Employees of the U.S. Postal Service are famous for delivering the mail even in the worst conditions. But when Gerald Groff was hired to work as a postal carrier in 2012, postal carriers didn’t work on Sundays. That changed in 2013, when USPS signed a contract with Amazon to deliver the company’s packages, including on Sundays. When Groff, an evangelical Christian, refused to work on Sundays, he was disciplined and eventually resigned. On Tuesday in Groff v. DeJoy, the Supreme Court will consider whether to overturn a nearly 50-year-old precedent on how employers must accommodate their employees’ religious practices.
Federal law bars employers from firing workers for practicing their religion unless the employer can show that the worker’s religious practice cannot “reasonably” be accommodated without “undue hardship.” In 1977, the Supreme Court ruled in Trans World Airlines v. Hardison that the “undue hardship” standard is met whenever the accommodation would require more than a “de minimis” – that is, trivial or minimal – cost.
In Groff’s case, his inability to work on Sunday did not initially cause any problems. Until 2016, the postmaster at the station where Groff worked did not require him to work on Sunday; in exchange, Groff covered other shifts during the week. But beginning in 2016, the postmaster told Groff that he would have to work on Sundays during the Postal Service’s peak season, which begins in mid-November and runs through early January.
Groff opted instead to transfer to a smaller station that would not require him to work on Sundays. But a few months later, that station also began to deliver Amazon packages on Sundays. Groff offered to work extra shifts to avoid working on Sundays, but the postmaster continued to schedule him on Sundays – although he did offer to ask for volunteers to cover for Groff.
Groff was disciplined for his failure to report to work when scheduled on Sundays. In January 2019, he resigned from the Postal Service.
Groff then filed a lawsuit in federal court, where he argued that the Postal Service’s failure to reasonably accommodate his religion violated Title VII of the Civil Rights Act, the federal law prohibiting discrimination against employees based on their religious practices. When a federal district judge rejected that argument, Groff appealed to the U.S. Court of Appeals for the 3rd Circuit, which upheld that decision.
The court of appeals agreed with Groff that the Postal Service’s offer to find employees to swap shifts with Groff “did not eliminate the conflict between his religious practice and his work obligations” and that the Postal Service therefore had not provided him with a reasonable accommodation. But the court of appeals nonetheless affirmed. It explained that giving Groff an exemption from working on Sunday “caused more than a de minimis cost” for the Postal Service because it affected the rest of his workplace – for example, by requiring his coworkers to cover his shifts or deliver more mail.
Groff came to the Supreme Court last summer, asking the justices to take up his case and revisit Hardison’s “more than de minimis” test – which they agreed to do earlier this year.
In his brief on the merits, Groff urges the justices to jettison Hardison’s de minimis test, calling it “lawless and damaging.” The plain language of Title VII clearly indicates that the phrase “undue hardship” imposes a higher bar than Hardison’s “more than a de minimis cost,” he writes. The phrase suggests that the accommodations must impose a “significant difficulty or expense,” Groff explains, for the employer.
Groff assures the court that it can overturn Hardison without worrying about stare decisis – the idea that courts should not overrule their prior cases unless there is a compelling reason to do so – because the Supreme Court in Hardisonwas not interpreting Title VII at all. Instead, Groff explains, the court was interpreting an Equal Employment Opportunity Commission guideline in place at the time. Therefore, Groff says, Hardison’s discussion of the “undue hardship” provision is dicta – that is, language that was not necessary to reach the decision and therefore is not binding in future cases.
But even if the de minimis test weren’t dicta, Groff continues, the court should still throw it out. Not only is it clearly wrong, but the other criteria for overruling prior decisions are also met here. For example, employers and employees have not relied on the “de minimis” standard in structuring their employment agreements. Those agreements are generally short term, and employers can adapt them if the “undue hardship” test were to change. But because the test has been the subject of criticism in recent years, Groff notes, employers should not have relied on it.
Hardison has also led to “extreme consequences,” Groff says. Specifically, he contends, it has become a flat rule that “virtually any cost to an employer counts as undue hardship,” so that lower courts “virtually always side with employers whenever an accommodation would impose any burden.”
Groff argues that the 3rd Circuit was wrong in another respect. For purposes of Title VII, he asserts, what matters is whether the proposed accommodation would create an undue hardship for the employer’s business, rather than for the employee’s co-workers. In his case, he notes, his absences on Sunday had little to no effect on the Postal Service’s business. “USPS fulfilled its contract with Amazon,” he emphasizes, “and no packages went undelivered” as a result of his absences.
The federal government counters that the EEOC and courts have actually “long understood” the Supreme Court’s decision in Hardison to provide more protection for religious employees “than the ‘de minimis’ language read in isolation might suggest.” At the same time, the Biden administration concedes that the Supreme Court “can and should clarify that” Hardison provides such protection.
Groff has not, the Biden administration stresses, made the “extraordinary showing” required to overrule Hardison. The bar is particularly high, the Biden administration observes, because the court in Hardison was interpreting a federal law, rather than the Constitution – which means that Congress could change the law at any time if it disagrees with the court’s interpretation. Indeed, the Biden administration notes, the Supreme Court has not overturned any of its cases interpreting statutes in 16 years.
The Biden administration also pushes back against Groff’s suggestion that stare decisis concerns are not at play in his case because the court in Hardison was not interpreting Title VII. It doesn’t matter whether the court in Hardison was interpreting the 1967 guidelines or Title VII as amended in 1972, the Biden administration insists. “Both the guidelines and the amended statute were squarely before the Court and an essential premise of the Court’s decision was that they had the same meaning.”
Finally, the Biden administration rejects Groff’s contention that the key question under Title VII is whether the proposed accommodation would cause a hardship to the employer’s business. Instead, the government says, the question is whether the accommodation would cause a hardship to the “conduct of the employer’s business.” In some cases, the government says, this could include the effects of an accommodation on an employee’s co-workers, but the employer would need to show that the accommodation would “actually infringe on the rights of coworkers or cause disruption of work;” it is not enough that accommodating one employee’s religious belief or exercise causes resentment or jealousy in other employees.
But even if the test is whether the proposed accommodation would create an undue hardship for the employer’s business, the Biden administration concludes, the 3rd Circuit’s ruling is still correct. Because USPS is required to be financially self-sufficient, it was “critically important to the USPS that Sunday Amazon delivery be successful.” Accommodating Groff, the Biden administration writes, “would have imposed an undue hardship on USPS by requiring it to violate its memorandum of understanding with the union, operate with insufficient staff, and burden workers — burdens that actually contributed to other employees quitting or transferring.”
Various “friend of the court” briefs supporting Groff urge the justices to overturn Hardison. Briefs from Sikh, Muslim, Hindu, Jewish, and Seventh-Day Adventist groups all tell the justices that Hardison’s “de minimis” standard has had a particularly damaging effect on religious minorities. Members of minority religions, they explain, are more likely to require accommodations in the workplace – for example, because businesses and the government may not be closed to observe religious holidays in the same way that they do for Sundays or Christian holidays like Christmas and Easter. But at the same time, they observe, religious minorities are also less likely to receive those accommodations, because employers can meet the “de minimis” standard so easily. As a result, the groups say, the current interpretation of the “undue hardship” provision requires many religious minorities to choose between their faith and their jobs.
A brief from Regent University’s Robertson Center for Constitutional Law argues that the “de minimis” standard has disproportionately harmed working-class employees. Since 2000, the center writes, more than 60% of the religious-accommodation cases filed in federal courts were brought by plaintiffs in jobs requiring a high school diploma and a year of experience. “The time has come,” the center contends, “to restore to working-class Americans the full protection of Title VII’s plain language.”
A “friend of the court” brief by local governments urges the justices to leave the “de minimis” standard in place. Local governments are both the largest employer in the United States and the provider of “critical public functions such as law enforcement, fire protection, and emergency medical assistance.” And although they make “good faith efforts every day to accommodate” their employees’ religious practices, the local governments explain, they cannot always do so, “not only because of budgetary limitations but also because in many circumstances providing requested accommodation would compromise the ability of local governments to fulfill their critical duties to the public.” If local governments are required to accommodate religious practices that impose more than de minimis costs, they say, they will likely have to cut back on the services that they provide, because “raising additional revenue through increased taxes or other means is often not a realistic or politically viable option.”
Although it has been 46 years since the court’s decision in Hardison, the issue in Groff’s case is one with which the current court is very familiar. His petition for review was the fourth in the past few years asking the justices to overrule their decision in Hardison, and both the federal government (during the Trump administration) and three justices – Clarence Thomas, Samuel Alito, and Neil Gorsuch – had called for the court to do so. The court’s conservative majority in recent years has been sympathetic to religious-discrimination claims, suggesting that Groff is likely to find a friendly audience at Tuesday’s oral argument.
This post is also published on SCOTUSblog.