U.S. Supreme Court Shakes Up Individual Rights, but Will it Shake Up Employers?


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Quick Look

  • Employers cannot deny an employee’s request for a religious accommodation under federal law unless the employer can prove that the requested accommodation would result in substantially increased costs for the employer’s business.
  • Affirmative action in education, not employment, ends.
  • First Amendment speech protections apply to business owners providing expressive products or services, not to employees of private employers or employers’ obligations to comply with anti-discrimination laws.


The U.S. Supreme Court recently issued three rulings implicating affirmative action, religious accommodations, and first amendment rights. Some rulings will have a bigger impact on employers than others. We summarize the cases as follows.

Affirmative Action

A pair of cases from the Supreme Court struck down the use of affirmative action in higher education. On June 29, 2023, in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, U.S. Supreme Court ruled certain race-conscious college admissions policies violate the Equal Protection Clause of the 14th Amendment. The Equal Protection Clause prohibits discrimination based on race.

Here, the cases were brought by Students for Fair Admission (SFFA), a nonprofit which believes racial preferences in the admissions process is unconstitutional. The SFFA challenged Harvard College’s and the University of North Carolina’s (UNC) race-conscious admissions practices which are on par with the college admissions processes for higher education around the country. While Harvard, as a private college, is not subject to the 14th Amendment prohibition against race discrimination, it is subject to Title VI of the federal Civil Rights Act of 1964 as a federal grant recipient. UNC is subject to both the 14th Amendment and Title VI. Both schools argued they only considered race as a single factor alongside extracurricular activities, socioeconomic backgrounds, and military veteran status.

Ultimately the Court ruled direct consideration of a college applicant’s race in achieving diversity in higher education is unlawful. The Court looked at the then-current precedents of Gratz v. Bollinger and Grutter v. Bollinger which established the affirmative action standards currently used by colleges and universities. Gratz and Grutter ruled race could be considered on an individualized, narrowly tailored basis when the university had a compelling interest in diverse student bodies. Interestingly in Grutter, Justice O’Connor in Grutter stated “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” While the current rulings end existing affirmative action programs, the Court did state “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

Notably, the rulings have no immediate impact on the legal standards that govern affirmative action and DEI programs in private employment.  The 14th Amendment does not apply to private companies, and it is Title VII of the Civil Rights Act of 1964, not Title VI, that governs discrimination in employment. The different legal frameworks, interpreting cases, and agency guidance, limit the reach of the rulings to private workplaces. Also, affirmative action programs in employment do not mean giving any group priority or preference over another.  Decisions are always to be based on merit alone. Employers cannot use race as a factor in employment decisions, the way higher education could before these rulings. Since affirmative action in employment is not the same as in education, the Harvard and UNC rulings do not directly apply to private employer action.

Religious Accommodation

Under Title VII of the Civil Rights Act, employers must reasonably accommodate all aspects of an employee’s religious observance or practice that can be accommodated without creating an undue hardship for the employer. The long-standing interpretation of what constitutes an “undue hardship” for religious accommodation stems from the Supreme Court’s 1977 decision in Trans World Airlines Inc. v. Hardison, which held that an employer did not have to provide a religious accommodation if the accommodation would impose “more than a de minimis” burden on the business, meaning more than a trivial cost. However, on June 29, 2023, the U.S. Supreme Court redefined this standard, stating that employers can only deny an employee’s request for a religious accommodation under federal law if the employer can prove that the requested accommodation would result in substantially increased costs for the business.

In Goff v. DeJoy, a postal carrier who was unwilling to work on Sundays because of his religious practices sued his employer, the United States Postal Service (USPS), alleging that it could have accommodated his observance of Sunday Sabbath without undue hardship. Initially, at the time the employee started working for the USPS, he was not required to work on Sundays. When USPS agreed to begin making Sunday deliveries for Amazon, the employee was transferred to a smaller USPS station that did not make deliveries on Sundays. However, when his smaller station also began making Sunday deliveries for Amazon, the employee’s assigned deliveries were redistributed to other workers and he was disciplined for continuing to refuse to work on Sundays. Because of this, he eventually resigned from his employment.

In reviewing the standard for denying religious accommodations under Title VII, the Supreme Court focused on the plain meaning of the term “undue hardship,” reasoning that a “hardship” is, at a minimum, “something hard to bear,” and that a hardship only becomes “undue” when it rises to an “excessive” or “unjustifiable” level. Based on these interpretations, the Supreme Court determined the appropriate burden for demonstrating that an accommodation poses an “undue hardship” requires much more than a de minimis or trivial cost for the employer. Instead, the Supreme Court stated that, in order to deny a requested religious accommodation, an employer must show that the accommodation would result in substantial costs to the overall context of the employer’s business.

The Supreme Court declined to state what specific facts would meet this heightened requirement, leaving it up to the lower courts to determine on a case-by-case basis. That said, the Supreme Court’s ruling does clarify that, in reviewing all relevant factors, employers may point to additional workplace burdens on co-workers and other employees as part of demonstrating an undue hardship, in addition to considering other accommodation options, but only to the extent that those impacts are connected to the conduct of the particular business and not tied to religious animosity.

First Amendment

On June 30, 2023, in 303 Creative, LLC v. Elenis, the Supreme Court said that the State of Colorado could not force a business providing goods and services to the public to provide “expressive” goods and services that are contrary to the beliefs of the owner of the business. As is common among most states, Colorado prohibits businesses from engaging in discrimination when they sell goods and services to the public.

Here, a limited liability company, whose owner was the sole employee, provided website design services and was looking to start creating wedding websites for the public. However, the business preemptively sued the state before offering wedding websites to the public because the owner allegedly held a sincere religious belief that marriage is only between a man and a woman and did not want to create wedding websites for same-sex couples. The parties to the lawsuit agreed that what the website’s owner would design and produce was “pure speech,” and that every website will be her “original, customized” creation. Additionally, the parties agreed that the business owner “will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual persons so long as the custom graphics and websites” themselves do not violate her beliefs. As such, this case should be viewed in the context of these circumstances.

The Court acknowledged that states may still protect “gay persons” and require businesses not to discriminate against them in providing public accommodations. However, the First Amendment does not allow states to compel speech in the context of expressive activity. Moreover, while the First Amendment does not protect status-based discrimination unrelated to expression, generally it does protect a speaker’s right to control their own message. The Court likened website publishing to any other medium used for expressive activity, e.g., books, videos, movies, newspapers, art, speech writing, etc. The Court further indicated that the First Amendment applies to “speakers whose motives others may find misinformed or offensive.”

While this case touches on a sensitive topic, the decision does not involve employment law.  Specifically, this ruling did not change employers’ obligations to prohibit discrimination and harassment against employees or employers’ ability to require employees to attend non-discrimination trainings. Moreover, the ruling does not change the fact that the First Amendment does not apply to employees of private employers. Further, this ruling does not eliminate a state’s ability to enforce its anti-discrimination laws.

Action Items

  1. Review any desire to deny a religious accommodation with legal counsel to ensure that the heightened standard for undue hardship is met.
  2. Have appropriate personnel trained on the requirements for reviewing religious accommodation requests.
  3. Ensure that policies and procedures are consistent with religious accommodation standards.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase