2.   169. See infra Section IV.C.1.   170. See infra Section IV.C.2.   171. See infra Section IV.B.2.   172. See infra Section IV.A.1.  173. See infra Section IV.A.2.   2024] GROFF V. DEJOY 217 holding for the “substantial” standard.174 In doing so, the Court broke the principle of stare decisis, thus ruling incorrectly.175 1. Hardison Established a De Minimis Cost Standard The Hardison Court effectively summarized its holding on the meaning of “undue hardship” in the opening sentence of its penultimate paragraph, stating “[t]o require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.”176 This unequivocal holding comports with textual analysis of the “substantial” standard, the opinion’s emphasis on neutrality in accommodations, and the specific findings relating to the cost imposed on TWA.177  i. Textual Analysis of Hardison Demonstrates That It Held for a De Minimis Standard Textual analysis of the location of the de minimis standard in Hardison, as opposed to the “significant” standard the Groff Court claimed Hardison instituted, demonstrates that Hardison established a de minimis standard.178 Although the Groff Court emphasized that “substantial” appears three times in Hardison to support its conclusion, its analysis falls short.179 First, the Groff Court failed to note that all three mentions of “substantial” in Hardison’s majority opinion appear in a singular footnote180—and nowhere else in the opinion.181 In juxtaposition, the phrase “more than a de minimis cost” appears in the body of the majority opinion in Hardison.182 Specifically,   174. See infra Section IV.A.2.  175. See infra Section IV.A.2.  176. Trans World Airlines, Inc. v. Hardison, 432 U.S. 62, 84 (1977).  177. See infra Sections IV.A.1.i—iii.  178. See Hardison, 432 U.S. at 83 n.14.  179. Groff v. DeJoy, 143 S. Ct. 2279, 2295 (2023) (quoting Hardison, 432 U.S. at 83 n.14 (1977)).  180. Hardison, 432 U.S. at 83 n.14 (appearing as “substantial expenditures,” “substantial additional costs,” and “substantial costs”).   181. “[S]ubstantially” appears in footnote seven in a quotation of EEOC guidelines. Id. at 72 n.7 (quoting 29 C.F.R. § 1605.1 (1968)) (“[U]ndue hardship . . . may exist where the [absent Sabbatarian] employee’s needed work cannot be performed by another employee of substantially similar qualifications . . . .”). Of note, the Court stated that this example was “by no means intended to be exhaustive” as to what constituted an undue hardship. Id. at 72 n.7. The specification that an employer could demonstrate an undue hardship in a variety of other means suggests that the Court did intend to construe “undue hardship” broadly and hold for a de minimis standard. Id.   182. Hardison, 432 U.S. at 84. The de minimis standard appears again in footnote 15, which the Groff Court failed to mention. Id. at 84 n.15 (“The dissent argues that ‘the costs to TWA of either paying overtime or not replacing respondent would [not] have been more than de minimis.’”).   218 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 the de minimis standard appears in the first sentence of the penultimate paragraph,183 a weighty location.184  Second, the majority in Hardison only mentions “substantial” in a retort to Justice Marshall’s dissent, rather than within the Court’s own reasoning (or holding).185 Third, the Court treated Justice Marshall’s dissent unfavorably in the footnote where “substantial” was mentioned, criticizing its “hyperbole and rhetoric.”186 Fourth, the majority did not refute Justice Marshall’s finding that the Court held for a de minimis standard, despite criticizing other conclusions of his.187 In response, the majority neither refuted nor contradicted that the de minimis standard was to be used in undue hardship analysis, though it criticized some of Justice Marshall’s other conclusions.188  ii. Hardison’s General Disposition and Emphasis on Neutrality Comport with the De Minimis Standard’s Low Threshold The neutrality endorsed in Hardison supports the understanding that the Court established a lenient, de minimis standard to excuse employers from making accommodations under Title VII.189 The Court found that requiring   183. Id. at 84.  184. Scholarly work and jurisprudence emphasize the weight given to holdings found in the penultimate paragraphs of opinions. See, e.g., Jerry L. Mashaw, Textualism, Constitutionalism, and the Interpretation of Federal Statutes, 32 WM. & MARY L. REV. 827, 834, 834 n.34 (1991) (citing to the penultimate paragraph of Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), in its description of the Court’s emphasis of its point, “as if to drive the last nail in the . . . casket”); Joshua A. Hawks-Ladds & Richard C. Robinson, Labor Relations and Employment Law: 2001 Developments in Connecticut, 76 CONN. BAR J. 71, 77 (2002) (“[The decision] is perhaps noteworthy for two other reasons. The first is the limiting language that the Court felt the need to insert in its penultimate paragraph . . . .”); Ilan Wurman, The Origins of Substantive Due Process, 87 U. CHI. L. REV. 815, 828 (2020) (“The court, in its penultimate paragraph, thus found that . . . .”); United States v. Esparza-Mendoza, 265 F. Supp. 2d 1254, 1261 (D. Utah 2003) (“The penultimate paragraph in [the precedential case] summarizing the Court’s holding makes this clear.”).  185. See Hardison, 432 U.S. at 83 n.14 (stating “[t]he dissent is thus reduced to”). Notably, this footnote leaves the question of threshold open. Id. The Court specified that Title VII does not require employers to bear “substantial” costs, but this does not rule out the conclusion that Title VII does not require employers to pay de minimis costs—a much lower threshold—either. Id. Given that “substantial” is mentioned nowhere else in the opinion, but de minimis is, even the mentions of “substantial” can still support a de minimis holding if not mere dicta. Id.   186. Id. The Court dismissed Justice Marshall’s claim by stating that (1) the District Court found for an undue burden on TWA (despite this case setting the standard in undue burden analysis), and (2) that TWA, such a large company, likely has multiple employees whose religious observance would include Sabbath observance so the burden would be larger. Id. at 84 n.15.  187. Id. at 92 n.6 (Marshall, J., dissenting) (“As a matter of law, I seriously question whether simple English usage permits ‘undue hardship’ to be interpreted to mean ‘more than a de minimis cost . . . .’”); see supra note 186 and accompanying text.  188. Id. at 83 n.14 (majority opinion).  189. Id. at 84.   2024] GROFF V. DEJOY 219 one employee to take a shift that they did not prefer in order to accommodate a Sabbatarian employee’s observance involved “unequal treatment of employees on the basis of their religion.”190 As such, the Court determined that accommodations for religious employees discriminate against their peers who do not require accommodations—and that “Title VII does not contemplate such unequal treatment.”191 The Court concluded Hardison on a strong, anti-accommodation note: “[W]e will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath.”192 The Court’s discussion of whether seniority systems must accede to Title VII accommodations likewise illustrates that the Court preferred neutrality over preferential accommodations in Hardison.193 The Court found that seniority systems represent “a significant accommodation to the needs, both religious and secular, of all . . . employees” and “a neutral way of minimizing the number of occasions when an employee must work on a day that he would prefer to have off.”194 Then, the Court held that Title VII religious accommodations do not supersede the neutral accommodations of seniority systems.195 Finally, the Hardison Court found that even if a seniority system results in discrimination, its operation is still lawful as long as the system was not intended to be discriminatory.196 The Hardison opinion is framed through a neutrality ethos, which comports with the Court holding for a de minimis standard that excuses employers from most accommodations.197   190. Id. (appearing in the first sentence following the sentence containing the phrase “more than a de minimis cost”).  191. Id. at 81–82 (“[T]o give Hardison Saturdays off, TWA would have had to deprive another employee of his shift preference at least in part because he did not adhere to a religion that observed the Saturday Sabbath. Title VII does not contemplate such unequal treatment.”).  192. Id. at 85.  193. Id. at 81–83 (holding that “absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences”).  194. Id. at 78.   195. Id. at 81–83 (finding that TWA was not required to adjust its seniority system’s mechanisms to accommodate Hardison’s Sabbath observance). This finding was based in an earlier finding by the Court—that Title VII protects seniority systems’ operations from discrimination claims. Id. at 81–82 (noting that seniority systems receive “special treatment under Title VII itself” as 42 U.S.C. § 2000e–2(h) (1964) specifically allows employers to apply different standards to employees when it is pursuant to a “bona fide seniority system” (quoting Teamsters v. United States, 431 U.S. 324, 352 (1977))).  196. Id. at 82; see supra note 195.  197. Id. at 78 (as opposed to the substantial standard, which requires employers to show much more to be excused from Title VII’s accommodation requirement).    220 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 iii. The Cost that the Hardison Court Found to Be an Undue Hardship Was De Minimis The cost found to be too burdensome for TWA in Hardison was de minimis—supporting the understanding the Court did establish a de minimis standard.198 While the majority failed to mention the financial cost to TWA to accommodate Hardison,199 Justice Marshall estimated the cost of accommodating Hardison to be $150 over three months in the early 1970s—“an almost cost-free accommodation”200—about $1,250 in 2022’s value.201  The Groff Court, relying on an assumption that Hardison would have never reached sufficient seniority,202 argued that TWA then would have faced annual costs up to $600, totaling $5,000 per year today.203 Even granting the Groff Court the benefit of the doubt that its estimation was more accurate than that of Justice Marshall or the parties themselves in Hardison, the cost to TWA nevertheless still would have been de minimis.204 TWA was one of the nation’s largest airlines at the time—it could have managed the equivalent of $5,000 annually.205 Moreover, the Groff Court failed to explain how the cost would have been “substantial” in any manner to constitute an “undue hardship” to TWA.206 The specific finding of $150 to be an “undue hardship” on TWA supports the conclusion that the Hardison Court established a de minimis standard.207   198. Id. at 92 n.6 (Marshall, J., dissenting) (questioning how the majority purports to unite such contradictory concepts of undue hardship and de minimis costs).  199. Groff v. DeJoy, 143 S. Ct. 2279, 2292 (2023). The Groff Court claims: The [Hardison] majority did not argue that Justice Marshall’s math produced considerably “more than a de minimis cost” (as it certainly did). Instead, the Court responded that Justice Marshall’s calculation involved assumptions that were not “feasible under the circumstances” and would have produced a different conflict with “the seniority rights of other employees.”  Id. (quoting Hardison, 432 U.S. at 83 n.14).  200. Hardison, 432 U.S. at 92 n.6 (Marshall, J., dissenting) (describing the stipulated cost in question in the case—$150 over three months, until Hardison reached sufficient seniority again—which Hardison could have paid back to TWA, nullifying any cost to the company).  201. Groff, 143 S. Ct. at 2291.  202. Id. (claiming, without citation, that the Court in Hardison doubted whether Hardison could regain his seniority).  203. Id. (adopting the majority’s comment in Hardison that Hardison might not have gained his seniority back and then using Justice Marshall’s stipulated value to estimate $600 annually).  204. Hardison, 432 U.S. at 92 n.6 (1977) (Marshall, J., dissenting).  205. Id. at 91 (criticizing the district court’s findings that anything more than TWA’s attendance at a few meetings and authorization of the union representative to shift swap for Hardison would have imposed an undue burden on the company by noting that such a finding “defies both reason and common sense”); Small v. Memphis Light, Gas & Water, 952 F.3d 821, 828 (6th Cir. 2020) (Thapar, J., concurring) (noting that the Court found $150 to be a de minimis cost to “one of the largest airlines in the world”).  206. Groff, 143 S. Ct. at 2291.  207. Hardison, 432 U.S. at 85 (majority opinion).   2024] GROFF V. DEJOY 221 2. The Groff Court Disliked the Hardison De Minimis Standard and Intentionally Misrepresented Hardison to Change the Law While Pretending to Uphold It   The Court’s finding in Groff that Hardison held for a “substantial” standard for undue hardship analysis is a novel,208 but unsurprising, interpretation from the Court.209 In Philbrook, precedent that the Groff Court ignored, the Court found that Hardison established the de minimis standard.210 Five opinions by the modern Court, of which seven members of the Groff Court authored or joined, have found the same.211  The Court began voicing its displeasure with the de minimis standard more recently.212 Only three years before Groff, in Patterson, Justice Alito stated, “[W]e should reconsider the proposition, endorsed by the opinion in . . . Hardison, that Title VII does not require an employer to make any accommodation for an employee’s practice of religion if doing so would impose more than a de minimis burden.”213 However, Justice Alito agreed with the denial of certiorari, finding that Patterson did not serve as the proper vehicle to do so.214 Justice Gorsuch, in Small, criticized the Sixth Circuit’s application of the de minimis standard after acknowledging that it was a correct understanding of Hardison.215 After lamenting the outcome for the plaintiff, Justice Gorsuch stated: “Both the district court and court of appeals rejected the argument relying expressly on Hardison. There is no barrier to our review and no one else to blame. The only mistake here is of the Court’s own making—and it is past time for the Court to correct it.”216 Interestingly,   208. See supra Section II.C.1.  209. See Groff, 143 S. Ct. at 2293–94 (agreeing with the Solicitor General’s argument that the mention of “de minimis” should not compel courts to find an undue hardship when a cost is not “substantial”).   210. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 67 (1986) (quoting Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977)) (“[A]n accommodation causes ‘undue hardship’ whenever that accommodation results in ‘more than a de minimis cost’ to the employer.”).  211. See supra Section II.C.1.  212. See infra notes 213–216.  213. Patterson v. Walgreen Co., 140 S. Ct. 685, 685–86 (2020) (Alito, J., concurring in the denial of certiorari) (citation omitted) (finding that the de minimis ruling did not embody the purpose nor text of the statute). Justices Gorsuch and Thomas joined Justice Alito’s opinion. Id. at 685. In an asterisk, Justice Alito mentions that Justice Thomas previously clarified that Hardison’s holding only applies to the pre-1972 amendments version of Title VII. Id. at 686 (citing EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 787 n.1 (2015)) (Thomas, J., concurring in part and dissenting in part). Of note, Justice Alito wrote the majority opinion in Groff. 143 S. Ct. at 2286.  214. Patterson, 140 S. Ct. at 686.   215. Small v. Memphis Light, Gas & Water, 141 S. Ct. 1227, 1229 (2021) (Gorsuch, J., dissenting) (criticizing the de minimis gloss on Title VII from Hardison).   216. Id.    222 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 the Groff Court mentions the Small and Patterson opinions above—but paints a more flexible, less definitive portrait of these findings.217  The Court’s portrayal of Hardison in Groff contradicts decades of its own jurisprudence. The Groff Court knew Hardison’s true holding,218 but cherrypicked three mentions of “substantial” in the case to substitute for the holding.219 In doing so, the Court no longer needed to overrule Hardison explicitly—rather, the Court could rely on dicta to effectuate the substantive change it sought for Title VII.220 B. The Hardison Court Ruled Incorrectly by Effectively Nullifying Title VII From the outset, the de minimis holding “ma[de] a mockery” of Title VII by practically nullifying the statute.221 Not only did the Court ignore the legislative intent behind Title VII and the plain meaning of the statute,222 the Court decided sua sponte in Hardison and embraced a fallacious neutrality ethos for accommodations.223 Moreover, the decision in Hardison eliminated Title VII protections in practice, as courts began to protect employers who engaged in workplace religious discrimination, leaving employees vulnerable and unprotected.224   217. See Groff, 143 S. Ct. at 2293 (“Members of this Court have warned that, if the de minimis rule represents the holding of Hardison, the decision might have to be reconsidered.” (emphasis added)).  218. See supra Section II.C.1.  219. See Groff, 143 S. Ct. at 2295 (“The Government, disavowing its prior position that Title VII’s text requires overruling Hardison, points us to Hardison’s repeated references to ‘substantial expenditures’ or ‘substantial additional costs.’ We think it is enough to say that an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” (citations omitted)). Seemingly, the Solicitor General suggested this questionable practice. Id.   220. Id.   221. Trans World Airlines v. Hardison, 432 U.S. 63, 88 (1977) (Marshall, J., dissenting); see also Wendy B. Scott, Jada Akers & Amy White, The Influence of Justice Thurgood Marshall on the Development of Title VII Jurisprudence, 89 ST. JOHN’S L. REV. 671, 683 (2015) (noting that Justice Marshall felt that Title VII was effectively nullified by the Court’s seniority system carve-outs).  222. See supra Section II.A. and Part III.  223. See infra Section IV.B.1.  224. See infra Section IV.B.2.   2024] GROFF V. DEJOY 223 1. The Reasoning of Hardison Undermines the Affirmative Protections Intended by Congress Through Title VII The Court in Hardison ruled incorrectly by adopting the de minimis standard sua sponte225 and promulgating the notion that neutrality suffices in the provision of religious accommodations.226 i. The Court Chose the De Minimis Standard Sua Sponte The Hardison Court adopted the de minimis standard on its own accord, without any explanation as to why, suggesting its disloyalty to Title VII and the parties it affects.227 Sua sponte decision-making is often erroneous because it removes affected parties from the deliberative process.228 Courts should avoid sua sponte decisions because they violate parties’ due process and sense of fairness.229 In Hardison, none of the parties involved, including the government, argued for the de minimis standard.230 The parties did not even contest, much less brief, the meaning of “undue hardship.”231 In lieu of the sua sponte decision, the Hardison Court should have requested supplemental briefing from the parties regarding the meaning of “undue hardship” or only issued rulings on briefed topics.232 Because the Court failed to do so, and because it failed to explain its rationale for the de minimis decision, the standard is questionable at best.233    225. See infra Section IV.B.1.i.  226. See infra Section IV.B.1.ii.  227. See Brief Amici Curiae of Former EEOC General Counsel and Title VII Religious Accommodation Expert in Support of Petitioner at 8, Groff v. DeJoy, 143 S. Ct. 2279 (2023) (No. 22-174) [hereinafter Brief of Former EEOC General Counsel].  228. Adam A. Milani & Michael R. Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate Courts, 69 TENN. L. REV. 245, 261 (2002) (“[S]ua sponte decision making can, and does, lead to erroneous decisions because it eliminates from the deliberative process the very persons who are most strongly motivated to assure its full and accurate consideration.”).  229. Id. at 263, 284 (describing how the Court has ruled that appellate review is subject to due process guarantees, and thus sua sponte decisions with adverse impacts on one’s life, liberty, or property remove one’s constitutional rights without giving them the opportunity to advocate—which encourages distrust and a lack of faith in the adversarial process).  230. Id.  231. Brief for Robert P. Roesser as Amici Curiae in Support of Petitioner at 22, Groff v. DeJoy, 143 S. Ct. 2279 (2023) (No. 22-174) [hereinafter Brief for Robert P. Roesser] (arguing that the text of Title VII should be interpreted with plain meaning as the statute leaves “undue hardship” undefined, emphasizing that the Court chose the de minimis standard sua sponte).  232. Milani & Smith, supra note 228, at 294.  233. Brief for Robert P. Roesser, supra note 231, at 22. In lieu of issuing a sua sponte decision, the Court could have requested supplemental briefing on the definition of “undue hardship” under Title VII. Milani & Smith, supra note 228, at 294.   224 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 ii. Hardison’s Emphasis on Neutrality Fails to Account for the Unique Nature of Religious Accommodations Congress adopted the 1972 Amendments to Title VII to reject the sufficiency of neutrality accommodations and mandate special treatment for observant employees.234 Yet, a neutrality rationale undergirds the Hardison decision.235 Generally, neutrality reasoning in the context of accommodations is “unreasonable on its face” as an oxymoronic theory.236 Neutral rules are not accommodations—neutral rules create the need for accommodations.237 Such can be seen in Hardison and Groff, where both plaintiffs sued after being required to work the Sabbath under religiously neutral policies.238 Because of the issues that arise with neutral treatments of diverse groups, Congress crafted Title VII’s accommodation requirement to guarantee equality in the workplace, specifically mandating special, non-neutral treatment for employees.239 But Hardison’s de minimis ruling, inspired by its neutral ethos,240 “sacrifice[d] accommodation (and religious minorities) on the collective altar and reverses Congress’s Title VII amendment.”241  Neutrality is especially inappropriate for religious accommodations.242 “Religion,” as it appears in Title VII, incorporates not only one’s status as a   234. See supra Section II.A.2.  235. See Loren F. Selznick, Mangers and Turbans: Nonverbal Religious Expression in a Diverse Workplace, 49 U. BALT. L. REV. 183, 189 (2020) (arguing that treating all employees equally does not excuse an employer from making an accommodation).   236. Small v. Memphis Light, Gas & Water, 952 F.3d 821, 828 (6th Cir. 2020) (Thapar, J., concurring) (analogizing Hardison’s religious accommodation logic to the ADA’s accommodations—emphasizing that “[n]o right-minded person would call such accommodations [for employees covered by the ADA] a form of impermissible discrimination against non-disabled employees”).   237. See Brief for Robert P. Roesser, supra note 231, at 11 (referring to neutral policies as “trigger[s]” that necessitate religious accommodations); see also Trans World Airlines v. Hardison, 432 U.S. 63, 87 (1977) (Marshall, J., dissenting) (“The accommodation issue by definition arises only when a neutral rule of general applicability conflicts with the religious practices of a particular employee.”).  238. See Groff v. DeJoy, 143 S. Ct. 2279, 2286 (2023) (detailing the agreement, pertaining to Sunday deliveries between USPS and the relevant union, that applied to all employees evenly, and the troubles Groff experienced as a result); see also Hardison, 432 U.S. at 69, 78 (finding seniority systems to be a neutral accommodation, with Hardison suing after being assigned Saturday shifts).  239. See Selznick, supra note 235, at 189 n.62 (citing Abercrombie’s assertion that Title VII does not mandate neutrality but rather was crafted in response to neutral policies).  240. See Brief of Robert P. Roesser, supra note 231, at 22 (commenting that the centering of neutrality as non-discrimination in Hardison comports with the case holding for the de minimis standard).  241. Id. at 4.  242. Rachel M. Birnbach, Note, Love Thy Neighbor: Should Religious Accommodations that Negatively Affect Coworkers’ Shift Preferences Constitute an Undue Hardship on the Employer Under Title VII?, 78 FORDHAM L. REV. 1331, 1339 (2009) (“[N]ondiscrimination based on religion requires an employer to treat employees differently in order to accommodate their religious needs . . . .”).    2024] GROFF V. DEJOY 225 practitioner, but also “all aspects of religious observance and practice.”243 While other protected classes under Title VII may be accommodated with similar treatment (e.g., no differential treatment for individuals of different races), this approach does not work for employees seeking religious accommodations for their unique practices.244 Religious accommodations seek an exception from the general rules of the workplace, while other Title VII accommodations seek uniform application of the general rules no matter which protected group an employee may fall in.245 Thus, the neutrality embraced by Hardison fails to consider the unique needs of observant employees, rendering the decision shortsighted.246 In fact, the Court in EEOC v. Abercrombie & Fitch Stores247 found that Title VII requires “favored treatment,” further demonstrating the issues with Hardison’s neutrality reasoning.248  2. Hardison’s De Minimis Standard Allowed Religious Discrimination in the Workplace to Continue in Manners that Would Have Otherwise Been Banned by Title VII The 1972 amendments to Title VII inspired hopes of workplace equality for many religious Americans—only for it to be quashed by the holding of Hardison.249 Lower courts’ application of the de minimis standard led to a per se rule against employees claiming a violation of Title VII, rendering the statute null.250 In response, employers excused themselves from making   243. 42 U.S.C. § 2000e(j) (Supp. II 1970).  244. Birnbach, supra note 242, at 1339.   245. See Keith S. Blair, Better Disabled than Devout? Why Title VII Has Failed to Provide Adequate Accommodations Against Workplace Religious Discrimination, 63 ARK. L. REV. 515, 516–17 (2010) (“Instead, [employees who seek religious accommodations] wish not to work a particular day or shift; or they wish to wear a particular piece of religious clothing that does not conform to company policy; or they wish to groom themselves in ways that meet a religious obligation but that conflict with a workplace rule. [They] want to be treated differently—or ‘accommodated’—so that they can meet both their religious and work obligations.”).  246. Trans World Airlines v. Hardison, 432 U.S. 63, 78 (1977) (finding that seniority systems are neutral accommodations and implying that because of such, they are better than non-neutral alternatives that some propose under Title VII).   247. 575 U.S. 768 (2015).  248. Id. at 775 (“But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual . . . because of such individual’s’ ‘religious observance and practice.’” (quoting 42 U.S.C. § 2000e(j))).   249. See Brief Amicus Curiae of the Union of Orthodox Jewish Congregations of America in Support of Petitioner at 13–14, Groff v. DeJoy, 143 S. Ct. 2279 (2023) (No. 22-174) [hereinafter Brief for the Union of Orthodox Jewish Congregations of America] (describing how Orthodox Jews anticipated increased employment opportunity from the accommodation requirement in the amended Title VII, which Hardison’s holding then eliminated with its de minimis standard).  250. See infra Section IV.B.2.i.   226 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 accommodations, and employees with claims struggled to find representation.251 The impact of the de minimis standard disproportionately affected those practicing minoritized religions and blue-collar workers practicing minoritized religions.252 i. Lower Courts Treated the De Minimis Standard as a Per Se Rule Against Observant Employees, Shattering the Protections Title VII Intended to Create Lower courts applied Hardison as a per se rule against employees.253 The circuit courts continually, and universally, found nearly any cost, direct or indirect—even trivial—to excuse an employer from making an accommodation that would have been required under the plain meaning of “undue hardship.”254 Even a Sabbath accommodation for an Assistant Manager at one Walmart, the nation’s largest private employer with annual profits surpassing $11 billion, sufficed as an “undue hardship” per the Seventh Circuit.255 In comparison, the observant employee at a small non-profit or a medium-sized local restaurant chain stands little to no chance at succeeding in court under Title VII. Moreover, the incredibly low de minimis standard for showing an undue hardship effectively eliminated all other concerns from religious accommodation analysis, such as the reasonableness of the accommodation request.256 Because the de minimis standard gave employers such leniency in refusing to make accommodations, employers then subsequently felt empowered to ignore even the most reasonable religious accommodation   251. Id.  252. See infra Section IV.B.2.ii.  253. See Brief for Robert P. Roesser, supra note 231, at 26 (describing a series of lower court decisions wherein any cost sufficed to establish an undue hardship, inspired by the small cost found to be an undue hardship to TWA in Hardison).  254. See supra Section II.C.3.; see also J. Alex Touchet & Bradley J. Lingo, Failure to Accommodate: Assessing the Legacy of Trans World Airlines, Inc. v. Hardison on Working-Class People of Faith, 31 GEO. MASON L. REV. 1, 4 (2023) (“Courts today uniformly interpret ‘undue hardship’ in Title VII as anything more than a de minimis cost.”).  255. See supra note 131 and accompanying text; see also Groff, 143 S. Ct. at 2293 n.12 (“[T]wo years ago, the Seventh Circuit told the EEOC that it would be an undue hardship on Wal-Mart (the Nation’s largest private employer, with annual profits of over $11 billion) to be required to facilitate voluntary shift-trading to accommodate a prospective assistant manager’s observance of the Sabbath.”).  256. See Dallan F. Flake, Restoring Reasonableness to Workplace Religious Accommodations, 95 WASH. L. REV. 1673, 1675 (2020) (describing courts’ trend to read the reasonableness requirement out of Title VII by: “(1) conflating reasonableness and undue hardship so that an accommodation’s reasonableness depends solely on whether it causes the employer undue hardship, (2) setting the bar for reasonableness so low it is practically meaningless, or (3) ignoring the requirement altogether”).    2024] GROFF V. DEJOY 227 requests.257 Employers and employees are often not even aware of the duty to accommodate under Title VII.258 Observant employees report choosing not to apply for jobs where employers would not allow them time to pray throughout the day.259  For employees who knew of Title VII’s accommodation requirement, bringing a case against an employer who did not provide an accommodation became substantially more difficult after Hardison.260 Before Hardison, religious employees did not struggle with finding employment lawyers to represent them, whereas after, these lawyers often turned comparable individuals away.261 The “chilling effect” of Hardison for religious employees searching for representation likely stemmed from lawyers’ pessimism surrounding the outcome of the case, especially considering the contingency fees most employment lawyers charge.262 With lower courts’ application of a per se rule to a legal requirement of which many were unaware, the de minimis standard eviscerated the meaningful protection that Title VII was passed to create for religious employees in the workplace.263 ii. The Negative Impacts of Hardison Disproportionately Affected Those Practicing Minoritized Religions and Those Working Low-Paying Jobs A disproportionate burden of requesting accommodations falls on practicing members of minoritized faiths as compared to their majority Christian coworkers.264 Accommodating minoritized religions costs employers more than accommodating those practicing majority religions,   257. See Brief of Former EEOC General Counsel, supra note 227, at 1 (noting that under Hardison, “employers will feel safe to ignore religious accommodation requests because employers can easily demonstrate a cost that is slightly more than de minimis” and judges are compelled to affirm such denials).  258. See Kade Allred, Giving Hardison the Hook: Restoring Title VII’s Undue Hardship Standard, 36 BYU J. PUB. L. 263, 279 (2022) (citing a Department of Justice report finding that many employers and employees do not know about the accommodation requirement, likely leading to underreporting); U.S. DEP’T OF JUST., COMBATING RELIGIOUS DISCRIMINATION TODAY: FINAL REPORT 17 (2016).  259. U.S. DEP’T OF JUST., supra note 258, at 17.  260. See Brief of Asma T. Uddin & Steven T. Collis as Amici Curiae in Support of Petitioner at 2, Groff v. DeJoy, 143 S. Ct. 2279 (2023) (No. 22-174) [hereinafter Brief for Uddin & Collis] (citing religious leaders’ complaints, beginning soon after Hardison, that they could not find representation).  261. Id.   262. Id. (citing objective studies that chart the correlation between the likelihood that a contingency fee lawyer takes a case and how successful they believe the case will be).  263. See supra Section II.A.  264. Bilal Zaheer, Accommodating Minority Religions Under Title VII: How Muslims Make the Case for a New Interpretation of Section 701(J), 2007 U. ILL. L. REV. 497, 520 (describing how the United States’s largely Christian history and sociocultural structure lead to disproportionate impacts of religious discrimination claims for individuals practicing minoritized religions).   228 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 leading to more employers claiming that an accommodation would impose an “undue hardship” on their business.265  In conjunction with the de minimis standard, it became “nearly impossible” for employees practicing minoritized religions to receive meaningful workplace accommodations.266  Employers disproportionately refuse to accommodate minoritized religious groups as opposed to majority Christian adherents.267 Schedule-wise, when most businesses are closed on majority Christian holidays, no accommodation is needed, eliminating conflict for those who celebrate holidays such as Christmas.268 If the work schedule does not automatically accommodate the majority religious holiday, the cultural norm of the holiday facilitates an understanding leading to an accommodation.269 The same is not true for those celebrating non-majoritarian holidays, such as Passover or Diwali, who meet resistance from lack of understanding.270 Uniform-wise, employers enforce uniform policies disproportionately against Muslim or Sikh men, despite other individuals wearing similar forbidden headwear, such as baseball caps.271 Employers find it easier to terminate employment of employees with minoritized religious beliefs than to accommodate them.272 If the employer had not (yet) terminated the employee’s employment, they often quit anyways, forced to choose between employment and religious belief.273 Hardison’s de minimis standard undermined Title VII by allowing employers to escape their requirement to accommodate employees’ religious beliefs, negatively impacting Americans of all religious backgrounds, but especially those of minority beliefs.274     265. Id.   266. Id. at 519.  267. See Zaheer, supra note 264, at 519 (describing the advantage Christians have in the American workplace due to work schedules and popular culture reflecting their beliefs).   268. See id. (describing the advantage that Christian employees benefit from in the United States, wherein there exists less of a need for them to be accommodated from cultural norms favoring Christian tradition).  269. Brief for the American Hindu Coalition, supra note 278, at 14.  270. Id.  271. See id. at 17–18 (describing a case wherein the New York Police Department transferred Muslim and Sikh people to non-public facing roles due to their religious headwear, despite allowing other employees to violate the uniform policy with baseball caps).  272. See Brief for LDS Church et al., supra note 284, at 18 (describing how an employer’s unfamiliarity with a religion may make it easier to dismiss the employee than accommodate them).  273. See Brief for Uddin & Collis, supra note 260, at 2 (noting that after the MOU that led to Groff filing suit, most other rural mail carriers quit their jobs rather than attempting an accommodation as Groff did).  274. See id. at 7 (“Hardison’s application in the lower courts has allowed employers to escape liability and avoid, in many instances, any need whatsoever to accommodate the religious needs of their employees.”).   2024] GROFF V. DEJOY 229 Courts routinely upheld Sabbath discrimination, “severely restrict[ing]” a Sabbatarian’s employment opportunities.275 Courts permitted companies to refuse to even hire Orthodox Jewish individuals if the employer claimed the slightest inconvenience to their business or the individual’s possible coworkers for a Sabbath accommodation.276 The de minimis standard also enabled courts to uphold discrimination based on one’s appearance.277 Courts continually elevated the employer’s hypothesized preferences of their customers over their employees’ religious mandates regarding their   275. See Brief of the Former EEOC General Counsel, supra note 227, at 3; see also, e.g., Williams v. U.S. Steel Corp., 40 F. Supp. 3d 1055, 1067 (N.D. Ind. 2014) (finding an undue hardship when accommodating the plaintiff’s Sabbath observance would require her steel mill employer to have one less employee on a shift or pay another employee overtime to work plaintiff’s scheduled shift and risk decreased employee morale); Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141, 142, 146–47 (5th Cir. 1982) (finding that all three of the plaintiff’s suggested accommodations—from shift swaps to operating without him on the shift—were analagous to the accommodations dismissed by the Hardison Court under the de minimis standard); EEOC v. Thompson Contracting, Grading, Paving, & Utils. Co., 499 F. App’x 275, 283–84 (4th Cir. 2012) (finding an undue hardship when accommodating the plaintiff’s Sabbath observance would require the employer to insure other employees who already had their commercial driver’s license or to hire contractor-drivers on occasional Saturday shifts); Groff v. DeJoy, 35 F.4th 162, 175 (3d Cir. 2022) (finding that Groff’s proposed accommodation of being exempted from work on Sundays “caused more than a de minimis cost” to his employer), vacated and remanded 143 S. Ct. 2279 (2023); Trans-World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977) (applying the de minimis standard and finding an undue hardship on TWA when it would need to pay overtime to one of Hardison’s coworkers for a limited period of time to accommodate his Sabbath observance). Sabbath discrimination appears to be universal across Sabbatarian faiths—all of the plaintiffs in these cases ascribed to different faiths that observe the Sabbath, encountered Sabbath discrimination, and lost their case under the de minimis standard. See Williams, 40 F. Supp. 3d at 1059; Brener, 671 F.2d at 142; Thompson Contracting, 499 F. App’x at 277; Groff v. DeJoy, No. 19-1879, 2021 WL 1264030, at *1 (E.D. Pa. Apr. 6, 2021); Hardison, 432 U.S. at 67.  276. See Brief for the Union of Orthodox Jewish Congregations of America, supra note 249, at 16 (describing a series of cases wherein the de minimis holding from Hardison quashed Orthodox Jews’ claims of workplace discrimination in refusing to accommodate their Sabbath observance); see also, e.g., Litzman v. New York City Police Dep’t, No. 12 Civ. 4681(HB), 2013 WL 6049066, at *2–3, *5–6 (S.D.N.Y. Nov. 15, 2013) (finding an undue hardship on the employer police force from the plaintiff’s one-inch-long beard, as the employer would have a more difficult time reaching an eventual goal that its entire team have a specific certification that requires a test wherein a respirator mask must be worn on a clean shaven face, despite the fact that the force offered medical exceptions excusing trainees from the requirement); Aron v. Quest Diagnostics, Inc., No. Civ.A.03–2581 JSH, 2005 WL 1541060, at *6–9 (D.N.J. June 30, 2005) (finding an undue hardship on the employer, who required its phlebotomists to work two Saturdays per month, when accommodating plaintiff’s Sabbath observance had the “potential” to decrease employee morale, require the company to incur occasional additional costs, and affect speediness of patient test results); EEOC v. Walmart Stores Eastern, L.P., 992 F.3d 656, 658–60 (7th Cir. 2021) (finding an undue hardship on Walmart when accommodating one potential assistant manager’s Sabbath observance would require changing the existing rotating scheduling for assistant managers).   277. See Sadia Aslam, Hijab in the Workplace: Why Title VII Does Not Adequately Protect Employees from Discrimination on the Basis of Religious Dress and Appearance, 80 UMKC L. REV. 221, 222 (2011) (arguing that the current Title VII jurisprudence fails to provide sufficient protection for individuals who wear religious dress or whose appearance reflects their religious beliefs).   230 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 appearance.278 Orthodox Jews routinely experienced judicially sanctioned discrimination for aspects of their appearance that comport with their religious beliefs—from their hair and beards, to their yarmulkes and skirts.279 Similarly, Courts have mandated that Sikh men’s beards and turbans,280 Muslim women’s khimars and hijab,281 and Muslim men’s beards all must give way to the hypothesized customer preference.282 Finally, the de minimis standard enabled Courts to uphold discrimination against observant employees who pray throughout the day per religious dictate as it might pose scheduling difficulties or interrupt workflow.283 Statistics provide further evidence of the disproportionate rates of workplace religious discrimination suffered by minoritized practitioners under the de minimis standard.284 For instance, Seventh Day Adventists comprise 0.5% of the American population, but make up 21.5% of all   278. See Brief for the American Hindu Coalition as Amicus Curiae Supporting Petitioner at 16–17, Groff v. DeJoy, 143 S. Ct. 2279 (2023) (No. 22-174) [hereinafter Brief for the American Hindu Coalition] (describing employers’ repeated calls to what customers “might” feel in response to an aspect of the employee’s appearance that correlates with their religious beliefs); see also Brief for the Sikh Coalition, Muslim Advocates, and the Islam and Religious Freedom Action Team as Amici Curiae in Support of Petitioner at 13, Groff v. DeJoy, 143 S. Ct. 2279 (2023) (No. 22-174) [hereinafter Brief for the Sikh Coalition et al.] (quoting EEOC v. Sambo’s of Georgia, 530 F. Supp. 86, 89 (N.D. Ga. 1981)) (describing one court’s findings that the employer restaurant’s belief in the public’s “aversion to, or discomfort in dealing with, bearded people” sufficed to establish an undue hardship (emphasis in quoting source but not in quoted source)).  279. See Brief for the Union of Orthodox Jewish Congregations of America, supra note 249, at 17 (describing two specific cases, one wherein a court could not determine if allowing a man to keep his beard or wear a yarmulke imposed an “undue hardship” on the police department that employed him, and another wherein a hospital fired a nurse who wished to wear a skirt to work per her modesty beliefs).  280. See Brief for the Sikh Coalition et al., supra note 278, at 12–13 (describing cases in which courts upheld employer discrimination against Sikh employees whose appearance reflected their beliefs, as their appearance might adversely affect the public image of the employer).  281. See Aslam, supra note 277, at 234 (describing how some circuits “continue to adhere to the earlier established standards” allowing discrimination for religious aspects of appearance); see also Nathan K. Bader, Hats off to Them: Muslim Women Stand Against Workplace Religious Discrimination in Geo Group, 56 ST. LOUIS U. L.J. 261, 280 (2011) (describing Webb v. City of Phila., 562 F.3d 256 (3d Cir. 2009)).  282. See Bader, supra note 281, at 277–78 (describing two cases wherein men’s beard lengths—a sign of piety—led to dismissal or disputes with their employers, which the courts the upheld, giving special deference to police departments and correctional institutions).  283. See Brief for the Union of Orthodox Jewish Congregations of America, supra note 249, at 17 (describing EEOC v. JBS USA, LLC, No. 8:10CV318, 2013 WL 6621026, at *19 (D. Neb. Oct. 11, 2013)); Brief for the American Hindu Coalition, supra note 278, at 15 (describing the issue for the employee in Roy v. Board of Community College Trustees of Montgomery Community College, No. CBD-13-2956, 2015 WL 5553716 (D. Md. Sept. 18, 2015)).  284. See Brief for the Church of Jesus Christ of Latter-Day Saints et al. as Amici Curiae Supporting Petitioner at 18, Groff v. DeJoy, 143 S. Ct. 2279 (2023) (No. 22-174) [hereinafter Brief for LDS Church et al.] (comparing specific statistics of rates of discrimination as opposed to population makeup).   2024] GROFF V. DEJOY 231 religious accommodation claims.285 Jehovah’s Witnesses make up 0.8% of Americans but represent 4.9% of its religious accommodation claims.286 A combination of Jews, Hebrew Israelites, Rastafarians, Sikhs, and those practicing indigenous African religions comprise 3% of the United States’ population but 13.7% of religious accommodation claims.287 Muslims make up 1.1% of the American population but 25% of all its religious accommodation claims288—with a 250% increase in claims after 9/11.289 Middle- and lower-class Americans suffer from religious discrimination in the workplace disproportionately under the de minimis standard.290 Between 2000 and 2023, over 80% of Title VII religious discrimination claims were filed by individuals who worked jobs requiring “little” to “medium” preparation.291 Individuals working jobs requiring “little” or “some” preparation filed over 60% of all Title VII religious discrimination claims.292 The de minimis standard fueled these results as blue-collar workers are relatively easier and cheaper to replace than white-collar employees, providing little incentive to employers to accommodate.293 The impact on working class Americans practicing minoritized religions is even more disparate under the de minimis standard.294 C. The Court’s Manipulation of Title VII Case Law in Groff Provides a Better Solution than Popular Alternatives Suggested by Scholars Scholars rightly began criticizing the de minimis standard soon after its announcement in Hardison.295 In their criticisms, scholars offered   285. Id.   286. Id.   287. Id.   288. Allred, supra note 258, at 280.  289. Brief for the American Hindu Coalition, supra note 278, at 18.  290. See Touchet & Lingo, supra note 254, at 10 (“[L]itigants are overwhelmingly likely to be working-class Americans—the ones who need Title VII’s protection most.”).  291. See id. at 11 (describing “little” to “some” preparation jobs as those which require about “a high school diploma and up to a year of experience (e.g., receptionists, cashiers, and correctional officers),” and “medium” preparation jobs as requiring about “two years of experience and vocational school, on-the-job experience, or an associate’s degree (e.g., police officers, automotive mechanics, and nurses)”).  292. See id.  293. See id. at 14.  294. See id. at 15 (“Thus, ‘[b]ecause facially or formally neutral workplace policies by nature reflect the perspective of the cultural majority, they will disproportionately come into conflict with the practices of religious minorities.’ Thus, it is no surprise that minority faiths are overrepresented in religious accommodation claims but underrepresented in wins on appeal.” (quoting Brief of Amicus Curiae the General Conference of Seventh-Day Adventists Supporting Petitioner at 29, Groff v. DeJoy, 143 S. Ct. 2279 (2023) (No. 22-174))).  295. See, e.g., Diane E. Tebelius, Title VII—Religious Discrimination—Employer Need Not Bear More Than a De Minimus Cost to Reasonably Accommodate an Employee’s Religious Beliefs—  232 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 alternatives to the de minimis standard that they believed better comported with the spirit of Title VII, including the adoption of the “significant difficulty or expense” language used elsewhere in the U.S. Code and other alternatives that would substantively change the meaning of “undue hardship.”296 While the Groff Court should have been more transparent about the actual holding of Hardison, the Court nonetheless took a superior approach than that offered in popular scholarship.297 1. In the Decades Following Hardison, Scholars Proposed Redefining “Undue Hardship”as it Appears in Title VII After the Court decided Hardison, Congress began defining “undue hardship”  in new antidiscrimination laws, beginning with the Americans with Disabilities Act of 1990 (“ADA”).298 Congress subsequently utilized the ADA standard for “undue hardship” in other antidiscrimination legislation, and the majority of Title VII scholars began advocating for Title VII to do the same.299   Bona Fide Seniority Systems Protected Under Title VII and Prevail over Religious Discrimination—Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), 1 WHITTIER L. REV. 57, 62 (1978) (“Though there are a number of methods of [religious] accommodation[s] which would be reasonable, most would involve more than a de minimus cost. By broadly defining undue hardship, the Court may have effectively restricted any manner of accommodation.”); Elizabeth L. Moore, Civil Rights—Title VII and the Religious Employee: Trans World Airlines, Inc. v. Hardison Retrenches on the Reasonable Accommodation Requirement, 56 N.C. L. REV. 356, 369–70 (1978) (“Hardison leaves impotent the congressional mandate in section 701(j) . . . . The amendment’s significance . . . was the recognition of the discrimination . . . when a uniform work rule has a greater impact on employees with certain strongly held religious beliefs . . . . In so circumscribing the [de minimis standard], the Court nearly proclaims the amendment a nullity.”); David E. Retter, The Rise and Fall of Title VII’s Requirement of Reasonable Accommodation for Religious Employees, 11 COLUM. HUM. RTS. L. REV. 63, 86 (1979) (“For the moment the reasonable accommodation requirement appears all but defunct. . . . The imposition of such a choice [between following the precepts of one’s religion or abandoning them to accept work], remarked the Hardison dissent, leaves ‘[a]ll Americans . . . a little poorer.’” (quoting Trans-World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 (1977) (Marshall, J., dissenting))).   296. See infra Section IV.C.1.  297. See infra Section IV.C.2.  298. Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified at 42 U.S.C. §§ 12101–12213).  299. See Allred, supra note 258, at 284 (“[O]nly two solutions have enough gumption to give Hardison the hook: legislation or Supreme Court action.”); Aslam, supra note 277, at 236 (“Because Congress took the time to define the terms in the context of employment law, albeit discrimination for disabilities rather than the criteria listed under Title VII, courts should adopt this ‘significant difficulty or expense’ standard to evaluate religious discrimination suits . . . .”); Blair, supra note 245, at 556 (“The ADA has provided a guide on how to strengthen reasonable accommodations given to employees. The ADA model offers greater balance in the analysis of what accommodations are reasonable and how much of a burden is required of employees.”); Christoper M. Fournier, Faith in the Workplace: Striking a Balance Between Market Productivity and Modern Religiosity, 15 SEATTLE J. SOC. JUST. 229, 231 (2016) (“These materials would inform employees and employers that . . . the employer will have the burden of showing a substantial cost . . . . This new, stricter   2024] GROFF V. DEJOY 233 i. The Majority Approach Amongst Scholars: The “Significant Difficulty or Expense” Standard Before the Court’s decision in Groff, the majority of Title VII scholars suggested that the de minimis standard should be replaced with the “significant difficulty or expense” language originally used to define “undue hardship” in the ADA.300 In doing so, the standard for an undue hardship under Title VII would become more stringent, meaning more employers would be required to reasonably accommodate the religious observance of their employees.301 However, scholars disagreed on how to best effectuate this change.302 One scholar proposed that the “significant difficulty or expense” language needed to be established either by a congressional amendment to Title VII or through a ruling by the Court,303 before ultimately suggesting that the Court provided the best avenue for change.304 Another scholar believed legislation was the best route to redefine “undue hardship” because Congress has already amended language in the ADA after problematic Court rulings narrowed the law’s scope.305 Another scholar thought regulations by the EEOC provided the best solution.306 Through whatever means scholars suggest to redefine Title VII, the consensus amongst the majority of scholars was clear: The “significant difficulty or expense” language should define “undue hardship” for workplace religious discrimination claims.307 a. The Standard Appears Three Times in Other Current Employment Legislation, Though Scholars Relied on Its  standard would be analogous to the current undue hardship standard called for under the [ADA], which will be discussed later in the article.”).  300. See Allred, supra note 258, at 288.   301. See infra Section IV.C.1.i.a.  302. See infra notes 303–305 and accompanying text.  303. See Allred, supra note 258, at 284 (“[O]nly two solutions have enough gumption to give Hardison the hook: legislation or Supreme Court action.”)  304. See id. at 284–87 (arguing that a change in the standard would be best effectuated by the Court, especially given the Court’s recent expressions of dissatisfaction with Hardison and Congress’ inability to pass legislation defining “undue hardship” in Title VII).  305. Aslam, supra note 277, at 237 (describing how Congress passed the ADA Amendments Act of 2008 (“ADAAA”) in order to redefine “disability” after the Supreme Court had been narrowing the scope of the ADA for the preceding ten years).  306. Fournier, supra note 299, at 231 (advocating that the EEOC should “create and promulgate a memorandum and regulatory materials” that would redefine “undue hardship” with a substantial standard “analogous to the current undue hardship standard called for under the [ADA]”).  307. See supra note 299.   234 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 Appearance in the ADA to Signal Congressional Disapproval of the De Minimis Standard Scholars have argued that the congressional history of the newer standard signaled both legislative approval of the “significant difficulty or expense” language and congressional disapproval of the de minimis standard.308 In their analysis, scholars primarily rely upon and refer to the standard in its initial appearance in the ADA, though the standard has appeared four times since in employment law, as the subsequent laws call back to the ADA.309  Congress passed the ADA in 1990.310 Title I of the ADA specifically addresses employment discrimination, prohibiting all forms of employment discrimination based on one’s ability.311 Congress provided an exception for employers—excusing employers when a reasonable accommodation imposes an undue hardship on their business.312 In order for an accommodation to cause an undue hardship, Congress stated that the reasonable accommodation must impose a “significant difficulty or expense” on the employer.313    308. See infra Section IV.C.1.i.c.  309. See infra Section IV.C.1.i.a.  310. Sondra M. Lopez-Aguado, The Americans with Disabilities Act: The Undue Hardship Defense and Insurance Costs, 12 REV. LITIG. 249, 250 (1992).  311. Id. at 250–51 (describing employment discrimination against people with disabilities as “widespread” before the Act, with over half of young disabled people experiencing joblessness unwillingly).  312. Id. at 252; see also 42 U.S.C. § 12111(9) (stating that reasonable accommodations may include “(A) making existing facilities used by employees readily accessible . . . ; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters”).  313. Lopez-Aguado, supra note 310, at 252; see also 42 U.S.C. § 12111(10)(A) (“The term ‘undue hardship’ means an action requiring significant difficulty or expense, when considering in light of the factors set forth in subparagraph (B).” (emphasis added)). Subparagraph (B) provides the following guidelines:  In order to determine whether an accommodation would impose an undue hardship on an employer, the ADA sets forth four factors: 1) the nature and cost of the accommodation; 2) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of employees at the facility, the effect on expenses and resources, or the impact of such an accommodation on the operation of the facility; 3) the overall financial resources of the employer, the overall size of the business with respect to the number of its employees, the number, type, and location of its facilities; and, 4) the type of operation of the employer, including the composition, structure, and functions of the workforce, the geographic separateness, administrative, or fiscal relationship of the facilities to the employer. Jason Zarin, Beyond the Bright Line: Consideration of Externalities, the Meaning of Undue Hardship, and the Allocation of the Burden of Proof Under Title I of the Americans with Disabilities Act, 7 S. CAL. INTERDISC. L.J. 511, 514–15 (1998); see also 42 U.S.C. § 12111(10)(B).   2024] GROFF V. DEJOY 235 The standard also appears in the Uniformed Services Employment and Reemployment Rights Act (“USERRA”),314 which Congress passed in 1994.315 Under the Act, employers are required to make “reasonable efforts” to train and reintegrate veterans into the civilian workforce, unless doing so would impose an “undue hardship” on the employer.316 The USERRA borrowed language from the ADA, including the definition of “undue hardship.”317 The Pregnant Workers Fairness Act (“PWFA”)318 requires covered employers to “make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.”319 The PWFA explicitly adopted the “undue hardship” standard from the ADA, stating, “the terms ‘reasonable accommodation’ and ‘undue hardship’ have the meanings given such terms in section 101 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111) and shall be construed as such terms are construed under such Act.”320 Likewise, in the same session law, the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”)321 required that covered employers provide accommodations for nursing workers by providing a space (separate   314. Pub. L. No. 103-353, 108 Stat. 3149 (1994) (codified at 38 U.S.C. § 101).   315. See Aaron Gingrande, The Import of “Undue Hardship” from the ADA to USERRA: Useful Guideline or Trojan Horse?, 15 U. PA. J. BUS. L. 1111, 1115 (2013) (providing a history of the USERRA and the purpose behind the legislation).  316. See id. at 1113 (warning that it is likely that the case law surrounding “undue hardship” from the ADA will be applied to the USERRA—because of the similar language—and that if this happens, protections for veterans will be smaller than Congress intended). Under the USERRA, employers must make “reasonable efforts” to help employees become requalified for the “essential tasks” of the position. Id. at 1116; see also 38 U.S.C. § 4313(a)(1)(B), 4313(a)(2)(B), 4313(a)(3), 4313(a)(3)(A), 4313(a)(4), 4313(b)(2)(B) (detailing different scenarios under which an employer is required to make reasonable efforts to accommodate a veteran re-entering the workforce). Congress borrowed the “essential tasks” language from the ADA. Gingrande, supra note 315, at 1116, n.25 (noting that under the ADA, factors that might make a function “essential” include whether “(1) the position exists to perform the function; (2) there are a limited number of employees to perform the job function; and/or (3) the incumbent is hired specifically for his or her ability to perform the function because it requires a high level of expertise”).  317. See Gingrande, supra note 315, at 1116. An employer establishes an “undue hardship” under the USERRA by demonstrating a “significant difficulty or expense,” in light of “(1) the nature and cost of the action; (2) the overall financial resources required to take the action; and (3) the action’s effect on the expenses, resources, and operations of the facility when measured against the employer’s overall size.” Id. at 1117; see also 38 U.S.C. § 4303(16).  318. Pregnant Workers Fairness Act, Pub. L. No. 117-328, 136 Stat. 6084 (2022) (codified at 42 U.S.C. §§ 2000gg to 2000gg-6).  319. Id. § 103(1); 42 U.S.C. § 2000gg-1(1).  320. Pregnant Workers Fairness Act § 102(7); 42 U.S.C. § 2000gg(7).  321. Pub. L. No. 117-328, 136 Stat. 6093 (2022).    236 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 from bathrooms) to express breast milk while at work.322 In doing so, Congress adopted the “significant difficulty or expense” language from the ADA to excuse covered employers from the accommodation requirement.323 By 2023, Congress had repurposed the “significant difficulty or expense” language from 1990 in four subsequent acts mandating employment accommodations—but had not done so for the de minimis standard since 1977.324 The foundation for scholars’ arguments for the “significant difficulty or expense” standard lay in their (accurately) perceived disapproval of the de minimis standard, as signaled by subsequent congressional action.325 Scholars note that in passing the ADA, Congress went “out of its way” to avoid the Hardison treatment for subsequent “undue hardship” legislation in the employment space.326 First, Congress defined “undue hardship,” something it had not done in Title VII, which allowed the Hardison ruling.327 Second, scholars note that when discussing the legislation, Congress went a step further by specifying that the “significant difficulty or expense” standard in   322. See id. §§ 102(a)(1)–(2); 29 U.S.C. §§ 218d(a)(1)–(2), 218d(c) (“An employer that employs less than 50 employees shall not be subject to the requirements of this section, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”). The Patient Protection and Affordable Care Act (“ACA”) also used the term “undue hardship” with the “significant difficulty or expense” language when mandating that nursing parents be given the reasonable break times. Pub. L. No. 111-148, § 4207(3), 124 Stat. 119, 577 (2010). The provision was repealed in 2022 by the PUMP Act, which replaced the ADA’s langauge with the near-identical provision in the first parenthetical of this footnote. 29 U.S.C. § 207(r)(3) (2020), repealed by PUMP Act, Pub. L. No. 117-328, §§ 102(a)(1)–(2), 136 Stat. 6093 (2022). The new law covers approximately nine million more workers of childbearing age than the previous provision requiring accommodations for nursing. See Alisha Haridasani Gupta & Catherine Pearson, A New Breast Pumping Law Has Gone Into Effect. Here’s What It Means., N.Y. TIMES (May 3, 2023), https://www.nytimes.com/2023/05/03/well/family/pump-act-breastfeeding.html (discussing how the PWFA covers all employees, with minor exceptions for some common carriers, as opposed to the ACA, which did not cover any workers who did not qualify for overtime pay).  323. Pub. L. No. 117-328, § 102(a)(2), 136 Stat. 6093 (2022); 29 U.S.C. § 218d(c).   324. See supra notes 314–323 and accompanying text.  325. See Allred, supra note 258, at 285 (“Congress has in a way already responded to Hardison by how it devised other statutes involving undue hardships.”)  326. Id. at 295; see Steven B. Epstein, In Search of a Bright Line: Determining When an Employer’s Financial Hardship Becomes “Undue” Under the Americans with Disabilities Act, 48 VAND. L. REV. 391, 424 (1995) (describing the legislative history behind the “undue hardship” provision in the ADA and the congressionally-defined standard for courts to apply); Debbie N. Kaminer, Religious Accommodation in the Workplace: Why Federal Courts Fail to Provide Meaningful Protection of Religious Employees, 20 TEX. REV. L. & POL. 107, 114–115 (2015) (detailing the meaningful difference between the traditional association of antidiscrimination with formal equality, the ethos adopted in Hardison, as opposed to the true equality provided by accommodations).  327. See Kaminer, supra note 326, at 114–15 (“In enacting the ADA, Congress explicitly rejected § 701(j)’s de minimis standard, determining instead that ‘undue hardship’ is an ‘action requiring significant difficulty or expense.’” (quoting H.R. REP. NO. 101-485, pt. 2, at 68 (1990))).   2024] GROFF V. DEJOY 237 the ADA was “significantly higher . . . than that articulated in Hardison.”328 Given Congress’s explicit differentiation between the two standards, scholars argue that Congress has already redefined “undue hardship” in the employment context and that the new definition should be extrapolated to Title VII.329 b. Scholars Argue that the Similarities Between Title VII and the ADA Make the “Significant Difficulty or Expense” a Fitting Replacement for the De Minimis Standard  Scholars find the adoption of the standard from the ADA to be particularly fitting given the similarity between workplace accommodations for people with disabilities and observant individuals.330 Remediating discrimination against both groups in the workplace requires a solution that is unique amongst other forms of workplace discrimination: accommodations.331 The other protected groups under Title VII—sex, race, and color—are protected through neutral treatment, wherein one is not treated differently from their peers based on their status.332 But similar treatment creates the need for accommodations for disabled and observant individuals.333 Moreover, scholars emphasize that until 2010, only disabled   328. Id. at 115 n.40 (citing H.R. REP. NO. 101-485, pt. 2, at 68 (1990)). In its report, Congress stated:  The Committee wishes to make it clear that the principles enunciated by the Supreme Court in TWA v. Hardison, U.S. 63 (1977) are not applicable to this legislation. In Hardison, the Supreme Court concluded that under title VII of the Civil Rights Act of 1964 an employer need not accommodate persons with religious beliefs if the accommodation would require more than a de minimus cost for the employer. By contrast, under the ADA, reasonable accommodations must be provided unless they rise to the level of “requiring significant difficulty or expense” on the part of the employer, in light of the factors noted in the statute—i.e., a significantly higher standard than that articulated in Hardison. This higher standard is necessary in light of the crucial role that reasonable accommodation plays in ensuring meaningful employment opportunities for people with disabilities. H.R. REP. NO. 101-485, pt. 2, at 68 (1990).  329. Aslam, supra note 277, at 236 (“Because Congress took the time to define the terms in the context of employment law, albeit discrimination for disabilities rather than the criteria listed under Title VII, courts should adopt this ‘significant difficulty or expense’ standard to evaluate religious discrimination suits when employers fail or refuse to accommodate religiously mandated dress or appearance.”).  330. See Blair, supra note 245, at 530–31 (describing how the forms of discrimination are undergirded by the same employer motivations and both require differential treatment, as opposed to other forms of workplace discrimination); Sonny Franklin Miller, Religious Accommodation Under Title VII: The Burdenless Burden, 22 J. CORP. L. 789, 803 (1997) (“[T]he very fact that these are the only two forms of discrimination that private employers are required to accommodate invites a comparison.”).  331. See Blair, supra note 245, at 531.  332. Id.  333. See Blair, supra note 245, at 531; see also infra Section III.B.1.ii.   238 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 and observant employees were protected by accommodations.334 Because of the unique need for differential accommodations between the groups, scholars emphasize that importing the “significant difficulty or hardship” standard from the ADA is an appropriate fit to excuse employers from making accommodations under Title VII.335 Scholars also find the ADA standard fitting for Title VII because discrimination against both groups is generally founded in the same two complaints from their employers—economic concerns and workplace harmony.336 Accommodations require differential treatment, which likely involves some minor cost to the employer, who will then balk.337 Similarly, an employee’s coworkers may resent the employee who receives differential treatment through accommodations, leading to disharmony in the workplace, which employers also wish to avoid.338 Given the analogous resistance in accommodating disabilities and religion, scholars find that the adoption of the “significant difficulty or expense” standard to be fitting.339  Lastly, scholars emphasize that the similarities between Title VII and the ADA themselves justify their approach.340 The policy undergirding both acts reflects the same valuation by Congress: Some cost to employers is acceptable for the benefit of society and the workplace through inclusion.341 Moreover, scholars emphasize that the ADA’s broad coverage aligns with the broad, remedial intent of Title VII.342 The adoption of the broader protection from the ADA’s definition of “undue hardship,” not only comports with the intent of Title VII, but will also lead to more accommodations according to scholars.343 c. The “Significant Difficulty or Expense” as a Route to More Accommodations for Observant Employees Scholars argue that the adoption of the “significant difficulty or expense” standard will “even [the] playing field” between employees and   334. See Miller, supra note 330, at 803. In 2010, the ACA required accommodations to counteract pregnancy discrimination in the workplace. See supra note 322. Now pregnant and nursing employees are protected from discrimination by accommodation requirements. See supra notes 318–323 and accompanying text.  335. See Blair, supra note 245, at 530–31.  336. Id. at 530.  337. Id.   338. Id.   339. See Blair, supra note 245, at 531–32.  340. See infra notes 341–343 and accompanying text.   341. See Blair, supra note 245, at 531.  342. Aslam, supra note 277, at 237.  343. See infra Section IV.C.1.c.   2024] GROFF V. DEJOY 239 employers.344 This assertion is based on their finding that under the ADA’s higher “undue hardship” standard, employers are required to provide accommodations more often.345 Under the de minimis standard, an employer merely needs to gesture to some minor cost to be excused from an accommodation, but the “significant difficulty or expense” standard requires more.346 Because the de minimis standard requires so little to find in favor of employers, scholars emphasize that there is significant room for managerial discretion in deciding whether to grant an accommodation.347 Discretion indulges the implicit or explicit biases of managers, especially against minoritized religious groups.348 A higher “undue hardship” standard would force more uniformity in employer decisions and justifications in denying accommodations, as well as in the courts’ enforcement of the proper grounds of an “undue hardship.”349 The higher standard also will redirect attention from non-monetary costs of “undue hardships” and remove some of the burden on employees trying to be accommodated, scholars argue.350 The low bar of the de minimis standard often leads to employers overemphasizing non-monetary costs of granting an accommodation, leading to denial of accommodations.351 Options such as shift-swapping, mandated breaks, or transfer of duties are then found to be de minimis by the courts.352 Scholars argue that under the “significant difficulty or expense” standard, this will no longer be the case.353 Similarily, scholars argue, because the suggested standard requires more from employers, some of the burden of attempting to be accommodated will be displaced from employees onto employers, who are better equipped to handle the cost.354 Requiring more from employers to demonstrate an undue hardship will result in fewer exceptions to Title VII’s accommodation requirement, leading   344. See Blair, supra note 245, at 539.  345. See id. at 537.  346. See id. at 535 (“Under the ADA regime, although an employer may present credible evidence that moving the employee to a new position would have been a hardship, that is not the end of the analysis. Under Title VII, the analysis stops when the employer is able to prove that the accommodation would have presented more than a de minimis burden.”); Aslam, supra note 277, at 236.  347. Fournier, supra note 299, at 238.  348. Id. at 239.  349. Id. at 239–41.  350. See infra notes 351–354 and accompanying text.  351. See Blair, supra note 245, at 538.  352. Id.   353. Id.   354. See id. at 556 (“Creating a more equal balance when evaluating whether an accommodation is reasonable will help provide the respect and protection that employees deserve.”).   240 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 to more protections for employees.355 Some scholars even believe this effect could be compounded through the addition of case law.356 The case law from ADA rulings on “significant difficulty or expense” could be used to interpret Title VII case law, adding to the protections that would benefit employees under the new standard.357 One scholar went as far as analyzing the facts of Hardison under the “significant difficulty or expense” standard and argued that under that standard, the Court would have found for Hardison and required the TWA to accommodate his Sabbath observance.358 ii. Minority Alternative Perspectives Reccomending Tempered Standards  Though most scholars argued that the de minimis standard should be replaced with the adoption of the “significant difficulty or expense” standard,359 in advance of Groff, a minority of scholars suggested various other approaches.360 Most of these approaches emphasized finding a middle ground between the interests of employees and employers in granting accommodations, rather than swinging from an anti-employee de minimis standard to the anti-employer “significant difficulty or expense” standard.361 To accomplish this, one scholar suggested adopting a different provision from Title I of the ADA—the “essential functions” provision—thereby   355. See Aslam, supra note 277, at 236.  356. Id. at 236–37.  357. Id.   358. See Blair, supra note 245, at 537. This scholar stated:    Had the ADA standard been applied in Hardison, the result would almost certainly have been different. Had TWA accommodated Hardison in his preferred way, it would have incurred a cost of $150 per month for three months. It is unlikely that $150 would have been considered a “significant difficulty or expense,” and Hardison would have been accommodated. Id.  359. See supra Section IV.C.1.i.  360. See infra notes 361–368 and accompanying text.  361. See, e.g., Laura E. Watson, (Un)Reasonable Religious Accommodation: The Argument for an Essential Functions Provision under Title VII, 90 S. CAL. L. REV. 47, 54–55, 82–83 (2016) (arguing that Title VII’s “undue hardship” jurisprudence is now swinging too far in the opposite direction of Hardison, and thus the “essential functions” provision should be incorporated into Title VII to protect employers and their business’s functionality); Alan D. Schuchman, The Holy and the Handicapped: An Examination of the Different Applications of the Reasonable-Accommodation Clauses in Title VII and the ADA, 73 IND. L.J. 745, 763–64 (1998) (noting that Congress found that discrimination against people with disabilities was worse than religious employees, leading to the proposition that “undue hardship” under Title VII not be as stringent as under the ADA); Zaheer, supra note 264, at 522 (“Rather than allowing employers to reject accommodations that result in more than a de minimis cost, thereby eliminating virtually all religious accommodations, courts should require employers to accommodate all religious practices deemed ‘central’ to the employee’s faith, unless accommodation of those practices would result in an undue (i.e., significant) hardship to the employer.”).   2024] GROFF V. DEJOY 241 allowing employers to refuse to hire or dismiss employees whose religious observance prevents them from performing the essential functions of their position.362 Another suggested that “courts analyze Title VII cases as falling somewhere on a continuum, with one end requiring reasonable accommodation and the other end constituting undue hardship.”363 In their analysis, the scholar suggests that courts should mainly consider “the individual’s statutory right to exercise religion freely . . . balanced against the employer’s statutory right to be free of accommodation requirements that unduly burden its business.”364 Another scholar posits that to find balance between employee and employer interests, Title VII’s language should be changed to require accommodations of only for the “central” aspects of an employee’s religious practices.365 Some scholars suggest finding a balanced approach through EEOC regulations. 366 One recommended that the “interactive” approach to accommodations, read into the ADA by the EEOC, likewise be read into Title VII, facilitating good-faith employee-employer collaboration.367 Another recommended changing the Title VII standard by amendment or case law to explicitly mandate the consideration of the size of the employer in determining whether an “undue hardship” is de minimis—previously only required by regulatory authority—mandating more accommodations from larger employers.368   362. See Watson, supra note 361, at 54–55, 82–83.  363. Huma T. Yunus, Note, Employment Law: Congress Giveth and the Supreme Court Taketh Away: Title VII’s Prohibition of Religious Discrimination in the Workplace, 57 OKLA. L. REV. 657, 682 (2004).  364. Id. at 683 (quoting Sara L. Silbiger, Heaven Can Wait: Judicial Interpretation of Title VII’s Religious Accommodation Requirement Since Trans World Airlines v. Hardison, 53 FORDHAM L. REV. 839, 857 (1985)).  365. Zaheer, supra note 264, at 522 (“Rather than allowing employers to reject accommodations that result in more than a de minimis cost, thereby eliminating virtually all religious accommodations, courts should require employers to accommodate all religious practices deemed ‘central’ to the employee’s faith, unless accommodation of those practices would result in an undue (i.e., significant) hardship to the employer.”).  366. See infra notes 367–368 and accompanying text.  367. Dallan F. Flake, Interactive Religious Accommodations, 71 ALA. L. REV. 67, 68, 71 (2019) (“Given the benefits of the interactive process to employees and employers alike, this Article argues that courts should extend the interactive-process requirement to religious accommodations. This is consistent with Title VII’s aim of helping employees avoid having to choose between their jobs and their religious beliefs.”).  368. See Miller, supra note 330, at 791, 803–04 (“In the balancing of interests, it becomes immediately clear that what is ‘fair to ask of one employer is not necessarily fair to ask of another employer . . . .’” (quoting Epstein, supra note 326, at 446–47)).   242 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 2. Groff Provided a Better Solution by Allowing Title VII to Stand on its Own Feet Through Judicial Action Though the Groff Court’s means are questionable at best, the Court ultimately provided a better solution than those offered by popular scholarship when it refused to rely on any legislation outside of Title VII.369 By relying on Title VII alone, the Court’s solution to the de minimis problem provides employees with security that would have been impossible had the Groff holding been based on the “significant difficulty or expense” standard from the ADA.370 Moreover, Congress’s inability to amend § 701(j) necessitated judicial action, making the Groff Court’s solution a better alternative than popular scholarly suggestions.371 i. The Ruling in Groff Allows Title VII to Stand on its Own Feet Abercrombie outrightly dismissed the neutrality logic undergirding Hardison’s interpretation of Title VII, and as such, only one more thing was needed to fix Hardison’s error: a reinterpretation of the de minimis standard.372 Relying on the ADA to do so would jeopardize the future of religious accommodation claims and ignore congressional intent in passing both the ADA and Title VII.373 While Congress could have amended Title VII to eliminate the de minimis standard, the Court’s action was necessary given the historical ineffectiveness of legislation aimed at doing just that.374 a. The Meaning of “Undue Hardship” Under Title VII Will Not Be Vulnerable to Changes in Other Legislation or Its Case Law Under the Groff Court’s Ruling While the ADA marked definite progress for the rights of people with disabilities, the statute is largely “ineffective.”375 If the meaning of “undue hardship” under Title VII were dependent on the ADA, observant workers’ rights would be jeopardized by the flaws in current ADA law and any changes thereof.376 By allowing Title VII to stand on its own legs, the Groff Court insulated the legislation from the problems of other imperfect acts.377   369. See Section IV.C.2; see supra note 145 and accompanying text.  370. See infra Section IV.C.2.i.  371. See infra Section IV.C.1.ii.  372. See Allred, supra note 258, at 264.  373. See Section IV.C.2.i.  374. See infra Section IV.C.2.ii.  375. See Note, Finally Protected: Analyzing the Potential of the Pregnant Workers Fairness Act, 137 HARV. L. REV. 662, 672 (2023) [hereinafter Finally Protected] (arguing that the PWFA provides better protections for pregnant workers than the ADA, largely due to the flaws present in the ADA and its case law that Congress accounted for in the creation of the PWFA).  376. See Section IV.C.2.i.a.  377. See supra note 145 and accompanying text.   2024] GROFF V. DEJOY 243 Put succinctly, “[l]egal scholarship tends to view the ADA as a failure for plaintiffs.”378 The Act itself has been criticized by scholars for being “vague and confusing” and lacking in “useful guidance [for] employers.”379 While it is undoubtedly better to have a definition for “undue hardship” in the ADA itself, the provided definition nonetheless causes confusion in the courts,380 leading to many courts consistently construing the standard against employees.381 The vague terms facilitate the import of biases against disabled workers, wherein courts overemphasize the cost of accommodation and downplay less concrete social benefits of diversity in the workplace.382 Relevant statistics regarding ADA case law bring this problem to life; over 90% of defendants at the trial level win cases under the ADA.383 Appellate outcomes do not provide any more promise as 60% of appeals result in pro-defendant reversals, with pro-plaintiff reversals in only 21% of cases.384 These trends are not solely due to a lack of relevant case law— even where there is precedent,385 it is “severely underdeveloped” and “in a state of chaos.”386 ADA case law has disappointed a large number of disability advocates with its ineffectiveness.387 If Title VII were to be opened up to this can of worms, as some scholars suggest, 388 observant employees could likewise face the poor outcomes that disabled workers face under the ADA.389 The   378. Charlotte L. Lanvers, Different Federal District Court, Different Disposition: An Empirical Comparison of ADA, Title VII Race and Sex, and ADEA Employment Discrimination Dispositions in the Eastern District of Pennsylvania and the Northern District of Georgia, 16 CORNELL J.L. & PUB. POL’Y 381, 387 (2007).  379. See Zarin, supra note 313, at 512.  380. See Finally Protected, supra note 375, at 674 (referring to the ADA “undue hardship” definition as “loosely defined”).  381. Id. at 675–76.  382. Id.  383. See Lanvers, supra note 378, at 387 (describing such as a “windfall,” but going on to argue that this rate is due to narrow-minded conceptions as to what constitutes a “disability” under the statute).  384. Id. at 390 (“Colker reviewed 720 appellate cases filed after January of 2000 and found that ADA cases resulted in pro-defendant reversals in 60% of cases and pro-plaintiff reversals in only 21% of cases. In contrast, of the Title VII claims filed during the same period, 34% received pro-plaintiff reversals and 41% resulted in pro-defendant reversals.”).  385. Little precedent exists due to the fact-intensiveness of reasonableness inquiries for accommodations. See Finally Protected, supra note 375, at 676.  386. Id. (quoting Jeannette Cox, Reasonable Accommodations and the ADA Amendments’ Overlooked Potential, 24 GEO. MASON L. REV. 147, 147 (2016)).  387. Id. at 663 (comparing the ADA with the PWFA, stating, “[a]t the same time, a curious dissonance exists: the [ADA], the statute that the PWFA’s text largely mirrors, has been widely criticized as ineffective for employees and described as one of the least plaintiff-friendly civil rights statutes”).  388. See supra note 356 and accompanying text.  389. See Finally Protected, supra note 375, at 663.    244 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 Groff Court was correct in its assertion that “it is enough to say that an em-ployer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”390 b. Interpreting a New Definition Within the Statute of Title VII Respects Legislative Intent Behind Title VII  Importing the “significant difficulty or expense” standard from the ADA into Title VII differs from Congress’s previous incorporation of the standard into other areas of employment law.391 The other Acts that adopted the “significant difficulty or expense” standard all did so with congressional action—showing congressional approval—after the ADA was passed.392 Adopting the standard into Title VII through judicial action differs from past adoptions of the “significant difficulty or expense” standard in two respects. First, and more obviously, Title VII was passed and amended years before the ADA was passed.393 If the Court were to import the ADA’s standard into Title VII, it would be projecting a meaning that Congress did not necessarily intend in the original 1964 legislation or the 1972 Amendments.394 By doing so, the Court would be intruding on the legislature’s authority and violating the separation of powers.395 Through its adoption of a “significant” standard based in the text of Title VII alone, the Court restored the intent of Congress in passing Title VII and the 1972 amendments without imputing any meaning that Congress did not intend.396 ii. Legislative Approaches Have Historically Failed, Necessitating a Judicial Solution  Decades of congressional inaction rendered a ruling by the Court necessary.397 Only two months after Hardison, Congress first proposed amending Title VII to overrule the de minimis standard.398 By the time the Court decided Groff, almost fifty years later, Congress had not yet passed an   390. Groff v. DeJoy, 143 S. Ct. 2279, 2295 (2023).   391. See supra Section IV.C.1.i.a.  392. See supra Section IV.C.1.i.a.  393. See supra Section II.A.  394. Groff, 143 S. Ct. at 2295.  395. See supra note 158 and accompanying text.  396. See supra notes 145, 158 and accompanying text.  397. Allred, supra note 258, at 285.  398. See Robert A. Caplen, Note, A Struggle of Biblical Proportions: The Campaign to Enact the Workplace Religious Freedom Act of 2003, 16 U. FLA. J.L. & PUB. POL’Y 579, 592 (2005) (“In August 1977, New York Congressman Stephen J. Solarz introduced legislation to amend section 701(j) of title VII by replacing undue hardship with ‘severe material hardship.’” (quoting H.R. 8670, 95th Cong. (1st Sess, 1977))).    2024] GROFF V. DEJOY 245 amendment to section 701(j) regarding the meaning of “undue hardship.”399 Interestingly, the Workplace Religious Freedom Act, which proposes the introduction of the “significant difficulty or expense” standard into Title VII, was introduced annually for nearly 20 years and did not pass.400 Given the ineffectiveness of congressional proposals, the Groff Court correctly acted when it replaced the de minimis standard with the significant standard.401 D. The Court’s Holding in Groff Should Positively Affect American Workplaces by Facilitating Increased Religious Diversity  The biggest asset of this country and its workplaces is diversity.402 Diversity invites collaboration, discussion, and growth.403 Religious diversity is growing in the United States, and religious expression is increasing in the workplace.404 With more employees expressing religiosity in the workplace, there is a greater need for protection, which the Groff Court addressed by raising the standard under which employers may be excused from the accommodation requirement of Title VII.405 More employees’ observances should be protected in the workplace, which should lead to positive impacts on all religious employees, especially those from minoritized faiths who suffer disproportionate rates of religious discrimination in the workplace.406  1. Religiosity and Religious Diversity Are the Biggest Assets of the United States and Its Workplaces and Are Increasing Nationally An increasingly religious and religiously diverse nation will benefit from the protections offered by a reinvigorated Title VII.407 The American workforce is also increasing in religious diversity, with more minority religions present in the workplace,408 alongside more religious observance   399. Id.; Allred, supra note 258, at 285.   400. See Caplen, supra note 398, at 587–88; Zaheer, supra note 264, at 509. From 1994 to 2012, Congress failed to pass the Act. See Dallan H. Flake, Image Is Everything: Corporate Branding and Religious Accommodation in the Workplace, 163 U. PA. L. REV. 699, 709–10 (2015) (describing how the last bill, proposed in late 2012, died in committee).   401. See supra notes 397–400 and accompanying text; Groff v. DeJoy, 143 S. Ct. 2279, 2294 (2023).   402. See infra Section IV.D.1.  403. See infra Section IV.D.1.  404. See infra Section IV.D.1.  405. See infra Section IV.D.1.  406. See supra Section IV.B.2.ii.  407. See infra note 413 and accompanying text.  408. See Sonia Ghumann et al., Religious Discrimination in the Workplace: A Review and Examination of Current and Future Trends, 28 J. BUS. & PSYCH. 439, 448 (2013) (describing the decreasing prevalence of Christians in the workplace and increased presence of religious minorities).   246 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 and expression in the workplace.409 The number of white Christians in the American workplace has decreased from 81% in 1976 to 43% in 2016.410 In the same amount of time, the number of people unaffiliated with a religion increased to 24%, tripling from 1976.411 Likewise, since the 1970s, the number of Hindu, Buddhist, and Muslim congregations in the United States tripled.412 Given the growing number of Americans practicing religion, and practicing minority religions in the workplace, the resurrection of Title VII in Groff will allow them to substantively protect their right to work and be accommodated.413 Diversity is the United States’s biggest asset.414 We are the “melting pot” of thoughts, cultures, and beliefs—and our country is better for it.415 The inclusion of religious individuals, especially those from varying religious backgrounds, contributes to meaningful conversations and the growth of the nation.416 Diversity is not only an asset to the United States as a whole, but also to each and every workplace in the country.417 Congress recognized such in the passing of the Civil Rights Act of 1964 and the 1972 Amendments to Title VII.418 Congress’s specific inclusion of religious individuals as a protected group shows the high value it placed on not just diversity alone, but also on the religious diversity of the American workplace.419 A “significant” threshold for “undue hardship” will excuse less employers from making accommodations than a de minimis standard.420 Every accommodation costs the employer something, thereby allowing employers to easily demonstrate a cost and excuse themselves under the de minimis standard.421 The de minimis standard thus “poses an almost insurmountable burden on religious employees, while imposing no burden on   409. See Selznick, supra note 235, at 183 (noting the increased religious expression and religious conflicts in the workplace).  410. See id. at 185.  411. See id. at 185–86.  412. See id. at 186.  413. See Flake, supra note 256, at 1677–78 (describing the growing pressure on employers to accommodate more religious observances, and more forms thereof, which will lead to increased litigation under Title VII).  414. Blair, supra note 245, at 517.  415. Id.   416. Id.   417. Id.   418. See supra Section II.A.  419. See supra Section II.A; Blair, supra note 245, at 517.  420. Zaheer, supra note 264, at 520.  421. Id.    2024] GROFF V. DEJOY 247 employers.”422 However, by requiring significant costs to be excused from the accommodation requirement, more employees will be accommodated.423 2. The Groff Decision Affords More Religious Protection in the Workplace—But Leaves Important Questions Unanswered While Groff leaves a lot of promise for future religious accommodation, it nonetheless leaves a bit of a sour taste in the mouth.424 Two questions ring out: First, what should we make of the Court’s deceptive decision-making process? Second, what kind of religious practice will be protected under the new “significant” standard? One could speculate about the reasons as to why the Court did not explicitly overrule or abrogate Hardison. Whatever the reason may be—whether it be that the Court fears public backlash similar to that sparked by Dobbs v. Jackson Women’s Health,425 or accusations of another Lochner era426—it bodes ominously on the integrity of the Court and our judicial process, especially considering that the Court appears to be making a habit of this deceptive form of judicial policy-making.427   422. Id.  423. Id.   424. See supra Section IV.C.2.i.  425. 142 S. Ct. 2228 (2022). For more information on the backlash that followed Dobbs, see Matthew Levendusky et al., Has the Supreme Court Become Just Another Political Branch? Public Perceptions of Court Approval and Legitimacy in a Post-Dobbs World, 10 SCIENCE ADVANCES 1, 1 (2024) (noting that the Court’s “special status has evapotrated,” as evidenced by the 20% drop in trust in 2022, with no increase in trust in 2023); Mark Sherman & Emily Swanson, Trust in Supreme Court Fell to Lowest Point in 50 Years After Abortion Decision, Poll Shows, ASSOCIATED PRESS (May 17, 2023, 3:05 PM), https://apnews.com/article/supreme-court-poll-abortion-confidence-declining-0ff738589bd7815bf0eab804baa5f3d1 (descrbing a poll conducted shortly after the Dobbs decision wherein 36% of indiviudals reporting having “hardly any” faith in the court, a rise from the previous year’s rate of 21%).  426. See, e.g., Marc Spindelman, Dobbs’ Sex Equality Troubles, 32 WM. & MARY BILL RTS. J. 117, 153 (2023) (accusing the Court of “[d]ancing with Lochner’s ghost” with its the Dobbs decision by treading on the economic rights of people who may become pregnant); Linda C. McClain & James E. Fleming, Ordered Liberty After Dobbs, 35 J. AM. ACAD. MATRIMONIAL LAW 623, 645 (2023) (concluding with a warning that “such a Court [that restores the pre-New Deal era conservative Constitution] may come to live in infamy—an infamy that may surpass even that of its prior incarnation, the Lochner Court”); James B. Stewart, Did the Supreme Court Open the Door to Reviving One of Its Worst Decisions?, N.Y. TIMES (July 2, 2022), https://www.nytimes.com/2022/07/02/business/scotus-lochner-v-new-york.html (relying on the Court’s decision in Dobbs and West Virginia v. Environmental Protection Agency in finding that “the foundation has been laid for, if not an outright resurrection of Lochner, at least a serious reappraisal”).  427. This Note does not ponder such questions outside of this footnote. The scope of this Note is much more limited and focuses on one positive policy outcome that should follow this decision. However, those (rightfully) interested in and concerned with the Court’s methodology should review the arguments posited by some academics who suggest that the nullification present in Groff is not unique and warn of what it could mean for Supreme Court jurisprudence. See, e.g., Jeffrey L. Fisher, The Other Way the Supreme Court is Nullifying Precedent, POLITICO (Sept. 16, 2022, 04:30   248 MARYLAND LAW REVIEW ONLINE [VOL. 83:199 In Groff, the Court failed to elaborate upon the definition of “religion” in Title VII.428 It begs the questions: What religious practices will be protected under the newly invigorated Title VII? Will Courts only protect individualized practice of religion, or will they also protect offensive conduct that under the guise of religion?429  CONCLUSION The Court intentionally misrepresented the holding of Hardison in Groff v. DeJoy when it claimed that the precedential case did not establish a de  AM), https://www.politico.com/news/magazine/2022/09/16/supreme-court-cases-precedent-00056689 (referring to the Court’s tactic as “barricading precedent,” an ethos similar to Justice Kavanaugh’s statement: “[a]ccept it, but don’t extend it”).  428. See generally, Groff v. DeJoy, 143 S. Ct. 2279 (2023).   429. I believe that, generally, religious expression in the workplace falls into two categories: defensive and offensive (practices protected by conscience clauses are set aside during this discussion, due to the excessive nuance outside the scope of this Note). Defensive religious practice refers to observance wherein individuals who merely wish to abide by their own beliefs without projecting them onto others—such as wearing religious garments, refraining from work on the Sabbath, or taking prayer breaks throughout the day. For examples that I would consider to be “defensive” religious practice, see supra notes 275–283 and accompanying text. Inevitably, some coworkers will experience annoyance with accomodations, perceiving them to be unfair under a neutrality ethos (such as that embodied in Hardison) or because of their own bias. I would argue, however, much like the Groff Court stated, that “a coworker’s dislike of ‘religious practice and expression in the workplace’ or ‘the mere fact [of] an accommodation’ is not ‘cognizable [as a] factor . . ..’” Groff v. DeJoy, 143 S. Ct. 2279, 2296 (2023). Offensive religious practice refers to observance that actively treads upon another’s freedom, posing an “undue hardship” on another, if you will. Justice Sotomayor seemed to allude to such practices in her concurrence. Id. at 2297–98 (Sotomayor, J., concurring) (emphasizing the importance of undue harships on an observant employee’s coworkers still constitutes an undue hardship on the overall context of the employer’s business). Examples of offensive religious expression in the workplace include deadnaming and misgendering others, denying marriage licenses to same-sex couples, or generally discriminating against others in the name of religion. See Kluge v. Brownsburg Community School Corp., 64 F.4th 861, 865 (7th Cir. 2023) (describing the case of a teacher who refused to call trans children by their true name, refusing to “encourage them in sin,” and whose request to rescind his resignation was refused after his accommodation to only refer to the children by their last names left them feeling “alienated, upset, and dehumanized” and failed to prevent his continued misgendering and deadnaming of students); Christine Hauser, Kentucky Clerk Who Denied Same-Sex Marriage Licenses Must Pay $260,000 in Legal Fees, N.Y. TIMES  (Jan. 4, 2024), https://www.nytimes.com/2024/01/04/us/kim-davis-marriage-licenses-legal-fees.html (describing a recent update in the case of Kim Davis, who gained notoriety in 2015 after she refused to issue a marriage license to a same-sex couple because it conflicted with her religious beliefs); Lawrence D. Rosenthal, Title VII’s Unintended Beneficiaries: How Some White Supremacist Groups Will be Able to Use Title VII to Gain Protection from Discrimination in the Workplace, 84 TEMP. L. REV. 443, 474–75, 477 (2012) (describing how the broad definition of “religion” under Title VII allows white supremacist groups to formulate their teachings to specifically gain Title VII protections as a “religion”). Notably, the plaintiff from Kluge submitted an amicus curaie brief to the Court for Groff, encouraging the Court to overrule Hardison, stating “stare decisis is no impediment.” Brief for John Kluge as Amici Curiae in Support of Petitioner at 23, Groff v. DeJoy, 143 S. Ct. 2279 (2023) (No. 22-174).   2024] GROFF V. DEJOY 249 minimis standard.430 However, by holding in Groff that an employer may only establish an “undue hardship” through demonstration of a substantial burden on an employer in the overall context of their business,431 the Court returned Title VII to its full potency.432 By doing so, the Court’s decision in Groff should result in greater workplace protections for observant Americans, especially those of minoritized faiths.433     430. See supra Section IV.A.  431. Groff, 143 S. Ct. at 2294.  432. See infra supra Section IV.B.  433. See supra Section IV.D.

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