A revolution in workplace religious liberty is in the works.
On January 13, 2023, the United States Supreme Court granted review in Groff v. DeJoy, Docket Number 22-174. Gerald Groff was an employee of the United States Postal Service. His religious beliefs require him to refrain from working on Sunday. He ran into problems when the USPS entered into an agreement with Amazon to deliver packages on Sunday. Not compromising his religious beliefs, Groff was progressively disciplined by USPS for not working on his day of worship. When it became apparent that he would be fired, he resigned and sued the USPS for failing to accommodate him.
Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et. seq.) requires that employers, unions, and employment agencies not only refrain from discriminating against employees based on their religious beliefs, but also requires, based on a clarifying 1972 amendment, that employee religious practices be reasonably accommodated. The law contains an escape clause. It releases employers from the accommodation obligation if accommodating would cause an “undue hardship on the conduct of the employer’s business.”
In what can only be seen as a case of judicial activism, a majority of the Justices on the U.S. Supreme Court in 1977 decided that “undue hardship” meant anything “more than a de minimis cost.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). The dissent noted that the cost of accommodation for TWA would have been $150.00. TWA at that time was one of the largest air carriers in the nation. Using the ordinary meaning of “hardship,” what financial loss would constitute a hardship for TWA? The loss of a million dollars? Unlikely. The statute requires not simply a hardship, but an “undue” hardship. This departure from the ordinary meaning of the term written by Congress caused Justice Marshall to call this interpretation of the phrase a “mockery” of the statute. He was right.
The Hardison decision has caused an enormous amount of suffering for observant Seventh-day Adventist and other Sabbatarian employees for over four decades.
The good news is that three current conservative justices on the Court have called for reconsideration of Hardison and now the High Court has agreed to review it in Groff.
Adventist religious liberty attorneys, Alan J. Reinach and Jonathon Cherne, are two of the attorneys representing Gerald Groff. First Liberty Institute of Texas is providing funding for the case. Todd McFarland of the Office of the General Counsel of the Seventh-day Adventist Church filed a brief urging the Court to review Groff, and Blaine Hutchison and I filed a brief for one of our clients and the Christian Legal Society funded by the National Right to Work Legal Defense Foundation urging review. Let’s pray that we can overturn Hardison before it turns 50!
Those interested in reading the filings in the case can find the Court docket here: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22-174.html
By Bruce N. Cameron
Bruce N. Cameron is the Reed Larson Professor of Labor Law at Regent University School of Law and is on the litigation staff of the National Right to Work Legal Defense and Education Foundation.
