Supreme Court Delivers Former Postal Worker a Religious Rights Victory
The United States Supreme Court handed religious workers a victory in a decision issued this week. In Groff v. DeJoy, the Court held that an employer cannot avoid providing a religious accommodation under Title VII’s “undue hardship” standard merely by showing that it would impose “more than a de minimis cost” on the employer. Rather, the employer denying an accommodation must establish that accommodating the worker’s religious belief would impose substantial increased costs in relation to the conduct of its particular business. The de minimis test derived from a 1977 Supreme Court decision Trans World Airlines v. Hardison, 432 U.S. 63 (1977) and was widely adopted by lower courts. The test represented a fairly low threshold for employers, which the Court has now unanimously disavowed.
Groff arose when a former postal service worker and Evangelical Christian Gerald Groff filed suit against the United States Postal Service (USPS) for religious discrimination under Title VII, claiming that the USPS failed to reasonably accommodate his religious observance of the Sabbath. Groff had joined the USPS in 2012, and originally was not required to deliver mail on Sundays. However, the USPS later entered into a contract with Amazon that required Sunday deliveries and a subsequent agreement with the postal workers union outlining how Sunday deliveries would be assigned. Groff first sought and received a transfer to a smaller USPS station that did not have an Amazon agreement, but eventually that location also began making Sunday Amazon deliveries. As Groff would not work on Sundays, his deliveries were relegated to his coworkers, Including the station postmaster whose job did not normally entail deliveries. At least one coworker filed a grievance with the union, arguing that his contractual rights were being violated by Groff’s refusal to work on Sundays. Groff received progressive discipline for his Sunday absences and eventually resigned, filing suit a few months later.
The trial court granted summary judgment for USPS, and the Third Circuit Court of Appeals affirmed. The Third Circuit panel called the de minimis test “not a difficult threshold to pass,” and concluded that USPS had met the test by showing that excusing Groff from working on Sundays had “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.” Groff again appealed, and the Supreme Court heard oral arguments on the case in April of this year.
In an opinion authored by Justice Samuel Alito, the Court in Groff explained that the de minimis standard was taken out of context from its earlier opinion in Hardison and wrongly elevated by lower courts to represent the standard for evaluating religious accommodations in the workplace. This erroneous understanding of Hardison, the Court said, had resulted in lower courts “bless[ing] the denial of even minor accommodation in many cases, making it harder for members of minority faiths to enter the job market.” Properly read, Hardison means “that ‘undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business.” The undue hardship test must be applied “in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, ‘size and operating cost of an employer,’” Alito instructed.
The Court rejected the plaintiff’s argument that “undue hardship” under Title VII should be interpreted under the body of case law defining “undue hardship” under the Americans with Disabilities Act, but also dismissed the government’s suggestion that all existing Equal Employment Opportunity Commission (EEOC) guidance and interpretations of “undue hardship” with respect to religious accommodations have been correct. “Both of these suggestions go too far,” the Court said, while observing 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.”
Additionally, the Court did not discount that effects on coworkers might be an appropriate consideration in weighing whether an accommodation imposes undue hardship, “but a court cannot stop its analysis” without examining whether the impact on coworkers has ramifications for the conduct of the employer’s business. Justice Sotomayor wrote separately to emphasize her view, joined by Justice Jackson, that undue hardship on the conduct of a business “may include undue hardship on the business’s employees,” noting that “for many businesses, labor is more important to the conduct of the business than any other factor.”
The case now returns to the trial court, where the USPS could yet prevail after the lower court applies the clarified undue hardship standard to the facts of the case.
Employers will now need to evaluate requests for religious accommodation under this new, higher standard. When an employee’s religious beliefs or practices conflict with a workplace rule or requirement, the employer should consider all reasonable options to accommodate the employee, not merely the particular accommodation the employee requests. Employers denying an accommodation should be prepared to prove that providing it would impose substantial increased costs in relation to the conduct of their particular business. Existing EEOC guidance may still provide some helpful parameters for this analysis, but expect to see these guidance documents updated in light of Groff. Employers may wish to consult with experienced employment counsel to update their religious accommodation practices.
Employer’s Warehouse Music Hits Sour Note at Ninth Circuit Court of Appeals
As a child on long road trips with my father, I often found the seemingly never-ending musical stylings of Marty Robbins sonically offensive. I did not, however, foresee that poor taste in music might result in liability. A recent opinion of the United States Ninth Circuit Court of Appeals should have employers looking a little more closely at the music playing in their workplaces. In Sharp v. S&S Activewear, LLC, the lower court dismissed a hostile work environment claim brought by eight former employees (seven women and one man) who alleged that music with "sexually graphic, violently misogynistic" lyrics regularly blasted through "commercial-strength" speakers throughout their Reno, Nevada warehouse, creating a hostile work environment in violation of Title VII. The plaintiffs alleged that both managers and employees "routinely" played music that denigrated women, used "terms like 'hos' and 'bitches,'" "glorif[ied] prostitution," and graphically described sexual violence. The music was nearly impossible to escape and played at a volume that blocked out operational background noise. Both the female and male plaintiffs found the music offensive and reportedly had made repeated complaints to management, only to be told that the music was "motivational." Unfortunately for the employer, while the music may have motivated some employees to work, it motivated others to the courthouse. After nearly two years of the alleged musical onslaught, the plaintiffs brought suit.
The district court granted the employer's motion to dismiss the music-based harassment claim, reasoning that the music was offensive to both men and women (not harassment based on sex) and not targeted at any particular employee. The plaintiffs' claim was therefore "fatally flawed," in the lower court's view.
On appeal, the Ninth Circuit soundly rejected the district court's decision and its reasoning, explaining that "two key principles" were critical: "First, harassment, whether aural or visual, need not be directly targeted at a particular plaintiff in order to pollute a workplace and give rise to a Title VII claim." Contrary to the lower court's finding that the warehouse-wide use of the music meant that it was neutral and not targeted at any employee, "this fact may better reflect the music's invidious pervasiveness," the court said. Ultimately, "whether sung, shouted, or whispered, blasted over speakers or relayed face-to-face, sexist epithets can offend" and create a hostile work environment.
"Second, the challenged conduct's offensiveness to multiple genders is not a certain bar" to a Title VII claim, the court concluded, strongly condemning the implicit notion that an employer has "an escape hatch" from Title VII liability because it is an "equal opportunity harasser."
Based on these principles, the Sharp court vacated the district court's dismissal of the plaintiffs' claim, citing Equal Employment Opportunity Commission (EEOC) guidelines and decisions of other circuit courts in support of its decision. The case now heads back to the trial court, where the plaintiffs will have the opportunity to present evidence supporting their claims. For employers, Sharp serves as an important reminder to evaluate all aspects of the work environment to ensure it is free from harassment. What may seem like background noise can pollute the workplace and give rise to liability.
A link to the Ninth Circuit’s opinion is here.
Colorado Employers Take Note: Lowered Standard for Actionable Harassment Ahead
Colorado employers have a new incentive to scrutinize their anti-harassment policies and procedures. Lawmakers in the state recently passed the Protecting Opportunities and Workers’ Rights Act (POWR), and Governor Jared Polis signed the bill into law earlier this month. When it takes effect, the new law will significantly change the legal landscape for workplace harassment claims in Colorado. POWR expressly rejects the “severe or pervasive” standard for determining whether harassment is actionable, with the General Assembly asserting that the long-established standard overlooks workplace realities and the harm caused by harassment.
Instead, POWR creates an “unwelcome harassment” standard: For purposes of the Act, “’Harass’ or ‘Harassment’ means to engage in, or the act of engaging in, any unwelcome physical or verbal conduct or any written, pictorial, or visual communication directed at an individual or group of individuals” based on membership in a protected class, where the “conduct or communication is subjectively offensive to the individual” and “objectively offensive to a reasonable individual” in the same protected class. Such harassment is actionable if:
- submission to it is made a term or condition of employment (explicitly or implicitly)
- submission to or rejection of the conduct is the basis for employment decisions, or
- the conduct has the purpose or effect of unreasonably interfering with the individual’s work performance or creating a hostile work environment
POWR also provides employers with an affirmative defense to harassment by a supervisor, available only if the employer demonstrates that it takes prompt, reasonable action to investigate, address and remedy alleged discriminatory and unfair labor practices as part of a program designed to prevent, deter and protect employees from harassment. The employer must also prove that it communicated the details of the program to all employees, and the individual employee unreasonably failed to take advantage of it.
The upshot of this change is that it just got easier for a Colorado worker to make a successful claim for workplace harassment. Employers should update their policies and practices to reflect this new reality. POWR also provides employees with new protections from non-disclosure provisions; adds marital status to the list of protected classes; and contains certain recordkeeping requirements. Employers with Colorado workers may wish to consult employment counsel for advice on implementing the POWR Act.
A link to the POWR Act is here.
Registered to Do Business in More than One State? Watch Out, Says Supreme Court
by Michael Judd
Businesses recognize that litigation drains resources and siphons attention, even when it happens “at home,” in the state where the business is headquartered. Litigation becomes even more costly when it is filed in a foreign jurisdiction, forcing a company to scramble to find counsel and to learn new rules and procedures.
Just days ago, the United States Supreme Court issued a landmark decision in Mallory v. Norfolk Southern Railway, offering a new approach for suing corporations “away from home.” Before Mallory, there were two ways to obtain personal jurisdiction over a corporation: file suit “at home,” in the state where the corporation is incorporated (or has its principal place of business), or file suit in the state where the events related to the lawsuit occurred. In Mallory, the Court approved a new approach: a state—in this case, Pennsylvania—can simply require any corporation that registers to do business there to consent to being sued in that state, as if it were incorporated there in the first place.
For now, that jurisdictional hook applies only to companies registered to do business in Pennsylvania through application of its unique statute. But some observers worry that other states may quickly follow Pennsylvania’s lead, ushering in a new wave of foreign-jurisdiction litigation that could very quickly create startling consequences for corporate entities. Imagine, for example, an employee of a Utah-based company asks for permission to work remotely from Pennsylvania. If the employer grants that request, it could trigger an obligation to register to do business there for local-tax purposes. Once that happens, the Utah-based employer would suddenly be subject to being sued in Pennsylvania—not only for claims based on that employee’s work in Pennsylvania, but for any claim, as if the company were incorporated in Pennsylvania in the first place. As Justice Barrett wrote in a dissent, states can now “manufacture ‘consent’ to personal jurisdiction” by passing statutes like Pennsylvania’s.
Companies registered to do business in Pennsylvania should immediately consider how the Mallory decision may affect their susceptibility to lawsuits there. More broadly, any corporate entity that is registered to do business in multiple states—an increasingly common occurrence in our remote-work world—should carefully consider the implications of that decision and should consider discussing this tricky jurisdictional issue with experienced counsel.
