In January 2019, Gerald Groff resigned from his mail carrier position at the Holtwood Post Office in the small rural community of Holtwood, Pennsylvania. He knew that he was inching closer and closer to being fired, as he had endured various steps of the post office’s disciplinary process.
Groff understood Sunday to be the day that he should worship God and rest rather than work, as set out in the Third Commandment. He was willing to work hard for the rest of the week, to take others’ shifts, and to be as flexible as possible to avoid Sunday work assignments. Nevertheless, the U.S. Postal Service asked him to work on Sundays to fulfill its contract with Amazon.
After resigning, Groff brought a lawsuit asserting his right to practice his Sunday religious observance free from the threat of dismissal. He lost in a federal district court and then lost again on appeal to the Third Circuit Court of Appeals. Instead of delivering mail along the Susquehanna River in Lancaster County, he now finds himself on One First Street, Washington, D.C. — the home of the U.S. Supreme Court.
Groff’s case is based on a federal civil rights statute, the Civil Rights Act of 1964, not a constitutional provision. It is easy to forget that the freedom to engage in the exercise of religion is also protected by federal statutes, which, although they may be repealed by subsequent acts of Congress, nevertheless are part of the protections that Americans enjoy.
What does the Civil Rights Act say about employment and religious freedom? Title VII of the Civil Rights Act of 1964 is best known for prohibiting discrimination based on race or sex in employment. However, it also prevents employers from discriminating against workers because of their “religion,” including their religious practices and observances. In order to give the protection of religion “real teeth,” Congress, in 1972, added the requirement that employers must “reasonably accommodate” the religious practices of employees as long as those accommodations do not impose “undue hardship on the conduct of an employer’s business.” That language seemed to give strong protection to religiously conscientious employees.
However, soon after the 1972 amendment, the Supreme Court in Trans World Airlines, Inc. v. Hardison (1977) interpreted “undue hardship” to mean any cost that the accommodation imposed upon the employer beyond the most minimal of costs. This interpretation, often referred to as the de minimis rule, effectively judicially rewrote the statutory language. Employers had only to show that their costs of accommodation slightly exceeded minimal costs to be regarded by the courts as having met their duty under Title VII. Naturally, some federal courts and employers that were ideologically inclined to minimize their duty to accommodate religious practices readily adopted the language of Hardison. Hardison became “established” law in these cases.
Groff is maintaining that the current court ought to revisit and reject the wrongful interpretation of “undue hardship” that the Hardison ruling espoused and that the lower court used against Groff.
What are Groff’s arguments and how should the Supreme Court, as currently constituted, regard them?
Plainly put, Hardison ignored the plain text of Title VII. Congress amended the act in 1972 to require employers to take employee requests for religious accommodation seriously by using language in the amendment that was uncompromisingly clear and direct. Employers could only avoid adjusting for accommodations if the changes produced “hardship” in the employer’s conduct of his business. “Hardship” usually means that something is very hard to bear. Hardship means that the employer’s business would face high costs due to the accommodations. If one adds to that, as Congress did, the word “undue,” the meaning is even stronger. “Undue” means “excessive.” Putting both together, the accommodation required by the employee’s request had to produce a significant, costly, jarring impact on the employer’s conduct of his business for him to avoid the accommodation. The Hardison majority instead opined that if the employer’s business conduct was affected by a little more than a small amount (de minimis), then it constituted “undue hardship.” The de minimis language is very nearly the exact opposite of the congressional language of “undue hardship.”
Moreover, the dissenters in Hardison,Justices Thurgood Marshall and William Brennan Jr., immediately and correctly complained that the de minimis test of the majority “makes a mockery” of Title VII. It effectively “nullifies” the intention of Congress to provide a workplace free from terminations due to discrimination against observant believers, they argued. Marshall stated that the majority in Hardison “adopts the very position that Congress expressly rejected in 1972 as if we were free to disregard congressional choices that a majority of this Court thinks unwise.”
The court should revisit and reject Hardison, and it should return to the actual accommodations language made law by Congress in the 1972 amendment.
Exercising one’s faith should not be a ticket to unemployment or unfair treatment. Mail deliverer Gerald Groff should be able to worship and rest on the Christian Sabbath without losing his job.