Jewish groups urge Supreme Court to change religious workplace accommodation standards
A range of communal organizations say the high court should rule in Groff v. DeJoy that employers must adhere to a more stringent standard in rejecting religious accommodations
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More than a dozen Jewish groups filed or joined briefs last week urging the Supreme Court to reevaluate its past precedent on religious accommodations in the workplace and make it more difficult for employers to deny accommodations. The organizations are weighing in on the Groff v. DeJoy case set to be argued later this term.
They’re supporting Gerald Groff, a former mailman and evangelical Christian who refused to work on Sundays in observance of his Sabbath. The U.S. Postal Service disciplined Groff and threatened to terminate him, as his supervisors were unable to fill all of his weekend shifts, and Groff quit his job. The 3rd Circuit Court of Appeals ruled in favor of the USPS, finding that Groff’s requested accommodations had strained resources, burdened his co-workers and detrimentally impacted morale.
The case, and the Jewish groups that have filed briefs, ultimately seek to revisit the 1977 ruling in Trans World Airlines v. Hardison, where the Supreme Court ruled that employers are only required to accommodate their employees religious beliefs if doing so does not impose more than a minimal, or “de minimis cost,” to the employer.
Several of the groups involved argue that this is a misinterpretation of Title VII of the Civil Rights Act, amended in 1972 to require employers to provide accommodations unless doing so causes an “undue hardship.” Some Jewish groups have sought for decades to revisit Hardison, and three sitting justices have indicated in recent years an interest in overturning the precedent. Groff v. DeJoy is the first such case the current court has taken up.
Groups involved include the American Jewish Committee, Anti-Defamation League, Orthodox Union, Zionist Organization of America, Louis D. Brandeis Center for Human Rights Under Law, National Jewish Commission on Law and Public Affairs (COLPA), Jewish Coalition for Religious Liberty (JCRL), Agudath Israel of America and a series of other groups largely representing the Orthodox community.
Many of the Jewish groups that have weighed in on the Groff case are urging the court to raise the standard for “undue hardship,” potentially bringing the definition in line with its interpretation in other legislation, such as the Americans with Disabilities Act, which contains similar language. They say that doing so is especially important for protecting minority religious rights.
Nathan Diament, the executive director of the Orthodox Union Advocacy Center, told Jewish Insider that Orthodox Jews in particular have struggled to obtain accommodations in the workplace, including observing Shabbat, wearing religious clothing, maintaining traditional grooming styles and taking time to pray during the workday.
“Under the current legal standard, which is basically that an employer can pretty much decide for any reason not to provide an accommodation, which is not [a] standard that allows Orthodox Jews to have the full range of opportunities in the workplace,” Diament said.
The “de minimis” standard is “completely different than what it requires in other cases involving other groups,” Brandeis Center founder Kenneth Marcus told JI. “We’ve argued for a more even-handed or equitable treatment.”
Advocates say that the “de minimis” interpretation is inconsistent with both the language of the statute and Congress’ explicit intent in amending existing civil rights laws to include protections for religious accommodations, providing few real protections for Jewish workers.
The current standard “leaves observant Jews — and other religious employees — at risk of having to make a choice that no one should be forced to make: upholding their religious beliefs and observances or keeping their jobs,” Susan Tuchman, the director of ZOA’s Center for Law and Justice, told JI.
Employers have previously successfully claimed that even record keeping to track accommodations and shift swaps constituted more than a “de minimis” burden, according to the AJC’s chief legal officer, Marc Stern.
“That’s not a credible argument, yet it’s credible under a ‘de minimis’ standard,” Stern said. Under the Americans with Disabilities Act, Stern explained, denying accommodations “requires a showing of substantiality, that there’s a real impediment, a serious cost, to the employer.” He and AJC support establishing the same standard for religious accommodations.
“‘Undue hardship’ should be given its plain and ordinary meaning — significant difficulty or expense,” Tuchman said. “That’s how it’s been defined not only in the ADA, but also in other federal statutes.”
Some of the briefs also say that the Hardison ruling makes it so difficult for Jews to challenge decisions denying them accommodations in the workplace that it facilitates and provides cover for workplace antisemitism.
Marcus said that, under the Hardison standard, it is “extremely hard to prove” that an employer is “negatively disposed to Jewish people or specifically Orthodox Jews” when they are denied accommodations.
“Whether they are merely being unreasonable or whether they’re actually anti-Jewish, we would never be able to prove,” he said. “This gives them an opportunity to say no to their Jewish employees, and sometimes drive Jewish employees out. And we would never be able to prove what their motivation was.”
Overall, Marcus added, the Brandeis Center is seeing quickly increasing numbers of cases of workplace antisemitism, and “it’s going to be really important to make sure that Jewish workers have the tools that they need to prevent unequal treatment. This is one of the tools that they will need.”
“Grumbling” in workplaces by people who “[harbor] hardcore antisemitic beliefs” can also effectively become a “heckler’s veto” to accommodations for Jews in the workplace, Stern said. He also noted that, under the current standard, attorneys have sometimes found themselves in the position of warning prospective clients that they faced low chances of success in workplace discrimination cases, while risking making themselves pariahs in the workplace.
“If we had a higher standard, we would not be giving that advice,” Stern said. A victory at the Supreme Court would also, he argued, lead workplaces to take religious discrimination more seriously and give it more attention, commensurate with other forms of discrimination.
The current Supreme Court has been highly favorable to religious liberty claims in the past, and multiple justices on the panel have explicitly stated their interest in the past in revisiting the Hardison decision, making many advocates hopeful for a positive result in this case.
“I have a generally positive feeling,” Howard Slugh, the general counsel for JCRL, said. “The court no longer thinks that any kind of positive interaction between the government and religious people constitutes a violation of the Establishment Clause. And the text of Title VII is very clear.”
Nathan Lewin, a constitutional attorney who authored the COLPA brief, helped craft the underlying statute and argued in the original Hardison case said there might also be reason to hope the court’s liberals ultimately side with Groff as well as the conservative wing that is more reliably favorable to religious liberty cases.
“Justices [Thurgood] Marshall and [William] Brennan, who are after all, viewed very favorably, idolized, by the current liberals, dissented in Hardison,” he noted. “I don’t think this is a case that should be decided six to three or five to four. This is a case in which the court unanimously — all nine justices — should agree that the ‘de minimis’ language and the holding in Hardison were both wrong.”
But AJC’s Stern noted that a decision by the court to strengthen requirements for religious accommodations would not necessarily guarantee Groff a win. Given the particular facts of his case, Stern explained, the justices may find that the USPS would still be unable to reasonably accommodate Groff under a higher standard, or they could remand the case to a lower court to reevaluate using a new standard.
And ADL’s National Civil Rights Counsel Karen Levit noted that “this is a court that isn’t always friendly to employees but has been friendly to religion. And that makes it a little difficult to predict.” OU’s Diament noted that the business community is likely to file briefs in favor of the USPS, arguing that raising the standard would impose “terrible costs on business owners.”
Groff marks a rare instance in which some groups, including the ADL and AJC, are wading into the court’s religion-related litigation. In one recent case about public funding of religious schooling, the ADL found itself on the opposite side of some of the other Jewish groups involved in the Groff case.
“I think it’s really a question of balance when it comes to religious liberty cases. We take each one and evaluate it individually,” Levit said. “And in this particular case, we don’t think that this case poses the same kind of Establishment Clause threat as the others that we have perhaps taken a different church-state separation position.”
“Religion is a protected class” under the Civil Rights Act, Levit continued. “So what we’re really talking about here are civil rights protections. And people of faith are entitled to civil rights protections. And that’s distinct from some of the other cases that we’ve dealt with in other situations.”
AJC’s Stern explained that “not every religious liberty case is easy,” with some including “competing values,” such as Establishment Clause concerns.
On this issue, however, “the American Jewish community as a whole has been unified over the years, and it doesn’t have the countervailing arguments that some of those other cases have… This is one that pretty universally affects the Jewish community.”
OU’s Diament said he was “very pleased” to see ADL and AJC file briefs in the case.
“Thankfully, opposition to the Hardison ruling was a consensus issue across the spectrum of the mainstream Jewish community,” he said. “So it really should really be unifying… Religious liberty has in some cases been a polarizing issue in American law and politics, and this is a case where it should not be and it seems not to be.”
Oral arguments in Groff v. DeJoy are scheduled for April 18.