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SCOTUS ruling on religious accommodation apply to vaccines?


This article, about the recent Supreme Court ruling on the refusal of religious accommodation and how it might apply to vaccines, was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about vaccination’s social and legal policies. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable diseases. She is also a member of the Vaccines Working Group on Ethics and Policy.

On June 29, 2023, the Supreme Court addressed a decision about when an employer must accommodate an employee’s religious objection to a workplace requirement or rule. A unanimous court agreed that lower courts were wrong in thinking that an employer does not have to offer an accommodation if it would impose more than minimal costs (in the legal term, more than de minimis costs) and that the question is whether the accommodation would impose a substantial hardship on the employer’s business – a fact-intensive, case-by-case requirement.

In the case of vaccines, this would, in theory, make it harder to refuse the accommodation of employees who oppose vaccination requirements on religious grounds, but in practice, it’s not likely to make a large difference, given the way these laws have been applied in the workplace.

close up shot of a law book
Photo by Mikhail Nilov on Pexels.com

Legal background

The case in question was brought under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “based on race, color, religion, sex, and national origin.” The relevant aspect here is the prohibition against religious discrimination. In essence, that prohibition requires employers to reasonably accommodate employees with sincere religious objections to a workplace rule unless it’s an undue burden. 

There are several parts to this rule, and much of the jurisprudence around it focused on what is a sincere, religious belief, and what employers can do to assess it. I have written about this in the vaccine context before

This case is not focused on that. Instead, it is focused on the other part of the discussion – when does an employer need to accommodate employees? It is well established that employers should engage in a good-faith, interactive process to accommodate employees, though they do not have to give an employee’s preferred accommodation, just a reasonable one. And employers do not always need to provide accommodation. For a long time, the interpretation used by courts and by the EEOC was that employers do not need to accommodate workers if accommodations will impose more than de minimis – minimal – costs. 

Many of the cases in the past were about Sabbath day and religious wear. 

This case challenged that interpretation.

The case

Gerald Groff, who brought the case, worked for the post office (the facts and decisions here are taken from the Supreme Court’s decision). He was an Evangelical Christian and was opposed to working on Sundays. Initially, that was not a problem, since the post office did not do deliveries on Sunday.

However, in 2013 the post office started making deliveries on Sundays for Amazon. Groff, then working in an office where he would have to do Sunday deliveries, requested and received a transfer to another office that did not have to do them. But in 2017, that office started making Sunday deliveries too. Other workers took the deliveries Groff would have made, and he faced discipline for it. In 2019 he resigned. He sued, arguing that the post office could accommodate his request not to do Sunday deliveries “without undue hardship on the conduct of [USPS’s] business.” 

The district court that heard the case granted summary judgment to the Post Office, and the Third Circuit upheld it, feeling it is bound by a Supreme Court precedent – Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977) (hereinafter “Hardison”, as the Court called it) – “which it construed to mean “that requiring an employer ‘to bear more than a de minimis cost’ to provide a religious accommodation is an undue hardship.” (Quoted from the Supreme Court’s Decision). 

One thing about this case is that it is relatively “clean” in terms of Groff’s sincerity. Observing a religion’s day of rest is a classic issue where concerns about religious freedom have come up in the past and is an important tenet of several religions. His choice to transfer to a smaller branch rather than work on Sunday lends credibility to his commitment to the day of rest and his religious orders. 

The question before the Supreme Court is what is the right standard to assess when an employer does not have to accommodate a religious objection to a workplace rule. 

Both sides in the case agreed that “de minimis” is the wrong standard, but they did not agree on what is the right standard.

Mr. Groff’s lawyers argued for a comparison to the (relatively demanding) standard of “significant difficulty or expense” from the Americans with Disabilities Act, and the jurisprudence accompanying it. The government would have preferred adopting the Equal Employment Opportunities Commission’s interpretation of Title VII, which is less demanding. The Supreme Court did not quite go with either approach. 

The decision

Justice Alito wrote the Court’s decision. There was one concurrence that did not disagree with the decision, but made some additional points – I summarize it below.

In the decision, Justice Alito – with both parties’ agreements – rejected the interpretation of Hardison as creating a de minimis standard, and found that “showing “more than a de minimis cost,” as that phrase is used in common parlance, does not suffice to establish “undue hardship” under Title VII.” The bottom line in the decision is 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.”

The Court said that “courts must apply the test 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’.” 

In other words, if an employer does not want to accommodate a religious objection, the burden is on the employer to show that, in this context, the accommodation would impose a substantial burden on their business – depending on the facts, the context, and guidelines to be developed by the courts over time. 

The Court thought that some of the EEOC’s previous guidance – especially that “explaining why no undue hardship is imposed by temporary costs, voluntary shift swapping, occasional shift swapping, or administrative costs” – would likely remain unchanged, but some may change in light of the decision.

In addition, the Court said (and this is one place the concurrence added a nuance) that effects on co-workers are only relevant if they also have an effect on the employers’ business. And some effects on co-workers who, for example, are hostile to a specific religion or religion generally should not be considered at all. The Court said “a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered ‘undue.’” 

Further, an employer should consider potential reasonable accommodations, not just say that one accommodation is unreasonable – if there are reasonable alternatives, they need to be considered. 

The Court ended by leaving the application of the standard to the specific case to lower courts, which are better set up for fact-finding, and sent the case back for evaluation.

Justice Alito used several legal tools. First, he pointed to the language of the statute, which requires an accommodation unless there’s an “undue hardship.” Justice Alito said that “under any definition, a hardship is more severe than a mere burden” – so just showing an accommodation imposes costs would not be enough. He then said that “adding the modifier ‘undue’ means that the requisite burden, privation, or adversity must rise to an ‘excessive’ or ‘unjustifiable’ level.”

He also dove in depth into Hardison’s facts and showed that the de minimis language – which did exist in the case – did not match what the case actually did. 

Justice Alito also pointed out that EEOC guidance in the past “often found that accommodations that entailed substantial costs were required” – so did not strictly stick to the “minimal cost” standard. 

The Concurrence:

Justice Sotomayor wrote a concurrence which Justice Jackson joined. A concurrence is a decision that agrees with the Court’s result, but may not always agree with the reasoning, or may want to add to the reasoning or disagree in part.

Justice Sotomayor mostly appears to agree with the Court’s decision. She agrees with the choice not to move to a standard similar to the Americans with Disabilities Act’s standard, calling it a “wise choice” both because it’s in line with previous precedent and because, by not changing this language of Title VII even when it revised it otherwise, Congress seemed to, by its actions, permitted the courts’ interpretation of undue hardship. 

The one difference Justice Sotomayor focuses on is the question of effects on co-workers, and seems to want to consider a broader category than such effect than the rest of the court, although the language is not direct enough to see an explicit contradiction. Justice Sotomayor says:

“Because the “conduct of [a] business” plainly includes the management and performance of the business’s employees, undue hardship on the conduct of a business may include undue hardship on the business’s employees. See, e.g., Hardison, 432 U. S., at 79–81 (deprivation of employees’ bargained-for seniority rights constitutes undue hardship). There is no basis in the text of the statute, let alone in economics or common sense, to conclude otherwise. Indeed, for many businesses, labor is more important to the conduct of the business than any other factor.” 

She agrees with the court that animosity “towards a protected group” cannot be considered, and also says that “some hardships, such as the labor costs of coordinating voluntary shift swaps, are not “undue” because they are too insubstantial.”

But she emphasizes that if hardship on employees constitutes “undue hardship on the conduct of the employer’s business,’” an accommodation is not needed.

Whether this difference will have practical implications will depend on future cases. It’s not clear at this point.  

What does this religious accommodation mean for vaccines? 

Generally, this standard may make it harder for some employers to reject requests for accommodations, since they will have to show substantial hardship. Whether it would actually change anything will depend on how courts interpret it. 

I am not generally a labor expert. In the context of vaccines, I suspect this decision on religious accommodations will make little change. First, most employers tend to offer religious exemptions. The problems I have seen in the past tend to be about evaluating sincerity, though in one case – EEOC v. Baystate – it was implementing the accommodation (a mask alternative). I have not seen many employers try to claim that there is an undue hardship in providing any accommodation. 

But I have suggested in the past that an employer could, and this decision – if employers decided to try and claim undue hardship – would require an employer to build a strong case that the costs of allowing employees not to receive vaccines against disease would be high before refusing a religious accommodation.

This would depend on the disease, the possibility to accommodate in a specific case, and the nature of the employer. For example, I suspect that a cancer ward or a newborn ward would have good reason to refuse to exempt employees from the MMR vaccine because measles is so contagious – it’s hard to find a good alternative to vaccination – the vaccine is so effective, and the patients in these areas are at high risk of it. 

On the other hand, a dentist’s office may have a harder time refusing this because the population may be less at risk, and for some diseases, where there are good alternatives – for example, blood-borne diseases – it may be harder to justify the refusal. 

Dorit Rubinstein Reiss

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