Supreme Court appears poised to expand, but not radically reshape, religious workplace accommodations, advocates say
The current ‘de minimis’ standard for denying religious accommodations in the workplace appears bound for an overhaul
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The Supreme Court appears poised to expand protections for religious accommodations in the workplace, but may not fully overturn its previous precedent on the matter, Jewish communal leaders said following Tuesday’s oral arguments in a case on the subject.
Under precedent set by the high court in the 1977 TWA v. Hardison case, employers are not required to grant religious accommodations to employees if it causes more than a “de minimis cost” to the employer — a standard that Jewish groups argue places a particular burden on religious minorities, like the Jewish community.
Hardison and the current case, Groff v. DeJoy hinge on the proper interpretation of language in Title VII of the Civil Rights Act, which states that employers must provide accommodations unless doing so causes an “undue hardship.” More than a dozen Jewish groups filed briefs in Groff urging the court to increase the standard required to deny accommodations and potentially toss out the Hardison decision entirely.
Jewish leaders told Jewish Insider that they saw in Tuesday’s oral arguments a widespread willingness to dispense with the “de minimis” standard.
“I walked out of the court pretty confident that our side is going to win but it’s very hard to know how broad or narrow the decision will be made,” Nathan Diament, the Orthodox Union’s director for public policy, told JI.
“From the point of view of religious observers, there’ll be an advance, is what it looks like,” Marc Stern, the chief legal officer for the American Jewish Committee, told JI. “But it won’t be the radical change that some hoped for and it won’t be the radical change that some feared.”
Some court watchers said that the majority of justices appeared hesitant to raise the standard for accommodations to be fully in line with those required for other groups, such as workers who have disabilities, as many Jewish groups had hoped for.
“It was gratifying to see widespread rejection of the ‘de minimis’ standard. I think that this bodes very well for those of us who have hoped for years that the Supreme Court would find the right case to reject that standard. It appears the court is ready to do just that,” Kenneth Marcus, the chairman of the Louis D. Brandeis Center for Human Rights Under Law, told JI. “On the other hand, it was disappointing to see how little appetite there appeared to be on the conservative side, and even more so on the liberal side, for a potentially sweeping affirmation of religious freedom.”
David Schultz, the board chairman of the National Council of Young Israel, told JI the group is “optimistic that the Court will abandon, or at least modify, Hardison.”
The three liberal justices were broadly skeptical of the arguments presented by lawyers for the plaintiff, a former mailman who was disciplined and ultimately quit his job when the Postal Service was unable to accommodate his requests not to work Sundays so that he could observe his Sabbath. But court watchers highlighted that several of the conservative justices, particularly Neil Gorsuch, seemed eager to find a narrow compromise position.
“With the exception of Justice [Samuel] Alito and maybe [Clarence] Thomas, the justices were clearly not looking for a revolution,” Stern said.
Gorsuch at one point specifically stated his interest in finding “common ground.”
“Some courts have taken this ‘de minimis’ language and ruined it and say anything more than a trifling [hardship] will get the employer out of any concerns here,” he said. “And that’s wrong, and we all agree that’s wrong. Why can’t we just say that and be done with it and be silent as to the rest of it?”
It’s unclear what exactly such a compromise outcome would look like in practice, Marcus said — it could potentially involve a partial overturning of Hardison, a clarification of the precedent, new guidelines surrounding modifications of employees’ work schedules or another resolution short of creating an entirely new standard.
Nathan Lewin, a constitutional attorney who argued in the Hardison case and helped craft the underlying legislation, said that the outcome of the case may “[depend] on how firm Gorsuch is in the proposal he made.” Lewin filed a brief in the case for the National Jewish Commission on Law and Public Affairs (COLPA).
“If Gorsuch is firm in that opinion… then I’m afraid that’s what the court will do,” Lewin said. “That’s certainly what the attitude of the chief justice will be, and probably even [Associate Justice Amy Coney] Barrett, [Associate Justice Brett] Kavanaugh would go along with that. I’m hopeful that Gorsuch just threw that out as a legalistic possibility, but he realizes that in the real world, that’s not going to end this.”
Stern said he “wouldn’t be surprised” if Gorsuch ultimately authors the majority opinion in this case, and said he’s anticipating a “very workmanlike, cautious opinion.”
At the same time, Diament noted that Gorsuch and other conservative justices appeared receptive to an argument from Groff’s lawyer that it is unsustainable to have different statutes that apply “undue hardship” differently — such as those governing accommodations for workers who are disabled or pregnant.
Lewin warned that a limited decision like the one Gorsuch appeared to outline would “cause confusion” for workers and employers going forward.
“The real question is whether this case will lead to an important new standard in religious freedom cases or [if it’s] simply a matter of tinkering at the edges,” Marcus said. “If the court merely dispenses with the ‘de minimis’ standard, it will miss an opportunity to strengthen religious freedom… It will be disappointing if the court issues a narrow opinion which leaves unopened questions that will have to be decided in the future.”
Stern offered a more optimistic view for religious observers.
“A standard with more teeth to it doesn’t have to be revolutionary, [but] would, I think, catch a lot of those cases,” he said.
He offered, as an example, a case in which a workplace had provided accommodations to an employee but withdrew them when a new supervisor was hired.
“In a stepped up standard, you’d be able to show that there can’t be undue hardship, unless some circumstance in the [workplace] changed, because you did it for years,” he said. “And yet under a relaxed ‘de minimis’ test, the employer wins.”
Stern said it was “a little bit disturbing,” however, that the court did not focus on dissecting an argument that any violation of a collective bargaining agreement could constitute an “undue hardship.”
Lewin expressed disappointment that the justices largely stayed away from addressing the underlying interpretation of the Establishment Clause that drove the initial Hardison decision — an interpretation that the current court has rejected in other recent cases.
Diament, who was inside the chamber for oral arguments, noted that, at one point during oral arguments, Alito held up the various briefs the court had received from a broad variety of religious groups arguing that Hardison had violated their rights.
“I’m really struck by your statement that, regardless of what Hardison says, for the last 40 or 50 years, the [Equal Employment Opportunity Commission] and the lower courts have interpreted this decision in a way that properly respects the rights of minority religions,” Alito told Solicitor General Elizabeth Prelogar, who argued on behalf of the Postal Service. “Muslims, Hindus, Orthodox Jews, Seventh Day Adventis… they all say that that is just not true.”
Prelogar responded that “in our view, they’re not accurately portraying how Hardison has actually played out in the lower courts and the substantial zone of protection for religious exercise that lower courts have recognized in light of Hardison.”
Diament described this as a “striking moment.”
The Orthodox Union, AJC, the Brandeis Center, Young Israel and COLPA, as well as the Anti-Defamation League, Zionist Organization of America, Jewish Coalition for Religious Liberty, Agudath Israel of America, and a series of other groups mostly representing the Orthodox community filed briefs in the case.