Religious Accommodations and Slippery Slopes

Where do we draw the line?

Religion confusion

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.

FILED UNDER: Law and the Courts, Religion, Supreme Court, , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Mikey says:

    I remember way back in my Seventh-day Adventist upbringing that the Adventist way of dealing with this is “don’t get a job that would require work on the Sabbath.” I am pretty sure “get a Sabbath-working job and then ask your employer to force the rest of the staff to pick up your Sabbath slack and if he doesn’t then sue him” was never a stated option.

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  2. Tony W says:

    Ultimately all of these arcane rules were made up by a person, or a group of people for their own purposes.

    If we are going to accommodate “religious” preferences, then we must accommodate *all* preferences. Why is my strongly-held belief that I must not work on Tuesdays any less worthy than a Seventh Day Adventists’ belief that she should not work weekends?

    Which is why we need to stop pandering to superstitious nonsense.

    The best alternative is to simply refuse to hire somebody because their deeply held religious beliefs are incompatible with the job requirements.

    But SCOTUS won’t let us do that.

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  3. Kylopod says:

    @Tony W:

    The best alternative is to simply refuse to hire somebody because their deeply held religious beliefs are incompatible with the job requirements.

    But SCOTUS won’t let us do that.

    It isn’t just the SCOTUS. The requirement that employers make “reasonable accommodations” for an employee’s religious beliefs is part of the Civil Rights Act of 1964. The current Court may be interpreting that clause more broadly than previous Courts, but even if the right-wing justices all dropped dead tomorrow and Biden got to replace them with liberals, it would still remain the law of the land, and it isn’t going away anytime soon.

    Also, it needs to be kept in mind that job discrimination lawsuits are rarely successful, regardless of merit. All the employers need to do is pretend they fired you for some other reason, and it’s usually hard to prove, with the usual disparity between an individual and a big corporation in ability to seek effective legal counsel.

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  4. gVOR08 says:

    @Tony W:

    Why is my strongly-held belief that I must not work on Tuesdays any less worthy than a Seventh Day Adventists’ belief that she should not work weekends?

    A few years ago the legal answer might revolve around religious belief being, in Slippery Sammy Alito’s phrase, “deeply rooted” in tradition. Now, with people being allowed religious exemptions from the COVID vaccines even though no recognized religion objects to them, I doubt there’s any sensible reason. The moral is, don’t tell them you don’t work on Tuesdays because you don’t wanna. Tell them you have a deeply held personal religious belief that you don’t wanna.

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  5. Kathy says:

    The way to fight this is for non-Christian devout people to demand exceptions of their own. Even to encourage them to get jobs they can’t do because of their sincerely held religious beliefs. Like a Muslim doing tasting tests at a winery.

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  6. Modulo Myself says:

    I’m no lawyer but ‘reasonable’ does do a lot of work in the reasonable accommodation. I.e. you can’t go to work for a bacon company and then say your faith prohibits you from doing anything related to bacon. But in the USPS case, the guy had a legitimate grievance. Amazon turned Sundays into a day he would have to work. The USPS gave him three years to figure out what to do, which is more than reasonable. That should have been the end of it.

    Instead, Christians are like Cops or Parents. They will never stop being well-funded victims of normal society.

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  7. Kylopod says:

    @Kathy: Sikh and Muslim groups are already supporting this particular case.

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  8. Rick DeMent says:

    The whole religious exemption thing has gotten out of hand. The litigant should have to prove that his or her religious institution will excommunicate then if they work on Sunday. If there are members of the congregation that work on Sundays and they are not in any way sanctioned by the denomination then it’s a no. And if you are not part of an official congregation then you have no right to claim anything religious accommodation because you are literally making it up as you go along.

    Also, religious accommodations, or the free exercise thereof, that diminish the rights of anyone else should not be protected, ever. That is establishing a religion.

    I mean you can get bounced for the Catholic church for getting an unsanctioned divorce (although they make it super easy to get around that rule) no one I have ever met has ever been excommunicated for working on Sunday. I think it would be funny if someone in the NFL tried this.

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  9. Stormy Dragon says:

    The goal here is to create a sort of religious “heckler’s veto” were the work rules for every workplace are at the mercy of whoever the most fundamentalist conservative evangelical is.

    As to “well what if everyone does this?”, well, everyone won’t be allowed to. These people don’t want consistency, they want power, and if they are blatantly contradictory in their rulings, it will bother them not one iota.

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  10. Kathy says:

    Suppose I set up a profitable business and decided to hire mostly devout Christians. then suppose I have thi sincerely held religious belief that the continued success, and therefore continued employment for all who work there, is contingent on every employee taking part in regular worship of Athena and Aphrodite.

    So I’d require every employee to join in sacrificing a lamb every Friday, and to partake in an orgy every Monday, all while praying to the Goddesses. If anyone refuses, they are trampling my religious rights, are they not? I should fire and then sue them.

    The only thing that’s extreme here is the religion involved. Already there are millions who believe the mere existence, not to mention toleration and acceptance, of LGBTQI+ people will bring about Jehovah’s wrath on the country if not the world. Some blamed 9/11 on such things.

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  11. Just nutha says:

    @Mikey: And not just SDA and not just about sabbath keeping either.

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  12. MarkedMan says:

    @Kylopod:

    All the employers need to do is pretend they fired you for some other reason, and it’s usually hard to prove, with the usual disparity between an individual and a big corporation in ability to seek effective legal counsel.

    That is far, far from the reality of the situation. Just as there is no shortage of lawyers who coach clients on what injuries are the hardest to detect or refute and make a living by quickly settling their cases for a nuisance fee, there are no shortage of lawyers who are willing to bring frivolous lawsuits about discriminatory work places knowing that most companies will settle quickly no matter how much substantiating documentation they have because going to trial would be vastly more expensive even if they eventually win, and judges almost never award legal fees no matter how egregious the abuse of the courts were.

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  13. steve says:

    I dont really have any problems with making religious accommodations as long as you know about them ahead of hiring and you can do it without harm to other employees and the corporation. We have to cover weekends at about 10 hospitals now. About 1/3 of my employees are nominally evangelicals or Catholics who regularly go to church. If we suddenly cant use them for Sundays that is a lot more Sundays to cover. If what happens is that we cannot have the people who want to work Sundays then work extra Saturdays or other days to compensate that would be horrible. Christmas will also be a major issue. Its a holiday for almost everyone. What would stop everyone from claiming a religious exemption to be excluded from working on Christmas? Sorry sir, we cant work on your bleeding leg since everyone doesn’t have to work today? If the order does not provide a lot fo latitude for employers this will be awful. Who will pay for the suits when an employee claims their needs weren’t met?

    Steve

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  14. MarkedMan says:

    Having been in management for some time and having seen both sides of these types of cases, I find it incredibly frustrating that it is almost impossible to have a rational conversation about the issues involved. This is truly a case of “both sides” or maybe “all sides”. Some people insist that all people who claim discrimination and ask for special accommodations are virtual saints and it is only bigoted or racist management that is at fault. And other people insist that all these claimants are liars and leeches. Ironically, you find people that have both opinions but about separate groups (for example religious accommodations vs. racial accommodations). It makes everyone feel smug and self righteous but it gets us nowhere.

    (Okay, what follows is admittedly a rant. I pride myself on keeping an even keel and letting the past be in the past but as I wrote I realized I had never vented about how frustrating the incident was, not even to my wife. Thank you, OTB, for giving me the comment space to finally get it out.) I’ll give you a very real and recent example. I hired someone who had good engineering skills and was quite knowledgable. He had primarily been an individual contributor, although he had supervised some technicians before. This was for a position where he was to have three more junior engineers reporting to him and we discussed at length whether he could make the jump. Long story short, after a pretty good start (which carried him past the trial period), he started to deteriorate. He could not keep track of his own tasks, much less anyone else’s and he would continuously and dramatically underestimate how long something would take and then get distracted before he would finish. He made many mistakes on the essential paperwork. I was spending more and more of my time coaching him, to the point where I was taking time every single day to go over what he and his team had to accomplish. And his team members were coming to me resentful that they were doing his work in addition to their own. So, regretful, but it was time for him to go. I had been making my expectations very clear and had documented all of our interchanges from a fairly early date. On the rare occasions when I had to let someone go for performance issues they have almost always seen what was coming (Clear expectations! In writing! Documentation!) and left before the axe fell. Not in this case. Instead, he went to HR and told them he had been diagnosed with ADHD and that he needed accommodations. Legally, we felt comfortable. He hadn’t told us of this before we hired him and hadn’t mentioned it until he knew he was about to get canned. Given his position was managerial, we would have considered poorly managed ADHD disqualifying for the position and not hired him.* So, fire him, right? Nope. We recognized that he could easily find a lawyer and file a discrimination case due to lack of accommodations and we would be forced to settle and so instead we had a 10 week long process that stretched into 12 weeks where I narrowed his scope down to one task and took over his three direct reports (if you don’t think that having three more people reporting to you takes up significantly more of the time you don’t have then, well, you’ve probably never had anyone reporting to you.) His other tasks were divided amongst the three engineers. I worked with him every single day to keep him on track and every day he came up with wilder and more grandiose ideas about how he was going to accomplish this one frickin’ task. I know that two of the three other engineers in the group started looking because they felt, justifiably, put upon, and I ultimately lost one of them. All of this was ridiculous in the first place because it was patently obvious he was no longer capable of even keeping one task under control, much less multiples and those of three direct reports WHICH WAS THE JOB HE WAS HIRED FOR! He fought all the way to the end and consumed massive amounts of my time and everyone else’s time. I worked long evenings instead of being with my family to try to make sure everything got done. I’m not questioning that he had ADHD and perhaps other issues. In fact, I strongly suspect that all of the stress only made his issues worse. And on a personal level I liked him and have a great deal of sympathy for him, and felt (and feel) bad about how it all went down. But your place of employment is not responsible for helping you overcome long term problems. Wherever you work, I bet that every dollar of your and everyone else’s paycheck comes from goods you design, sell and ship or services you sell, excuse and bill for. Every hour and day you spend doing other things makes your products or services cost more than the next guys. Some of those “non-productive” things are crucial and important. Safety training. Lab inspections. Making sure employees know about compliance with all applicable standards and regulations. And because we are all human, our personal issues can affect performance even if we never talk about them, and we have to build that into the equation. But if you spend too much time dealing with people’s personal issues to the detriment of shipping product, you will eventually close your doors. (Rant off)

    * This is both legal and ethical. We wouldn’t hire someone with a bad back to work in shipping no matter how much they want the job, because “ability to lift 70 lbs” is right there on the job description and truly a necessary part of the job. But we have hired at least two people with bad backs and other physical issues to desk jobs and purchased expensive chairs and other accommodations for them without blinking. When we were redoing our building we ensured there was a small carpeted room with two comfortable chairs, a sink and a small refrigerator. We often refer to it as the “nursing room” but when we discussed the flooring, the water and potential for spills indicated tile but we realized that if we ever had observant Muslims they would use it for prayers and ablutions and so we should carpet it.

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  15. James Joyner says:

    @Kylopod:

    The current Court may be interpreting that clause more broadly than previous Courts, but even if the right-wing justices all dropped dead tomorrow and Biden got to replace them with liberals, it would still remain the law of the land, and it isn’t going away anytime soon.

    Indeed, as noted in the OP, the script has flipped on this one, with Marshall and Brennan the dissenters from the 1975 opinion.

    @Tony W:

    If we are going to accommodate “religious” preferences, then we must accommodate *all* preferences. Why is my strongly-held belief that I must not work on Tuesdays any less worthy than a Seventh Day Adventists’ belief that she should not work weekends?

    While that would be my personal policy preference, we have decades of interpretation of the Free Exercise Clause (applicable to government-affiliated work, at least) as well as the 1964 Civil Rights Act and various amendments that specifically privilege religious belief over other concerns.

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  16. Stormy Dragon says:

    In a post-Hardison world, there’s going to be a ton of litigation

    It occurs to me this is a feature rather than a bug, because then the Republicans can claim evangelical Christian religious dictates have to be enforced by law since it’s the only way to protect companies from constant litigation.

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  17. Jen says:

    @Stormy Dragon: I am not certain that’s how it’s going to be seen by employers. ANY litigation is expensive, and I’d be very surprised if the Chamber of Commerce and NFIB don’t submit amicus briefs on this, arguing that loosening the standard will open up a sea of litigation against employers.

    This could be another situation where two standard Republican constituencies are again at odds, the Christianists vs. the business community.

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  18. Gustopher says:

    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?

    Let’s step back from this individual who switched locations.

    Every new employee is going to start at zero seniority. Which means Saturday shifts. Which means no Jews allowed.

    Sometimes a policy — even a policy negotiated with a union — has clear discriminatory outcomes. Might even have had discriminatory intent.

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  19. Sleeping Dog says:

    Christianists, be careful what you wish for, you may find yourselves working all the Saturdays with Muslims and Jews taking that day off.

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  20. Gustopher says:

    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.

    Is this a job to fill in on weekends and holidays specifically, or just a seven day a week fill in job? I haven’t heard that the job was limited to weekends.

    It’s certainly more convenient for an employer to demand 24/7 availability from all employees forever, but is that a requirement of the business? Can the job be split up so that employees are guaranteed a day off, with different employees getting different days?

    And there are only three others who can do it, including the Postmaster himself!

    The only three other people might be persuasive against the accommodation being reasonable. The reasonable accommodation might involve a transfer to somewhere larger, where the accommodation is reasonable.

    It’s not like the post office as a whole is run by four people.

    For a small employer, there might not be a reasonable accommodation.

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  21. Gustopher says:

    @Kathy:

    The only thing that’s extreme here is the religion involved.

    No, the courts have been very clear that coercively requiring people to perform religious rituals is prohibited.

    There’s been some fuzziness with the coach having a prayer on the field, where students/players may have felt coerced, but your example doesn’t have the fuzziness. It’s mandatory religious orgies with coworkers.

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  22. MarkedMan says:

    @Gustopher:

    Which means no Jews allowed

    No observant Jews allowed. And yes, that means observant Jews can’t take that job. Just as they can’t take a job as a pork taster. Or Seventh Day Adventists as a physician. Yep. Certain beliefs preclude certain jobs. It’s called “life”. I don’t see why it is the responsibility of others to change their business to accommodate someone’s, anyone’s religious belief.

    Let’s change the perspective. There is an observant Jew who believes women should cover their hair with a hat or a wig when in public. Should the non-Jewish or at least non-observant women they work with be required to do so? If not, why is it okay that those women (and the men) be required to work Saturdays in order to accommodate this man? Your argument leaves out the impact on others.

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  23. Gustopher says:

    @Jen:

    This could be another situation where two standard Republican constituencies are again at odds, the Christianists vs. the business community.

    Not just Christianist’s, but Jews, Muslims, etc. And ultimately the dude who needs Tuesdays off for his wife’s chemotherapy, and who will benefit from there already being clear plans in place to accommodate someone needing a specific day off for other reasons.

    I’m a little disheartened that where there is a conflict between employees and management — even when they are an annoying class of employees — so many people cozy up to the boss.

    The boss is a shithead. By definition. Even the nicest boss. It’s their job and all the incentives lined up for their job.

    ACAB, but for bosses. In fact, one might claim that bosses are cops. You wouldn’t give cops unlimited power without considering whether they actually need it, would you? Why are so many people willing to give it to bosses?

    Keep you bastards limited and well regulated.

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  24. MarkedMan says:

    @Gustopher:

    It’s not like the post office as a whole is run by four people.

    I’ve worked for companies with over 100K employees but that wasn’t the pool for the work I was doing. It was my department and my team, which at the very most was a couple of dozen people. And within that department there were only a few people capable of doing the same thing I was doing. These departments and teams are managed at that level, meaning that is where the interviewing, hiring and training happens. You learn the product you work on and develop and expertise. Even giant corporations don’t hire centrally and then willy nilly transfer people around at the corporate level. You may think you are being reasonable but it is a chaotic and unproductive way to run a business.

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  25. Gustopher says:

    @MarkedMan: is there anything about an airline that fundamentally prevents Jews from working there.

    Remember, pigs do not in fact fly.

    It’s not like your hypothetical pork taster, where pig licking is somehow a fundamental part of the job.

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  26. Gustopher says:

    @MarkedMan: on the hair, no you may not force someone to be observant of another religion.

    On the impact other employees having to work that day… yes, scheduling is hard. Start with the premise that not everyone can be available 24/7 and put that burden on the employer. The vast majority of the time it works out, but the employer doesn’t want to bother because it’s harder than mandating 24/7 availability and making the employees swap shifts.

    I’m just saying make the employer show that accommodation is not reasonable.

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  27. Chip Daniels says:

    The difficulty is that what constitutes “religion” is essentially arbitrary and decided by courts much the same way pornography was- They know it when they see it.

    My favorite example is an enterprising couple I read about here in California who claimed to be practicing an ancient religion which had as a ritual holy prostitution, where male adherents would pay the woman for sex and receive some sort of blessing.

    The courts were not amused and refused their claim of religious protection and the rest of us had a good chuckle.

    But of course, what if they had a thousand, or ten thousand adherents who claimed earnestly to believe it?
    And how different is this really, from the Native American peyote case which sparked a federal law protecting religious freedom?

    From what I can tell, what constitutes a “religion” versus “clever ploy” ends up being very messy and tends to just favor whatever happens to be culturally popular.

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  28. Jen says:

    @Gustopher:

    And ultimately the dude who needs Tuesdays off for his wife’s chemotherapy

    Wouldn’t this be covered under FMLA?

    I think there’s a two-way street here between employers and employees. If employees have very specific criteria on what days they can and cannot work, they need to either:

    A) Find a place of work that doesn’t operate on those days; or
    B) Find a place of work that at the outset is willing to accommodate them

    If B, it should be understood that circumstances can change, and for each change, the employer and the employee must be willing to understand that there are changes that could make or break the employment contract/relationship.

    I don’t believe in unfettered employment at will, but I also would argue that, ultimately, there will be conditions–for either party!–that make continuing to work at a place untenable.

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  29. wr says:

    @Kathy: “So I’d require every employee to join in sacrificing a lamb every Friday, and to partake in an orgy every Monday, all while praying to the Goddesses. ”

    Are you accepting resumes?

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  30. wr says:

    @Gustopher: “No, the courts have been very clear that coercively requiring people to perform religious rituals is prohibited.”

    The courts have also been very clear that abortion is a constitutional right. I suspect there are many things that previous courts have been very clear on that the new one will not agree with.

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  31. Gustopher says:

    @Jen: I believe the FMLA only covers you taking a leave of absence. You may be confusing it with basic human decency.

    Left to their own devices, businesses will require more from their employees than is tenable. Since they have far more power in the employer-employee relationship, I think they should need to show why an accommodation is not reasonable — for medical, family and religious accommodations.

    Sometimes there’s a clear job requirement where someone can never do a job — lifting 70lbs, or MarkedMan’s hypothetical pig licking job. But far more often the employer just doesn’t want to try.

    The TWA example, where shifts are entirely based on seniority and thus no observant Jews would be able to start working there (plus something about a specific dude who may or may not be sympathetic), doesn’t have a clear requirement in the nature of the job itself, the employer simply doesn’t want to work out the scheduling.

    There’s a common practice in a lot of service jobs where the manager will dash off a schedule and then tell workers that if they cannot make it work, they have to get someone to cover their shift. This is just transferring the labor of scheduling from a paid employee (the manager) to the off-the-clock hourly workers. It’s just wage theft in small increments.

    I think far more of the scheduling based accommodation cases have far more in common with that than any fundamental need for Employee #4136 to work on a given day. If a company’s busy day is a day where a lot of people can’t work, they may have to —gasp— pay people who can work that day more to make them not resent being scheduled then.

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  32. Gustopher says:

    @wr: You might want to check who you are required to have an orgy with first. (Or perhaps you aren’t picky, in which case, more power to you)

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  33. EddieInCA says:

    @Gustopher:

    Every new employee is going to start at zero seniority. Which means Saturday shifts. Which means no Jews allowed.

    Oh bullshit. I work in an industry with a very large Jewish contingent of workers. I don’t know any who take Saturday off. Maybe Othodox Jews woudln’t work on Saturdays, but most Jews work on Saturdays. At least in Los Angeles.

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  34. Jen says:

    @Gustopher: According to the American Cancer Society, FMLA can be taken in short blocks of time or all at once.

    May I use FMLA to take off several short periods?

    FMLA leave can be taken all at once or it can be taken in shorter blocks of time, such as 2 days a week, or 1 week a month, as long as it’s taken for a single reason. FMLA can also be used to reduce the amount of time you work each day, for instance, so that you work a part-time schedule for a while. Keep in mind things like worker’s compensation and maternity leave may count as FMLA or be counted against the 12 weeks’ time.

    You’ll need a doctor’s note to verify that the medical condition is serious and you are unable to work for these times, or that your family member’s serious illness requires you to take this time for their care.

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  35. Andy says:

    Interesting conversation. I’m mostly with Gustopher on this one.

    That said – at least at present – I’m skeptical about expanding religious accommodation and think the standards put in place in the 1970’s are mostly fine.

    And Title 7 does protect atheists – which is really just another religion. If you get rid of Title 7, then that allows employers to openly discriminate against the religious and non-religious alike, and those with minority belief systems will suffer the most.

    And it would also gut similar protections of a “hostile workplace” wherein management does nothing regarding the actions of other employees making a hostile work environment, which is often at least as big a problem as direct employer discrimination.

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  36. Gustopher says:

    @EddieInCA: Half the jobs I’ve had on the East coast had at least one person who couldn’t work Friday night or Saturday due to the Sabbath, and my boss at a Seattle job would always leave early on Friday in the winter so he would be home by sundown.

    That boss was more of a “you’re really not supposed to work then” rather than a “you must not work then” kind of guy. He was originally from LA, if that helps explain things.

    I’m not sure whether I’ve been around more observant and semi-observant Jews than average, or whether you work in an industry that just discriminates.

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  37. Gustopher says:

    @Jen: I stand corrected. My quick google on the FMLA left that out.

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