Commentary://May 22, 2023
//May 22, 2023
The Supreme Court may soon transform the role of faith in the workplace, which could have the effect of elevating the rights of religious workers at the expense of co-workers.
On April 18, 2023, the court heard oral arguments in Groff v. DeJoy, a case addressing an employer’s obligation to accommodate religious employees’ requests under federal law. The dispute involves a Christian postal worker who quit his job and sued the U.S. Postal Service after he was unable to find coverage for his Sunday shifts. Current law requires employers to make accommodations for workers’ religious requests only if doing so doesn’t impose more than a minimal cost on their business, known as the “de minimis” standard.
After listening to the oral arguments in the case, I believe it’s very likely the court will overturn the de minimis standard and require employers to accommodate more religious requests. As Justice Neil Gorsuch stated, “I think there’s common ground that de minimis can’t be the test, in isolation at least, because Congress doesn’t pass civil rights legislation to have de minimis effect, right?”
In my view, as a scholar of employment discrimination, the only questions are how far the justices will go – and who will ultimately pay the price.
Religious rights in the workplace
Employers are required to accommodate the religious needs of employees under Title VII of the Civil Rights Act of 1964, so long as they can do so without imposing an “undue hardship.”
Congress didn’t define what that term meant, and it took another dozen years for the U.S. Supreme Court to do so in Trans World Airlines v. Haridson. The court determined that Title VII does not require employers to bear more than a “de minimis” or minimal cost in accommodating religious employees.
Relying on this narrow decision, employees requesting religious accommodation in the workplace have generally fared poorly in the courts.
Supporters of more religious accommodation in the workplace have tried many times to amend Title VII to redefine undue hardship as a “significant difficulty or expense.”
From 1994 to 2013, over a dozen bills attempting to codify this definition were introduced in Congress, with none coming close to passage.
After failing to persuade Congress to amend Title VII, religious advocates turned to the Supreme Court. However, the court’s decision to hear this case is highly unusual, since it suggests it is considering overturning its own long-standing precedent.
The other key issue in the case is whether or not a religious accommodation that imposes on co-workers can count as an undue hardship on the employer.
Since Trans World Airlines v. Haridson, most federal appellate courts have determined that accommodations affecting religious employees’ co-workers – such as those requiring them to take over undesirable weekend shifts – can be an undue hardship, even if the business is not directly harmed. In practice, that has made it easier for an employer to avoid accommodating a religious request.
Business interests vs. religious rights
Ultimately, the Groff case pits business interests against religious rights. That presents a unique dilemma for the current court led by Chief Justice John Roberts, which is both the most pro-business and the most pro-religion court in recent memory.
One way to resolve these two apparently competing interests would be to overturn the de minimis standard and require employers to provide greater accommodation to religious employees while allowing employers to sometimes shift this cost to co-workers.
Based on what the justices said at the hearing and their discussion about accommodations that affect worker morale, I believe it’s likely that that’s exactly what the Supreme Court is going to do. That would have the effect of dramatically limiting employee rights.
Take, for example, one common type of accommodation request, which is time off from work for religious observance.
In those cases, either co-workers can bear the cost of accommodation, by covering for the religious employee without necessarily earning more income, or the employer can bear the cost of accommodation, by hiring additional workers, paying premium wages or suffering a loss of productivity. If the Supreme Court determines that a cost to co-workers alone can never be an undue hardship under Title VII, employers would likely shift the cost of accommodation onto co-workers – for example, requiring them to work an undesirable weekend shift.
Unless an accommodation also leads to a significant difficulty or expense on the business itself – such as through a loss of productivity or efficiency — harm to co-workers would never be a justification for denying an accommodation, as it has been in most federal appellate courts.
Co-workers bearing the brunt
Co-workers could also be harmed in cases involving accommodation of religious expression. This is of particular concern in cases in which religious expression demeans LGBTQ+ people.
In 2004, the 9th Circuit determined that it would pose an undue hardship and be demeaning to co-workers for a religious employee to post in his cubicle the Bible verse “If a man also lie with mankind … both of them have committed an abomination; they shall surely be put to death.”
Yet if the Supreme Court broadens the definition of undue hardship and determines costs to co-workers alone never create an undue hardship, employers might be required – by a civil rights law originally aimed at prohibiting employment discrimination – to accommodate religious expression that demeans LGBTQ+ employees.
Assuming the Supreme Court decides this case as expected, the losers would be co-workers who will bear the brunt of the increased religious accommodation requirement. And the Roberts court would maintain its status as one of the most pro-business and pro-religion courts in modern times.e