Another victory for religious freedom

The Supreme Court’s recent judgment in Groff v. DeJoy was another victory for religious freedom, reflective of a change in direction in a variety of its recent cases. In Groff, a postal worker who is a professed Evangelical Christian quit his job and sued the United States Postal Service, alleging its officials failed to accommodate his religious obligation not to work on Sundays.

A unanimous Supreme Court, with a brief concurring opinion by Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson, found in Gerald E. Groff’s favor on the basis that the refusal of postal service officials to allow him time off to meet his Sunday religious obligation violated his rights under Title VII, a far-reaching federal statute banning workplace discrimination on the basis of religion, race, color, sex and national origin. In addition, Title VII requires employers to make “reasonable accommodations” for the religious beliefs and practices of their employees.

Groff began working for the Postal service in Pennsylvania in 2012. Difficulties arose a year later, when the Postal Service signed an agreement with Amazon to make deliveries throughout the week, including on Sundays. Postal Service officials claimed that the success of Sunday deliveries was critical to its success.

Postal Service officials initially exempted Groff from working on his Sabbath, because his “religious beliefs dictate that Sunday is meant for worship and rest” as long as he could get someone to cover his shifts. Supervisors did tell him that he would have to be available during the peak holiday season. Consequently, Groff transferred to another post office in the region that did not deliver on Sundays. However, when that location eventually began to deliver on Sundays, Groff did not report to work on at least twenty-four Sundays. Further, Groff rejected his postmaster’s offer to permit him to attend religious services on Sunday mornings and report to work afterward, an accommodation similar to what he had provided to other employees.

Groff contacted the Equal Employment Opportunity Commission, which agreed that, at first appearance, it looked as though he might have had a claim for failure to accommodate but was not subjected to discrimination. After facing discipline and workplace tension, and having filed two more complaints with the commission, Groff resigned in January 2019, alleging that officials had failed to accommodate his religious beliefs.

Groff unsuccessfully filed suit in federal trial court in Pennsylvania under Title VII of the Civil Rights Act, as it held that officials of the Postal Service had offered reasonable accommodations. On further review, a divided Third Circuit, in a two-two-one order affirmed in favor of the Postal Service, relying on two Supreme Court cases. In the first case that the panel relied on, Trans World Airlines v. Hardison, the Supreme Court had ruled that employers need not accommodate the religious needs of employees if doing so would require them “to bear more than a de minimis cost.”

In Ansonia Board of Education v. Philbrook, the second case cited by the Third Circuit, the Supreme Court interpreted Title VII as meaning that once employers offer employees reasonable accommodations, even if they are not the ones requested, officials are not obligated to do anything else if the original request would have created undue hardships on other workers.

At issue in Groff was the ongoing tension between Title VII’s actual words requiring employers, in both the private and public sectors, to make “reasonable accommodations” for individuals who need time off and interpretation of this term in Hardison, which does not require employers to bear more than “de minimis” costs. Prior to the oral arguments, three members of the Supreme Court appeared to be skeptical of the “de minimis” interpretation in Hardison. In one case, Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, criticized Hardison as inadequate, writing that “de minimis” “does not represent the most likely interpretation of the statutory term ‘undue hardship.’” Similarly, in a different case Gorsuch agreed that the Hardison rationale “dramatically revised – really, undid – Title VII’s undue hardship test.” Under Title VII’s definition, “the company had no obligation to provide [the] requested accommodation because doing so would have cost the company something (anything) more than a trivial amount.”

While it could have been anticipated that the Supreme Court would rule in Groff’s favor, it is a bit of a surprise that its order was unanimous because such outcomes are uncommon. The Court’s unanimity in Goff is all the more unexpected in light of how fractured it was in decisions released on the same day as it was, and a day later, respectively, on race-based admissions to higher education and the right of a wedding website designer to be free from compelled speech.

In an opinion authored by one of the High Court’s two leading proponents religious freedom, Justice Alito (the other is Justice Thomas), the Justices rejected Hardison’s “de minimis” standard as failing to suffice when employers seeks to demonstrate that requested accommodations causes “undue hardships” under Title VII. In other words, the Justices reasoned that before employers can claim undue hardships defense in denying employee requests for accommodations, they must now demonstrate that instances such as Groff’s, seeking time off to attend worship services on Sundays, would result in substantial, rather than minimal, increased costs and inconveniences. While Justice Alito’s opinion conceded that the Postal Service could prevail on remand, this is an unlikely outcome given the large number of individuals it employs in so many different locations, along with the extensiveness of its operations.

Ever since Hardison was handed down, employers have generally relied on it to refuse employee requests for religious accommodations that officials deemed more than “de minimis.” This essentially allowed employers to refuse even minor requests to accommodate the religious needs of their employees by claiming that they resulted in significant inconveniences unless they can now, as noted, prove that making such changes will result in substantial increased costs. Of course, it is hard to know how many people of faith, especially members of minority religions, were all but denied entry into the workforce under this misinterpretation of Title VII. Fortunately, the Supreme Court has rectified its error by affording people of faith much needed protection of their beliefs.

In an unrelated, but far-reaching statement, the Justices in Groff acknowledged “its (now abrogated) decision in Lemon v. Kurtzman,” long the leading case on Church-State relations that the Supreme Court invalidated in Kennedy v. Bremerton School District in upholding the rights of a high school football coach in Washington to pray silently on the field after games. While Lemon’s passing is not central to Groff, it is noteworthy as the Court continues to distance itself from this troublesome tripartite test that often created more headaches than it resolved because of issues involving Church-State with regard to aid to faith-based schools along with prayer and religious activity in public schools. Lemon’s demise is especially important in education as litigation continue to proliferate in the absence of a defined standard other than the Court’s vague statement in Kennedy that such “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings’.”

One key aspect of Groff’s reach must be considered in light of recent studies revealing a marked decline in both church attendance and belief in God in America. A 2022 Pew study “estimates that in 2020, Christians made up 64% of the U.S. population (including children) while ‘nones’ accounted for 30% and other religious groups 6%.” If this current trend continue, the study projected that the percentage of Christians in the American population will drop below 50% by 2070, at which time the number of “religiously unaffiliated” Americans – or “nones” – will probably outnumber those adhering to Christianity.

In light of these possible changing demographics, Groff stands out because it allows all believers, including those who are members of what are now minority religions and may have experienced feelings of exclusion or being relegated to class-citizenship because their beliefs are different, to no longer have express such concerns. Instead, all people of faith can now be open about their need to take time off to live their faiths without having to risk conflict at work or the loss of their jobs as the Supreme Court has reinvigorated their First Amendment right to the free exercise of religion.

Or course, it remains to be seen how many employees will need (or will request) time off to worship or meet their other religious obligations during work days or hours. As such, Groff may present challenges for employers who will have to develop more religion-friendly employment practices and policies to accommodate individuals whose beliefs prevent them from working on their Sabbaths or other holy days. Additional issues may result in employees’ seeking accommodations for scheduling, dress, and even being excused from vaccine requirements. As an extra protection for employees, employers will not likely be able to ask staff members whether they need accommodations in advance of hiring or refuse to employ them if they express the need to do so. Still, given the centrality religious freedom has long occupied in American society, adjustments on the part of employers will be a small price to pay as employees have the opportunity to continue to exercise their constitutional rights.

Following Groff, one thing is certain: as important as its outcome is, it is very likely to result in increased litigation and controversy that bears watching in the months and years to come.