Supreme Court considers ‘religious freedom’ ploy to undo labor rights
Gerald Goff, whose case is before the Supreme Court, sits in a pew in a church after an interview with the AP on March 8, 2023. The Supreme Court ruling in his case could give unprecedented power to right wing Christian nationalists, including the power to nullify union contracts under the false claim that they violate religious liberty. | Carolyn Kaster/AP

WASHINGTON –On April 18, the Supreme Court faced a recurring issue: How much must employers bend the rules for employees who, based on their religious beliefs, demand special rights?

In 2012, Gerald Groff took a post-office job as a Rural Carrier Associate (“RCA”). The job required that he substitute for career carriers as needed, including on Sundays and holidays. But Groff, an Evangelical Christian, believes his religion forbids him to work on Sundays.

When Groff started work, the post office closed on Sundays. But in 2013, the Postal Service (“USPS”) agreed with to start delivering packages on Sundays. Then, in 2016, in a contract with the National Rural Letter Carriers Association, the Postal Service agreed RCAs would have to work, as needed, on Sundays, at least during “peak season.”

Groff still refused to work on Sundays.

For a time, the local postmaster found other carriers for Sundays. Some carriers, themselves churchgoers, had to work 15-hour shifts. Sometimes the postmaster himself delivered the mail. During one period, one carrier had to deliver mail every single Sunday.

In rural areas, USPS suffers from chronic understaffing. Among the small workforce at Groff’s post office, resentment grew. One carrier quit. Another transferred. A third filed a grievance.

Finally, realizing his insistence on never working on Sundays would eventually get him fired, Groff quit and sued Postmaster General Louis DeJoy.

The 1964 Civil Rights Act protects a worker’s religious “practice” unless the employer can show that to “accommodate” that practice would cause “undue hardship on the conduct of the employer’s business.”

In 1977, in Trans World Airlines v. Hardison, the Supreme Court considered a similar case of an employee’s refusal to work on his weekly sabbath. The court ruled employers need not “accommodate” an employee’s religious practice if doing so would cost more than “de minimis,” a legal term that means “trifling” or “trivial.”

In a footnote, the court observed that yielding to Hardison’s demands would either result in “substantial additional costs” or violate other TWA employees’ seniority rights under a collective-bargaining agreement.

The court, it said, would not interpret a law, designed to eliminate employment discrimination, to require employers to “discriminate against some employees” on “the basis of their religion,” just so other employees could practice theirs.

Lower federal courts ruled against Groff. The Supreme Court took the case. It wanted to know,

  • (1) whether it should reconsider its 1977 interpretation of “undue hardship” to mean “more than de minimis,” and
  • (2) whether employers can meet that test by showing that to “accommodate” an employee’s religious practice would burden coworkers, but not necessarily the business itself.

Aaron Streett, with the First Liberty Institute, a prominent rightwing Christian lawyers’ group, argued for Groff. He urged the justices to abandon the “more than de minimis” standard, claiming it’s confused lower courts.

Instead, employers who want to avoid accommodating employees’ religious practices should have to show accommodation would mean “significant difficulty or expense.” That standard is in other federal civil-rights laws, and both New York and California courts apply it under their civil-rights laws.

Even the Supreme Court, in the 1977 case, used “substantial additional costs,” a point Justice Brett Kavanaugh stressed.

Regarding the court’s second question, whether–whatever the test–employers can satisfy it by showing that to “accommodate” an employee’s religious practice would burden coworkers, Streett focused on the law’s text.

The 1964 Civil Rights Act requires that to escape liability, employers show “undue hardship on the conduct of the employer’s business.” Burdens on coworkers, Streett insisted, should matter only if they constitute an “undue hardship” on the business.

Responding to this argument, the AFL-CIO’s friend-of-the-court brief notes the 1964 Civil Rights Act requires employers to show “undue hardship” not on its business, but on the “conduct” of its business.

That includes having a religion-neutral Sunday rotation for mail carriers. The AFL-CIO also cited the “strong national labor policy” in favor of upholding collective-bargaining agreements, like USPS’s agreement with the Rural Letter Carriers.

Streett responded that completely protecting collective-bargaining agreements could allow employers and unions to negotiate away protection for employees’ religious practices.

Solicitor General Elizabeth Prelogar, representing the Postal Service, had an answer. Some collective-bargaining provisions just codify employer rules. But others fix employees’ rights as between themselves. Workers’ expectations, even labor peace, depend on those provisions. Overturning them would indeed impose an “undue hardship” on an employer.

In another brief, the American Postal Workers Union echoes a point the court itself made in 1977. Groff demands a special, religious preference, to the disadvantage of his coworkers who observe a different faith or no faith, it said.

Any interpretation of the Civil Rights Act to let Groff force his coworkers to give up their weekends so he can practice his faith would itself violate those coworkers’ rights to free exercise of religion. “A day off is not the special privilege of the religious.”

Both Chief Justice John Roberts and Justice Samuel Alito questioned that reasoning. For them, the Constitution no longer requires neutrality between religious people and nonbelievers.

Thanks in large part to those two justices, the current court has approved, even promoted, discrimination in favor of religion. They see no problem with forcing employers to provide special advantages to people who profess a religious belief.

That assertion troubled Justice Kavanaugh. He wondered if it meant that only Christians with the “right” religious beliefs can get Sundays off, but not those whose faith permits working at least part of the day on Sunday.

On whether the court should reconsider the 1977 Hardison “more than de minimis” test, Prelogar urged the court to follow its 46-year-old precedent, applied nearly a half-century by lower courts. Any new standard, she argued, would destabilize this area of the law.

Groff’s case presents an even stronger argument for following precedent than did last year’s abortion case, Dobbs v. Jackson Women’s Health Organization. As Justice Elena Kagan pointed out, respect for prior decisions should peak with cases of interpreting statutes. Compared with a constitutional ruling, Congress can relatively easily change a statute.

Justice Sonia Sotomayor added Congress has done exactly that when it disagreed with the court’s interpretation of other statutes. Though Congress has repeatedly amended the 1964 Civil Rights Act, it has never modified the interpretation of “undue hardship” to mean “more than de minimis,” she said.

Besides, added Prelogar, lower courts, applying the “more than de minimis” test, have given religious workers “meaningful protection,” often denying employer claims of “undue hardship.” Nevertheless, in Groff’s case, the lower courts would find “undue hardship” under any proposed test.

Finally, Prelogar conceded the 1977 decision “interchangeably” used “substantial” and “more than de minimis.” But then, Justices Neil Gorsuch and Amy Coney Barrett proposed, the court should clarify that employers must show “substantial” costs, to prevent future courts from using the literal meaning of “de minimis” as “trivial” or “trifling.”

A decision in Groff v. DeJoy could have implications well beyond the claims of one evangelical Christian to take off Sundays. Already, a nurse has sued CVS, claiming, because of her religion, her employer can’t force her to prescribe certain contraceptives.

A ruling for Groff that forces employees to bear the costs of their coworkers’ religious exercise could also make individual workers compete for scarce employer solicitude, threaten labor agreements, dissolve workplace solidarity, and disempower workers.

A decision in Groff’s case is expected by early summer.

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David Sobelsohn
David Sobelsohn

David Sobelsohn is the Supreme Court correspondent for Press Associates Inc. (PAI), the union news service in Washington D.C. Sobelsohn's career has combined organizing and politics with teaching and scholarship.