Religious Accommodations and Slippery Slopes
Where do we draw the line?
The story in my Saturday tab-clearing post that drew the most commentary was the case of fill-in Postal worker Gerald Groff’s claim that he should be entitled to every Sunday off because of his religious beliefs, which is now going all the way to the US Supreme Court.
Vox’s Ian Millhiser argues”A new Supreme Court case could turn every workplace into a religious battleground“:
The Supreme Court announced on Friday that it will hear Groff v. DeJoy, a case that could give religious conservatives an unprecedented new ability to dictate how their workplaces operate, and which workplace rules they will refuse to follow.
Yet Groff is also likely to overrule a previous Supreme Court decision that treated the interests of religious employees far more dismissively than federal law suggests that these workers should be treated.
The case, in other words, presents genuinely tricky questions about the limits of accommodating an employee’s religious beliefs. But those questions will be resolved by a Supreme Court that has shown an extraordinary willingness to bend the law in ways that benefit Christian-identified conservatives.
That could lead to a scenario in which the Court announces a new legal rule that disrupts the workplace — and that potentially places far too many burdens on non-religious employees.
Plaintiff Gerald Groff is a former postal worker who wanted to be exempted from working on Sundays because of his religious beliefs. He asks the Court to abandon a nearly half-century-old rule, first announced in Trans World Airlines v. Hardison (1977), which imposes strict limits on an employee’s ability to seek religious accommodations from their employer.
A federal law requires employers to “reasonably accommodate” their workers’ religious beliefs and practices unless doing so would lead to “undue hardship on the conduct of the employer’s business.” But Hardison established that this law does not require employers to “bear more than a de minimis cost” when it provides religious accommodations (the Latin phrase “de minimis” refers to a burden that is so small or trifling as to be unworthy of consideration).
As Justice Thurgood Marshall wrote in his Hardison dissent, this decision “makes a mockery of the statute” at issue in the case, which clearly was supposed to protect workers from more-than-trifling incursions on their religious faith.
But, if Hardison did too little to protect religious employees, Groff could easily err in the other direction.
In cases brought by business owners seeking exemptions from federal and state laws, for example, the Court has permitted those owners to discriminate against LGBTQ people and to deny certain health benefits to their employees. If the Court applies a similar standard to employees seeking religious accommodation, in the worst-case scenario, it could give a manager the right to refuse to hire any LGBTQ employees or to treat women subordinates differently than men.
All of which is a long way of saying that Groff involves an extraordinarily messy area of the law. Judges acting in good faith would struggle to draw an appropriate line governing which requests for religious accommodations should be honored, and which should be denied. And, in cases involving religion, this Court can’t be counted on to operate in good faith.
Leaving aside whether we want the current Court, which is rather extremist in its views of religiosity in a country that is increasingly secular, in charge of these determinations, the legal issues are simply incredibly complex.
In a post-Hardison world, there’s going to be a ton of litigation
The statute governing religious accommodations in the workplace is vague. It neither gives employers clear instructions on what sort of behavior violates the law nor gives judges much guidance on how to rule on cases involving workers seeking religious accommodations.
Rather, the law simply provides that employers must “reasonably accommodate” requests for such accommodations that won’t lead to an “undue hardship on the conduct of the employer’s business.” (The Americans with Disabilities Act does use similar language to describe when a worker’s disability must be accommodated, but the ADA’s text is much more detailed than the law governing religious accommodations, and there is case law interpreting the ADA that hasn’t been applied to religion cases.)
Indeed, the facts of both Hardison and Groff demonstrate how even fairly routine requests for accommodation can snowball into difficult legal questions with few clear answers. Hardison involved an airline worker who, for religious reasons, would not work on Saturday. Groff involves a similar dispute brought by a Sunday sabbatarian.
But if a particular worker cannot work a Saturday or Sunday shift, that typically means that a different worker will need to come in that day to pick up the slack. And that can lead to resentments that disrupt the workplace and that could cause the impacted workers to look for jobs elsewhere.
At one point, Gerald Groff, the postal worker at the heart of Groff, worked at a post office with just four employees — himself, two other mail carriers, and a postmaster — who could potentially work Sunday shifts. So, when Groff refused to work Sundays, that meant that the remaining three employees had to split these undesirable shifts among themselves if the post office was going to be fully staffed. (Although the post office typically does not deliver mail on Sundays, the postal service contracted with Amazon in 2013 to deliver Sunday packages.)
Does forcing these employees to miss time at home with their families in order to accommodate Groff amount to an “undue hardship”? The answer is that the relevant statute does not say. And, because Hardison has been the law for more than four decades, there is little case law establishing what counts as an undue hardship if Hardison is overruled.
This is a really good point. It’s easy to look at this as a religious vs. secular or employee vs. employer dichotomy but, in fact, there are all sorts of second-order effects of accommodating Groff’s demands.
In the grand scheme of things, it’s not unreasonable to give a man Sundays off. Why, most of us typically get Sundays off! But Groff is specifically in a job designed to fill in on weekends—of which there are only two days!—and holidays. Giving him half of the days off is, well, problematic. And not just for his managers. Somebody else now has to suck up the Sunday shifts. And there are only three others who can do it, including the Postmaster himself!
Which is not to say that Hardison was correctly decided. As the Supreme Court noted in EEOC v. Abercrombie & Fitch (2015), the text of the religious accommodation statute does not simply prohibit discrimination against religious employees. It explicitly requires those employees to be given “favored treatment” when they seek a reasonable accommodation for their religious beliefs. And, while employers are not required to take on an “undue hardship” to accommodate a particular employee, the words “undue hardship” are tough to square with Hardison’s “more than a de minimis cost” test.
If the Court overrules Hardison, however, lower courts will suddenly have to sort through a raft of cases involving vague, ill-defined statutory language, where the outcome is likely to turn heavily on the facts of a particular case. And they will have to do so under the watchful eye of a Supreme Court that frequently demands that religious conservatives receive extraordinary accommodations.
Groff, in other words, is perhaps overdue, but also a recipe for chaos. There is much to criticize in Hardison. But this Court could easily replace Hardison with an unworkable legal standard that imposes far too many burdens on workers who do not seek religious accommodations.
I think Millhiser is wrong on Hardison, actually. I hadn’t looked at that case since my undergrad Constitutional Law classes circa 1986 and had mostly forgotten about it, with cases involving Jehovah’s Witnesses and Santoria practitioners being more prominent in my recollection of the religious accommodations case law. But the situation in that case was pretty straightforward:
Respondent Hardison (hereafter respondent) was employed by Trans World Airlines (TWA), petitioner in No. 75-1126, in a department that operated 24 hours a day throughout the year in connection with an airplane maintenance and overhaul base. Respondent was subject to a seniority system in a collective-bargaining agreement between TWA and the International Association of Machinists Aerospace Workers (union), petitioner in No. 75-1385, whereby the most senior employees have first choice for job and shift assignments as they become available, and the most junior employees are required to work when enough employees to work at a particular time or in a particular job to fill TWA’s needs cannot be found. Because respondent’s religious beliefs prohibit him from working on Saturdays, attempts were made to accommodate him, and these were temporarily successful mainly because on his job at the time he had sufficient seniority regularly to observe Saturday as his Sabbath. But when he sought, and was transferred to, another job where he was asked to work Saturdays and where he had low seniority, problems began to arise. TWA agreed to permit the union to seek a change of work assignments, but the union was not willing to violate the seniority system, and respondent had insufficient seniority to bid for a shift having Saturdays off. After TWA rejected a proposal that respondent work only four days a week on the ground that this would impair critical functions in the airline operations, no accommodation could be reached, and respondent was discharged for refusing to work on Saturdays.
It strikes me that TWA was absolutely right in following its collective bargaining agreement with its workers and refusing to force senior workers to pick up Hardisons’s slack. Why would his religious beliefs trump their seniority? Further, TWA was accommodating his requests without problem until he requested a transfer to a job where they couldn’t do so under the CBA.
The trial court agreed with me but the Court of Appeals thought TWA could have done more:
(1) Within the framework of the seniority system, TWA could have permitted respondent to work a four-day week, utilizing a supervisor or another worker on duty elsewhere, even though this would have caused other shop functions to suffer; (2) TWA could have filled respondent’s Saturday shift from other available personnel, even though this would have involved premium overtime pay; and (3) TWA could have arranged a “swap” between respondent and another employee either for another shift or for the Sabbath days, even though this would have involved a breach of the seniority system.
SCOTUS, rightly in my view, thought those accommodations unreasonable.
(a) The seniority system itself represented a significant accommodation to the needs, both religious and secular, of all of TWA’s employees. Pp. 77-78.
(b) TWA itself cannot be faulted for having failed to work out a shift or job swap for respondent. Both the union and TWA had agreed to the seniority system; the union was unwilling to entertain a variance over the objections of employees senior to respondent; and for TWA to have arranged unilaterally for a swap would have breached the collective-bargaining agreement. An agreed-upon seniority system is not required to give way to accommodate religious observances, and it would be anomalous to conclude that by “reasonable accommodations” Congress meant that an employer must deny the shift and job preferences of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others. Title VII does not require an employer to go that far. Pp. 79-81.
(c) Under § 703(h) of Title VII, absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system is discriminatory in its effect. Pp. 81-82.
(d) To require TWA to bear more than a de minimis cost in order to give respondent Saturdays off would be an undue hardship, for, like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion. Absent clear statutory language or legislative history to the contrary, the statute, the paramount concern of which is to eliminate discrimination in employment, cannot be construed to require an employer to discriminate against some employees in order to enable others to observe their Sabbath. Pp. 84-85.
This was a 7-2 decision, written by Byron White and signed by Chief Justice Warren Berger, Potter Stewart, Harry Blackmun, Lewis Powell, and William Rehnquist–a rather ideologically diverse collection of Justices. The dissenters were Justices Thurgood Marshall and William Brennan—the two most liberal members of that court. It’s ironic, indeed, that their opinion is likely to come to fruition nearly half a century later at the best of a radically more conservative Court and thus overturn an opinion signed by Rehnquist, who was almost certainly the most conservative member of that Court.
Back to Millhiser:
The Court recently started letting religious conservatives seek accommodations that diminish the rights of others
For many years, the Supreme Court followed a straightforward practice in cases brought by people of faith who seek religious accommodations. Although the law often provides robust protection to religious people, religious individuals and institutions could not wield their faith to diminish the rights of others.
As the Court put it in United States v. Lee (1982), a case brought by Amish employers who unsuccessfully sought an exemption from paying Social Security taxes on religious grounds, “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
In Burwell v. Hobby Lobby (2014), however, the Court took a big step away from Lee, holding, for the first time, that business owners who seek a religious exemption from the law may have it even if granting that exemption would strip away legal rights from others. Hobby Lobby held that employers with religious objections to birth control could defy a federal rule that required them to provide contraceptive coverage as part of their employees’ health plans.
Significantly, however, the Hobby Lobby decision only applies to “closely held corporations” — that is, businesses that have only one or a few owners — and does not apply to businesses that are publicly traded or otherwise have many stockholders. Indeed, the Hobby Lobby opinion expressed doubts about whether large employers with many shareholders could ever seek a religious exemption from the law, because “the idea that unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable.”
I had mixed reaction to Hobby Lobby, thinking the ruling right in principle but wrong in application. That is, I would have absolutely agreed that the owner of Dave’s Hobby Lobby, a mom and pop store, should have the right to not fund contraception against his religious beliefs. It seems absurd, though, to pretend that this should scale up to a multi-billion dollar operation with nearly a thousand stores. and tens of thousands of employees.
But I digress. Back to Millhiser:
Yet while Hobby Lobby almost certainly would not permit a large, publicly traded company like Google or Walmart or McDonald’s to seek a religious exemption from the law, a too-broad decision in Groff could effectively allow corporate managers to impose their religious views on their subordinates. Just as Hobby Lobby permits religious objectors to seek exemptions from federal law, a broad decision in Groff would allow religious employees to seek an exemption from anything their employer demands of them.
Imagine, for example, that Walmart’s head of human resources objects to birth control on religious grounds and refuses to take any action that could lead to a Walmart employee receiving a health plan that covers contraception. Could that HR executive demand a religious accommodation that could prevent Walmart’s workers from receiving a health benefit?
Similarly, imagine a store manager who refuses, for religious reasons, to hire or work with a transgender person. The Court’s current majority typically sides with business owners and religious institutions who seek an exemption from laws prohibiting anti-LGBTQ discrimination. Does that mean that it would also grant a religious accommodation to this anti-LGBTQ store manager?
The answer to these questions would turn on highly subjective judgments by the courts, and ultimately by the Supreme Court. Is it “reasonable” for an HR executive to refuse to sign paperwork relating to contraceptive coverage? Is it an “undue hardship” on the Walmart corporation if one of its stores openly discriminates against transgender workers? Because the statute doesn’t even begin to answer these questions, they would have to be answered by a judiciary dominated by Republican appointees.
While some of this strikes me as slippery slope reasoning and immaterial to the Groff case, I agree that we’ve opened a Pandora’s box of endless lawsuits over whose religious rights trump whose. Given that the USPS is a quasi-governmental agency, the issues are presumably somewhat different.
But what if, say, a substitute mail carrier disapproved of LGBTQ people because of his religious beliefs? Could he refuse to deliver their mail? After all, another postal worker could pick up the slack.