The Supreme Court just issued two decisions that will affect the legal landscape for employers for years to come. Although the Court’s rulings on affirmative action and religious accommodation will have different short-term impacts, it is highly likely that each decision will give rise to new legal challenges that could significantly alter how employers hire and manage their workers.
The first decision, in the much-discussed UNC and Harvard affirmative action cases, didn’t actually address employment law and, because employers are already generally prohibited from taking race into account in hiring and promotions, won’t immediately change the legal landscape for most companies. But, for supporters of business diversity programs, the ruling contains troubling language that could have a much greater impact than has been reported.
Writing for the majority, Chief Justice Roberts said that the universities’ diversity objectives were too “imponderable,” “imprecise,” and “stereotyp[ical]” to support their plus-factor admission programs. Those wanting to challenge corporate diversity initiatives—a group that has proliferated in recent years—have been given an opening with that language and will surely use it to bring legal attacks on those programs in attempts to shut down or neuter them.
The Court’s decision may also lead to more “reverse discrimination” lawsuits, in which members of a majority or historically advantaged group claim that they were disfavored based on that status. Such cases are already on the rise, and one recent example is Powers v. Broken Hill Proprietary (USA), Inc. In a 2022 decision from the U.S. District Court for the Southern District of Texas, the court found that an employer’s “gender-balance goal,” including tying gender objectives to the “performance evaluation and bonuses” of its managers, supplied evidence supporting the plaintiff’s claim.
That decision provided a roadmap for those wanting to challenge more aggressive initiatives that incentivize diversity objectives, and the Supreme Court just provided a new incentive for them to follow it.
Another target could be the limited exceptions to the rule barring employers from considering race. In its 1979 decision in United Steelworkers v. Weber, the Court permitted employers to adopt private, voluntary, race-conscious affirmative action plans, but only if they’re meant to “eliminate a manifest racial imbalance” and don’t “trammel the interests” of white workers. In 1987, the Court later extended this exception to gender preferences. The Court has narrowed these exceptions over the years, but its affirmative action decision could empower an effort by conservatives to seek their complete elimination.
Although less-publicized than the affirmative action case, the Court’s decision in Groff v. DeJoy may impact employers’ day-to-day operations to an even greater degree. Groff dealt with the standard under which employers must address an employee’s request for a religious accommodation. Under the Court’s 1977 decision in Trans World Airlines, Inc. v. Hardison, employers were required to accommodate those requests unless doing so would be an “undue burden” for the employer. Trans World also stated that employers should not be forced to bear a “more than a de minimis cost” for the accommodation. Subsequent courts seized on that language to bless employers’ refusals to grant religious accommodations.
Groff is a postal worker and, according to the Supreme Court’s ruling, “an Evangelical Christian” who believes that Sundays are for worship, and not for the U.S. mail. He refused to work when called on Sundays, was disciplined, and ultimately quit. His lawsuit for religious discrimination was rejected by a federal appeals court, which held that his refusal to work imposed “more than a de minimis cost” on the Postal Service.
The Supreme Court then took up his case and ruled that this was the wrong standard; an “undue hardship” for an employer does not mean “more than a de minimis cost,” but rather, it means “substantial increased costs in relation to the conduct of [the employer’s] particular business.”
The Court’s ruling leaves significant room for interpretation, and courts and employers will now have to grapple with its practical meaning. But there is little doubt that employers will now face much more scrutiny from judges in cases involving requests for religious accommodations. Company executives and HR leaders should make sure to closely examine their procedures for dealing with these requests, which may assess both the sincerity of the religious belief and whether the request presents an undue hardship. Importantly, decisions to deny religious accommodations due to burdens on the business should be based on identifiable costs, not moral objections or disgruntled coworkers.
As with the affirmative action case, it remains to be seen whether Groff will spark more employment litigation. But employers should be aware that diversity programs and religious accommodations may well be the next front line for disputes, and they should be proactive in ensuring their policies can survive the legal scrutiny.