In what is certain to be another high-profile addition to its docket this term, the Supreme Court has granted review in Groff v. DeJoy—a case in which the religious rights of employees will take center stage.
The petitioner in the case, Gerald Groff, has asked the justices to determine whether his employer, the U.S. Postal Service, is required to provide a religious accommodation excusing him from work so that he may observe the Sabbath on Sundays.
Groff argues that he firmly believes he must, as Exodus 20:8 puts it, “[r]emember the Sabbath day, to keep it holy.” When the Postal Service began delivering packages Sundays for Amazon, it initially accommodated Groff by exempting him from deliveries that day so that he could observe the Sabbath.
But a few years later, the Postal Service withdrew Groff’s religious accommodation and replaced it with an arrangement that regularly asked Groff to violate his conscience by working every Sunday when he could not find a replacement.
Groff sued under Title VII of the Civil Rights Act, which prohibits discrimination “because of such individual’s race, color, religion, sex, or national origin.” Subsection (j) of Title VII 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 … religious observance or practice without undue hardship on the conduct of the employer’s business.
A federal District Court judge in Pennsylvania upheld the Postal Service’s decision not to accommodate Groff. He appealed to the U.S. Court of Appeals for the 3rd Circuit, arguing that the Postal Service violated federal nondiscrimination law by scheduling Groff to work on multiple Sundays and failing to provide him with a reasonable accommodation.
Although the 3rd Circuit agreed that the Postal Service had failed to provide Groff with a reasonable accommodation, it held that the service wasn’t required to do so here because this accommodation would have caused “undue hardship” to the employer.
But just how much hardship is considered “undue”?
In 1977, in Trans World Airlines Inc. v. Hardison, the Supreme Court concluded that an employer suffers “undue hardship” in accommodating an employee’s religious exercise whenever doing so would require the employer “to bear more than a de minimis cost.” This “de minimus” language doesn’t appear anywhere in Title VII, but in the Hardison case, the high court read it into the statute anyway.
The plain language of “undue hardship,” which is found in the statute, has a clear and workable meaning. In fact, that precise language has been used in other statutory contexts, such as the Americans with Disabilities Act and the Uniformed Services Employment and Reemployment Rights Act. These statutes never have been read to include a “more than de minimis cost” standard, however. And the Hardison standard has heavily weighted the scales in favor of the employer—and against religious employees—for decades.
Groff aims to change that.
In the 3rd Circuit’s ruling, the appeals court cited the statement in the Hardison decision that requiring an employer to provide a religious accommodation at more than a de minimis cost is an undue hardship that excuses the employer from having to accommodate the employee at all. But the court went even further, holding that the “undue hardship” standard is met if a religious accommodation could have a potentially adverse impact on the business’s other employees, rather than just on the business itself.
That’s an outcome that would weaponize employee relations, pitting employee against employee in unprecedented ways. Think, for example, of an employee assigned to work Sundays so that a religious colleague who wants to recognize the Sabbath can be accommodated. It wouldn’t take much for the employee who works Sundays to claim the cost to him or her was more than “de minimis.”
Especially during football season.
Groff has asked the Supreme Court to answer two questions. First, whether the more-than-de-minimis-cost test for refusing to provide religious accommodations properly interprets Title VII. And second, whether an employer can show “undue hardship on the conduct of the employer’s business” simply by showing that a religious accommodation allegedly would burden the employee’s co-workers rather than the business itself.
As Justice Thurgood Marshall noted in his Hardison dissent, the de minimis standard “effectively nullif[ied]” Title VII’s promise of accommodation for religious employees. Decades later, Justice Neil Gorsuch agreed, saying that Hardison “dramatically revised—really, undid—Title VII’s undue hardship test … [and that] the company had no obligation to provide [the employee] his requested accommodation because doing so would have cost the company something (anything) more than a trivial amount.”
The Supreme Court has a chance to get it right on the question of employees who request religious accommodations. Returning to the plain meaning of Title VII would ensure that religious employees of all faiths are provided with meaningful accommodations in the workplace.
Based on its recent willingness to revisit—and even overturn—incorrect and historically inaccurate precedent, the Supreme Court might be willing to do just that in this case.
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