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Seton Hall University eRepository @ Seton Hall Student Works Seton Hall Law 2024 Refusal of Religious Accommodations Causes Discrimination in the Workplace Sophia A. Herrera Follow this and additional works at: https://scholarship.shu.edu/student_scholarship  Part of the Law Commons   2Introduction  Today’s society revolves substantially around financial success. Although there are several legally imposed protections for employees to mitigate ruthless business practices, businesses often try to avoid accountability when they do partake in such activities.  Employers are set on making profits and growing their businesses, oftentimes with disregard for the employees who devote their lives and efforts to further their employer’s endeavors. This is especially true when it comes to employers’ failure to take each employee’s religious and spiritual needs into consideration. It is fair to state that a major portion of one’s own identity is expressed through their religious practices.  However, although one’s religion is intimately ingrained in their identity, employees are often forced to sacrifice their religious practices to continue working in their position. Familiar religious practices are more likely to be accommodated by employers because of their widespread use by many. On the other hand, religions that are not commonly practiced usually do not receive the same accommodations and treatment.1 This results in a favoring of traditional practices and causes discrimination towards minority faiths. Therefore, accommodations need to be made more consistently across the board to provide equality to all religions that are practiced by employees. The standard used by courts to require employers to accommodate employee religious practice, set forth in TWA v. Hardison, did not advance this minority protection, but the new standard set forth in the recent case of Groff v. Dejoy promises better outcomes. Just as employees make sacrifices in their careers for their employers, employers should be required to do the same for their employees. Although employers cannot necessarily always provide accommodations for every single case that is brought, they do need to be more lenient if the practice does not interfere with the operation of the business, the financials of the company,  1 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 87 (Marshall, J., dissenting) (1977).   3or cause inequality with other employees. While accommodating every religious practice may wreak havoc in the workplace and result in an unequal balance of interests for the employer and employee, there must be strong protections that allow employees an opportunity to prevail in their claims against their employers. Groff v. Dejoy makes it easier for religious claimants to prevail in their claims when seeking an accommodation. Despite the advancement more still needs to be done. An employer should never be allowed to decide which religious beliefs are worthy of accommodation. One’s religious beliefs should never be up for debate, especially in the workplace. Whether a religion is traditionally recognized or not should not be relevant.  Despite advancements in case law surrounding religious discrimination, achieving positive case outcomes for employees continues to be an issue as the number of individuals receiving justice regarding accommodations in the workplace is low.2 Specifically in 2020, the percentage of successful cases regarding religious discrimination cases was only at 18.2%.3 This is because courts tend to favor employers by holding that the accommodations employees seek create an undue hardship. The burden to prove religious discrimination is high for employees as anything can be burdensome to employers, therefore making it difficult for religious employees to prevail on their claims.    This paper will analyze the problem of religious discrimination in the workplace regarding accommodations. Specifically, Part I will talk about the statutory framework of Title VII of the Civil Rights Act of 1964 and how it applies to religion. It will focus on the protections, exemptions, and the language of what the statute entails regarding accommodations. Part II will  2 Jack Flynn, 30+ Alarming Employment Discrimination Statistics [2023]: Recent Employment Discrimination Cases, ZIPPIA (Oct. 31, 2022), https://www.zippia.com/advice/employment-discrimination-statistics/. 3 Id.     4discuss Supreme Court decisions that touch on religious accommodations made by employers. Moreover, this section will focus on the precedent of Trans World Airlines, Inc. v. Hardison (hereinafter Hardison) for defining what is considered to be an “undue hardship” for an employer. Part III will focus on lower court cases that are both pre- and post-Hardison using the de minimis standard to show where the law started and the direction it is going in with regards to religious accommodations. Part IV will be about Groff v. Dejoy (hereinafter Groff) and the undue burden standard and how the standard has changed from de minimis to a substantial increased cost on the employer. Additionally, it will contain some tips that the EEOC has provided to employers to accommodate religious individuals in the workplace now that the standard has changed. Lastly, will be my conclusion that accommodations need to be made more consistently across the board to provide equality to all religions that are practiced by employees because failure to do so will result in discrimination towards minority faiths.  Part I: Statutory Overview A. Title VII Protections for Religion in the Workplace  Title VII of the Civil Rights Act of 1964 (hereinafter “Title VII”) aims to protect employees from employment discrimination based on race, color, religion, sex, and national origin.4 It was enacted with the intention of achieving equality in employment opportunities and eliminating prejudice towards members of minority groups seeking employment. Specifically, Title VII includes protections for religion in the workplace. Title VII prohibits discrimination against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s religion.5  4 42 U.S.C §2000e. 5 42 U.S.C.S § 2000e-5(e)(1).   5There is a two-part framework that is used by courts to review discrimination claims under Title VII.6 First, the employee has the burden to establish a prima facie case of discrimination.7 Under this method the complainant has the burden of proving that (i) he belongs to a protected class of persons; (ii) he applied and was qualified for a job in which the employer was seeking applicants; (iii) despite his qualifications, he was rejected; and (iv) after his rejection, the position remained open and the employer continued to seek applicants from persons of complainants’ qualifications.8 Once an employee establishes each of these elements, the burden then shifts to the employer to establish a legitimate nondiscriminatory reason the employer gave was pretextual.9 This is known as the McDonald Douglas burden shifting framework which is used to determine if intentional discrimination has occurred. Additionally, one may also prevail on a discrimination claim pursuant to Title VII by illustrating that an existing neutral policy has a discriminatory effect on a particular group of people.10 Once the employee establishes that a neutral policy or practice negatively impacts a protected class of people, the employer must then show that the requirement or practice is job-related and consistent with business necessity.11 This is known as unintentional discrimination. Either option listed above may be used to show discrimination against an employee.  B. Accommodation Provision under Title VII Title VII requires employers to make reasonable accommodations for their employee’s religious beliefs and practices unless doing so would result in undue hardship to the employer.12 Title VII provides in relevant part: “The plaintiff alleging an employer’s failure to accommodate  6 42 U.S.C.S § 2000e-5(e)(1). 7 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 8 Id.  9 Id. at 803.  10 Griggs v. Duke Power Co., 401 U.S. 424 (1971). 11 Id. at 436. 12 42 U.S.C.S. §§2000e2(a)(1), 2000e(j).   6makes out a prima facie case by proving: (1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; (3) and he or she was disciplined for failure to comply with the conflicting employment requirement.”13 If the employee has proven its prima facie case, then the employer has the burden to show either that it attempted to reasonably accommodate the employee’s religious beliefs or that any accommodation of the employee’s needs would result in an undue hardship.14  Until recently, the Supreme Court had determined that “undue hardship” meant an accommodation that causes more than a de minimis impact on the employer or the employee’s coworkers.15 De minimis cost is not only monetary costs but also the burden the employer would endure in conducting its business.16 At the least, an employer is required to negotiate with the employee in an effort to reasonably accommodate the employee’s religious beliefs.17 An employer is also not obligated to provide the employee with the specific accommodation he or she requests; the employer need only provide some reasonable accommodation to the request.18 This paper will analyze the more recent changes in Supreme Court jurisprudence on religious accommodations in the workplace.  C. Title VII Exemptions to Religious Discrimination Claims  While workplace discrimination should never be permissible, there are four exceptions to religious discrimination claims that are intended to protect religious institutions. These exceptions include (1) the educational exception; (2) the religious employer exception; (3) the bona fide occupational qualification; and (4) the ministerial exception.19 If an employer can  13 3 LARSON ON EMPLOYMENT § 56.05 (2023). 14 Green, 411 U.S. at 802.  15 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). 16 Beadle v. City of Tampa, 42 F.3d 633 (11th Cir. 1995).  17 Balint v. Carson City, Nevada, 180 F.3d 1047, 1055 (9th Cir. 1999). 18 E.E.O.C. v. Yellow Freight Sys. Inc, 253 F.3d 943, 951 (7th Cir. 2001).  19 42 U.S.C §2000e.   7establish any one of these exceptions, the employer may discriminate on the basis of religion without violating Title VII.  The first exception is the educational exception, which provides that it shall not be unlawful for a school, college, university, or other educational institution to hire a specific employee of a particular religion if that religious institution is owned, supported, controlled, or managed by a particular religious group or if the curriculum itself is directed toward that particular religion.20 The second is the religious employer exception, which tends to have similarities to the first exception because they both involve religious institutions. For there to be a religious employer exception the employer must establish that the employer itself is religious and that the discrimination that is being exercised must be religious in nature.21 Third is the bona fide occupational qualification exception, which permits an employer to discriminate based on religion, sex, or national origin in those instances when religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that business or enterprise.22 Despite the existence of this exception that permits religious discrimination in the workplace, its intended use is to be narrowly applied.23 Lastly is the ministerial exception, which is where a religious employer takes an adverse action against a ministerial employee, that employee will not have a cause of action under Title VII.24 This exception cannot be found in the statute itself because it is a judge-made doctrine interpreting the Religion Clauses of the First Amendment.25 Part II: Supreme Court Decisions on Religious Accommodations by Employers   20 42 U.S.C §2000e-2(e). 21 42 U.S.C §2000e-1(a). 22 42 U.S.C §2000e-2(e)(1). 23 Id.  24 42 U.S.C. §§2000e-1(a) to 2000e-1(a). 25 Hosanna- Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171,172 (2012).     8A. Religion Cannot Be A Motivating Factor In Employment Decisions  Employers have a responsibility to accommodate religion for their employees. To understand religious accommodations in the workplace, it is first important to understand that an employer need not have actual knowledge of the need for a religious accommodation.26 However, an employer may not use an employee’s need for a religion accommodation as a motivating factor to make any employment decisions.27 If an accommodation does not impose an undue hardship, then the accommodation must be granted to avoid violation of Title VII.28 In EEOC v. Abercrombie & Finch Store, the plaintiff was a practicing Muslim who wore a headscarf in accordance with her beliefs in her interview with the defendant.29 Although she wore a hijab to her interview, she never mentioned to her employer that wearing a hijab was due to religious reasons.30 However, the defendant had a dress code policy that prohibited caps, and the assistant manager felt the employee’s headscarf could come in conflict with the store's “Look Policy”.31 After consulting with the district manager about the possible dress code violation, the district manager felt the hijab would indeed violate the store policy and instructed the interviewer not to hire the plaintiff.32 On the plaintiff’s behalf, the EEOC sued alleging religious discrimination and the Tenth Circuit granted summary judgment to the defendant on the grounds that the defendant could not have been liable because the plaintiff did not provide actual knowledge of the need for an accommodation to the dress code.33 The Supreme Court reversed the appellate court and analyzed the language of the statute that expressed nothing about the requirement of actual  26 EEOC v. Abercrombie & Finch Stores, Inc., 575 U.S. 768, 768 (2015). 27 Id.  28 Id.  29 Id. at 770. 30 Id.  31 Id.  32 Id.  33 Id.    9knowledge but rather said that the need for an accommodation could not be a motivating factor in an employment decision.34 A specific request for accommodation by the applicant was not necessary.35 Abercrombie sets the framework for employment decisions regarding religious accommodations and how employers may not use someone’s religious beliefs or practices as a motivating factor in hiring, firing, or making any employment decisions. B. TWA v. Hardison’s Standard for Undue Hardship Under Title VII, employers are required to accommodate employees, upon request, pursuant to their religious beliefs, practices, and work conditions, so long as the accommodation would not create an undue hardship on the employer.36 Religious accommodations can appear in the forms of clothing, physical appearance, certain days off, or having conflicts with performing specific work requirements.37 If the accommodation does not impose an undue hardship on the employer, the accommodation must be granted.38 An undue hardship on an employer’s business may take several different forms. For example, the term could mean something that is costly, infringes on other employees’ rights, is unsafe, or violates a law.39 For almost fifty years, and until recently, undue hardship exists when an employer is required to bear more than a “de minimis” cost.40 Honoring the Sabbath is one of the most common accommodations that employees seek when it comes to their religious beliefs. The Sabbath is defined as “a day of religious observance and abstinence from work, kept by Jewish people from Friday evening to Saturday evening, and  34 Id.  35 Id.  36 42 U.S.C §2000e(j). 37 Balint, 180 F.3d at 1055. 38 42 U.S.C §2000e(j). 39 Balint, 180 F.3d at 1055.  40 Hardison, 432 U.S. at 84.   10by most Christians on Sunday.”41 Several religious groups participate in the Sabbath such as Christians, Buddhists, Muslims, Jews, and Seventh-Day Adventists.42 Although all these religions practice the Sabbath, they all worship their God in different ways and on different days.43 For example, Christians reserve the Sabbath for Sundays, Buddhists practice on new and full moon days of the lunar calendar, while Muslims honor the Sabbath on Fridays.44 Employers should be willing to accommodate employees on the days they need when it comes to being obedient to their religion.  Hardison is the long-standing precedent that has been used by courts to determine whether an accommodation creates an undue hardship on an employer. In TWA v. Hardison, the court had to determine what an employer’s obligation was under Title VII to accommodate an employee’s religious belief of being unable to work on Saturdays.45 Employer, Trans World Airlines, operated an overhaul base in Kansas City.46 The employee, Hardison, worked as a clerk in the Stores Department at the Kansas City base.47 Due to the store's high demand, it operated 24 hours a day, 365 days a week, and required employees from other departments to fill in if there ever was a vacancy.48 Like the other employees, Hardison was subject to a seniority system contained in his initial agreement that stated the order in which people would be able to receive special leave and time off.49 Seniority systems were created to ensure fairness and order amongst employees by bidding on particular shift assignments as they become available.50   41 Sabbath, Merriam-Webster Dictionary (2022). 42 Sarah, Attention Required!, Cloudflare, NEWS SOURCE (2024), https://www.chicagojewishnews.com/what-other-religion-has-sabbath-besides-jewish/. 43 Id.  44 Id.  45 Hardison, 432 U.S. at 66. 46 Id. at 63. 47 Id. at 67. 48 Id.  49 Id.  50 Id.     11Hardison began studying a religion that required certain religious holidays off and refraining from working during Friday evenings into Saturday evenings.51 Hardison expressed his need for an accommodation with his employer where it was only temporarily solved.52 Hardison’s manager agreed that the union steward would request a job swap for Hardison, change his days off, and told Hardison that he would have the necessary days off whenever possible if in return employee agreed to work traditional holidays.53 The problem was resolved when Hardison was transferred to a timeframe that allowed him to honor the Sabbath.54 However, the problem reappeared when Hardison received a transfer to a different building.55 When Hardison tried to move to a different building, his seniority did not transfer with him leaving him with little means for accommodation.56 The union was not willing to violate its existing seniority system to accommodate one individual’s religious beliefs.57 The union denied Hardison’s accommodation request to work only four days and also rejected a transfer because neither of those accommodations would be sufficient for the busy company.58 Hardison brought this action and alleged religious discrimination in violation of Title VII and alleged the union had discriminated against him and failed to represent him effectively in his dispute and denied him of his right to exercise his religious beliefs.59 The District Court favored the employer because it believed that the seniority system already set in place should not be ignored.60 The Court of Appeals for the Eight Circuit reversed the judgment for TWA but held  51 Id.  52 Id. 53 Id. at 68. 54 Id.  55 Id.  56 Id.  57 Id. at 69.  58 Id.  59 Id.  60 Id. at 70.    12that the employer did not satisfy its duty to accommodate.61 The Court of Appeals described three different accommodations that could have been utilized to accommodate the employee and his religious beliefs.62 First, the employee could have been permitted to work four days a week and allow another employee from another department to fill in on the remaining days.63 The second accommodation could have been finding other available employees to fill the Saturday shift, which, although may have involved the company paying the employees overtime, would not have been sufficient to be unduly burdensome.64 Lastly, the court suggested simply “swapping” between employees for the needed Sabbath days requested.65 Despite the different accommodations the Court of Appeals suggested, the Supreme Court ultimately rejected the suggested accommodations and ruled in favor of the employer.66 The Supreme Court determined that the employer did in fact make a reasonable effort to accommodate the employee.67 The Supreme Court highlighted that several meetings were held with the employee to figure out potential solutions to the problem and further determined that changing the seniority system would not be fair to other employees of the company.68 The Supreme Court further reasoned that seniority systems are used to minimize the number of occasions when an employee must work on a day that the employee would prefer to have off.69 It is a way to be fair in which individuals receive time off.70 Allowing all employees to take time off whenever their religious obligations required could deprive other employees with more  61 Id.  62 Id. at 77. 63 Id.  64 Id.  65 Id  66 Id.  67 Id.  68 Id.  69 Id. at 80. 70 Id.   13seniority of their contractual rights that were agreed upon when beginning the job.71 This is why the court found it necessary to accommodate based on the seniority system rather than on individual religious needs because accommodating one individual would deprive the rest of the employees of their seniority rights.72 The court’s interpretation of the statutory provision was upheld because an employer only needs to accommodate if the accommodation does not impose an undue hardship on the employer.73 The Court interpreted the words “undue hardship” to mean a de minimis standard is enough to satisfy the employer's obligation to accommodate under Title VII.74 The statute provides no guidance for determining the degree of accommodation an employer is required to satisfy.75 Here, accommodating the employee would produce an undue hardship on not only the company but the rights of other employees. It is deeply troubling that a seniority system such as the one mentioned in Hardison supersedes the needs of employees requiring religious accommodations. The Court essentially concluded that employers do not need to grant even the smallest accommodation if they find it to be an undue hardship. This is blatantly flawed. Individuals have rights that should be respected. Justice Marshall writes for the dissent and makes a convincing argument expressing how religious individuals in the past have been able to obtain accommodations to burdensome state laws, but the court here is unwilling to allow a similar accommodation for private employment.76 Justice Marshall makes this connection to show how individuals should receive accommodations for employment if they are able to receive accommodations under state laws. Ultimately Justice Marshall opines that “it [is] beyond dispute that the Act does—and, consistently with the First  71 Id. 72 Id.  73 Id. at 74. 74 Id.  75 Id.  76 Id. at 85, 90 (Marshall, J., dissenting). See Wisconsin v. Yoder, 406 U.S. 205, 234-235 (1972); Sherbert v. Verner, 374 U.S. 398, 409 (1963); Zorach v. Clauson, 343 U.S. 306 (1952) (exempting religious believers from state-imposed duties).   14Amendment, can—require employers to grant privileges to religious observers as part of the accommodation process.”77 Therefore, it should follow that employers should make religious accommodations regardless of whether they are in the context of employment or state-imposed laws because members of minority faiths are the ones who suffer from a lack of accommodations in the workplace.  Similar to Justice Marshall's dissent, Seventh-Day Adventist individuals are similarly concerned with the unfairness minority faiths receive. The de minimis standard used in Hardison leads to discrimination against minority religions. This especially happens in accommodations pertaining to those who observe the Sabbath on Saturday. Specifically, the de minimis test poses a substantial burden on the members of the Seventh-Day Adventist faith.78 It is evident that members of this faith tend to experience conflicts with job requirements due to their religious practice that requires them to refrain from working from Friday at sundown to Saturday at sundown.79 People of the Seventh-Day Adventist faith urge courts to reject the interpretation of the decision of Hardison, as it affects their faith heavily and makes them often choose between their jobs or practicing in their faith.80 Due to the inability to secure accommodations, Seventh-Day Adventist workers usually must avoid certain jobs or professions to make sure their religious accommodations will be honored.81 To Seventh-Day Adventists, honoring the Sabbath is foundational and holds great significance for the religion and its history.82 People who are not of this religion fail to understand the significance of the Sabbath.83 This is why religions that are not as practiced or known to society are more likely to get discriminated against in comparison to  77Id.  78 Brief for the General Conference of Seventh Day Adventist as Amicus Curiae Supporting Petitioner, Groff v. Dejoy, 143 S. Ct. 2279 (2023) (No. 22-174), 2023 U.S. S. CT. BRIEFS LEXIS 719.  79 Brief, Id. at 2. 80 Id. at 3.  81 Id. at 4. 82 Id. at 26. 83 Id.    15well-known major religions.84 More times than not, major religious holidays and days of worship are ingrained in societal calendars that many honor today.85 The greatest harm of this de minimis standard is aimed towards individuals of minority faiths that are not as traditionally known to the public.86  Part III. Hardison and Undue Burden in the Lower Courts: De Minimis Burden A. Pre-Hardison Decisions  Even before Hardison, courts generally did not require accommodations for an employee’s religious practice. An obligation to accommodate includes accommodating employees who refuse to work on certain days of the week because of their religious beliefs. 87 In Riley v. Bendix Corp., employee Dewey was discharged due to his inability and refusal to work on Sundays due to a religious obligation.88 His refusal to abide by his contractual obligation of working on Sunday caused his discharge.89 Despite his need for a religious accommodation, the employer made no effort to find an accommodation for the employee.90 The employer was able to prevail without even having to provide a possible solution for the employee.91  Similarly, in Dawson v. Mizell, the employee was a post office worker who required a religious accommodation to not have to work on Saturdays.92  Like most places of employment, a seniority system was in place, which prevented him from receiving the necessary days off from work.93 The court held that his dismissal from work was solely based on his inability to work on  84 Id. at 29. 85 Id.  86 Id.  87 Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987). 88 Riley v. Bendix, 330 F. Supp. 583, 584 (M.D. Fl. 1971).  89 Id. at 585. 90 Id. at 586. 91 Id.  92 Dawson v. Mizell, 325 F. Supp. 511, 512 (E.D. Va. 1971). 93 Id.    16contractual days and, further, did not accommodate his religious necessity.94 The court found no reason to accommodate when the reason for dismissal was based on the inability to comply with the seniority system and not the independent religious belief.95 These cases show how even before the standard set in Hardison, employees struggled with prevailing on their religious discrimination claims, especially when the employer could point to contract terms. Employees struggled to prove that their religious beliefs needed to be accommodated in the workplace. TWA v. Hardison did not make it any easier for religious claimants to succeed.  B. Post-Hardison Decisions  The decision in Hardison soon became the new precedent that would establish the criteria of what private employers were required to do when their employees had religious obligations that interfered with their employment. Lower federal courts began to follow the de minimis standard. Time and time again, employees filed suit trying to change the undue hardship standard that normally prevails in religious discrimination cases. Courts have continuously come to the same conclusion of keeping the de minimis standard to determine an undue hardship. 1. Hardison’s Pro-Employer Outcomes  The de minimis standard continued to be a challenge for employees seeking religious accommodations as courts generally followed the standard set in Hardison, despite many wanting to overrule it. In Prach v. Hollywood Supermarket, Inc, the employee indicated his inability to work on Saturdays because of religious reasons.96 Despite mentioning his inability to work on Saturdays there were times when the employee was scheduled to work Saturdays and  94 Id. at 514. 95 Id.  96 Prach v. Hollywood Supermarket, Inc., No. 09-13756, 2010 U.S. Dist. LEXIS 88738, at *2 (E.D. Mich. Aug 27, 2010).   17still showed up to work.97 The employer expressed that the accommodation for the employee would be significantly difficult as there are other employees who would be affected by it.98 Specifically, the proposed accommodations would result in an undue hardship of having to hire additional employees to accommodate the employee which would impose more than a de minimis cost to the employer.99 The employer argued that leaving a certain department understaffed or spending money to hire employees to fill that position would be considered undue hardship.100 The District Court held that although the employee established a prima facie case of religious discrimination, the employer met their burden of providing that the accommodation that was being sought would impose an undue hardship.101 Honoring the Sabbath is not the only belief that requires accommodation, but compliance with store policies may also require accommodations from employers. In Cloutier v. Costco Wholesale Corp, the employer failed to offer a reasonable accommodation to the employee after her facial jewelry, which she obtained for religious purposes, conflicted with the dress code.102 The employer tried to accommodate the employee by suggesting she cover her piercing during working hours, but that impinged the employee’s religious practice.103 The District Court ultimately held employees’ contentions to be “unpersuasive” and allowed the employer to prevail.104 Additionally, at times, even normal employment practices may conflict with an employee’s religious beliefs. In Weber v. Roadway, the employer was a national trucking company that hired truck drivers to deliver and transport their goods to different locations across the United  97 Id.  98 Id. at *7.  99 Id. at *15. 100 Id.  101 Id. at *18. 102 Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 128 (1st Cir. 2004). 103 Id. at 131.  104 Id. at 137.   18States.105 The job required truck drivers to spend overnights in the truck due to the lengthy drives the job required.106 As a Jehovah's Witness, the employee’s religion required that he not be partnered with a female for overnight trips if that female partner was not his wife.107 The employee spoke to his supervisor about a possible accommodation but was informed that working with females was a part of the job and that he would have to work with females.108 The United States Court of Appeals for the Fifth Circuit concluded, using Hardison as support, that trying to accommodate the employee would create an undue hardship on the employer, as they would have to skip the employee when it came to scheduling which would, further, force his coworkers to fill those vacancies causing more than a de minimis burden. 109 2. Recent Calls to Revisit Hardison  Despite the courts’ unwillingness to overturn the precedent, employees have nonetheless tried to argue and persuade the courts on why it should depart from the set standard that has been used for years. In February 2020, the Supreme Court denied certiorari in Patterson v. Walgreen Co.110 In Patterson, the employee began working for Walgreens’ Orlando Customer Care Center.111 Because the call center operated seven days a week, the employee who was a Seventh-Day Adventist, required an accommodation for his Saturday Sabbath.112 The employee communicated this limitation to his supervisor who allowed him to swap shifts with other employees when his employment interfered with the Sabbath.113   105 Weber v. Roadway Express, Inc., 199 F.3d 270, 271 (5th Cir. 2000). 106 Id.  107 Id. at 272. 108 Id.  109 Id. at 273. 110 Patterson v. Walgreen Co., 727 Fed. Appx. 581, 583 (11th Cir. 2018). 111 Id.  112 Id.  113 Id. at 584.   19However, when other employees were unable to take the shifts, the employer was unable to abide by the employee’s request, as the accommodation interfered with business demands.114 The Federal Court of Appeals for the Eleventh Circuit reviewed whether the employer bore more than a “de minimis” cost in accommodating the employee on his religious beliefs.115 Here, Walgreens initially accommodated the employees’ request.116 The employee was even promoted several times and became a training instructor.117 The employer allowed the employee to swap shifts to accommodate his schedule but there did come times when employees scheduled requests could not be accommodated due to business demands.118 The business required the employee to attend a multi-week mandatory training and the employee refused despite the employer's need.119 The court ruled in the employer’s favor because any reasonable accommodation is sufficient to meet its accommodation obligation required by Title VII.120 The employer need only offer a reasonable accommodation, even if it is not the ideal accommodation that the employee would prefer.121 The Supreme Court denied certiorari, but Justice Alito joined by Justices Thomas and Gorsuch, concurred on the denial of certiorari.122 In Justice Alito’s concurrence, he stressed the importance of having to reconsider the proposition endorsed in Hardison, that Title VII does not oblige an employer to make any accommodation for an employee's practice of religion if doing so would impose more than a de minimis burden on the employer.123 Additionally, although  114 Id.  115 Id. at 586.  116 Id. at 583. 117 Id.  118 Id. at 584. 119 Id.  120 Id.  121 Id.  122 Patterson v. Walgreen Co., 140 S. Ct. 685, 685 (2020). 123 Id.    20Justice Alito determined this was not the case to review the Hardison standard, the interpretation still needed to be revisited in a later case and should eventually be overruled.124 Despite Justice Alito’s intent to modify the understanding of undue burden, federal circuits remained constrained to apply the Hardison de minimis interpretation. In Small v. Memphis Light, Gas & Water, the employee raised concerns about his work schedule interfering with his religious practice as a Jehovah’s Witness.125 He needed to attend services on Wednesday evenings, Sundays, and had community work he needed to take care of on Saturdays.126 He requested that his employer reassign him to a different position in order to receive different shift times, but was denied the request, as it would be an undue hardship on the company to allow the accommodation.127 The Federal Court of Appeals for the Sixth Circuit found that since the employer was able to prove the accommodation would impose an undue hardship on the company, there was no violation of Title VII.128 The accommodation required the employer to bear more than a de minimis cost.129  The idea that the Hardison standard should be overruled was later visited in Dalberiste v. GLE Assocs., Inc. The employee, Dalberiste, appealed the district court's grant of summary judgment in favor of the employer, GLE, and requested summary judgment in his favor.130 The employee was a practicing Seventh-Day Adventist who due to his religion, was forbidden from working on the Sabbath.131 Despite the employee’s work restrictions, he applied for an industrial hygiene technician position at the employer’s company.132 One of the employer’s customers,  124 Id.  125 Small v. Memphis Light, Gas & Water, 952 F.3d 821, 823 (6th Cir. 2020). 126 Id.  127 Id.  128 Id. at 825. 129 Id.  130 Dalberiste v. GLE Assocs., Inc., 814 Fed. Appx 495, 495 (11th Cir. 2020).  131 Id.  132 Id.    21Turkey Point Nuclear Generating Station, scheduled planned outages where the station would be closed for maintenance purposes.133 GLE was hired for the upcoming outage that could range from thirty to eighty days.134 Customer Turkey Point controlled the number of GLE technicians that would be required during an outage period.135 Since Turkey Point wanted to finish the outage as soon as possible, it required employees chosen for the outage, to work seven days per week in twelve-hour shifts.136 The employee was soon interviewed for the position as a technician but was initially turned down.137 The employee reapplied for the same position some months later and was offered a position which he then accepted.138 He informed GLE for the first time of his inability to work sundown Friday to sundown Saturday and GLE did not offer to accommodate the employee’s religious observance and rescinded his offer.139 The employee later filed a discrimination claim for failure to accommodate in violation of Title VII.140 GLE moved for summary judgment stating they could not have accommodated the employee without suffering an undue hardship.141 The Eleventh Circuit found that the proposed accommodations made by the employee would require GLE to bear more than a de minimis cost.142 Specifically, other GLE technicians would have more of a workload, require GLE to change scheduled work assignments, force GLE to incur additional costs to hire additional workers, and would risk GLE's contract with customer Turkey Points.143 Therefore, summary  133 Id. at 496. 134 Id.  135 Id.  136 Id.  137 Id.  138 Id.  139 Id.  140 Id.  141 Id.  142 Id.  143 Id.    22judgment was granted to the employer.144 The employee argued that the decision in Hardison was wrongly decided and that the decision should be overturned.145 However, there was no authority to overrule Supreme Court precedent, so the court held summary affirmance appropriate, and the district court's grant of summary judgment in favor of GLE was affirmed.146 These lower court cases show the unfair balance on religious claimants when seeking religious accommodations because it is easy for employers to argue an undue burden exists when an accommodation could easily be made. By using a test that favors employers, it is no surprise that the outcomes favor employers in religious discrimination claims. Courts place the burden on employees to show that the accommodations they seek do not impose an undue hardship on the employer. Countless employees have tried on several occasions to depart from the de minimis standard imposed by TWA v. Hardison but were unable to succeed. The threshold remained the same for years until the decision in Groff v. Dejoy took a new turn for the improvement of religious discrimination claims based on accommodations.  Part IV: Groff and Undue Burden: Substantial Increased Cost A. Clarification of the De Minimis Test In the past years, employers have been able to deny employees religious accommodations because of the undue hardship to the employer. Specifically, employers could deny employees accommodations if the accommodation would impose a more than de minimis cost to the employer.147 Employers have tended to prevail in the past because the threshold was easier for them to prove undue hardship. However, recently the Supreme Court has weighed in to change the interpretation of undue hardship. The Court said that it is “clarifying” the meaning of undue  144 Id.  145 Id. at 498. 146 Id.  147 Hardison, 432 U.S. at 84.   23hardship, but it does seem to be a real change. Now, employers will have to meet a higher threshold to deny employees of their religious accommodations. The “substantial increased cost” standard is a departure from the de minimis test that has been used by employers for years. The difference between the two standards is that the de minimis test allowed an employer to deny even the smallest of accommodations. In contrast, a substantial increased cost standard as explained in Groff v. Dejoy, changes it from a minor inconvenience to something that is “excessive” or “unjustifiable” to the employer.148  Groff v. Dejoy clarifies the standard imposed in TWA v. Hardison and asserts that the case never specified de minimis to be the standard despite lower courts interpreting it to be the standard and implicating it in their rulings.  B. Groff v. Dejoy  Groff v. Dejoy opens the door for employees to prevail on their religious discrimination claims regarding the accommodations they seek in the workplace. The Court changed the understanding of undue hardship. Whereas undue hardship was considered any de minimis hardship or cost to the employer under Hardison, now undue hardship is more narrowly applied to mean a substantial cost to the employer’s business practice that is considered to be excessive or unjustifiable.149 It also discusses the unnecessarily restrictive view and negative impacts of the Hardison precedent that has been heavily relied on for years by the courts.  Employee Groff was an Evangelical Christian who, for religious purposes, was unable to work on Sundays as it was to be devoted as the day of worship.150 He began a job with USPS, which normally did not require Sunday work.151 Shortly after however, USPS started to require employees to work on Sundays, so the employee decided to transfer to a location that did not  148 Groff v. Dejoy, 143 S. Ct. 2279, 2296 (2023). 149 Id.   150 Id.  151 Id.    24make deliveries on Sundays.152 The location the employee transferred to also started participating in Sunday work shortly thereafter, and the employee expressed his inability to work Sundays.153 His work was then distributed amongst other employees at his new location.154 The employee then started to receive disciplinary action for failing to work on Sundays which caused him to eventually resign from his position.155 After resigning, Groff decided to sue his employer for failure to accommodate his religious request, alleging that his accommodation did not create an undue hardship on the employer.156 The district court granted summary judgment in favor of the employer and the Third Circuit affirmed, based on precedent that required a de minimis cost standard for undue hardship.157 USPS argued that allowing the exemption would impose an undue hardship on the employee’s coworkers, cause disruption in workplace flow, and diminish employee morale which together constituted an undue hardship.158  The Supreme Court held that showing a de minimis cost was not enough to establish undue hardship under Title VII.159 Rather the new interpretation of Hardison is to be read as being a “substantial burden in the overall context of an employer’s business.”160Although this is the prevailing standard of the Court, the Court did not specifically lay out the requirements of what substantial interference with an employer’s ability to conduct business entailed.161 Rather, the  152 Id.  153 Id.  154 Id.  155 Id. at 2287.  156 Id.  157 Id.  158 Id.  159 Id. at 2294. 160 Id.  161 Id. at 2295.   25Court tells employers to take all relevant factors into account, such as the accommodation itself, impact on the employer, operating costs, and size of the business.162 Both sides of this litigation conceded that the de minimis test was improper, but disagreed on the language of the term that should be used to show an undue hardship for the employer.163 Groff’s new standard now defines undue hardship as “significant difficulty or expense” which departs from the previous loosely held definition.164 This new standard makes it harder for employers to show that the accommodations their employees seek are burdensome. Overall, this decision increases an employer’s risk of liability if a religious accommodation is not made for an employee.  C. Groff’s Impact  Since Groff’s departure from the de minimis standard, suits have been brought by employees in hopes of prevailing on the newly held standard regarding religious discrimination in the workplace. In a recent suit, two Somalian-American Muslims were fired from their jobs as truck drivers for employer, Star Transport, after refusing to transport alcohol as doing so violated their religious beliefs.165 Both individuals believed the transportation of alcohol violated Islamic law and therefore requested an accommodation be made.166 However, no effort was made to discuss possible accommodations with the employees.167 The employer argued it did not accommodate the employees because doing so would present an undue hardship and violate their “forced  162 Id.  163 Id.  164 Id.  165 EEOC v. Star Transp., Inc., No. 13-1240, 2015 U.S. Dist. LEXIS 196366, at *2 (C.D. Ill. March 16, 2015). 166 Id.   167 Id.    26dispatch policy”.168 However, the employer offered no evidence to show that replacement drivers for the two employees would be costly or heavily delay beer load transports.169 Further, managers of the company did not receive any training from Star Transport on anti-discrimination laws and therefore had no idea that they had to accommodate religious beliefs.170 Due to the employer’s ignorance and unawareness of the need for accommodation, employees sought punitive damages.171 The employers moved for summary judgment on punitive damages and were denied by the court.172 To prevail on punitive damages, the employees must show that Star Transport engaged in intentional discrimination “with malice or with reckless indifference to the federally protected rights of an aggrieved individual”.173  The jury quickly returned a verdict in favor of the employees.174 The jury awarded each employee $20,000 in compensatory damages and $100,000 each in punitive damages.175 In addition, the judge also granted them approximately $1,500 each in back pay for the time they were not working.176 The quick jury verdict goes to show that employers are starting to be held liable for their violations. Specifically, they are being held to a higher standard by not only courts but jurors who participate in deliberating each case that is brought forth.  Groff v. Dejoy continues to pave the way for success for employees in their religious accommodation claims against their employers. In 2023, in Payne v. St. Charles Health System, an employee filed suit against his former employer alleging state and federal law claims of  168 Id. at *4. 169 Id. at *5. 170 Id. at *10. 171 Id. at *11. 172 Id.  173 Id. at *8. 174 Id.  175 U.S. Equal Employment Opportunity Commission, Jury Awards $240,000 to Muslim Truck Drivers In  EEOC Religious Discrimination Suit (2015), https://www.eeoc.gov/newsroom/jury-awards-240000-muslim-truck-drivers-eeoc-religious-discrimination-suit. 176 Id.    27employment discrimination for failure to accommodate.177 The employee worked as the Facilities Supervisor for defendants hospital.178 At the time, the governor announced that all healthcare workers be fully vaccinated and partake in weekly COVID-19 testing.179 However, the Oregon Health Authority felt that weekly testing would not effectively protect both patients and workers and required all healthcare workers to be fully vaccinated.180 Both state and federal vaccine mandates permitted exceptions based on religious or disability-related accommodations so long as the accommodations did not pose a risk to others.181 The employee was a Christian who did not believe that vaccination complied with his faith, so he applied for a religious exemption from the vaccine mandate.182 He was then placed on unpaid leave and eventually terminated from his job.183 The employee alleged alternatives such as “wearing a N-95 mask, or even antibody testing.”184 The employer argued that these suggested alternatives would have required the employer to monitor the compliance to these suggestions and would therefore pose more than a de minimis hardship on the employer.185 However, after applying the standard articulated in Groff, the court disagrees that a de minimis hardship would be imposed on the employer.186 The court found nothing to show that the employee’s proposed accommodations would result in a  177 Payne v. St. Charles Health Sys., No 22-CV-01998, 2023 U.S. Dist. LEXIS 128104, at *1 (D. Or. July 6, 2023). 178 Id.   179 Id.  180 Id. at *2. 181 Id.  182 Id.  183 Id.  184 Id. at *6. 185 Id. at *7. 186 Id.    28substantial increased cost as mentioned in Groff.187 The court held that the employee’s proposed alternatives were sufficient and found that the defendant’s motion to dismiss should be denied.188 D. Tips For Employers to Adjust to the New Standard Employers are going to struggle to establish an undue burden, so they need to be more willing to accommodate or risk liability under Title VII. One thing that employers should do is make sure the religious accommodations are in writing.189 This would not only help the employee but would also help the employer keep a paper trail of the ways they are trying to help create an accommodation for their employees. Another step would be to not only keep track of the requests but to make sure the reasoning is legitimate.190 Now that employees know that they might prevail, employers should be aware that non-religious individuals may be willing to try to exploit the system. That being said, it is still critical to ensure that the employer's business practice is running smoothly.  Additionally, employers should make sure that the religious practice is sincere.191 Although not statutorily required, the employee must be an active member of their religion. Lastly, the EEOC suggests employers to either grant the accommodation or go through the Americans with Disabilities Act “interactive process” which is essentially the step before deciding whether something is considered to be an undue hardship.192 The employer should try, by any means necessary, to avoid litigation as religious accommodation cases are becoming more frequent and coming in higher volumes.  Conclusion  187 Id.  188 Id.  189 As expected, SCOTUS makes it tougher for employers to refuse religious accommodations, COSTANGY NEWSLETTER, (July 3, 2023), https://www.constangy.com/newsroom-newsletters-1225. 190 Id.  191 Id.  192 Id.    29In conclusion, employers should always be willing to make accommodations for their employees despite the undue burden it may impose on their business. Employees work hard to ensure their employers' businesses thrive and succeed. In return, it is important for employers to devote the same energy to their employees who help make the business prosper. Without the employees of a company, employers would not be where they are today. Title VII sets up the framework for employees seeking religious accommodations in the workplace. It sets out the dos and don'ts that employers should abide by to avoid a violation of the statute.  TWA v. Hardison was the precedent that guided decades of religious accommodation litigation. After years of Hardison acting as precedent, the decision was finally changed by Groff v. Dejoy. Groff v. Dejoy made it easier for minority faith employees to succeed in their claims of religious discrimination. Moreover, it changed the standard from a de minimis requirement to the employer having to show a substantial burden. It now makes it a little more difficult for employers to prevail on their refusals to accommodate now that they have a higher burden to prove.  Religion is a part of an individual’s identity. Not granting accommodation to religious individuals penalizes them for being who they are. As previously stated, they are put in a situation where they must choose between who they are and providing for their families. At times, the choice for employees is obvious, which would be to do what they must do by listening to their employers. But at other times they feel so strongly about something that they cannot help but be defiant. They cannot help that their religion requires certain things of them, all they can do is follow what they believe to be the right thing to do.  Nontraditional religions have suffered time and time again from the de minimis standard held in Hardison. The favoring of traditional practices has caused discrimination towards   30minority faiths making it harder for them to receive the accommodations they seek. Accommodations need to be made more consistently to all employees to provide equality to all. Groff has paved the way for positive change in religious accommodations and is a step forward in the right direction for religious claimants seeking religious accommodations.

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