Preserving religious freedom in the workplace

Why the Supreme Court should resolve Groff v. DeJoy in line with traditional conceptions of religious freedom

Under Title VII of the Civil Rights Act, it is illegal for an employer to “discriminate” against an individual “because of such individual’s … religion.” The term “religion” is defined to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

What does “undue hardship” mean? In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), the Supreme Court held that requiring an employer to “bear more than a de minimis cost” would constitute an undue hardship. Hardison has acquired a poor reputation among proponents of religious liberty, who view it as conferring insufficient protection to religious employees. The Supreme Court has recently granted certiorari in a new case, Groff v. DeJoy, in which the plaintiff asks the Court to overrule Hardison and replace it with a new standard in which the employer must accommodate the employee’s religious practice unless it would impose a significant cost on the employer.

In this post, I will argue that Hardison should not be overruled. Clarified perhaps, but not overruled. In my view:

• It is an “undue hardship” when employers are forced to inflict more than de minimis harm on non-religious co-workers to accommodate the religious practice of religious employees.

• It is an “undue hardship” when employers are forced to pay more than a de minimis amount of cash, out of pocket, to accommodate the religious practice of religious employees.

Under this standard, Title VII would still offer important protection to religious employees. It would allow them to be exempted from generally applicable rules—for instance, an employer’s no-beards policy could generally not be enforced against an employee whose religion requires him to wear a beard. It would require the employer to offer flexible scheduling and assignment of tasks. But the employer wouldn’t have to inflict harm on co-workers, and wouldn’t have to finance its employees’ religious practice.

I advocate this standard for a simple reason. Title VII should be interpreted in line with the American tradition of religious liberty, and this standard embodies that tradition.

(Dall-E had some trouble generating an image for this particular post. But I found this one pleasingly abstract.)

How much freedom is “due”?

Title VII refers to an “undue hardship.” This is a difficult phrase to interpret for two reasons.

First, the word “undue” is an empty vessel. Determining what is “due” in a given case requires a reference to some external set of values. Is it “undue” to require employers to enact policies that would inflict harm on co-workers or would require significant out-of-pocket costs? This cannot be determined by staring at the word “undue.” One must instead supply one’s own analytical framework for what religious liberty protections are “due.”

Second, the phrase “undue hardship” naturally implies some kind of balancing process, in which benefits are compared to burdens. But it is impossible to value religious liberty in dollars. Suppose an employer would have to hire a new employee in order to accommodate an existing employee’s refusal to work on Saturdays for religious reasons. How much should the employer have to spend on this? $1,000? $10,000? Any amount up to the point that the employer would become bankrupt? Saying some vague thing like “a significant amount” is a cop-out; what does that mean? It’s impossible to know, because it’s impossible to know how much the religious practice is “worth.”

To me, the solution to both problems is to look to traditional conceptions of religious liberty. Our national tradition provides an analytical framework that can assist in solving the puzzle of what “undue” means. And because one component of that national tradition is that religious liberty cannot be measured in dollars, applying that national tradition should avoid the need to measure religious liberty in dollars.

The best things in life aren’t free.

Let’s switch gears to a hypothetical.

At the end of the year, an employer has a bonus pool of $2,000, which it intends to split among two employees, John and Jane. The two employees have the same seniority, have worked the same amount, and have an equal claim on the bonus money. But John tells Jane that his religious views require him to attend a religious retreat, and he can’t afford to attend unless he receives $1,500, leaving Jane with $500. Jane demurs, saying she’s like to keep her share of the money. Nonplussed, John goes to his employer, demanding that it give him $1,500 and Jane $500.

The employer refuses John’s demand. The employer says that it’s unwilling to transfer more than a de minimis amount of Jane’s money to John, even if that means that John can’t attend the retreat. John claims that he is the victim of anti-religious discrimination.

I think most people would think that the employer and Jane acted reasonably. Neither was hostile to John’s religious beliefs, and John was not the victim of discrimination. True, Jane wasn’t willing to hand over $500 and the employer wasn’t willing to force Jane to do so, but that doesn’t mean that they disrespected John’s religious freedom. Rather, what John was asking for isn’t religious freedom. In our nation’s tradition, the right to religious freedom is a negative liberty; it is the freedom to exercise religion without interference, rather than a freedom to demand scarce resources from others.

That hypothetical may seem outlandish, but it’s basically the facts of the Groff case, except that the scarce resource is Sundays off as opposed to bonus money.

Gerald Groff, the plaintiff in the Groff case, was employed by the U.S. Postal Service as a Rural Carrier Associate (RCA). An RCA is a non-career employee who provides coverage for absent career employees. Groff’s religious views prevent him from working on Sundays.

Groff worked at a small post office in Holtwood, Pennsylvania. During the 2017 Christmas season, there were only two RCAs at Holtwood. According to the USPS’s ordinary policies, the two RCAs would split Sunday work. But because Groff refused to work on Sundays, the other RCA had to bear the entire burden on her own, in violation of the USPS’s agreement with the RCAs’ union.

Meanwhile, during the 2018 Christmas season, with Groff refusing to work Sundays and no other RCA available, the Postmaster had to personally deliver mail, also in violation of a collective-bargaining agreement. In light of all this, the USPS imposed disciplinary measures on Groff. Groff sued, claiming that the USPS had failed to accommodate his religious practice.

Groff’s argument, in essence, is that the USPS had a legal duty to force other RCAs to involuntarily work excess shifts on Sundays to make sure Groff had every Sunday off. He argues: “With other employees indisputably available to handle Sunday delivery, USPS cannot demonstrate undue hardship.” Sure, the other RCA had to work every Sunday during the Christmas season and miss the time with her family. But, responds Groff, who cares? According to Groff’s brief: “An impact on co-workers—without proof of harm to the business—does not demonstrate undue hardship under Title VII.”

I don’t agree. Title VII requires courts to consider whether the requested accommodation would impose an “undue hardship on the conduct of the employer’s business.” Virtually all employers would say that part of “the conduct of the employer’s business” is treating employees fairly.

Groff further claims: “If the feelings of Groff’s co-workers … were sufficient to show undue hardship without proof of operational harm, then religious accommodation would readily be overridden by a heckler’s veto.” Perhaps this is just the confident language of a litigant who knows he has the votes to win. But I find the reference to a “heckler’s veto” rather off-putting. In the Free Speech context, courts have understandably been reluctant to uphold laws that would silence people’s speech on the ground that others would have their feelings hurt and might retaliate—the so-called “heckler’s veto.” Likewise, I agree that in the workplace, an employer shouldn’t be permitted to enforce a no-beards policy against a Sikh employee merely because non-Sikh co-workers are offended that the Sikh employee gets an exemption and they don’t. Yielding to that type of abstract resentment of a religious accommodation would indeed be vindicating a type of “heckler’s veto.”

But suppose a speaker demanded the use of his neighbor’s property to hold a political rally, and the neighbor said no. I wouldn’t call the neighbor a “heckler” or characterize the neighbor as burdening the speaker’s rights. To the contrary, it’s the speaker seeking to burden the neighbor’s rights by demanding that the neighbor give up what is rightfully his. And that’s essentially what’s going on in Groff. The non-religious employee wasn’t “heckling” Groff. She simply wanted to spend a few Sundays around Christmas with her family, as she was entitled to do under her union’s agreement with the USPS. I don’t think her desire to have some Sundays off reflects a “heckler’s veto” of Groff’s religious freedom, just as I don’t think Jane’s desire to keep the $1000 that she earned reflects a “heckler’s veto” of John’s religious freedom.

Let’s return for a moment to the statutory text. The statute does not merely say that an employer must offer accommodations that do not impose an undue hardship. Instead, the statute says that the employer may not discriminate on the basis of religion, and defines religion to include religious practice that can be accommodated without undue hardship.

This is important because it reinforces that Title VII is, at core, an anti-discrimination statute. In many cases, I think it’s reasonable to characterize a religious accommodation as a means of effectuating Title VII’s anti-discrimination guarantee. An employer that enforces a Procrustean no-beards policy, even one that would prevent a Sikh employee from working, might be said to be giving such little weight to the Sikh employee’s religious values that it is “discriminating” against the Sikh employee, even if the policy is facially neutral. But I find it positively Orwellian to say that, by merely requiring the two RCAs to work the same number of Sundays, the USPS is “discriminating” against Groff.

To the contrary, the discrimination is going the other way. Suppose the other RCA also had a religious objection to working on Sundays. In that case, Title VII presumably wouldn’t require the USPS to force the other employee to work Sundays either; she would have an equal claim to Sundays off as Groff. But because she’s non-religious—because she wants to spend her Sundays going to her kid’s soccer game (or whatever), rather than in church—she’s forced to deliver mail. He gets all Sundays off, and she works all Sundays, because he’s religious and she’s not. In ordinary English, stripped of euphemisms, she’s the victim of discrimination, not him.

Groff’s brief claims: “To restore Title VII’s goal of eliminating religious discrimination from employment, the statute must be read in accordance with its plain meaning.” I agree! That’s why Groff’s position can’t be right.

Fine, you give me the money.

Let’s return to the ballad of John and Jane.

Suppose John is sympathetic to Jane’s grumbling and tells the employer: “OK, fine, Jane can keep the $1000 that she’s earned from the bonus pool. But I still need $1500 to go on my retreat. So just give me an extra $500 so I can go on my retreat. You can take the $500 from somewhere else. Take it from the company’s profits, borrow money from the bank, put off some repairs, whatever. Jane has no reason to complain because she’s getting all the money to which she’s entitled.” Should the employer be required to say yes?

This hypothetical captures the economic reality of the Hardison case, which Groff seeks to overrule. Like Groff, Hardison also involved an employee, Hardison, who refused to work on a weekend day (Saturday in that case). Hardison argued, among other things, that the employer should be required to pay premium wages to other employees to incentivize them to cover the Saturday shifts, while also allowing Hardison to keep his job. This would have ensured that Hardison could adhere to his religious views while avoiding any burdens on Hardison’s co-workers—because the co-workers would be enticed by the premium wages to work on Saturday voluntarily.

No, said the Court. “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” That’s where the (in)famous “de minimis cost” formulation comes from. The Court was saying that the employer should not be forced to expend more than a de minimis amount of cash, out of pocket, to accommodate Hardison’s religious beliefs.

Properly understood, then, Hardison isn’t a case about de minimis burdens in the abstract. Instead, Hardison is a case about financing employees’ religious beliefs. The Court declined to interpret Title VII in a manner that “would in effect require TWA to finance an additional Saturday off and then to choose the employee who will enjoy it on the basis of his religious beliefs.”

Groff’s brief claims that Hardison’s “concern about requiring employers ‘to finance’ religious practice … flouts Title VII’s unique treatment of religion.” I don’t think it does. I do not see anything in the text of Title VII suggesting that employers are on the hook for out-of-pocket expenditures to finance their employees’ religious briefs. Nor am I familiar with a national tradition requiring employers to make such financial contributions. To repeat a point made above, religious liberty is fundamentally a negative liberty; it is the right to practice religion without interference, not the right to obtain funding for that right.

But my concerns go beyond the mere absence of such a tradition. Title VII, if interpreted in the manner advocated by the plaintiffs, would be a “law respecting an establishment of religion,” in violation of the First Amendment.

Mic drop.

There’s a tendency among (some) judicial conservatives to roll their eyes when they hear someone invoking the Establishment Clause. With considerable justification, they view the Supreme Court’s modern-day Establishment Clause jurisprudence (or at least, its jurisprudence from roughly the 1970s to the 2000s) as reflecting a modern-day hostility toward religion that conflicts with tradition from the early Republic.

But I’m not talking about the living Constitution. I’m talking about the dead Constitution. The First Amendment as it would have been understood in 1791. I fully agree that the Founders would have been baffled by arguments that a Hanukkah display or a praying football coach violate the Establishment Clause. But what Groff is asking for is a different story.

Some of you youngsters in law school might learn that in days of yore, there was something called the “Lemon test,” named after Lemon v. Kurtzman, 403 U.S. 602 (1971). The Lemon test provided that to comply with the Establishment Clause: (1) the law must have a “secular purpose”; (2) the law’s “principal or primary effect must be one that neither advances nor inhibits religion”; and (3) the law must not result in “excessive government entanglement” with religion. Judicial conservatives really, really hated the Lemon test. They deemed it contrary to national tradition, hostile to religious observance, and judicially unmanageable. And, in Kennedy v. Bremerton School District, the case about the praying football coach, the Court finally killed it off. Instead of the Lemon test, the Court instructed, “the Establishment Clause must be interpreted by reference to historical practices and understandings,” with a focus on “original meaning and history.”

So what are “historical practices and understandings”? Let’s ask Justice Scalia.

In Lee v. Weisman, 505 U.S. 577 (1992), the Supreme Court held that a public school’s practice of inviting clergy to give prayers during graduation ceremonies violated the Establishment Clause. Justice Scalia, in one of his celebrated dissents, thundered that the Court laid “waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.” He argued that the Court’s “boundless, and boundlessly manipulate, test of psychological coercion” was an “instrument of destruction, the bulldozer of its social engineering.”

Justice Scalia explained that “the coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” For instance, in Virginia prior to the Founding, citizens “were tithed for the public support of Anglican ministers, and were taxed for the costs of building and repairing churches.” Justice Scalia “further acknowledge[d] for the sake of argument that, as some scholars have argued, by 1790 the term ‘establishment’ had acquired an additional meaning—’financial support of religion generally, by public taxation’—that reflected the development of ‘general or multiple’ establishments, not limited to a single church.” But, Justice Scalia explained, “that would still be an establishment coerced by force of law.”

In his Weisman dissent, Justice Scalia merely “acknowledged for the sake of argument” that forced financial support of religious practice would have been deemed an “Establishment” at the Founding. But as one of those nerds who reads law review articles and even, like an animal, the original source materials, I think his assumption is correct: at the Founding, coerced financial support of religious practice would have been viewed as an Establishment of religion. (I will not show my work on this, but Leonard Levy’s classic book on the Establishment Clause, which Justice Scalia cited in Weisman, is a reasonable place to start.)

Some clarification is needed. The Supreme Court has authorized states to use tax dollars to support religious institutions in situations when the state would also support comparable non-religious institutions. In a series of divided Supreme Court cases, the Court held that the Establishment Clause permitted state funding of religious schools when the state was funding non-religious private schools; more recently, as the Court grew more conservative, it held that the Free Exercise Clause required state funding of religious schools when the state was funding non-religious private schools. The premise of these cases was that the Constitution permitted, and indeed required, the state to treat religious institutions neutrally rather than to discriminate against them. These holdings are compatible with a negative-liberty account of the Religion Clauses: if one takes the government’s support of non-religious institutions as a baseline, then the government’s withdrawal of equivalent support to religious institutions can easily be conceptualized as equivalent to a monetary penalty on the practice of religion. But these cases do not hold that the state may non-neutrally spend taxpayer money on religious practice for the specific purpose of favoring religious believers over non-religious believers.

In addition to the problem of coerced funding of religious practice, Groff’s interpretation creates a second Establishment Clause problem, alluded to above. Groff urges the Court to hold that religious practice be funded up to the point that the funding becomes “significant.” Groff therefore would require a dollar value to be placed on religious practice—a problem that does not exist if Title VII is construed to require employers to give exemptions from rules, as opposed to provide affirmative financial support.

Title VII typically doesn’t involve the expenditure of taxpayer money. Although the Groff case itself involves a federal employer, most Title VII cases involve private employers. From my perspective, that makes the Establishment Clause problem created by Groff’s position even worse. Not only does Groff’s interpretation of Title VII coerce employers to spend money on religious practice, but it also coerces those employers to essentially act as private tribunals regarding their employees’ religious beliefs. Under Groff’s view, private employers must adjudicate the sincerity of a religious adherent’s beliefs, calculate whether the amount of money they are asked to spend is “undue” according to some vague “significance” test, and then—if the amount is not “undue”—fund those religious beliefs out of pocket. This adjudication is then subject to equally amorphous review by the EEOC, followed by a federal judge.

I support an interpretation of the Religion Clauses that takes heed of national tradition. Often that means an interpretation under which claims of religious liberty prevail. But not always. Groff, in my view, has not made the case that our national tradition supports a federal law coercing employers to first adjudicate the value of, and then fund, the religious practice of their employees.

At a minimum, there is a powerful case for constitutional avoidance here—i.e. the canon that statutes should be construed not to veer too close to the constitutional line. It is hard for me to see a good justification for overruling a nearly 50-year-old precedent in a manner that would introduce, rather than resolve, constitutional doubt.

Winning by losing

The employer in Groff is the U.S. Postal Service, which means the Justice Department was responsible for preparing the employer’s brief. Here’s a summary of what the Justice Department’s brief says:

• The Court should respect stare decisis.

• “Hardison should be understood and applied in light of its facts to afford greater protection to religious observance than the ‘de minimis’ language might suggest if read in isolation.”

• “The Court should make clear that the EEOC has correctly understood Hardison’s reference to ‘more than a de minimis cost’ to refer to the sort of ‘substantial’ costs the Court considered there—that is, the costs associated with regularly operating shorthanded or paying premium wages to substitute workers.”

• Under any standard, the hardship on the USPS was undue.

The government’s brief offers little, if any, principled defense of Hardison. Indeed, it all but concedes that the “de minimis” standard should be overruled, and just asks the Court not to use the word “overruled” so the EEOC doesn’t have to throw out all its decisions and start again. Why?

It’s not because the Justice Department didn’t think of these arguments. There is no such thing as the SG’s office not thinking of an argument. They are the best lawyers on Earth. The SG’s office missing an argument is like the sun rising from the west. It does not occur.

I’d guess it’s because the Justice Department has essentially no incentive to defend Hardison’s de minimis standard:

• In its capacity as employer, the federal government would benefit little, if at all, from an employer-friendly standard. That is because the federal government is also subject to the Religious Freedom Restoration Act, which requires the federal government to protect religious liberty among its own employees to a similar, if not greater, extent than Title VII. The government did make this argument in its Brief in Opposition (again, the SG’s office never, ever misses arguments).

• In its capacity as enforcer of Title VII, where the federal government serves as plaintiff, it benefits from a broad interpretation of Title VII. After all, the broader Title VII is, the more cases the government will win.

One would therefore have expected the government’s brief to give the most tepid possible defense of Hardison, which is exactly what materialized. Oh well; I might have hoped the end of Hardison would be a bit more ceremonious than this.

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See you next time; the topic and timing of the next post is TBA.