The coming months will bring attention to the biggest cases the Supreme Court is hearing this term, including issues like abortion, Chevron deference, consumer protection, Donald Trump, gerrymandering, guns (bump stock), social media, and more. As we prepare for the holdings on these cases, I thought it would be good to reflect on an important decision from last summer: Groff v. DeJoy. Groff did not receive as much attention as the cases dealing with affirmative action and free speech (Students for Fair Admissions v. Harvard and 303 Creative LLC v. Elenis, respectively); still, it is significant. In this piece, I first review the background of the case, then discuss the decision, and finally comment on its significance for religious accommodation.
Background
Gerald Groff was hired in 2012 to work for the United States Postal Service. He did not work on Sundays because it was not generally required and because he was an evangelical Christian. Subsequently, the postal service contracted with Amazon to begin delivering on Sundays more frequently and told Groff that “he would be required to work on Sunday.”[1] Even so, Groff did not work on Sundays owing to his religious practice and, consequently, began receiving “progressive discipline” until finally he resigned and sued under Title VII of the Civil Rights Act of 1964.[2] Title VII requires that applicable employers not discriminate on the basis of religion, which the Equal Employment Opportunity Commission (EEOC) initially interpreted to mean that employers must “‘accommodate’ the ‘reasonable religious needs of employees’” when the accommodation “would not work an ‘undue hardship on the conduct of the employer’s business.’”[3]
However, subsequent caselaw on the statute created considerable confusion concerning religious accommodations. For example, Dewey v. Reynolds Metals Co. (1971) held that employers are not required to accommodate religious practice because it “‘would raise grave’ Establishment Clause questions.”[4] The Establishment Clause, from the First Amendment, reads, “Congress shall make no law respecting an establishment of religion.”[5] To be clear, the Establishment Clause does not preempt religious accommodation; it preempts religious establishment. After all, it is the Establishment Clause, not the Accommodation Clause. In other words, Dewey interpreted the law through the lens of strict separationism. As a result of the ensuing confusion, Congress amended Title VII to require employers to give employees reasonable accommodation if it does not produce undue hardship on the employer’s business.
Some years later, Trans World Airlines, Inc. v. Hardison (1977) interpreted undue hardship to mean anything more than the “low standard” of a de minimis (trivial)cost, including any accommodation that would have “imposed on [one’s] coworkers, disrupted the workplace and workflow, and diminished employee morale.”[6] The EEOC adopted this test. Accordingly, lower courts in the Groff case held against Groff because accommodating his religious beliefs and practices would have resulted in undue hardship (more than de minimis cost) on his coworkers and the business.
Explanation
Justice Samuel Alito wrote the unanimous opinion with Justice Sonia Sotomayor writing a concurrence, which was joined by Justice Ketanji Brown Jackson. Alito explains the challenge with interpreting “undue hardship” according to a de minimis standard: “a bevy of diverse religious organizations has told this Court that the de minimis test has blessed the denial of even minor accommodation in many cases, making it harder for members of minority faiths to enter the job market,” including Sikh, Muslim, Jew, and Seventh-day Adventist.[7]
More fundamentally, the problem with the de minimis standard is that Title VII refers to actual undue hardship. That is, it requires more than a cost that is only “very small or trifling”; it requires more than a “pittance” or “mere burden.”[8] Alito goes on to describe undue hardship as a burden that is “hard to bear” or “excessive” and “unjustifiable.” Further, “an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”[9]
In other words, the Constitution of the United States supports the reasonable accommodation of religious practice in the public square. Reasonable accommodation does not violate the Establishment Clause; it honors the Free Exercise Clause: “Congress shall make no law . . . prohibiting the free exercise [of religion].”[10] In short, the First Amendment protects peoples’ rights to exercise their religions freely, and it should not impinge upon their employment in the way that it did for Groff.
Alito observes that “‘undue hardship’ in Title VII means what it says.” He does not define undue hardship beyond the principles previously established because such determinations are specific to context. However, he observes that a “hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered ‘undue.’” In short, “Title VII requires that an employer reasonably accommodate an employee’s practice of religion.”[11]
In a concurring opinion, Justice Sotomayor observed that the EEOC had interpreted Title VII by the Hardison language for “seven consecutive Presidential administrations, from President Reagan to President Biden.” Yet even she observed that Hardison’s language of “more than a de minimis cost” is “loose language” and that the threshold of “undue hardship” is not reached with mere “trivial cost.”[12]
Importance
This case is important for several reasons. For one thing, it illustrates the basic thesis of F. Leroy Forlines’s Secularism and the American Republic. In that work, Forlines argues that, contrary to the holdings of Everson v. Board of Education (1947) and McCollum v. Board of Education (1948) that held for the strict separation of church and state, the American Founders supported the reasonable accommodation of church and state. In fact, reasonable accommodation is explicit language that Alito uses in the Groff decision.
Moreover, Forlines observes that the reasonable accommodation of religion is explicitly present in the United States Constitution. Specifically, Article I, explaining how a bill becomes a law, reads, “If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”[13]
Forlines explains that the parenthetical statement is not a “throwaway phrase” or “without consequence.” Rather, it is an illustration of the reasonable accommodation of religious practice in the Constitution itself. “It indicates the respect the framers showed for the Christian holy day in the very body of the Constitution. . . . In short, the framers not only respected religion but also, significantly, accommodated it.”[14]
This case is also important because it demonstrates the weight that the nine Supreme Court justices carry. While Groff was unanimous, it was written by the conservative Alito, and the conservative majority undoubtedly shepherded the questioning of the parties and drafting of the opinion. This background speaks to the vast significance of a President’s appointing power of justices. I have long believed that judicial appointments are among the most important actions a President takes because those appointments and the decisions of those appointments far outlast the President’s term(s). For example, Justice John Marshall remained a justice for more than three decades after President John Adams appointed him; similarly, Justice Antonin Scalia remained a justice for nearly three decades after President Ronald Raegan appoint him. Consequently, whether I personally like a given candidate or think he has other problems, the question of the sorts of justices he would appoint compared to the opposition is, for me, extremely important to how I cast my vote.
In addition, religious people generally and Christians particularly should take encouragement from the courage of people like Gerald Groff. Sadly, many Christians would choose not to make a big deal about a situation like Groff’s and would just do what their company requires, even if it is a violation of their duty before God and their right before the law. However, as Christians we must cultivate the virtue to be courageous against a culture that wants to silence us.
Finally, we can celebrate the fact that the Court unanimously supports a proper reading of the First Amendment with respect to this form of religious accommodation. Organizations like the Freedom from Religion Foundation promote a strict separationism that does not abide religious practice in the public square and interprets the First Amendment through separationist lenses. However, that interpretation is not in keeping with the American Founders’ ideals, and it does not accord with universal justice. Christians (and others) have the constitutional and universal right not simply to believe their religion in the privacy of their homes but also to practice it in the public square.
[1] Groff v. DeJoy, 600 U. S. ___ (2023), 2.
[2] Groff, 3.
[3] Groff, 4–5.
[4] Groff, 6.
[5] U.S. Constitution, amend. I.
[6] Groff, 3–4.
[7] Groff, 13.
[8] Groff, 11–12, 16.
[9] Groff, 16, 18.
[10] U.S. Constitution, amend. I.
[11] Groff, 19–20.
[12] Groff, 1 (Sotomayor, S., concurring).
[13] U. S. Constitution, art. I, § 7, cl. 2.
[14] F. Leroy Forlines, Secularism and the American Republic: Revisiting Thomas Jefferson on Church and State, ed. Matthew Steven Bracey (Gallatin, TN: Welch College Press, 2022), 18, 205.
Recent Comments