Gerald Groff sued to overturn a decades-old Supreme Court decision, which his lawyers say undermines religious protections by allowing employers to deny accommodations that would cause only a minor inconvenience. But a majority of justices seemed inclined to reinforce those protections without getting rid of past precedent — even as they struggled during oral arguments to articulate an alternative for evaluating when an employer can reject a request related to religious observance.
At issue is Title VII of the Civil Rights Act, which prohibits religious discrimination in the workplace and requires employers to “reasonably accommodate” an employee’s religious observance unless that accommodation would impose an “undue hardship” on the business. In 1977, the court defined such a hardship as an accommodation that would impose more than a minimal burden, or “de minimis cost,” on the company’s operations.
Groff’s legal team asked the justices to overrule the court’s decision in Trans World Airlines v. Hardison, which has drawn criticism from some conservative justices, but also from liberals when it was decided.
Groff’s attorney, Aaron Streett, told the court that religious accommodations should be treated no differently than allowances for disability and pregnancy. Under the current standard, he said, a diabetic employee could receive snack breaks but not prayer breaks because of concerns about lost efficiency. An employee could receive weekly leave for pregnancy checkups, he said, even if that might require denying a co-worker’s shift preference. But the same employee could not get weekly leave to attend Mass if it would have a similar impact.
“There’s no reason religious workers should receive lesser protection than those covered by other accommodation statutes,” Streett said.
The Biden administration urged the court to resist overturning the Hardison precedent, which it said has been properly interpreted by many lower courts and the Equal Employment Opportunity Commission. Solicitor General Elizabeth B. Prelogar said the justices should instead clarify that the court’s 1977 decision provides meaningful protection for religious observance. She emphasized that Title VII was not intended to require employers to regularly operate shorthanded or routinely pay extra to secure replacement workers.
A majority of justices seemed to embrace that approach.
Justices Brett M. Kavanaugh and Amy Coney Barrett joined the court’s liberal bloc in suggesting that co-worker morale could be part of the consideration when evaluating the effect of an accommodation on a business’s operation.
“Anyone running a business in America knows that morale of the employees is critical to the success of the operation,” Kavanaugh said.
Barrett said she shared Kavanaugh’s concerns in part because she could envision a workplace with many religious people seeking the same accommodation for Sundays off to worship.
“The employer has to wait until morale is so bad that employees actually quit?” she asked Groff’s lawyer skeptically.
Before Tuesday’s argument, there was reason to think the court would be receptive to Groff’s position. Three members of the court’s conservative majority — Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — had already expressed skepticism about the 1977 decision.
But Gorsuch suggested a compromise that stopped short of overturning precedent, and it appeared to gain traction among his colleagues. While some courts have wrongly allowed employers to deny religious accommodations based on the “de minimis” standard, he said, the court could make clear that the language should not be taken literally as a way to shield employers from having to accommodate their workers.
“We all agree that’s wrong. Why can’t we just say that and be done with it and be silent as to the rest of it?” Gorsuch asked.
Kavanaugh repeatedly returned to a footnote in the 1977 decision, which refers to “substantial costs and substantial expenditures” as an alternative to the objectionable “de minimis” language. But, he added, “the hard thing is going to be how to apply it. And I’m not sure we can give you a full manual of how it’s going to play out.”
Likewise, Justice Sonia Sotomayor emphasized that determining when accommodation requests can be denied would depend on the specific workplace.
“What’s clear to me, after all this discussion, is that, as much as some people might want to provide absolute clarity, there is none we can give,” she said. “Because it’s all contextual.”
The most skeptical questions for the Biden administration came from Alito, who pressed the solicitor general about her assertion that lower courts and the EEOC have generally interpreted precedent to respect the rights of religious minorities. Alito said he was struck by the briefs filed in support of Groff’s position by many minority religions, including Muslims, Hindus, Orthodox Jews and Seventh-day Adventists.
“They all say that that is just not true, and that Hardison has violated their right to religious liberty,” Alito said. “Are they wrong?”
In response, Prelogar insisted, “it’s just incorrect to say that there is not a substantial amount of accommodation happening and that courts are just reflexively denying these claims.”
Religious conservatives have had some successes at the court in recent years and have viewed this Supreme Court as an opportunity to transform decades of jurisprudence. Last term, the court sided with a former public high school football coach who was disciplined for postgame prayers at midfield and said the city of Boston was wrong to deny a Christian group’s request to fly its flag at city hall when it had never turned down other organizations.
Groff, an evangelical Christian and former missionary, joined the Postal Service in 2012 in Lancaster County, Pa. As a rural mail carrier, he was required to fill in for co-workers on holidays and weekends — but not on Sundays, when there is no mail delivery.
Less than a year into his tenure, however, the Postal Service entered an agreement with the online retail giant Amazon to deliver packages on Sundays. (Amazon founder Jeff Bezos owns The Washington Post.) Initially, Groff was exempted from Sunday deliveries to observe the Sabbath, a day he reserved to worship and rest. A year later, however, the union representing postal workers created a system for filling Sunday shifts. Groff was soon told he would have to be available.
Groff’s absences on Sundays led other mail carriers to quit, transfer or cover for him and created a tense atmosphere on the job. Eventually, Groff decided to resign and file the religious discrimination lawsuit.
Groff lost his legal challenge at the federal District Court and U.S. Court of Appeals for the 3rd Circuit, which said his refusal to work on Sundays had “actually imposed on his co-workers, disrupted the workplace and workflow, and diminished employee morale.”
The case is Groff v. DeJoy.
