At the end of its 2023 term, the United States Supreme Court handed down several buzz-worthy decisions. Two opinions may have substantial and lasting impacts on employers and their efforts to promote diversity and inclusion.

In Groff v. DeJoy, Postmaster General, the Court addressed religious accommodation and clarified the parameters of its “undue burden” standard set forth in its prior decision in Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977). 2023 U.S. LEXIS 2790. In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Court found collegiate race-conscious admission systems (affirmative action policies) unlawful under the Equal Protection Clause of the Fourteenth Amendment. This  decision may signal that the same type of analysis will be applied to employers’ diversity and inclusion programs in the future. 2023 U.S. LEXIS 2791.

Groff v. DeJoy, Postmaster General, 2023 U.S. LEXIS 2790 – Gerald Groff worked for the United States Postal Service. As an Evangelical Christian, Groff requested Sundays off so that he could observe his religion’s Sabbath. In doing so, Groff’s deliveries were redistributed among his coworkers and Groff received progressive discipline for his absences. In its decision vacating and remanding the Third Circuit Court of Appeal’s decision in favor of the employer, the Court performed an extensive analysis of Hardison. Specifically, the Court explained that lower courts have mistakenly used Hardison’s “de minimis” language as the governing standard in religious accommodation cases. Taking from the express language of Title VII, the Court clarified that an “undue burden” is one that results in “substantial increased costs in relation to the conduct of [an employer’s] particular business.” Accordingly, the “more than de minimis” standard frequently used by courts does not amount to an “undue burden.”

Although the Court did not provide an exhaustive list of what meets the “undue burden” threshold, it did provide some practical guidance. It noted 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 affirmatively stated that “temporary costs, voluntary shift swapping, occasional shift swapping, and administrative costs[]” do not constitute an “undue burden.” Justice Sonia Sotomayor authored a concurring opinion and was joined by Justice Ketanji Brown Jackson. Justice Sotomayor emphasized that the impact on coworkers could be considered in an employer’s analysis of “undue burden,” which was an argument Groff asked the Court to reject. In making her point, Justice Sotomayor explained that “for many businesses, labor is more important to the conduct of the business than any other factor.”

To note, the Court did not apply its analysis to Groff, but rather remanded the case and now leaves factual assessments under this standard to the trial courts. Regardless, this decision is considered a victory for employees claiming the need for religious accommodation. Moving forward, employers should keep in mind the Court’s clarification in Groff when confronted with such accommodation requests. The EEOC’s examples and suggestions of reasonable and unreasonable accommodations are a helpful resource.  

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 2023 U.S. LEXIS 2791 – Petitioner, Students for Fair Admissions, Inc., filed suits against Harvard College and the University of North Carolina arguing that the institutions’ admission processes violate Title VI and the Equal Protection Clause under the Fourteenth Amendment. The Court agreed and found that universities may not consider race as a determining factor as part of their admissions systems. The Court came to its conclusion by looking back at its 2003 decision Grutter v. Bollinger, 539 U. S. 306. In Grutter, the Court wrote that “all race-conscious admissions programs have a termination point],]” so as not to offend the “fundamental equal protection principle[]” outlined in the Fourteenth Amendment. Today’s Court latched onto Grutter’s mention of a “termination point” and decided that Respondents could not articulate a clear “termination point” to their current admissions systems. Further, that they lacked clear, compelling interests to justify their lack of a “termination point.” To conclude its decision, the Court stated that colleges may consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

Justice Sotomayor penned a dissent with which Justices Elena Kagan and Jackson concurred. In her dissent, Justice Sotomayor argued that race-conscious admissions programs have helped further the guarantees of the Equal Protection Clause. The dissent cited several past opinions in which “race-based action” was within “constitutional constraints” and countered that the Court has never required parties to meet such a precise threshold of establishing a compelling interest as it has done so for the Respondents.

Although the Court’s decision focuses on the admissions processes of universities, its holding could very well spill over to employers’ diversity-focused initiatives, as well as mandatory affirmative action for “covered contractors under Executive Order 11246 and Office of Federal Contract Compliance Program (OFCCP) regulations.”[1]

If you have any questions on how these decisions may ultimately affect your business, please reach out to your Dinsmore attorney.