Several Jewish advocacy groups are urging the Supreme Court to take up a case that could overturn decades-old precedent and dramatically expand the scope of religious accommodations that employers are required to provide to their employees.
In Groff vs. DeJoy, a former postman is suing the US Postal Service, which fined him and threatened to fire him for refusing to work on Sundays. The USPS attempted to fill some of its Sunday shifts, but was unable to fill them all. The postman, an evangelical Christian, quit his job, saying his religious beliefs did not allow him to work on Sundays.
Under Title VII of the Civil Rights Act, as amended in 1972, employers must accommodate the religious beliefs of their employees unless it causes “undue hardship.” Shortly after this provision was passed, the Supreme Court ruled in Trans World Airlines vs. Hardison that employers are not required to provide accommodations that impose anything beyond a “de minimis cost” on the employer.
The 3rd Circuit Court of Appeals said earlier this year that efforts to grant the postal worker an exemption from Sunday work strained USPS resources and forced his colleagues to take on burdens. shifts and additional responsibilities, spurred tensions in the workplace, and negatively impacted morale, creating “undue hardship” on the USPS and its colleagues.
Jewish groups – particularly those representing Jews who strictly observe the Sabbath and Jewish holidays – have long sought to overturn the “de minimis cost test” established in the Hardison decision. The Supreme Court has declined to take up similar cases in recent years, although three justices – Samuel Alito, Clarence Thomas and Neal Gorsuch – have indicated an interest in overturning Hardison.
The Jewish National Commission on Law and Public Affairs (COLPA), the Orthodox Union and the Jewish Coalition for Religious Freedom (JCRL) have each filed briefs urging the High Court to consider Groff vs. DeJoywith a range of Orthodox groups – including Agudath Israel of America – joining the COLPA dossier.
Although the judges won’t provide their reasoning for dismissing the petitions, the groups who have filed briefs hope that a new judge who has joined the court since a similar case was last dismissed – likely Judge Amy Coney Barrett – will support this petition. Four judges must support a motion for a case to be considered by the court.
“This month’s calendar alone is a beautiful illustration [of the Jewish community’s interest in this case] – because so many Jews have to take so many weekdays for Rosh Hashanah, for Yom Kippur, for Sukkot. Nathan Diament, OU’s executive director for public policy, said Jewish insider. “And thankfully most employers are fine with that, but not all of them, and we don’t want anyone to have to choose between their livelihood and their ability to observe holidays or Shabbat.”
Jewish groups argue that the Hardison decision effectively invalidated the provisions of Title VII.
“It’s not what Congress intended…it was a very big blow,” said Nathan Lewin, a constitutional attorney who drafted the COLPA filing; Lewin also supported the original Hardison case as a “friend of the court” and participated in the drafting of the wording of Title VII in question.
Lewin told JI, “I thought, and the Equal Employment Opportunity Commission ruled it at the time,” that the wording of Title VII “means you have to consider” the employees’ religious observances.
“Since [Hardison] is out, pretty much anything the employer says is a hardship is enough, and they don’t have to provide evidence,” Howard Slugh, JCRL’s general counsel, told JI. “The courts have gone to great lengths on this to even say, ‘Even hypothetical hardship is sufficient’.”
Lewin stressed that he “cannot overstate…the importance of this case” and that he regularly receives calls from Orthodox Jews who say they have been denied jobs or promotions because their employers have refused appointments. accommodations for them.
“I have seen many cases in which Orthodox Jewish individuals have, as we said in the brief, had their careers cut short, lost their jobs because of Hardison,” he said.
In addition to GroffJCRL has also filed briefs in other cases that the judges have already agreed to consider under this term.
In 303 Creative v. Elenis, a Christian website designer who refused to create marriage websites for same-sex couples is challenging Colorado’s LGBTQ anti-discrimination laws. Judges will decide whether compelling “a performer to speak or remain silent violates the First Amendment’s free speech clause.”
Slugh said Colorado law states that “artists effectively have no First Amendment rights, their speech is never protected,” and argued that if he were allowed to stand, it could force a Jewish designer to create celebratory art Kristallnacht. “We wanted to highlight how potentially dangerous this was for a wide range of identifiable individuals.”
Caroline Mala Corbin, a University of Miami law professor who specializes in First Amendment speech and religion clauses, told JI she expects the court to rule in favor of the website designer. .
“Traditionally, preventing discrimination against a historically subordinate group has been considered a compelling governmental interest…This court doesn’t care,” Corbin said, warning that such a decision could also give a Christian marriage vendor the latitude to refuse services to a Jewish couple.
JCRL also filed a brief in Students for Fair Admissions vs. Harvard, which challenges affirmative action practices. “Schools shouldn’t discriminate on immutable characteristics…but if they go, they should discriminate in favor of people who have a minority faith,” Slugh said.