New York Times Op-Ed: The last crusade to place religion above the rest of civil societyby Linda Greenhouse:
Federal civil rights law requires employers to accommodate the religious needs of their employees, unless the request imposes “undue hardship on the conduct of the employer’s business.” Congress didn’t bother to define “undue hardship,” so 46 years ago the Supreme Court came up with its own definition.
There is no need to grant an accommodation that requires an employer to “cover more than a de minimis cost,” that is, a small or insignificant cost, the court said in Trans World Airlines v. Hardison. …
By treating religion as nothing particularly special, the decision reflected the spirit of the times, but was deeply unpopular in religious circles. There have been many attempts over many years to persuade Congress to amend the law, Title VII of the Civil Rights Act of 1964, to tip the scales explicitly in favor of religiously practicing employees. Between 1994 and 2019, more than a dozen such bills were introduced. None left Congress.
And now, a very different court from the one that ruled 46 years ago is about to get the job done.
That’s not an idle prediction, but the surely predetermined outcome of the new case the judges recently added to their calendar for decision during the current term. The appeal was filed by a conservative Christian litigation group, First Freedom Instituteon behalf of a former postal worker, Gerald Groff, described as a Christian who regards Sunday as a day of “worship and rest.”
Mr. Groff claimed the legal right to avoid required Sunday shifts during peak season at the post office where he worked. Facing disciplinary action for failing to show up for his assigned shifts, he resigned and sued. Lower courts ruled against him, and the Philadelphia-based US Court of Appeals for the Third Circuit expressed no doubt that the disruption and loss of morale caused by Mr. Groff’s absences in the small rural post office where he worked exceeded the de minimis threshold that 1977 Supreme Court precedent requires an employer to show. …
When the court will no doubt rule in his favor later in this period, the decision will not represent a vindication of minority rights. Instead, it will mean the court’s complete identification with the movement in the country’s politics to elevate religion above all other elements of civil society.
Whether today’s Supreme Court is helping to lead that movement or has been captured by it is now beside the point. Religion is the lens through which most today view American society; as I have written, there is no other way to understand the annulment of Roe v. Wade. The end point of this project is not yet in sight. Those of us not on board are left to watch, try to understand, and call court with every additional step he takes.
Forward opinion article: A new Supreme Court case could make Shabbat observance easierby Michael Helfand (pepper & Yale):
The Supreme Court announced earlier this month that it will hear another blockbuster case between church and state, Groff vs. DeJoy. At the center of the case is a puzzle that has plagued federal law for nearly half a century: How far must employers go in providing religious accommodations?
Until now, the court’s interpretation has made little demands on employers. Unsurprisingly, this position has long vexed American Jews, among other religious minorities, who often find themselves seeking workplace accommodations for religious practices such as Shabbat observance. In taking up the case, the Supreme Court has signaled its willingness to review its widely criticized interpretation of existing protections, providing optimism for religious employees hoping to navigate the competing demands of faith and work. …
Among the problems with this prevailing standard is that those most exposed by the court’s stingy interpretation of Title VII have been religious minorities, whose practices often do not keep pace with prevailing workplace rhythms. according to one brief filed with the Supreme Court in 2020, nearly half of Title VII accommodation appeals are filed by religious minorities, even though those minorities only make up 15% of the population. …
Critics more recently have wondered which standard should replace the existing standard. Sure, we should demand more from employers, but how much more? some have worried that a rule granting employees an unlimited right to religious accommodations would spawn its own parade of horrible things, like a police officer’s refusal to protect an abortion clinic or a social worker’s demand to use Bible readings instead mental health counseling, to heal prison inmates.
But, in other contexts, the law has already found a fairly successful middle ground. Regarding the adaptations required in accordance with the Americans with Disabilities ActFor example, undue hardship is interpreted as “significant hardship or expense.” As a result, employers cannot meet their obligation simply by asserting that a requested accommodation imposes a “de minimis” burden; instead, they should go further in finding accommodation for people with disabilities, unless doing so would actually create significant costs or hardship. This standard has proven to be workable when it comes to accommodations under the ADA, providing good reason to think that it might work in the context of religious accommodations in the workplace as well.
Time will tell which path the court ultimately chooses. For now, the court’s decision to hear Groff vs. DeJoy it offers hope of remedying a long-standing evil and giving people of faith in the workplace broader protections. With the right balance, these types of accommodations will provide a middle ground, ensuring that the cost of entering the workforce is not the discounting of one’s faith commitments.
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