Supreme Court Takes Case addressing Protections for Religion at Work

The U.S. Supreme Court announced Friday that it will hear Groff v. DeJoy (No. 22-174), paving the way for a possible landmark expansion of protections for Americans’ religious rights in the workplace. The United States Postal Service (USPS) denied Petitioner Gerald Groff’s request to accommodate his Sunday sabbath observance. Instead, Groff was repeatedly required to work on his Sunday day of rest. Groff chose to quit rather than violate his sincerely held religious belief. He then took USPS to court under Title VII of the Civil Rights Act of 1964.

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Title VII requires employers to make reasonable accommodations for an employee’s sincerely held religious belief unless accommodating the belief would cause an “undue hardship” on the employer’s business. Title VII provides important protections for Americans of faith, as explained in the Brandeis Center’s recent fact sheet and webinar.

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However, dicta in Trans World Airlines v. Hardison, 432 U.S. 63 (1977) defines “undue hardship” as anything imposing “more than a de minimis cost” (i.e., anything more than a minimal financial burden) on an employer’s business. This limited Title VII’s protections. Dissenting from the TWA v. Hardison decision, Justice Thurgood Marshall wrote a sharp criticism of the Court’s opinion which he said struck a “fatal blow” to Title VII’s protections for Americans of faith. “I seriously question whether simple English usage permits ‘undue hardship’ to be interpreted to mean ‘more than de minimis cost.’” Justice Marshall further noted that Congress had imported the “undue hardship” language from earlier Equal Employment Opportunity Commission (EEOC) guidance which discussed very difficult or even impossible accommodations. That guidance considered it an undue hardship “where the employee’s needed work cannot be performed by another employee of substantially similar qualifications during the period of absence” (emphasis added).

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In a recent Brandeis Center Webinar on Religious Accommodations in the Corporate Workplace, Richard Foltin of the Freedom Forum noted that Congress has repeatedly tried and failed over the years to enact bipartisan legislation strengthening Title VII protections for religious freedom. But federal agencies have found other ways to strengthen Title VII. The Brandeis Center’s recent fact sheet on Religious Accommodations in the Corporate Workplace noted these laudable developments including changes made in the 2021 EEOC Guidance. The Guidance emphasizes that employer denials of employees’ requests for religious accommodations must include evidence-based reasons for the refusal, that adverse employment actions in anticipation of possible religious accommodations violates Title VII, and that employers must grant accommodations to the extent possible without creating an undue burden on their business.

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Groff v. DeJoy is an opportunity for the Supreme Court to restore protections to religious Americans going forward, and the Court may be poised to do so. As noted by Brandeis Center Senior Counsel Arthur Traldi in the Brandeis Center’s recent webinar, “litigants bringing claims based on legal protections for their faith have had as much success at the Supreme Court recently as at any time in memory in litigation against government authorities.”

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The restored legal protections would be particularly important for members of religious minorities, whose holidays and associated religious restrictions on work may be less commonly understood. Consequently, Jewish, Muslim, Sikh, and Seventh Day Adventist groups all submitted briefs informing the Supreme Court of the hardships that have burdened people of faith for decades.

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For instance, Brandeis Center Advisory Board Member Nathan Lewin, who drafted Title VII’s undue burden language and argued in TWA v. Hardison, wrote for nine Jewish organizations imploring the Court to take Groff v. DeJoy. Lewin argued that the Hardison Court had misinterpreted Title VII and “severely impaired employment opportunities of Jewish sabbath-observing Americans.” Lewin described the experience of Orthodox Jewish groups in supporting their members forced to choose between their faith and their work because of Hardison.

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The Brandeis Center will continue tracking this litigation carefully and advocating for Jewish and other employees’ civil rights.

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Joel Taubman is a Brandeis Center JIGSAW Fellow. He recently served as a Law Clerk at Lewin & Lewin, LLP, where he contributed to the firm’s Amicus Brief in Groff v. DeJoy.