Uncategorized · April 24, 2023 1

The Religious and Business Divide…

Carole Levine           April 24, 2023

Religion is never simple. We hope it is a means of bringing people together, but more often, it seems to divide them.  It is at the heart of wars and civil disputes. And religious beliefs divide families and cause parents to turn their backs on their children who choose to follow different religious paths. So it was not a surprise that accommodating religious beliefs were at the core of yet another Supreme Court case, Groff vs. De Joy, that was heard this past week. What was surprising, was that in a Court that seems to heavily favor the primacy of personal religious beliefs  in its decisions, it seemed difficult to discern a clear direction for where this Court might land in this particular case

 I was fascinated with the twists and turns that surfaced in the direction of the justices’ statements and questions.  They clearly respected the plaintiff’s commitment to his religious beliefs, but they also seemed concerned about how deeply to draw a line that would satisfy and meet the needs of employers and other workers when making religious exceptions for work requirements. This was not new ground on the issue of religion and state, but it was an effort to widen what was previously and successfully in place.  This case was not going to be a simple task and it was clear, from the beginning, that it was not going to be a 6-3 decision.

The case is quite straightforward.  Gerald Groff, an evangelical Christian and former missionary, who worked as a substitute mail carrier brought suit against the US Postal Service when he felt he had to choose between his faith and his livelihood when assigned to work on Sundays. Sunday assignments increased in 2013 when the Postal Service contracted with Amazon for package delivery requiring more weekend work hours, even for Mr. Groff’s small, rural post office.  Mr. Groff quit his job after being disciplined for missing work, and then sued for his job back on the grounds of religious discrimination. 

Previous legal precedent from a key 1977 case, Trans World Airlines v. Hardison, established that employers need not accommodate workers if the effort to do so imposed more than a “de minimis” burden on their business.  This principle  was used to interpret Title VII of the Civil Rights Act of 1964, a federal law that requires employers to “reasonably accommodate” workers’ religious practice so long as they can do so “without undue hardship” to the company’s business.  This seemed to be the crux of the case.  How does one, in this day and age, measure what constitutes a “reasonable accommodation” as well as what is “without undue hardship”? The term “de minimis” focuses on what is minimal.  Gerald Groff and his supporters are seeking to expand that interpretation, while the government would seek to maintain it.

Arguing the case for the US Postal Service, Solicitor General Elizabeth B. Prelogar pointed to Groff’s absences on Sundays as violations of union rules as well as impacting the morale of his fellow workers.  She stated: “His absences created direct concrete burdens on other carriers who had to stay on their shifts longer to get the mail delivered. That caused problems with the timely delivery of mail, and it actually produced employee retention problems, with one carrier quitting and another carrier transferring and another carrier filing a union grievance. That is an undue hardship under any reasonable standard.”

But Groff’s side argued that the previous standard was not reasonable and stepped on their clients religious freedom. Some, but not all, of the Supreme Court Justices made clear that they agreed.

Justice Gorsuch pointed to the 1977 precedent as a “misstep” and trifling, which he felt “is the definition of de minimis.”  Justice Alito pointed to the number of amicus briefs from minority religious groups the Court had received saying that Hardison has been ineffective in protecting the rights of religious workers. “We have amicus briefs here by many representatives of many minority religions — Muslims, Hindus, Orthodox Jews, Seventh-day Adventists — and they all say that that is just not true, and that Hardison has violated their right to religious liberty.”

Arguing for Mr. Groff, his lawyer, Aaron Streett, focused on how the law elevated employer rights over religious ones, suggesting that current standard  (“de minimis”) might be replaced with standards from civil rights law such as the Americans with Disabilities Act, which requires accommodations unless it would impose significant expense or difficulty.  Two of the Court’s conservative justices, Kavanaugh and Barrett struggled to find common ground.  Kavanaugh reflected, “I understand that term in the original statute,” he said, “to reflect a balance between two important values: one, religious liberty and the other the rights of American businesses to thrive, and to thrive, you have to be able to make money.”  And Justice Amy Coney Barrett expressed concern for how Groff’s religious needs impacts the morale of other workers and that this must be factored in.  Mr. Streett strongly disagreed. His example of morale being bad enough to impact the efficient operation of the business was when an employee quits. Waiting long enough for this type of impact seemed to shock Justice Barrett.

Justice Ketanji Brown Jackson moved the argument to one of policy and why Congress had kept this precedent for so many years without making changes to the law that would better accommodate religious observers like Mr. Groff. She was concerned that a person or group “could fail to get in Congress what they want with respect to changing the statutory standard, and then just come to the court and say, ‘You give it to us.’ ”

This is a case that does not have a clear, predictable outcome.  It was hard to tell if this conservative Court was more worried about imposing burdens on businesses and other employees or would the conservatives on the Court “stay the course” they have trod thus far and come down on the side of religion.  Who knows?  There might even be some middle ground.  Justice Gorsuch proposed that the Court issue a simple decision that merely rejected “this de minimis language.” One might wonder if that might cause more chaos than calm, but then, it seemed to actually be a strange step toward compromise.

And now we wait for a decision.