Paul L. Caron

Sunday, March 12, 2023

Religious Liberty Clinics At Notre Dame, Pepperdine, Texas, And Yale File Supreme Court Amicus Briefs: Post Office Must Accommodate Employee's Sabbath Observance

Supreme CourtFollowing up on my previous post, Two Perspectives On How Far Employers Must Go In Providing Religious Accommodations To Employees: four law school religious liberty clinics have filed amicus briefs arguing that the post office must accommodate an employee's observance of the Sabbath in Groff v. DeJoy, No. 21-1900:

  • Notre Dame (representing eight religious liberty and employment law scholars (including Bob Cochran (Pepperdine) and Rick Garnett (Notre Dame))
  • Pepperdine (representing the Union of Orthodox Jewish Congregations of America)
  • Texas (representing religious liberty scholars Asma Uddin (Visiting Assistant Professor, Catholic) and Steven Collis (Director, Texas Law & Religion Clinic))
  • Yale (representing the Seventh-day Adventist Church in Canada, Atlantic Conference of Seventh-Day Adventists, North Pacific Union Conference of Seventh-Day Adventists, and National Council of Young Israel)

For more on Groff v. DeJoy, see Forward Op-Ed:  A New Case Before the Supreme Court Could Make Shabbat Observance Easier, by Michael Helfand (Brenden Mann Foundation Chair in Law and Religion, Pepperdine & Visiting Professor of Law and Oscar M. Ruebhausen Distinguished Fellow, Yale; Google Scholar):

The Supreme Court ... 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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