The Supreme Court on Tuesday heard oral arguments in Groff v. DeJoy, a religious accommodation in the workplace lawsuit with significant ramifications for observant Jews.
Gerald Groff, an evangelical Christian who observes a Sunday Sabbath during which he is not permitted to work according to his beliefs, sued his former employer, Louis DeJoy, the US Postmaster General, after Groff was forced to quit his job when the post office forced him to work on Sunday. Groff was required to work on Sundays after the USPS signed a contract with Amazon that included Sunday deliveries. He launched his religious discrimination suit after two years of ad-hoc accommodations failed to meet his religious needs.
Under the existing standard in the 1977 case TWA v. Hardison, employers need only show that they are suffering a small, “de minimis cost”, like providing overtime pay for weekend shifts or having to reduce operations during a holiday, before any religious accommodation of an employee becomes an “undue hardship” that they are not legally required to meet. Groff’s lawyers argued that that standard should be overturned.
Nathan Diament, Executive Director for Public Policy at the Orthodox Union and one of the co-authors of an amicus brief in the case, told The Algemeiner that should Hardison be overturned, the impact would extend far beyond Evangelical Sunday Sabbatarians.
“Just think about Passover over the last two weeks,” Diament said. “If you were an observant Jew, the days of Passover fell on Thursday and Friday, and then on Wednesday and Thursday the following week. A lot of employers are accommodating, but if you’re working in a job where you don’t have an accommodating employer, and generally you’re assigned to work on specific days, on specific shifts, having four holidays where you can’t work in a two week period is really challenging.”
The Orthodox Union, which filed its amicus brief jointly with the General Conference of Seventh-day Adventists, was joined in its support of Groff by other Jewish groups including the American Jewish Committee, the National Jewish Commission on Law and Public Affairs, and The Jewish Coalition for Religious Liberty, as well as Catholic, Protestant, Hindu, Sikh, and Islamic groups.
Kenneth Marcus, founder of the Louis D. Brandeis Center for Human Rights Under Law and another of the amici for Groff, said that despite the sympathies of the conservative majority on the court for religious liberty claims, today’s oral arguments sent mixed signals about how the court might ultimately rule.
“On the one hand, it is great to see that there is significant opposition to the awful de minimis rule, under which employers have been able to escape responsibility for protecting their religious employees if reasonable accommodations would cost any amount of money,” Marcus said. “The de minimis standard, which we have long opposed, seems to have very little support anymore, and I think we can anticipate that its days are numbered. That’s very good news for anyone who cares about religious freedoms. On the other hand, it was disappointing to see so little support on the court for the strong new standard of religious freedom that many of us had hoped for and expected. Some of the conservative justices were more skeptical of Mr. Groff’s position than many would have anticipated and that may not bode well for religious freedom.”
During the arguments, Justice Neil Gorsuch and Solicitor General Elizabeth Prelogar, representing the government, had an extended discussion about “common ground” between the parties and whether the court needed to issue an expansive ruling to resolve the question.
“I would just wonder whether the Court needs to get into that today,” Gorsuch asked. “If there is so much common ground here between the parties and Hardison that… some 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?”
The exchange was one of many that saw justices from both the left and right testing positions seemingly at odds with their ideological priors.
“It was jarring to see both the Biden administration and the Democratic-appointed justices argue so forcefully against a basic civil right, namely the right to religious freedom.” Marcus said. “That’s not something one would have expected a generation ago, but it increasingly reflects the polarization of support for religious freedom. It was surprising to hear progressive justices express so much concern for profit making motivations of corporations in the context of wanting to protect them against demands from religious minority employees. One would never hear that if the minority employees were racial or ethnic minorities.”
While the outcome of the case remains unknown, the OU’s Diament was confident that the changes would be positive.
“We would like as broad a decision as we can get,” he said. “But the bottom line will be whatever decision the court puts out – unless it just totally rejects the appeal and sides with the government – any change here is going to be significant and welcome.”
The court’s decision is expected to be announced before the conclusion of its term at the end of June.
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