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Monday, April 24, 2023

Oral Arguments in Groff: Reconciliation and Reasonableness

The following is by my colleague Kerri Stone, commenting on last week's arguments in Groff v. DeJoy.

On April 18, 2023, the Supreme Court heard oral argument in the case of Groff v. DeJoy. In this case, the plaintiff, a mail carrier who was an Evangelical Christian, asked to not work on Sundays as a reasonable accommodation under Title VII in order to practice his religion. The U.S. Postal Service denied this request, maintaining that this was not a reasonable accommodation and would confer an undue hardship on it. The questions presented were: “1. Whether this Court should disapprove the more-than-de-minimis-cost test for refusing Title. VII religious accommodations stated in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). 2. Whether an employer may demonstrate ‘undue hardship on the conduct of the employer's business’ under Title VII merely by showing that the requested accommodation burdens the employee's co-workers rather than the business itself.”[1]

As noted above, at the center of the oral argument lurked the issue of the continuing viability and meaning of the 1977 Supreme Court case of Trans World Airlines v. Hardison, a case with a similar request for an accommodation that would afford the plaintiff a day off each week to observe his sabbath, that held that the defendant did not violate Title VII. The Court so held because, it said, an employer need not afford a religious accommodation that involves “more than a de minimis cost,” and the defendant airline had argued that the proposed accommodation would impinge upon its critical operations and function.  The Court found that since TWA made reasonable attempts to accommodate the plaintiff, but could not effectuate a shift or job swap, and the seniority system that prevented the plaintiff from getting the days off that he needed had been agreed to by the union and the defendant,  no deprivation of others’ rights under the seniority system was required.

The plaintiff in Groff has argued that Hardison standard fails to comport with Title VII, under which, he maintains, a reasonable accommodation can only be refused if it confers an undue hardship on the defendant. Solicitor General Elizabeth Prelogar, representing the Biden administration, for her part, advanced the argument that Hardison, should survive in some form.

Headlines like “Supreme Court may require employers to be more accommodating of religion,”[2] “Supreme Court seems sympathetic to postal worker who didn’t work Sundays in dispute over religious accommodations,”[3] and “Justice Samuel Alito appears eager to overturn 50-year-old precedent in favor of Christian postal worker who refused to deliver Amazon packages on Sundays”[4] all speak to observers’ seemingly shared sense that the Court is poised to overturn, or at least roll back the Hardison rule.  Indeed, NBC has reported that Justice Neil Gorsuch said that "Some courts have taken this de minimis standard and run with it ... and that's wrong and we all agree that's wrong," adding that perhaps, "we could do a good day's work and put a period at the end of it by saying that is not the law."[5] As NBC reported, the Justices seem poised to push back against the low employer standard:

That approach seemed to be favored by Justice Amy Coney Barrett, too, who suggested the case be sent back to lower courts with the instruction: ‘to be clear, de minimis doesn't mean trifling costs.’ The seeming consensus on the bench on at least some of the issues in the case was illustrated by a remark by Justice Elena Kagan.’ I'm so happy that we are all Kumbaya-ing together,’ she said.[6]

            I have a few thoughts about this case and about the signals that the Court may have sent that the standard for employer refusal to accommodate ought to be altered or at least clarified. Several scholars, I among them, have taken interest over the years in the disparity between the Title VII Hardison/de minimus standard for an employer’s refusal to make a religious accommodation, and the ADA ‘s “undue hardship” standard for an employer’s refusal to accommodate a disability. The latter standard asks whether the employer is being forced to incur a “significant difficulty or expense.”[7] To the extent that the Title VII standard may now, after decades, be brought in line with the ADA standard, I have several thoughts.

            First off, what was ever meant by the Hardison Court by “de minimus cost”? In other words, what do religious accommodations tend to look like? This was touched upon at the argument, but most seem to be for special food, permission to wear religious articles at work, space and time to pray during the day, and time off for a sabbath or an observance. Of these, only the time off seems to invoke notions of any significant “cost.” This cost seems to come in the form of disrupting pre-set systems whereby the accommodated person receives a benefit in the form of a scheduled slot or time off that was not initially supposed to go to them. In contrast, while a disability accommodation could involve days off, it could also entail the reassignment of certain tasks (like lifting), physical/structural changes to the workplace, or purchasing special equipment like books, software, or devices.

Secondly, why was there initially such a long-standing disparity between the Title VII and ADA accommodation standards? Is it because although ADA accommodations can sometimes displace or be seen to inconvenience an accommodated employee’s colleagues, this is seen as much more pronounced in Title VII cases? An amicus brief filed by the American Postal Workers Union in support of the defendant has alleged that a victory for Groff in this case will engender a “religious preference” when it comes to the scheduling of work on the weekends and systemic disadvantage for those who are not members of an accommodated faith. This supports the notion that he “cost” that has been too high for defendants for all these decades often comes in the form of premium pay for rescheduled workers, displaced, inconvenienced colleagues, and the loss of morale that comes from the sentiment that the group of accommodated people is somehow “favored.” 

Groff’s attorney at oral argument posited that undue hardship can only be claimed when the business as a whole is impacted, but not necessarily when the sole effect or impingement is on colleagues. Justice Kagan, however, raised the issue of how blurred a distinction that is; does imposing on colleagues necessarily impact the employing entity as a whole? Justice Barrett, for her part, approached the question as one of the erosion of morale, probing the specifics of what that would have to look like and how bad it would have to get before the standard for lawfully refusing a proposed accommodation was met. 

Thirdly, one must ask whether it makes sense to bring the two standards into any kind of harmony with one another. It is interesting to note that while Title VII harbors no sincerity-of-belief test for religion, ADA adjudications have long had bottle necks at the juncture at which class membership is determined—is the plaintiff “disabled” within the meaning of the Act? Perhaps it has not been coincidental that courts have been more loath to ratchet up the standard for employer refusal to accommodate in Title VII cases. Indeed, Justice Roberts and Justice Barrett pointed to the respective numbers of accommodation-seeking plaintiffs in each category and the respective levels of “discreteness” of the categories as they pondered the question of whether the ADA standard could really be imported in any meaningful way into Title VII.

Groff’s attorney invoked the absurdity of trying to reconcile the concept of “undue hardship” with anything more than a “de minimus cost,” and noted that the ADA’s “significant difficulty or expense” test made much more sense in context. The Solicitor General, for her part, urged that even in the Hardison opinion, the two terms were used together and that the concepts could be harmonized without creating a fracture line after so many decades of jurisprudence based off of Hardison.

Again, the Justices, particularly Justice Gorsuch, indicated that they were inclined to try to seek “common ground” reconcile the terms at issue, particularly as the whole undue hardship question is so fact -specific and context-dependent. There were simultaneous signals from the Justices that no proper reading ought to be that a simple “trifling” could rise to the requisite level—in other words, employers asked to make religious accommodations need to do more than incur the most minor of costs. 

It is also interesting that religious discrimination/failure-to-accommodate plaintiffs have been subjected to a higher standard than have their counterparts suing under the ADA because in recent years, religious claims and the protection of religion and religious employers have all enjoyed great favor in the courts. Notably, the Supreme Court recently ruled in favor of a dismissed public employee who coached football after he alleged that he was fired for leading prayers after games on the field.

Interested to see what others think will happen to the undue hardship standard and to Hardison as precedent as the Justices seek “common ground,” reconciliation. It is likely, judging from the oral argument, that the Court will try to leave Hardison undisturbed, while simultaneously underscoring that a trifling cost or burden will not suffice for an employer to lawfully refuse to effectuate a religious accommodation? But what will the necessary clarification of the standard look like? Will the Justices parse out the standard across different types of requested religious accommodations? How will “cost” be quantified at all? Is the notion of the cost coming at another’s expense, like a zero-sum game, what was initially meant by more than de minimus?

Finally, what about the fact that Congress has not acted to change the standard in Title VII to the ADA standard? Justice Jackson expressed reservations about disrupting the standard in place since 1977 when Congress has been aware of it for as long and failed to take any action. What would overreach versus appropriate adjustments/clarifications look like here?

 

[1] https://www.supremecourt.gov/docket/docketfiles/html/qp/22-00174qp.pdf.

[2] https://abcnews.go.com/Politics/supreme-court-require-employers-accommodating-religion/story?id=98662988.

[3] https://www.cnn.com/2023/04/18/politics/groff-dejoy-supreme-court-religious-liberty/index.html.

[4] https://lawandcrime.com/supreme-court/justice-samuel-alito-appears-eager-to-overturn-50-year-old-precedent-in-favor-of-christian-postal-worker-who-refused-to-deliver-amazon-packages-on-sundays/.

[5] https://www.nbcnews.com/politics/supreme-court/supreme-court-hears-christian-postal-workers-religious-claim-rcna80013.

[6]Id.

[7] Enforcement Guidance: Reasonable Accommodations and Undue Hardship Under the Americans with Disabilities Act, U.S. EQUAL EMP. OPPORTUNITY COMM'N (2012), https://www.eeoc.gov/policy/docs/accommodation.html [https://perma.cc/67RF-LXT3] [hereinafter Enforcement Guidance].

Posted by Howard Wasserman on April 24, 2023 at 09:31 AM in Employment and Labor Law | Permalink

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