Religious Freedom DeliveredAlan J. Reinach September/October 2023
The story of a mail carrier, his Sabbath, and a five-decade legal odyssey to strengthen the rights of all people of faith in America’s workplaces.
When Gerald Groff returned from the mission field and took a part-time job as a mail carrier near his home in Lancaster County, Pennsylvania, in 2012, he had no reason to imagine that he would one day be the subject of a Supreme Court case marking a generational shift in how companies relate to the religious needs of their workers.
Groff’s story actually began before he was born. In 1964 the civil rights movement yielded one of its most significant fruits with enactment of a civil rights act protecting workers from discrimination. Questions quickly surfaced as to what it meant to discriminate based on religion. Did this protect workers who needed, say, a schedule adjustment so they could observe the Sabbath? Courts divided on the issue. In 1972, at the urging of a Seventh Day Baptist, Senator Jennings Randolph, Congress amended the Civil Rights Act of 1964 to clarify that employers had an affirmative duty to “reasonably accommodate” the faith practices of their workers short of an “undue hardship.”
It didn’t take long for a case to make it to the Supreme Court examining just how far employers had to go to provide such accommodations. In 1977 the Supreme Court heard a challenge brought by a Trans World Airlines (TWA) airline mechanic, Larry Hardison, who had been fired because he did not work on Sabbath. The disastrous precedent set in that case lasted longer than TWA itself. Mr. Hardison himself is still alive, and reportedly quite interested in Mr. Groff’s case.
In TWA v. Hardison the Supreme Court was reluctant to approve any special treatment for religion, and awkwardly tried to reconcile the statute with a principle of religious neutrality. In place of the plain language of the statute, which said a company had to prove an “undue hardship” in order to justify denying religious accommodation, the Supreme Court decided on a standard that was less, far less. The Court said that any hardship beyond a bare minimum—de minimis is the Latin term, which means, simply, not much at all—would excuse employers from their responsibility to provide religious accommodation.
The Tyranny of Neutrality
And so the courts have labored on for decades, often letting employers off the hook for their failure to accommodate, for example, workers who wear beards or head coverings as an expression of faith, or who need time off for religious observances, such as Jewish holidays or Sabbath. After all, religious accommodation ran counter to a fundamental ethos of human resources—providing “equal” employment opportunity. Human Resources professionals were indoctrinated with the obligation to treat everyone the same, regardless. But persons of faith often needed some “special” treatment. Congress and the Supreme Court were at odds over whether persons of faith would be treated “equally,” or provided accommodations so that they could enjoy equal opportunities.
The Supreme Court doubled down on its commitment to religious neutrality with its 1990 decision in Employment Division v. Smith. This was an unemployment benefits case involving Native Americans who used peyote in a religious ritual and were fired. Was the use of an illegal substance “misconduct,” disqualifying them from receiving benefits, even though it was an ancient religious ritual? The Supreme Court said yes, the Oregon law making peyote use illegal was neutral toward religion, and it did not permit or require any exceptions for religious use. Unlike other cases involving alleged religious use of marijuana, there was no question that the use of peyote here was a bona fide religious practice. Although this was a First Amendment case, the Court’s commitment to “neutrality” toward religion reinforced the perception that workers needing religious accommodation didn’t deserve much more than the same treatment offered everyone else. Consequently, workers who needed Sabbath accommodation were frequently told that they could have Saturdays off if they could make the arrangements on their own. They could bid for a favorable schedule if they had sufficient seniority, or find other workers willing to swap with them, or, in a pinch, use accrued vacation time. Although the statute put the obligation on employers to provide religious accommodation, very often this obligation was shifted to the workers themselves to figure it out.
The very same year the Supreme Court decided Smith, Congress recommitted itself to providing special treatment to those who needed accommodation, this time enacting the Americans With Disabilities Act. Aware that the Supreme Court had virtually nullified its “undue hardship” standard with its decision in Larry Hardison’s case, Congress provided that employers must accommodate the needs of disabled workers unless doing so would result in an undue hardship. However, Congress now defined the term as a “significant difficulty or expense.”
Congress again signaled its rejection of “neutrality” when employers need to accommodate workers when it enacted the Uniformed Services Employment and Reemployment Rights Act of 1994. This statute ensured that Americans who take leave to serve in the military have a job to return to when their service is complete.
Yet despite the clear intent of Congress to require reasonable accommodations of persons of faith in the workforce, the Supreme Court’s commitment to neutrality remained, and employers and federal courts continued to apply the de minimis standard.
A Supreme Court ruling in 2015 gave both employers and the courts another chance to learn how religious accommodation is supposed to work. Samantha Elauf applied to work in sales for retailer Abercrombie and Fitch. Although she was rated as qualified for the position, the interviewer was told not to hire her because she was wearing a headscarf. They rightly inferred that Ms. Elauf was Muslim. Abercrombie has a very strict “look” policy and would not alter it for anyone. This case put the notion of “neutrality” front and center. Abercrombie’s look policy is religion neutral. Was that enough to satisfy the law? The United States Equal Employment Opportunity Commission itself filed suit for Ms. Elauf. When the case was heard in the Supreme Court, Justice Antonin Scalia gave a clear answer: neutrality is not enough. The entire concept of religious accommodation requires not “neutrality,” but “favored treatment” of those needing religious accommodation. He explained how this works by giving, as an example, an employer who refuses to hire an applicant because that employer believes the applicant needs Sabbath accommodation. If the need for Sabbath accommodation is the motive for not hiring the applicant, it violates the law.
Despite such clear language, both employers and courts have continued to get it wrong far too often. Indeed, seven years later, there is little evidence that either employers or courts have gotten the message. Employers continue to deny religious accommodations, and courts continue to run cover for them all too often.
But this brings us back to our protagonist, Gerald Groff. Groff is a man of deep faith who will not work on “the Lord’s Day,” or Sunday. When he first started working at the post office, he didn’t have to work Sundays. After all, there hasn’t been Sunday mail delivery in decades. Until the USPS signed a contract with Amazon. The first holiday season, Groff’s postmaster skipped him on the Sunday Amazon delivery schedule, but the following spring told him she would not do that again. He would have to work Sundays. Groff decided to give up his seniority to move to a smaller post office that was not involved in Amazon deliveries—at least not yet.
During a two-year period, Groff was hauled in for counseling about eight times and written up repeatedly until he was about to be fired, all for not working on Sundays. He finally quit, rather than have a termination on his record of federal employment.
For a time Groff’s postmaster would make the schedule early in the week, and avoided putting Groff on the schedule, knowing Groff would not work in any event. Everything went smoothly until higher-ups said Groff had to be scheduled on Sundays like everyone else. Neutrality reared its ugly head. Turns out it wasn’t so easy to get Sundays covered at the last minute, and the postmaster himself had to cover a couple of Sundays. Even so, the Amazon packages always got delivered on Sundays.
While Groff’s case was working its way in the courts, lawyers were busy trying to get the Supreme Court to take a case to revisit Larry Hardison’s case with its de minimis standard of undue hardship. The Seventh-day Adventist Church filed a case on behalf of Darrell Patterson, a Seventh-day Adventist who had been fired from Walgreens for not working on Saturday, his Sabbath. Although the Supreme Court ultimately declined to hear Patterson’s case, before they rejected it the Court asked the United States to weigh in on the legal issue of the “undue hardship” standard. The U.S. Justice Department filed its brief, agreeing that the de minimis test of TWA v. Hardison was wrong. In denying Patterson’s petition to be heard, three justices wrote that the undue hardship standard needed to be revisited in the right case.
Two other cases were filed with the Supreme Court the following year, and the Court rejected them both.
Then, in 2022, the Third Circuit Court of Appeals ruled in Groff’s case. The majority held that although the USPS had not provided Groff a “reasonable accommodation,” it didn’t have to because it had shown at least a “de minimis” amount of hardship. It was a split decision, with a vigorous dissent filed by Judge Hardiman.
The Third Circuit’s decision set up the issue squarely for the Supreme Court to finally revisit TWA v. Hardison and decide whether “undue hardship” meant more or less than mere “hardship.” Groff’s lawyers were confident the time had finally come.
A Stunning Climax
It was a dreary winter day this past January—a Friday the 13th—when the Court announced it was granting Groff’s petition and would hear the case. Briefing proceeded at a rapid pace, and oral argument took place on April 18.
Attorney Aaron Streett, of Baker Botts, LLP, argued the case for Groff. He told the Court, “Congress has repeatedly explained what it meant by undue hardship in defining the term as ‘significant difficulty or expense’ in later statutes. We think this is a standard that courts and employers are familiar with.” Further, he argued, several states have had this standard of undue hardship for years, and no “parade of horribles” has resulted. Streett used an example to illustrate: if a Sabbatarian is excused from work on Saturdays, and an employer had to pay an hourly wage worker overtime to cover the shift, the cost would not be significant, maybe $150.
The postal service was represented by the Solicitor General Elizabeth Prelogar. She was in a tough spot. The prior administration had agreed that de minimis is not a valid way to understand “undue hardship.” If she merely disagreed, it would lack credibility. Instead, she pitched the notion that the courts have already been applying a higher standard, a test of “substantial costs,” and that the body of case law is sound. She cited a footnote in Hardison for the substantial costs idea.
Justice Alito interrupted, holding up a stack of briefs, and reminded her that the Sikhs, Muslims, Orthodox Jews, and Seventh-day Adventists did not agree with her. These, and many others, had filed briefs asking the court for help, because their coreligionists were not adequately protected from discrimination by the existing law.
In the end the dispute really boiled down to what the Court would do with TWA v. Hardison. As Justice Sotomayor reminded the Court, respect for precedent is not needed for cases that are decided correctly—only for cases that are wrong. She implied her agreement that Hardison was wrongly decided, at least with respect to the de minimis test. The Court’s prior decision in Dobbs, reversing Roe v. Wade, hung over the courtroom like a dark cloud.
On June 29 the court released its decision, and it was unanimous—9-0. Justice Alito wrote the opinion, and instead of reversing Hardison, he cleverly explained it away. What the Supreme Court really meant in Hardison was that “ ‘undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business.” It was a stunning climax to a decades-long struggle to achieve equal status under the law for Americans of any and every faith who need a workplace accommodation for their faith. Because the lower courts had applied the wrong standard, Groff’s claims were remanded to be reexamined under the proper standard.
A New Era
The new standard represents, not an end, but a beginning. Some types of workplace accommodation conflict ought to be reduced. Employers will now be unlikely to be able to show an undue hardship to justify denying accommodations for scheduling needs, such as Sabbath, or for dress and appearance issues, such as wearing a yarmulke or a headscarf.
Yet the decision also foreshadows new conflicts. Employers are already struggling with requests from some employees to avoid participating in Pride celebrations, for instance, or with accommodations for those with religious objections to the COVID-19 vaccine.
For now, though, the Court’s decision represents new hope for the many thousands of Americans who, like Mr. Groff, face losing their job or being denied employment because of their faith. And as employers take religious accommodation much more seriously, they too can expect benefits: an increase in loyal, dedicated employees, grateful that they no longer have to compromise their faith simply to keep a job.
Article Author: Alan J. Reinach
Alan J. Reinach is Executive Director of the Church State Council, the religious liberty educational and advocacy arm of the Pacific Union Conference of Seventh-day Adventists, representing five western states: Arizona, California, Hawaii, Nevada and Utah. His legal practice emphasizes First Amendment religious freedom cases, and religious accommodation cases under Title VII of the Civil Rights Act of 1964 and related state civil rights laws. Reinach is also a Seventh-day Adventist minister who speaks regularly on religious freedom topics, and is the host of a nationally syndicated weekly radio broadcast, “Freedom’s Ring.” He is the principal author and editor of Politics and Prophecy: The Battle for Religious Liberty and the Authentic Gospel, and a frequent contributor to Libertymagazine.