By Debbie Kaminer
The Supreme Court issued a unanimous decision that will transform the role of faith in the workplace in a way that could elevate the rights of religious workers at the expense of their colleagues.
On June 29, 2023, the court ruled unanimously in favor of a Christian postal worker who quit his job and sued the U.S. Postal Service for, in his view, not doing enough to accommodate his request to not work Sundays.
The case, known as Groff v. DeJoy, addressed an employer’s obligation to accommodate religious employees’ requests under federal law.
The upshot is that the ruling means religious employees may have an easier time getting their companies to accommodate requests. But while on the surface it may seem businesses will bear the costs of doing so, as a scholar of employment discrimination I believe other employees may ultimately pay for much of the burden of accommodation.
Religious rights in the workplace
Employers are required to accommodate the religious needs of employees under Title VII of the Civil Rights Act of 1964, so long as they can do so without imposing an “undue hardship.”
Congress didn’t define what that term meant, and it took another dozen years for the Supreme Court to do so in Trans World Airlines v. Hardison. The court determined that Title VII does not require employers to bear more than a “de minimis,” or minimal, cost in accommodating religious employees. The new ruling requires a higher level of accommodation by employers.
Relying on this “de minimis” standard, employees requesting religious accommodation in the workplace have generally fared poorly in the courts. Supporters of more religious accommodation in the workplace have tried many times to amend Title VII to redefine undue hardship as a “significant difficulty or expense.”
From 1994 to 2013, over a dozen bills attempting to codify this definition were introduced in Congress, with none coming close to passage. After failing to persuade Congress to amend Title VII, religious advocates turned to the Supreme Court. The court’s decision to hear this case in the first place was highly unusual because it suggested it was considering overturning its own long-standing precedent.
The other key issue in the case was whether or not a religious accommodation that imposes on co-workers can count as an undue hardship on the employer.
Since Trans World Airlines v. Hardison, most federal appellate courts have determined that accommodations affecting religious employees’ co-workers – such as requiring them to take over undesirable weekend shifts – can be an undue hardship, even if the business is not directly harmed. In practice, that has made it easier for an employer to avoid accommodating a religious request.
Business interests vs. religious rights
Ultimately, the court didn’t overturn the precedent set in TWA v. Hardison.
Instead, it took the equally unusual position of explaining that for almost half a century both the lower courts and Congress misunderstood that decision and that de minimis had never been the appropriate standard. Rather, the court noted that the earlier Supreme Court decision stated three times that accommodation is required unless it results in “substantial” – not minimal – costs.
Relying on this long-ignored language, the new ruling revised “undue hardship” to mean “when a burden is substantial in the overall context of an employer’s business.”
The court’s compromise ruling left unclear what “substantial” means, so I expect more court cases to come as employees push the limits of what can be accommodated.
In addition, the ruling seems to permit employers to sometimes shift this increased accommodation cost to co-workers. While the court provided little guidance on when an accommodation would burden co-workers, this could have the effect of limiting other employees’ rights.
Take, for example, one common type of accommodation request, which is time off from work for religious observance.
In those cases, either co-workers can bear the cost of accommodation, by covering for the religious employee without necessarily earning more income, or the employer can bear the cost of accommodation, by hiring additional workers, paying premium wages or suffering a loss of productivity.
The Supreme Court ruling determined that a cost to co-workers can only count as an undue hardship if those impacts also affect the overall business. That means employers might be able to shift the cost of accommodation onto co-workers – for example, requiring them to work an undesirable weekend shift.
AP Photo/Susan Walsh
Co-workers bearing the brunt
Co-workers could also be harmed in cases involving accommodation of religious expression. This is of particular concern in cases in which religious expression demeans LGBTQ+ people.
In 2004, the 9th Circuit Court of Appeals determined that it would pose an undue hardship and be demeaning to co-workers for a religious employee to post in his cubicle the Bible verse “If a man also lie with mankind … both of them have committed an abomination; they shall surely be put to death.”
With the new ruling, employers might be required – by a civil rights law originally aimed at prohibiting employment discrimination – to accommodate religious expression that demeans LGBTQ+ employees.
This all suggests religious employees’ co-workers, not companies, could end up bearing the increased cost of accommodation.
At its heart, the case pit business rights versus religious rights. By making it easier to pass the costs onto workers, the ruling allows the Roberts court to maintain its reputation as being both the most pro-business and the most pro-religion court in recent memory.
This is an updated version of an article originally published on May 15, 2023.
Debbie Kaminer is Professor of Law at Baruch College, City University of New York.
The Conversation arose out of deep-seated concerns for the fading quality of our public discourse and recognition of the vital role that academic experts could play in the public arena. Information has always been essential to democracy. It’s a societal good, like clean water. But many now find it difficult to put their trust in the media and experts who have spent years researching a topic. Instead, they listen to those who have the loudest voices. Those uninformed views are amplified by social media networks that reward those who spark outrage instead of insight or thoughtful discussion. The Conversation seeks to be part of the solution to this problem, to raise up the voices of true experts and to make their knowledge available to everyone. The Conversation publishes nightly at 9 p.m. on FlaglerLive.
Laurel says
Let’s see. If you’re a vegan, should you apply for a job in a slaughterhouse? If you get sea sick, should you apply for a job as a ship’s mate? If you cannot stand the sight of blood, should you work in the medical field? So, why would this guy apply for any job that requires him to work on Sundays? There are plenty of Monday through Friday jobs. Cry baby trouble maker in need of attention.
Come on, this is getting ridiculous! The Supreme Court just decided a woman doesn’t have to create web art for gay people due to her religious beliefs, though no one has asked her to ( I wonder why). Cry baby trouble maker in need of attention.
Cannot believe this activist Supreme Court. They are supposed to take each case as it comes and not have a preconceived response. Not so anymore. If you do not lean in their direction, you don’t have a chance in court.
“Christians” are becoming known as the most intolerant, anti-Jesus group around.
Deborah Coffey says
Spot on, Laurel! We’ve got a Supreme Court legislating from the bench pushing the country off the right hand cliff.
Joe says
So, nnder “previous” Supreme Court rulings, employers were required to make accommodation for those who practice Islam, ensuring that they have time off for daily prayer. Previous courts ruled, that employes must make accomodations for head scarves if worn as part of religious practice. Previous courts have ruled that if an employer is providing meals as part of their work environment, they must accommodate those who do not eat meat for religious purposes (or certain kinds of meat) by providing options that fit the employee’s needs. Previous courts have ruled that it is illegal to refuse to hire someone based on that person’s religious beliefs and the need for that employer to accommodate their needs based on that belief.
So anyone remotely familiar with past rulings should have no problem understanding the current court rulings.
Do some research on your own and stop simply relying on the Main Stream Media (and the politicians) to tell you what you should believe and/or understand.
(Beyond anything else, and not involving the employment question, I’d suggest to you that the last person I’d want fixing a meal for me, or completing a design job for me, would be someone who doesn’t “want” to do it — regardless of the reasons involved!)
Sherry says
@joe. . . did you read the article at all? The legal provision has to do with employers and employees being sufficiently negatively impacted by the accommodation. Just how does particular clothing impact anyone else?
However, when someone wants an “entire” day off (not just an hour for a church service) it absolutely does impact the employer and the employees who must take up that slack. Apples and oranges that even the attorneys and courts have difficulty being consistent on.
Laurel says
Joe: You know not of what you speak. I am a life long Independent, and my husband will verify that I really don’t give a damn what others, especially politicians (good Lord!) tell me to think, or care what others think of me. That’s a good one! You simply assume. Not a good look.
Edith Campins says
The hypocrisy of this corrupt supreme court is appalling.
Zemo Klotz says
SCOTUS doing their job, interpreting the law, not making laws…..that is Congress job……
Joe says
Absolutely correct!
Dennis C Rathsam says
To hell with all you nonbelievers! My lord & savior Jesus Christ was aroung long before workers were requiered to work on the lords day. When I was young stores were closed on Sunday. It was a day for church & family. The reason for all the bad things happening, people have lost thier way, and dont care about one another. But all of us in the grace of god, help the poor and the misfortunate every day. This country was built with our founding fathers belief in god. I think they were a lot smarter than all of you. Why does it say In God We Trust on our money? We need to go back to reality of the past, America was the greatest country in the world. Thanks to all these johnny come latelys, who have brought nothing good to this country except term oil, & radical ideas. They all left shithole country,s to come here, and now they are trying to turn the USA into the places they left.
Laurel says
Dennis: “To hell with all you nonbelievers!”
Thank you for making my point.
DaleL says
“In God We Trust” did not appear on paper currency until 1957.
The Government of the United States, with the ratification of the Constitution by enough states, is considered to have begun on March 4, 1789. Just eight years later, the US entered into a treaty with Tripoli. Article 11 of the Treaty of Tripoli, as ratified by the US Senate in June 1797 reads:
“As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen (Muslims); and as the said States never entered into any war or act of hostility against any Mahometan (Mohammedan) nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.”
God is NOT mentioned even once in the US Constitution.
Religion is mentioned just twice. The first is in Article VI, “…Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
The second is in the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…”
As to Hell? Nonbelievers do not believe in either Heaven or Hell. Hell is as imaginary as the tooth fairy. How many Gods have humans once worshiped fervently? How many religions, including all the different branches (denominations), are there? If there is just one “true” god, why isn’t there just one world wide religion? Jehovah, Jesus, Allah will eventually all go the way of Thor, Odin, Jupiter, Zeus, Ra (Re), Quetzalcoatl, Baal, etc.
Just be Good, for yourself and those around you, for goodness sake.
Laurel says
DaleL: I think you would really enjoy Joseph Campbell’s “The Power of Myth,” if you have not already seen it. I’ve watched it several times, and absorb new info each time.
DaleL says
I’ll check it out. It seems along the line of “The God Delusion” by Richard Dawkins.
What Dennis and others, who claim that the United States was founded as a Christian nation, forget/ignore/never-knew is that with the Reformation, Europe went through repeated religious wars from 1522 to 1712. Those brutal wars were all fought by “Christians”, in the name of Christ, against other Christians.
The writers of our Constitution were acutely aware of the need to create a secular nation. They knew that religions come and go. It is no surprise, that almost from the beginning, the history of our nation has been distorted and lied about by those who would turn our country into a theocracy.
Laurel says
I’ve commented on the money thing several times here. It doesn’t fit some folks’ narrative, so they ignore the explanation and bring it up again and again.
The Power of Myth series is an interview of Joseph Campbell by Bill Moyers on PBS https://billmoyers.com/series/joseph-campbell-and-the-power-of-myth-1988/ and explains how peoples religious belief systems are really very close even though the religions are different. He tells us through mythical stories passed on by various tribes and societies. Really interesting stuff! I think the last time I saw it was on YouTube.
YankeeExPat says
The problem with Jesus is that he is to much of a Liberal for my taste!
Sherry says
@dennis. . . again, screaming into your own VOID! How pathetic!
jake says
” So, why would this guy apply for any job that requires him to work on Sundays?”
The “guy” worked for USPS and when hired, was not required to work Sundays, as USPS did not deliver on Sundays. When USPS became Amazon’s Last Mile delivery service, this changed.
This wasn’t a “Cry baby trouble maker in need of attention”, just someone who didn’t want to work Sundays.
Laurel says
So get another flippin’ job! I did whenever things changed to my disliking. I used to bar tend at a very busy place, at night. I wanted the day shift. I finally got the day shift when another bartender left. Made good money, had great hours. After a while, the owner called me and told me I had to go back on nights because they needed my speed and accuracy with the crowed place. I said no, and quit. Went elsewhere.
These people, to me, are cry babies who want to selfishly effect other people’s lives whether through shift changes to suit the cry baby, or to let others know they are not worthy, or they lessor in God’s eyes than the holier than thous. Had to go to the Supreme Court, really?
Get another job.
jake says
These people, to me, are cry babies who want to selfishly effect other people’s lives whether through shift changes to suit the cry baby, or to let others know they are not worthy, or they lessor in God’s eyes than the holier than thous. Had to go to the Supreme Court, really?” “Christians” are becoming known as the most intolerant, anti-Jesus group around.”
Sounds like the Pot calling the Kettle black.
Sherry says
Right On Laurel. . . my thoughts exactly! In this age of “right to work” (meaning right to fire without cause), career loyalties are out the window. That “freedom” works both ways. . . “Get Another Job”!!!
Pogo says
@Televangelists, snake handlers, blood sacrificers and cannibals
And the rest of the kooks threatening the chastity of every, and all, innocent inhabitants of barnyards and pastures: Where, and when, does this shit end?
FFS — “Render unto Caesar”
https://www.google.com/search?q=render+unto+ceasar