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, in Groff v. DeJoy before claiming to uphold it, thus engaging in covert judicial policymaking. In Groff, the Court found thatHardison established a “significant” cost standard to demonstrate an “undue hardship,” which excuses employers from the accommodation requirement for religious employees under Title VII. However, Hardison unequivocally established the “more than a de minimis cost” standard.

The Court nonetheless decided justly in Groff. The de minimis standard from Hardison essentially nullified the accommodation requirement in Title VII. As a result, observant employees, especially those practicing minoritized faiths, were left vulnerable to discrimination that Congress intended to eliminate in passing Title VII. For decades, scholars have 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. 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.