Supreme Court Report

Supreme Court considers how far employers should go for religious accommodation

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Gerald E. Groff is a devout evangelical Christian and former missionary who settled into a job with the U.S. Postal Service in 2012 after years of overseas religious work.

“Sometimes you just have to take the job that comes along,” he told an interviewer. One benefit, from his perspective, was that, as the saying goes, while neither snow, nor rain, nor heat, nor gloom of night keeps Postal Service couriers from the swift completion of their appointed rounds, those rounds generally did not occur on Sundays.

That allowed Groff to keep the Sabbath. But then Amazon came along with a big contract in 2013 to have the Postal Service help deliver packages, including on Sundays. That would eventually lead to a lawsuit and a case to be taken up by the U.S. Supreme Court on Tuesday about when employers must grant work accommodations to religious employees.

Groff, who was a rural letter carrier working out of the Quarryville, Pennsylvania, post office, at first avoided Sunday shifts with the cooperation of his boss.

“The postmaster had been accommodating me for about a year, just in-house,” Groff said in the interview posted on the website of the legal organization representing him, First Liberty Institute of Plano, Texas. “She was willing to not schedule me and not make waves. And then all of a sudden, I guess, I assume she got pressure from above her to change things. And she told me in some rather unkind words, either do it my way, or hit the road.”

Groff transferred to a smaller post office in Holtwood, Pennsylvania, that was “exempt, for the time being,” from Sunday deliveries. That changed in 2017. Groff informed the postmaster that he could not work Sundays but would be willing to put in extra shifts for his fellow employees if they took his Sunday shifts. This worked with mixed success for about two years; then, the Postal Service took a tougher stance and delivered an ultimatum that he could not go on missing Sunday shifts.

Groff’s Sunday absences created a “tense atmosphere” among the other carriers at Holtwood and led to resentment toward management, the postmaster testified.

Groff, 45, resigned in 2019.

“I felt that I was forced out,” he said in the interview with First Liberty. “The writing was on the wall.”

A 1970s case that defines ‘undue hardship’ under Title VII

In Groff v. DeJoy, the U.S. Supreme Court is taking up an important question about religious accommodations under Title VII of the Civil Rights Act of 1964, the broad law that protects against discrimination in the workplace.

Religion is among Title VII’s protected categories (along with race, color, sex, and national origin), and the statute defines religion to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

In a 1977 case, Trans World Airlines Inc. v. Hardison, that bears similarities to Groff’s case (except for the demise of the air carrier involved), the Supreme Court ruled against a TWA employee seeking a religious accommodation to avoid working on Saturdays, his Sabbath.

The court first held that TWA was not required to compel more senior employees to swap jobs or shifts to allow the employee to abstain from Sabbath work, because those actions “would have amounted to a breach of the collective bargaining agreement.”

The court rejected the employee’s suggestion that TWA should have been required to allow him to work a four-day week or to pay premium wages to induce other employees to work his Saturday shifts. Those ideas would have caused TWA to “incur substantial costs,” the court said, and requiring the airline to “bear more than a de minimis cost” to give the employee Saturdays would be an undue hardship.

Debbie Kaminer, a professor of law at Zicklin School of Business at Baruch College in New York City, notes that when Hardison was decided, it was the court’s two most liberal justices at the time, Thurgood Marshall and William J. Brennan Jr., who dissented and argued for greater religious accommodation.

In the meantime, Congress has passed up numerous opportunities to overrule the court’s interpretation of the statute, and on religious accommodations, “Business wins most of the time,” says Kaminer, who has written widely on the issue.

In recent years, the Supreme Court has shown great deference to claims of religious discrimination, and in particular, three justices have suggested Hardison was wrongly decided. In a 2020 statement regarding denial of review in an employment case, Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, suggested that the de minimis standard in Hardison “does not represent the most likely interpretation of the statutory term ‘undue hardship.’”

“We should grant review in an appropriate case to consider whether Hardison’s interpretation should be overruled,” Alito wrote for the three.

In a separate dissent from denial of review in a 2021 case, Gorsuch, joined only by Alito this time, said time has not “been kind” to Hardison. He noted that several federal civil rights statutes passed since Title VII, including the Americans with Disabilities Act of 1990, include an interpretation of undue hardship that requires employers to provide a religious accommodation “unless doing so would impose ‘significant difficulty or expense’ in light of the employer’s financial resources, the number of individuals it employs, and the nature of its operations and facilities,” Gorsuch wrote.

The federal government suggests some tweaks in the test

Groff’s Title VII lawsuit against the Postal Service lost in both a federal district court and before a 2-1 panel of the Philadelphia-based 3rd U.S. Circuit Court of Appeals. Groff and his lawyers took their case to the Supreme Court, where they argue for overruling Hardison, putting the de minimis test “to rest” and replacing it with a “significant difficulty or expense” test.

“The Supreme Court in Hardison missed it by a mile,” says Hiram S. Sasser III, one of Groff’s lawyers with the First Liberty Institute, adding that the decision “has denied many Americans their freedoms guaranteed by the statute.”

Groff is supported by amicus briefs from dozens of religious groups and some of the same voices that have appeared before the court in other recent religious practice cases.

The briefs suggest that the issue of working on the Sabbath is not the only religious accommodation at issue. One amicus was filed on behalf of an Indiana public school teacher who refused to use the names and pronouns of transgender students in his classes. The Chicago-based 7th U.S. Circuit Court of Appeals ruled against the teacher last week on the basis of Hardison, holding that the teacher’s demands placed more than a de minimis hardship on a school district trying to make transgender students feel welcome in the classroom.

U.S. Solicitor General Elizabeth B. Prelogar, defending the Postal Service’s handling of Groff’s case, urges the court against overruling Hardison but calls on the justices to clarify that there is “substantial protection for religious adherents in the workplace.”

“An employer is not required to accommodate an employee’s Sabbath observance by operating shorthanded or regularly paying premium wages to secure substitute workers, but may be required to bear other costs—including infrequent payment of premium wages or the administrative expenses associated with an accommodation,” the solicitor general’s brief argues.

The court should reiterate that the burden remains on the employer at all times to “demonstrate” undue hardship with concrete evidence, taking into account such factors as the size and operating costs of the employer and the number of workers who will need an accommodation, Prelogar said.

The government is supported by many unions and the lobby for airlines, who express concerns about the impact of religious accommodations on seniority-based collective bargaining agreements. But some notable corporate “frequent flyers” in the court are absent, including the U.S. Chamber of Commerce.

Also supporting the government are advocates for strict separation of church and state.

Nicholas J. Little, the legal director of the Center for Inquiry, a Amherst, New York-based group that advocates for a secular society, says that greater provision of religious accommodations to some workers mean nonreligious employees “get the short end of the stick.”

“If we turn around and say religious people get first dibs weekend days off, who are the people who are going to have to cover?” says Little, whose amicus brief was also signed by American Atheists Inc. “It’s going to fall on nonreligious people. Well, we like our weekends off, too.”

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