The Supreme Court seemed receptive April 18 to the arguments of an evangelical Christian mail carrier who quit the U.S. Postal Service after it refused to accommodate his wish not to work on the Sunday Sabbath.
Over the opposition of the Biden administration, the court agreed in January to take up the civil rights lawsuit of Gerald Groff, who began working as a mail carrier for the U.S. Postal Service in 2012.
The hearing of the case, which is of intense interest to faith communities and to a slew of lawmakers who filed friend-of-the-court briefs with the Supreme Court, comes as the court has become increasingly protective of First Amendment-based religious freedoms in recent years.
Some liberal commentators have expressed concern that the court may go too far in the case, possibly giving the religious what they perceive as too much power to dictate workplace policies.
The case is Groff v. DeJoy, court file 22-174. The respondent, Louis DeJoy, is the U.S. postmaster general.
Groff was what is called a rural carrier associate, meaning he filled in for absent career employees.
Groff worked at the Quarryville, Pennsylvania, post office until he transferred to the Holtwood post office in August 2016. The postal service initially tried to accommodate his request not to work on Sundays, but he quit in 2019 after the agency stopped exempting him from Sunday work. He sued, claiming the postal service discriminated against him by refusing to accommodate his religion. The suit went forward under Title VII of the Civil Rights Act, which was originally passed in 1964, but was amended in 1972 to require employers to provide reasonable accommodation for religious employees.
The U.S. Court of Appeals for the 3rd Circuit turned down Groff’s appeal, finding that exempting him from working on Sundays, as he had asked, would have imposed an undue hardship on the postal service.
Title VII generally prohibits an employer from discriminating against an individual because of that individual’s religion. The law 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 or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”
But in 1977, the Supreme Court narrowed the application of the religious provision. In Trans World Airlines (TWA) v. Hardison (1977), the court held that an employer suffers an “undue hardship” in accommodating an employee’s religious exercise whenever doing so would require the employer “to bear more than a de minimis cost.”
The members of the Supreme Court spent much of the oral hearing on April 18 discussing the precise meaning of “de minimis,” a legal expression meaning too minor to be meaningful or taken into consideration.
Groff’s attorney, Aaron Streett, told the justices during oral arguments on April 18 that TWA v. Hardison is a bad precedent because it violates the “promise” of Title VII that employees should not be forced to choose between their faith and their job.
This “de minimis test makes a mockery of the English language, and no party truly defends it today,” Streett said, urging the Supreme Court to interpret the phrase undue hardship “according to its plain text to mean significant difficulty or expense.”
The test that the government supports is little better than the test used in Hardison because “it allows employers to deny accommodations far short of any fair meaning of ‘undue hardship,’” the lawyer said.
The government “believes undue hardship arises whenever there is lost efficiency, weekly payment of premium wages, or denial of a co-worker’s shift preference,” so, for example, “a diabetic employee could receive snack breaks … under the [Americans with Disabilities Act] but not prayer breaks under Title VII, for that might cause lost efficiency.”
“An employee could receive weekly leave for pregnancy checkups but not to attend Mass, for that might require denying a co-worker’s shift preference or paying premium wages,” Streett said.
“There’s no reason religious workers should receive lesser protection than those covered by other accommodation statutes,” he said, adding that the court “should establish a textual test for undue hardship.”
U.S. Solicitor General Elizabeth Prelogar asked the justices not to entirely discard the Hardison precedent, which she said the courts have been using for decades “when analyzing undue hardship under Title VII.”
A clarification of what it actually means would be helpful, she said.
“A substantial body of case law has developed to guide that context-dependent analysis, and that case law provides meaningful protection to religious observants,” she said.
The other side’s argument “boils down to a claim that Hardison was wrong because it insufficiently protects religious employees,” but such an argument should be directed to the policymakers of Congress, not the courts, Prelogar said.
Groff’s job “specifically required him to work on Sundays,” so letting him take Sundays off “would have violated his co-workers’ contractual rights at the post office,” she said.
His absences “created direct concrete burdens on other carriers who had to stay on their shifts longer to get the mail delivered,” and this interfered with the timely delivery of mail and “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,” Prelogar said.
Justice Neil Gorsuch suggested to Prelogar that some courts have interpreted the de minimis standard incorrectly.
These courts “have taken this ‘de minimis language and run with it and say anything more than a trifling … will get the employer out of any concerns here, and that’s wrong and 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?”
Justice Elena Kagan asked the top government lawyer if she was saying some cases “require an accommodation.” Prelogar answered in the affirmative.
Kagan noted that there was some common ground between the two sides even though they may disagree on “which cases require an accommodation.”
“So I’m happy that we are all kumbaya-ing together,” the justice quipped.
Justice Amy Coney Barrett suggested to Prelogar that the case could be returned to the lower courts which could be instructed that “to be clear, de minimis doesn’t mean trifling costs.”
Justice Brett Kavanaugh asked Prelogar how the Supreme Court could deal with this case “without destabilizing the law.”
The solicitor general said the court could “say that Hardison is an interpretation of undue hardship.”
“To the extent any courts out there are reading this literally to mean de minimis means you never have to accommodate, that is wrong, that is inconsistent with the current state of the law, and the Court makes clear that’s not what Hardison meant,” she said.
To preserve stability, the court needs “to make clear that you don’t need to redo all of the work that’s been done for five decades under the Hardison standard as properly understood,” Prelogar said.
In his rebuttal, Streett said the government “has not given us any reason why religious employees should have less accommodation than all of those other individuals protected under the other statutes that share the same reasonable accommodation and undue hardship framework.”
The Supreme Court is expected to rule in the case by June or July.
