The stakes in Groff v. DeJoy, a case about religion in the workplace, are enormously high. The Supreme Court could give religious individuals an extraordinary new ability to reshape workplace cultures.
Yet, after oral arguments in Groff, which the Supreme Court held on Tuesday morning, the case now appears more likely to end in a fairly cautious decision. Several GOP-appointed justices, including Justices Brett Kavanaugh and Amy Coney Barrett — and, most surprising of all, Justice Neil Gorsuch — appeared to be looking for a way to decide this case without placing new burdens on employers that could fundamentally reshape the workplace.
The case concerns a provision of Title VII of the Civil Rights Act of 1964, which 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.” In Trans World Airlines v. Hardison (1977), however, the Supreme Court said that an “undue hardship” exists whenever an employer must “bear more than a de minimis cost” when it provides such religious accommodations (the Latin phrase “de minimis” refers to a burden that is so small or trifling as to be unworthy of consideration).
Pretty much everyone agrees that Hardison’s “more than a de minimis cost” framework is wrong, as it would all but neutralize Title VII’s religious accommodation provisions if it were taken seriously. US Solicitor General Elizabeth Prelogar spent much of her time at the podium arguing that neither the Equal Employment Opportunity Commission nor the lower courts have taken this “de minimis cost” framework particularly seriously, and that plaintiffs seeking religious accommodations frequently prevail in lower courts.
At the same time, several justices also acknowledged that cases involving workers who seek religious accommodations are, in Justice Ketanji Brown Jackson’s words, “all context specific” — and thus it is hard to come up with a broad legal framework that governs all requests for religious accommodations.
It might be reasonable, for example, to allow a worker at an Amazon warehouse, where many other employees are available to cover one employee’s time away from work, to take a few hours off to attend a church service. But it might not be reasonable to grant this same accommodation to a grocery store employee who works in a shop with only two other co-workers.
The number of justices making comments like Jackson’s suggests that the Court may be looking for a way to decide Groff narrowly — perhaps, as Gorsuch suggested at one point, the Court could repudiate Hardison’s “de minimis” framework without declaring any new grand principles that will govern religious accommodation cases.
It is devilishly difficult to come up with a single legal framework that can govern all religious accommodation cases
The Groff case itself involves Gerald Groff, a postal worker who wanted to be exempted from working on Sundays for religious reasons (though the post office typically does not deliver mail on Sundays, the Postal Service contracted with Amazon in 2013 to deliver Sunday packages).
If Groff worked in a large urban post office with dozens of workers, this request would likely be no big deal, and it certainly should have been granted under Title VII. But Groff worked in a small rural post office where, at one point, only two other workers were available to cover his missed shifts. That, according to Prelogar’s brief, led one worker to quit and another to seek a transfer to a different post office, at least in part because they thought it was unfair that Groff wasn’t carrying his fair share of Sunday shifts.
Groff, the government, and some of the justices all proposed competing legal tests that could help resolve this and other cases involving workers seeking religious accommodations. Groff’s attorney, Aaron Streett, favored requiring employers to grant religious accommodations unless doing so would impose “significant difficulty or expense” on the employer, while some of the justices pointed to a footnote in Hardison which suggests that an accommodation may be required if it would lead to “substantial costs” for the employer.
But, as Kavanaugh acknowledged early in the argument, the question of which specific words the Court uses to describe when an accommodation is required doesn’t really answer the question of how that test will function in practice. Courts will still have to do the hard work of examining each individual plaintiff’s working conditions, and the nature of the business that plaintiffs work in, to determine whether it is reasonable to grant an accommodation.
Several of the justices also appeared moved by Prelogar’s attempt to sort cases seeking religious accommodations into three separate buckets.
The first of these buckets involves cases like Groff, where a worker seeks to alter their work schedule. In these cases, Prelogar argued, lower courts have typically required employers to offer flexible work schedules — such as allowing an employee who needs to miss an hour of work in the morning for religious reasons to work an extra hour in the evening — or to allow workers to voluntarily swap shifts. In some cases, Prelogar said, an employee who requests an accommodation may also be transferred to a different job.
But, if these accommodations are unavailable, Prelogar seemed to suggest, then the worker may not be entitled to additional accommodations.
The second bucket of cases involves workers who ask to dress in a particular way because of their religious faith, such as a Jewish worker who wears a yarmulke or a Muslim worker who wears a headscarf. In these cases, the worker almost always prevails unless accommodating their request presents a safety concern.
Finally, the third bucket of cases involves religious symbolism, such as an employee who wants to display a cross in their office. These kinds of accommodations are also nearly always honored by the courts, unless a religious employee seeks to harass a colleague or display a religious symbol in a way that could be attributed to the employer itself.
As these three buckets suggest, most of the hard cases fall into the first bucket, as scheduling cases are most likely to cost employers money because they may have to pay “premium wages” to entice workers to work unscheduled shifts. And the Court spent a great deal of time asking about just how much money an employer could be required to shell out, or how much of a “premium” they might have to pay workers in order to entice them to work undesirable shifts.
Notably, however, the justices spent fairly little time discussing the latter two buckets. If the Court ultimately agrees with Prelogar’s system and leaves the rules governing the latter two buckets largely intact, then that would obviate fears that a sweeping post-Hardison rule could empower religious employees to harass LGBTQ workers, and other related concerns.
This case could be decided very narrowly
In a sign that the Court will likely rule narrowly, the Groff oral argument focused largely on just how much cost could be imposed on employers, and whether employers can be required to grant accommodations to one worker that seriously damage workplace morale among other workers.
Indeed, at one point, Gorsuch, who often calls for maximalist decisions that blow up decades worth of settled law, suggested that the Court should hand down a very narrow decision in Groff — one that simply repudiates the “de minimus” framework announced in Hardison and that is “silent as to the rest of” the tough issues that arise in religious accommodation cases.
The fact that Gorsuch seems inclined to decide Groff narrowly is a good sign that he could assemble five votes for such a position. Kavanaugh, in particular, seemed to share many of Gorsuch’s concerns that the Court cannot announce a single rule that will resolve all future religious accommodations cases. And all three of the liberal justices appeared cautious about departing too far from Hardison.
Of course, we don’t know how Groff will be decided until it is decided. And even a slight change in the law in favor of plaintiffs seeking religious accommodations could inspire the most ideological judges in the lower courts to impose their own conservative views on employers.
But Tuesday’s oral argument suggests that the Supreme Court is inclined to proceed cautiously, and in a way that hopefully will not sow chaos throughout American workplaces. Or that will, at the very least, defer to a future case the more troubling questions that arise if right-wing religious employees can make too-aggressive demands of their employers.