The fight over whether religious conservatives enjoy special rights is coming to a workplace near you.
The Supreme Court announced on Friday that it will hear Groff v. DeJoy, a case that could give religious conservatives an unprecedented new ability to dictate how their workplaces operate, and which workplace rules they will refuse to follow.
Yet Groff is also likely to overrule a previous Supreme Court decision that treated the interests of religious employees far more dismissively than federal law suggests that these workers should be treated.
The case, in other words, presents genuinely tricky questions about the limits of accommodating an employee’s religious beliefs. But those questions will be resolved by a Supreme Court that has shown an extraordinary willingness to bend the law in ways that benefit Christian-identified conservatives.
That could lead to a scenario in which the Court announces a new legal rule that disrupts the workplace — and that potentially places far too many burdens on non-religious employees.
Plaintiff Gerald Groff is a former postal worker who wanted to be exempted from working on Sundays because of his religious beliefs. He asks the Court to abandon a nearly half-century-old rule, first announced in Trans World Airlines v. Hardison (1977), which imposes strict limits on an employee’s ability to seek religious accommodations from their employer.
A federal law requires employers to “reasonably accommodate” their workers’ religious beliefs and practices unless doing so would lead to “undue hardship on the conduct of the employer’s business.” But Hardison established that this law does not require employers to “bear more than a de minimis cost” when it provides religious accommodations (the Latin phrase “de minimis” refers to a burden that is so small or trifling as to be unworthy of consideration).
As Justice Thurgood Marshall wrote in his Hardison dissent, this decision “makes a mockery of the statute” at issue in the case, which clearly was supposed to protect workers from more-than-trifling incursions on their religious faith.
But, if Hardison did too little to protect religious employees, Groff could easily err in the other direction.
In cases brought by business owners seeking exemptions from federal and state laws, for example, the Court has permitted those owners to discriminate against LGBTQ people and to deny certain health benefits to their employees. If the Court applies a similar standard to employees seeking religious accommodation, in the worst-case scenario, it could give a manager the right to refuse to hire any LGBTQ employees or to treat women subordinates differently than men.
All of which is a long way of saying that Groff involves an extraordinarily messy area of the law. Judges acting in good faith would struggle to draw an appropriate line governing which requests for religious accommodations should be honored, and which should be denied. And, in cases involving religion, this Court can’t be counted on to operate in good faith.
In a post-Hardison world, there’s going to be a ton of litigation
The statute governing religious accommodations in the workplace is vague. It neither gives employers clear instructions on what sort of behavior violates the law nor gives judges much guidance on how to rule on cases involving workers seeking religious accommodations.
Rather, the law simply provides that employers must “reasonably accommodate” requests for such accommodations that won’t lead to an “undue hardship on the conduct of the employer’s business.” (The Americans with Disabilities Act does use similar language to describe when a worker’s disability must be accommodated, but the ADA’s text is much more detailed than the law governing religious accommodations, and there is case law interpreting the ADA that hasn’t been applied to religion cases.)
Indeed, the facts of both Hardison and Groff demonstrate how even fairly routine requests for accommodation can snowball into difficult legal questions with few clear answers. Hardison involved an airline worker who, for religious reasons, would not work on Saturday. Groff involves a similar dispute brought by a Sunday sabbatarian.
But if a particular worker cannot work a Saturday or Sunday shift, that typically means that a different worker will need to come in that day to pick up the slack. And that can lead to resentments that disrupt the workplace and that could cause the impacted workers to look for jobs elsewhere.
At one point, Gerald Groff, the postal worker at the heart of Groff, worked at a post office with just four employees — himself, two other mail carriers, and a postmaster — who could potentially work Sunday shifts. So, when Groff refused to work Sundays, that meant that the remaining three employees had to split these undesirable shifts among themselves if the post office was going to be fully staffed. (Although the post office typically does not deliver mail on Sundays, the postal service contracted with Amazon in 2013 to deliver Sunday packages.)
Does forcing these employees to miss time at home with their families in order to accommodate Groff amount to an “undue hardship”? The answer is that the relevant statute does not say. And, because Hardison has been the law for more than four decades, there is little case law establishing what counts as an undue hardship if Hardison is overruled.
Which is not to say that Hardison was correctly decided. As the Supreme Court noted in EEOC v. Abercrombie & Fitch (2015), the text of the religious accommodation statute does not simply prohibit discrimination against religious employees. It explicitly requires those employees to be given “favored treatment” when they seek a reasonable accommodation for their religious beliefs. And, while employers are not required to take on an “undue hardship” to accommodate a particular employee, the words “undue hardship” are tough to square with Hardison’s “more than a de minimis cost” test.
If the Court overrules Hardison, however, lower courts will suddenly have to sort through a raft of cases involving vague, ill-defined statutory language, where the outcome is likely to turn heavily on the facts of a particular case. And they will have to do so under the watchful eye of a Supreme Court that frequently demands that religious conservatives receive extraordinary accommodations.
Groff, in other words, is perhaps overdue, but also a recipe for chaos. There is much to criticize in Hardison. But this Court could easily replace Hardison with an unworkable legal standard that imposes far too many burdens on workers who do not seek religious accommodations.
The Court recently started letting religious conservatives seek accommodations that diminish the rights of others
For many years, the Supreme Court followed a straightforward practice in cases brought by people of faith who seek religious accommodations. Although the law often provides robust protection to religious people, religious individuals and institutions could not wield their faith to diminish the rights of others.
As the Court put it in United States v. Lee (1982), a case brought by Amish employers who unsuccessfully sought an exemption from paying Social Security taxes on religious grounds, “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
In Burwell v. Hobby Lobby (2014), however, the Court took a big step away from Lee, holding, for the first time, that business owners who seek a religious exemption from the law may have it even if granting that exemption would strip away legal rights from others. Hobby Lobby held that employers with religious objections to birth control could defy a federal rule that required them to provide contraceptive coverage as part of their employees’ health plans.
Significantly, however, the Hobby Lobby decision only applies to “closely held corporations” — that is, businesses that have only one or a few owners — and does not apply to businesses that are publicly traded or otherwise have many stockholders. Indeed, the Hobby Lobby opinion expressed doubts about whether large employers with many shareholders could ever seek a religious exemption from the law, because “the idea that unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable.”
Yet while Hobby Lobby almost certainly would not permit a large, publicly traded company like Google or Walmart or McDonald’s to seek a religious exemption from the law, a too-broad decision in Groff could effectively allow corporate managers to impose their religious views on their subordinates. Just as Hobby Lobby permits religious objectors to seek exemptions from federal law, a broad decision in Groff would allow religious employees to seek an exemption from anything their employer demands of them.
Imagine, for example, that Walmart’s head of human resources objects to birth control on religious grounds and refuses to take any action that could lead to a Walmart employee receiving a health plan that covers contraception. Could that HR executive demand a religious accommodation that could prevent Walmart’s workers from receiving a health benefit?
Similarly, imagine a store manager who refuses, for religious reasons, to hire or work with a transgender person. The Court’s current majority typically sides with business owners and religious institutions who seek an exemption from laws prohibiting anti-LGBTQ discrimination. Does that mean that it would also grant a religious accommodation to this anti-LGBTQ store manager?
The answer to these questions would turn on highly subjective judgments by the courts, and ultimately by the Supreme Court. Is it “reasonable” for an HR executive to refuse to sign paperwork relating to contraceptive coverage? Is it an “undue hardship” on the Walmart corporation if one of its stores openly discriminates against transgender workers? Because the statute doesn’t even begin to answer these questions, they would have to be answered by a judiciary dominated by Republican appointees.
For the moment, it’s tough to know where this Court would draw the line — Hardison remains good law until the Court overrules it, and most of the justices haven’t publicly expressed a view on what the law should look like without Hardison.
But, given the extraordinarily solicitude the Court has shown for religious conservative business owners, there is certainly a risk that this Court will show similar solicitude for corporate managers who wish to impose their religious beliefs on others.