Paul L. Caron

Sunday, February 5, 2023

Two Perspectives On How Far Employers Must Go In Providing Religious Accommodations To Employees

New York Times Op-Ed:  The Latest Crusade to Place Religion Over the Rest of Civil Society, by Linda Greenhouse:

Federal civil rights law requires employers to accommodate their employees’ religious needs unless the request would impose “undue hardship on the conduct of the employer’s business.” Congress didn’t bother to define “undue hardship,” so 46 years ago the Supreme Court came up with a definition of its own.

An accommodation requiring an employer “to bear more than a de minimis cost” — meaning a small or trifling cost — need not be granted, the court said in Trans World Airlines v. Hardison. ...

Treating religion as nothing particularly special, the decision reflected the spirit of the times but was deeply unpopular in religious circles. There have been many attempts over many years to persuade Congress to amend the law, Title VII of the Civil Rights Act of 1964, to shift the balance explicitly in favor of religiously observant employees. Between 1994 and 2019, more than a dozen such bills were introduced. None emerged from Congress.

And so now, a very different court from the one that ruled 46 years ago is about to do the work itself.

That isn’t an idle prediction but rather the surely foreordained outcome of the new case the justices recently added to their calendar for decision during the current term. The appeal was brought by a conservative Christian litigating group, First Liberty Institute, on behalf of a former postal worker, Gerald Groff, described as a Christian who regards Sunday as a day for “worship and rest.”

Mr. Groff claimed a legal right to avoid the Sunday shifts required during peak season at the post office where he worked. Facing discipline for failing to show up for his assigned shifts, he quit and filed a lawsuit. The lower courts ruled against him, with the Philadelphia-based U.S. Court of Appeals for the Third Circuit expressing no doubt that the disruption and loss of morale Mr. Groff’s absences caused in the small rural post office where he worked exceeded the de minimis threshold that the Supreme Court’s 1977 precedent requires an employer to demonstrate. ...

When the court doubtless rules for him later this term, the decision will not stand for a vindication of minority rights. It will instead signify the court’s complete identification with the movement in the country’s politics to elevate religion over all other elements of civil society.

Whether today’s Supreme Court is helping to lead that movement or has been captured by it is by now beside the point. Religion is the lens through which the current majority views American society; as I have written, there is no other way to understand the overturning of Roe v. Wade. The endpoint of this project is not yet in view. Those of us not on board are left to watch, to try to understand, and to call the court out with each additional step it takes.

Forward Op-Ed:  A New Case Before the Supreme Court Could Make Shabbat Observance Easier, by Michael Helfand (Pepperdine & Yale):

The Supreme Court announced earlier this month that it will hear yet another blockbuster church-state case, Groff v. DeJoy. At the core of the case lies a conundrum that has plagued federal law for nearly half a century: How far must employers go when providing religious accommodations?

Until now, the court’s interpretation has required little of employers. Unsurprisingly, this position has long roiled, among other religious minorities, American Jews, who often find themselves seeking accommodation in the workplace for religious practices such as observance of Shabbat. In taking the case, the Supreme Court has signaled its willingness to revisit its widely-criticized interpretation of existing protections, providing optimism to religious employees hoping to navigate the competing demands of faith and work. ...

Among the problems with this prevailing standard is that those left most exposed by the court’s stingy interpretation of Title VII have been religious minorities, whose practices often don’t track the prevailing rhythms of the workplace. According to one brief filed before the Supreme Court in 2020, nearly half of Title VII accommodation appeals are filed by religious minorities, even though those minorities only account for 15% of the population. ...

Critics more recently have wondered what standard should replace the existing standard. Sure, we should require more of employers, but how much more? Some have worried that a standard that grants employees an unfettered right to religious accommodations would generate its own parade of horribles, such as a police officer’s refusal to protect an abortion clinic or a social worker’s demand to use Bible readings, as opposed to mental health counseling, to heal prison inmates.

But, in other contexts, the law has already found a pretty successful middle ground. When it comes to the accommodations required pursuant to the Americans with Disabilities Act, for example, undue hardship is interpreted to mean “significant difficulty or expense.” As a result, employers cannot satisfy their obligation by merely asserting that a requested accommodation imposes a “de minimis” burden; instead, they must extend themselves further in seeking to find an accommodation for those with disabilities, unless doing so will actually generate costs or difficulties that are significant. This standard has proven workable when it comes to accommodations under the ADA, providing good reason to think it could work as well in the context of religious accommodations in the workplace.

Time will tell as to which path the court ultimately chooses. For now, the court’s decision to hear Groff v. DeJoy holds out the hope of remedying a longstanding wrong and providing people of faith in the workplace with more expanded protections. Properly balanced, these sorts of accommodations will hopefully provide a middle ground, ensuring that the cost of entering the workforce need not be the discarding of one’s faith commitments.

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