UPDATE: The Supreme Court ruled unanimously in favor of Gerald Groff, the former USPS worker who sued his employer for not reasonably accommodating his observance of the Sunday sabbath, Thursday.
Rather than overturning the precedent in Trans World Airlines v. Hardison, the court held that its own use of the de minimis standard in that case has been misinterpreted to mean employers don’t have to prove “undue hardship” to deny accommodations. Instead, it urged lower courts to interpret the language of Title VII of the Civil Rights Act how it is normally understood and consider the specifics of each case.
“What is most important is that ‘undue hardship’ in Title VII means what it says, and courts should resolve whether a hardship would be substantial in the context of an employer’s business in the commonsense manner that it would use in applying any such test,” Justice Samuel Alito wrote in the opinion.
The Supreme Court could soon overturn nearly 50 years of precedent on when employers must accommodate their workers’ religious practices.
Title VII of the Civil Rights Act protects employees from discrimination or dismissal on the basis of religion, except in cases where the employer cannot reasonably accommodate their workers’ religious practices without facing an “undue hardship.” In the 1977 case Trans World Airlines v. Hardison, the Supreme Court interpreted “undue hardship” to mean any instance where accommodations would impose more than a “de minimis,” or trivial, cost on the employer.
The interpretation of this ruling is the crux of Groff v. DeJoy, in which Gerald Groff, a former U.S. Postal Service worker, argues his employer’s requirement that workers deliver mail on Sundays impeded his ability to observe the Sabbath as an evangelical Christian.
What does de minimis mean, and how has SCOTUS interpreted ‘undue hardship’?
The bar established in Hardison means that employers can claim undue hardship in virtually any scenario where workers’ religious practices could conflict with their work.
Michael Foreman, the director of Penn State Law’s Civil Rights Appellate Clinic, says the court in Hardison was worried about violating the First Amendment’s establishment clause, which prevents the government from “establishing” any religion.
“For instance, if you have to accommodate any request, then at some point that becomes the establishment of religion,” Foreman tells The Dispatch. “So I think there’s a balancing that goes on. Is it a sloppy use of the term? I think it is. But I don’t think it was thought out when they put that into the law at that point.”
In an amicus brief on behalf of the National Employment Lawyers Association and the National Institute for Workers’ Rights, Foreman urged the court to clarify that employers have the burden of proving that religious accommodations would result in actual harm to their business.
During oral arguments, the justices generally agreed that the de minimis test has been ineffective, but they disagreed on what the new standard for undue hardship should be.
Groff, who resigned from the USPS after he was disciplined for not reporting to work on Sundays, argued employers should be required to demonstrate that a worker’s accommodations would impose a “significant difficulty or expense,” an opinion previously rejected by both a federal district judge and a court of appeals. That definition comes from the Americans With Disabilities Act (ADA), but the court seemed hesitant to apply the same standard to religious accommodations.
Daniel Benson, legal counsel for the Becket Fund for Religious Liberty, says his organization—which filed an amicus brief supporting Groff—represents believers of several religions who have been disadvantaged by Hardison.
“There have been cases where they’ve asked, ‘Let me try to swap shifts,’ and the employer said no and fired them or rescinded a job offer,” he tells The Dispatch. “And so, to me, it just sort of defies understanding that you have a statute that’s specifically saying you need to accommodate employees’ religious practice, and yet we’re still at a place where Jews, Seventh-day Adventists, and members of various other minority faiths are still being discriminated against, time and time again.”
The Becket Fund’s brief urges the court to look to the ADA for guidance on how to set a new standard for defining “undue hardships.”
Clifford Rieders, president of the Rieders Foundation, a Jewish advocacy group representing a plaintiff in a similar case against the Department of Defense, thinks that standard already exists in employment law.
“The standard ought to be that if a reasonable accommodation can be made without a substantial negative effect on the business, then it should be done,” he tells The Dispatch. “And I use the word ‘substantial,’ because that’s a term of art in the law. We talk about substantial factors all the time. It’s in the law. Lawyers and people in personnel departments, HR departments, they know what that means.”
Also up for debate in Groff is whom the accommodation would have to create an undue hardship for: Groff argues that demonstrating his absence burdened co-workers does not qualify as an undue hardship on the business.
Richard Katskee, a counsel in Mayer Brown’s Supreme Court & Appellate practice and incoming professor at Duke Law School, says this element of undue hardship is hard to ignore.
“The petitioner’s counsel argued, essentially, that you ignore the effects on other employees. … That’s peculiar, not just because religious rights aren’t the only workplace rights, but also because everybody has those religious rights, and it’s putting my faith above yours,” says Katskee. “And that seems to me wrong and dangerous and not a way to respect religious freedom.”
In oral arguments, the Biden administration also pushed the court not to overturn its decision in Hardison on the grounds of stare decisis, the notion that courts should honor precedent except in extraordinary circumstances.
Solicitor General Elizabeth Prelogar also argued that workers tend to prevail in all three of the main categories of religious accommodation cases: scheduling conflicts (like Groff’s), dressing/personal grooming, and religious expression and symbolism. But lower courts weren’t friendly to Groff’s case.
Where has the Court stood on religious freedoms?
The current Supreme Court has ruled in favor of religious liberties in a number of cases, with one study concluding that Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, John Roberts, and Brett Kavanaugh are “clearly the most pro-religion justices on the Supreme Court going back at least to World War II.”
Last year in Carson v. Makin, the court affirmed that states can fund religious private schools with taxpayer dollars, and in Kennedy v. Bremerton, it ruled in favor of a high school football coach’s right to pray on the field.
Katskee contends the court in recent years has been particularly sympathetic to cases brought by members of the religious majority and that religious minorities are sometimes overlooked.
“One of the worries in this case is, if the court does not carefully calibrate the ways that employer and employee interests and interests of other employees feature into the accommodation calculus, you’re going to end up where certain people’s religious practices are preferred over others,” he says. “And almost inevitably, that will mean that people of a minority faith or people of a faith different from the employer maybe will end up out in the cold.”
But several amicus briefs filed by religious groups argued that the standard established in Harrison has been especially harmful for religious minorities.
Scott Dixler, who filed an amicus brief in support of Groff on behalf of Sikh and Muslim advocates, says a ruling in favor of Groff would help members of religious minorities receive accommodations in workplaces that are often more conducive to Christian practices.
“We collected a number of cases in which Sikh and Muslim workers, in particular, have been experiencing difficulties under this standard, where differences in religious attire, for example the desire of a Muslim woman to wear a hijab at work, has been rejected by the employer,” he says. “And the appellate courts and the federal district courts have said that there’s no need to accommodate that kind of religious practice because concerns about employee morale or customer reactions would be more than a de minimis burden.”