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How the Court is Pitting Workers Against Each Other


James D. Nelson (@ProfJDNelson) is the Vinson & Elkins Professor at the University of Houston Law Center.

Elizabeth Sepper (@lsepper) is Professor of Law at the University of Texas at Austin School of Law.

Kate Redburn (@k_redburn) is a Postdoctoral Research Scholar at Columbia Law School, a PhD Candidate in history at Yale University, and a former Managing Editor of the LPE Blog.

Next week, the Supreme Court will hear arguments in a case with the potential to transform religious accommodation in the workplace. The facts of Groff v. DeJoy seem simple: Gerald Groff, an Evangelical Christian, observes the sabbath on Sundays. As a mail carrier in rural Pennsylvania, he was able to avoid a conflict between his work and religious obligations until USPS contracted with Amazon to make Sunday deliveries. USPS offered to look for employees to cover his shifts, but on more than twenty Sundays, no one was willing to fill in for him. Groff refused to work and eventually quit to avoid being fired. He argues that the Postal Service violated his right to a reasonable religious accommodation under Title VII of the Civil Rights Act.

We believe that this case warrants close attention from LPE scholars because it highlights the accelerating influence of religion on our political economy and threatens to undermine collective power in the workplace. At first glance, this latter claim may appear surprising, since shifting the cost of a worker’s religious exercise to their employer would seem to advance worker power and civil rights—a rare moment of alignment between the conservative Christian legal movement and a more progressive vision of the economy. But Groff, we fear, is more likely to undermine collective power by pitting workers against each other and sabotaging their ability to act collectively.

Under Title VII, employees have a right to reasonable religious accommodations at work, unless those accommodations impose “undue hardship on the conduct of the employer’s business.” More than 45 years ago, in Trans World Airlines, Inc. v. Hardison, the Supreme Court interpreted “undue hardship” quite favorably for employers. There, a Saturday Sabbath observer claimed that his employer had discriminated against him by assigning him to work on Saturdays. In rejecting this claim, the Court ruled that requiring an employer or a union “to bear more than a de minimis cost in order to” accommodate an employee constitutes “an undue hardship.”

In Groff, the Supreme Court will consider two questions. First, it will revisit the “de-minimis” test from Hardison. The Court, as we believe it should, is likely to reject a literal understanding of this earlier test – just as employees should be able to bring other aspects of individual identity to the workplace, they should receive reasonable accommodation for religion, even where the burden is more than de minimis. Second, it will decide whether imposing burdens on other employees in order to accommodate religion can ever constitute an “undue hardship” to the employer. The Court is likely to say no. Such a decision will force employees to bear the costs of their fellow workers’ religious exercise. It will thus position individual workers as competitors for scarce employer solicitude, threaten labor agreements, and dissolve workplace solidarity.

Requiring more than de minimis: The promise of Groff

Taken on its own, the rejection of the “de minimis” test would be a win for workers. The reality of employer power means that without accommodation, some employees face an ultimatum: your beliefs or your livelihood. To foster diverse and inclusive workplaces, employees should receive reasonable accommodation of their religious beliefs and practices, even where those accommodations come at some cost to the business.

Clarifying—or rejecting—the de minimis language might also account for power imbalances between minority adherents and those who benefit from workplace rules that reflect majoritarian religious commitments (such as Sunday closings and observance of Christian holidays). Accommodation recognizes that structures of leave, holidays, dress codes, and other workplace policies often, if unintentionally, reflect the needs and beliefs of larger and more powerful religions in America. With more generous doctrine on their side, some religious employees will gain freedom to practice their religion and keep their job.

Discarding the de minimis language of Hardison, moreover, could clear up some confusion in the lower courts. It would reject cases that seem plainly unfair to religious workers and unjustified by meaningful business interests. Consider, for example, EEOC v. Sambo’s of Georgia, in which a court held that hiring a Sikh man as a manager was an undue hardship on the business, because his turban and beard were inconsistent with the restaurant’s grooming policy. An employer should be required to show actual harm, not hypothetical harm, and demonstrate efforts at accommodation beyond the bare minimum.

Finally, clarifying the test for religious accommodation would reflect the reality that, in practice, lower courts and the EEOC already seem to hold employers to something higher than the “de minimis” standard. Employers have been required, for example, to adopt flexible scheduling and break times, arrange lateral transfers and changes in job assignments, and facilitate voluntary substitutes. In these rulings, occasional overtime wages, missed shifts, and the administrative costs associated with rearranging schedules and recording payroll substitutions have fallen short of undue hardship. And courts have long permitted employees who refuse to pay union dues for religious reasons to donate to a charity of their choice—notwithstanding any hardship to the union. As a result, the EEOC has received a favorable court resolution in roughly 90% of the religious-accommodation cases it filed since 2003—a rate comparable to its other discrimination claims.

Harming workers and workplace democracy: The perils of Groff

Despite these advantages, a bulked-up right to religious accommodation carries real risks. Groff invites the Court to hold that the burdens on other employees are theirs to bear and cannot be considered “undue hardship on the conduct of the employer’s business” under Title VII. If the Court accepts Groff’s invitation to discount the interests of other employees, it would dash any initial hopes of a decision that favors worker power. Worker strife, fragmentation, and disempowerment seem likely to follow.

Here, the facts of Groff are not so sympathetic. An essential function of being a “rural associate carrier” is to fill in for other carriers. Groff’s unwillingness to work on Sunday resulted in his co-workers, many of whom attend Church on Sunday mornings, working fifteen-hour shifts that lasted into the late evening. He claims that USPS bore a duty to skip him every Sunday regardless of these burdens on his fellow workers.

If Groff prevails on this issue, employers around the country will be mandated to inflict the burdens of one religious worker’s accommodation on their co-workers up to the point that the business itself is significantly harmed. Other employees may be forced to permanently switch shifts—or even move from daytime to nighttime shifts. Workers who travel may be forced into less profitable routes or given less time off between trips. These concrete impositions will no longer count as relevant to the reasonableness of a religious accommodation.

In addition to its obvious unfairness, this arrangement will also likely reduce labor power. The facts of both Hardison and Groff illuminate. In Hardison, an employee sought exemption from a union-negotiated seniority system for days off. In Groff, too, the union negotiated a memorandum of understanding, which reflected a careful balance of interests among various employees. Accommodations were attempted in both cases. But the burdens on fellow employees—the loss of days off and imposition of unusually long shifts—ultimately weighed against further grants of accommodation.

Workers may come to think of themselves as competitors for employer solicitude, rather than allies in shaping workplace conditions. The modern American workplace is profoundly diverse, filled with workers of many different faiths or none at all. But even beyond religious differences, American employees hold diverse and often irreconcilable beliefs about what is valuable and important in life.

Fellow employees who are compelled to bear the costs of others’ religious exercise are likely to grow divided. As counsel for TWA worried nearly 50 years ago, preferential accommodation “is ripe with the potential to ignite dissension among employees over another employee’s special treatment.” The workplace may become more fragmented and factional.

Interpreting Title VII to require employers to impose hardships on other workers to accommodate religion would threaten the preconditions for viable collective action. Workplaces and unions rely on a sense of reciprocity, mutual support, or solidarity. And labor agreements reflect that spirit of shared interest and mutual compromise among workers. But a religious accommodation doctrine that lets some employees foist the cost of their religious exercise onto others threatens to tip these delicate balances, cutting against worker interests rather than in their favor.

After Groff

If our prediction is correct, then this case will open up a new vein of litigation on behalf of religious workers seeking accommodations from workplace policies. Although TWA and Groff both concerned sabbath observance – a relatively uncontroversial tenet of many faiths – the broader conservative Christian legal movement has raised religious objections on more contentious issues. Litigants have sought to avoid providing contraception to pharmacy customers, counseling to gay couples, and gender-affirming healthcare to transgender patients.

Employees opposed to workplace safety measures, including vaccination, will ask for accommodations. So, too, will workers who object to diversity trainings or rules against misgendering colleagues and customers. Claims to display decorations that demean other religions or to comment on the sins of one’s co-workers – long rejected by courts – will spring back to life. Employees might argue that the company must provide them health insurance coverage that excludes contraception, a sort of role-reversal from the employer claims in Burwell v. Hobby Lobby. They will raise objections to serving customers who are gay or transgender.

Although Groff promises to take the side of workers and vulnerable minorities, in reality it threatens to open the door to religious objections that deny the equal standing of women and LGBTQ people at work, and ultimately to weaken labor power and worker solidarity.