The Supreme Court, the Sabbath and a much-debated piece of civil rights law
The conflict started with an Amazon contract.
Before it, Gerald Groff had been happy with his work as a rural mail carrier and happy to be able to have Sundays off. After it, he still enjoyed the work, but he faced increasing pressure to take shifts on his Sabbath and thereby violate his religious beliefs.
Groff, who identifies as an evangelical Christian, initially solved the problem by transferring to an even more rural post office, one that didn’t yet need to deliver on Sundays. But Amazon’s demands eventually found him there, and he ultimately resigned from his position after a sustained battle with supervisors over his religious accommodation request.
Soon after he left the job, Groff filed a lawsuit against the U.S. Postal Service. He alleged unlawful religious discrimination, arguing that his supervisors could have and should have done more to accommodate his Sabbath-related beliefs.
“It was all working out until the post office decided it wasn’t going to work out anymore,” said Hiram Sasser, who is executive general counsel for First Liberty Institute and part of Groff’s legal team.
On Tuesday, Groff’s case will be in front of the Supreme Court, where it could become the vehicle through which the justices redefine what employers owe to religious workers.
Groff and his supporters hope the court will restore the balance between workers’ rights and employers’ rights, a balance they feel was lost in a decision handed down nearly 50 years ago.
But others worry a ruling for Groff could go too far and show so much deference to religious workers that other employees will be harmed.
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Interpreting Title VII
The key question in Groff v. DeJoy is how to interpret and apply Title VII of the 1964 Civil Rights Act.
The statute prohibits, among other things, discrimination in the workplace on the basis of religion. Employers violate it when they refuse, for example, to hire a Muslim or Jew due to a bias against Muslims or Jews, as well as when they refuse to grant a variety of faith-based accommodation requests.
“The statute anticipates that there may be general rules (in the workplace) that present a problem for a member of a religious minority group,” such as a requirement to work on a non-Christian religious holiday, said Holly Hollman, general counsel and associate executive director of the Baptist Joint Committee for Religious Liberty.
But Title VII also includes protections for employers. It states that they may reject an accommodation request if they can demonstrate that granting it would pose an “undue hardship” on their business.
The government is not trying to force employers to incur significant costs or face severe workplace disruptions, despite its interest in protecting religious workers, Hollman said.
In his case, Groff argues his need to have Sundays off to observe the Sabbath does not pose an “undue hardship” on the Postal Service. To prove his point, he’s highlighted his willingness to cover extra shifts on other days, as well as his co-workers’ apparent willingness to claim the Sunday shifts he doesn’t want.
“Several people were happy to work on Sunday and loved that Gerald would do a double shift on Saturday,” Sasser said.
But the Postal Service, which, like other federal entities, is represented in court by the Solicitor General’s office, argues that Groff’s Sabbath observance fueled morale problems and workplace conflict. “(Groff) ultimately missed at least 24 shifts that were not filled with shift swaps,” it explains in one of its Supreme Court briefs.
In other words, the Postal Service maintains that it did not violate Title VII by refusing to guarantee Sundays off for Groff.
“The record shows that granting petitioner’s requested accommodation would have imposed an undue hardship on USPS by requiring it to violate its memorandum of understanding with the union, operate with insufficient staff, and burden workers — burdens that actually contributed to other employees quitting or transferring. Those significant burdens on the conduct of USPS’s business qualify as an undue hardship under any standard,” the brief says.
The government’s position won out at both the district and circuit court levels. But in January, the Supreme Court agreed to hear Groff’s case and consider when an employer can refuse to grant a religious accommodation request and whether or not the potential impact on other employees should factor into the employer’s decision.
Revisiting Hardison
By taking up Groff v. DeJoy, the Supreme Court turned a spotlight on a very similar case from 1977, which led to a controversial interpretation of Title VII that Groff and his supporters would like to see changed.
Trans World Airlines v. Hardison centered on an airline employee who believed it was wrong to work on the Sabbath, which he observed on Saturdays. When he lost seniority in TWA’s scheduling system after a job transfer, he also lost the ability to always take Saturdays off. He ultimately sued his employer and the airline workers’ union for religious discrimination, arguing that Title VII required them to do more to accommodate his faith-based needs.
In June 1977, the Supreme Court ruled 7-2 against the former TWA employee, determining that anything that imposes more than a “de minimus cost” on a company should trigger Title VII’s “undue hardship” exemption.
The two justices in the minority issued a scathing dissent, arguing that such an interpretation of “undue hardship” undermines the whole point of the Civil Rights Act’s protections for religious employees.
“The Court holds, in essence, that, although the EEOC regulations and the Act state that an employer must make reasonable adjustments in his work demands to take account of religious observances, the regulation and Act do not really mean what they say. An employer, the Court concludes, need not grant even the most minor special privilege to religious observers to enable them to follow their faith,” the dissent said.
In the 46 years since the Hardison decision was handed down, the spirit of that dissent has lived on in the work of a wide variety of faith groups and religious freedom advocates, who have been fighting to see either Congress or the Supreme Court revisit and redefine the “undue hardship” standard.
By agreeing to hear Groff v. DeJoy this term, the court finally heeded their calls.
In search of a new standard
The long history of faith-based activism against the Hardison ruling helps explain why so many religious organizations filed Supreme Court briefs in favor of Groff. They include the Sikh Coalition, the American Hindu Coalition, the U.S. Conference of Catholic Bishops, The Church of Jesus Christ of Latter-day Saints, the National Association of Evangelicals, the General Conference of Seventh-day Adventists, the Muslim Public Affairs Council, the Union of Orthodox Jewish Congregations of America and many others.
“Religion involves practices and observances,” not just identity, Hollman said. “Religious entities are in a position to explain that the prohibition on (religious) discrimination includes a duty to accommodate religious needs.”
But there are some organizations that work on religious freedom issues that don’t want the court to give Groff exactly what he’s asking for. They generally share his sense that the “undue hardship” standard needs to be revisited, but object to his legal team’s claim that the new interpretation shouldn’t account for potential harms done to other employees.
“The court has got to be aware of third-party harm when it comes to religious freedom,” said Rachel Laser, president and CEO of Americans United for Separation of Church and State, which filed a Supreme Court brief focused on the co-worker question.
Laser described the case as a “wolf in sheep’s clothing,” noting that it’s not hard to imagine how a ruling for Groff, if worded too broadly, could fuel workplace conflict over issues like gender equality or LGBTQ rights.
If the court does not account for potential harm done to co-workers, employers may feel pressured to allow religious workers to refuse to work with members of the LGBTQ community or someone of the opposite sex, she added.
“Drawing a clear line in the sand that religious freedom is a shield that protects not a sword to harm others is vital to preserving true religious freedom in America,” she said.
Hollman agreed that “hard questions” may come up in the future about what to do when a request for a religious accommodation is in tension with other civil rights, but added that Groff v. DeJoy does not seem to raise them.
In the context of the current case, the justices need to make it clear that an “undue hardship” represents a “significant difficulty or expense,” not basic scheduling adjustments, for example, she said.
“The fact that (an accommodation) may affect other employees or how a business does things at least in some respect should not diminish the right to a reasonable accommodation,” Hollman said.
Sasser fears that focusing on a religious employee’s co-workers opens the door to a kind of popularity contest in which the co-workers would get to determine whether the employee is worth adjusting their own schedules for.
“That’s not a workable standard. It’s not appropriate to put someone’s religious liberty in the hands of people who may disagree with their particular faith,” he said.
Sasser hopes that the Supreme Court will instead issue a ruling in favor of Groff that defines “undue hardship” in terms of business operations. He noted that the text of Title VII says “undue hardship on the conduct of the employer’s business,” not on other employees.
“The text of the statute should prevail,” he said.
The Supreme Court’s ruling in the case is expected by the end of June.
