In a brief filed in Groff v. DeJoy, BJC joined the Church of Jesus Christ of Latter-day Saints, ADL (Anti-Defamation League), the National Association of Evangelicals, the United States Conference of Catholic Bishops, and the Ethics and Religious Liberty Commission of the Southern Baptist Convention in asking the U.S. Supreme Court to rule that employers can deny a religious accommodation request only if it will impose a “significant difficulty or expense.”
The brief calls on the Court to overturn a 1977 ruling (Trans World Airlines, Inc. v. Hardison) that set that standard much lower. Hardison held that even a “de minimis cost” to employers would amount to an “undue hardship” under Title VII of the Civil Rights Act of 1964 and allow the employer to deny it. Justice Thurgood Marshall, joined by Justice William J. Brennan, wrote a powerful dissent in the case. “Today’s decision deals a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices,” the dissent argued.
Gerald Groff is a postal worker and Christian who faced discipline after refusing to work on Sundays in accordance with his religious beliefs. He filed suit under Title VII of the Civil Rights Act of 1964, but the 3rd U.S. Circuit Court of Appeals ruled against him, citing Hardison. Applying the “de minimis” standard, the court held that the impact on the remaining employees to have to cover Groff’s shift or deliver more mail rises to the level of undue hardship, allowing the denial of his accommodation request.
The amicus brief joined by BJC emphasizes that the appeals court’s line of reasoning is wrong for two important reasons: first, they argue, “de minimis cost,” has always been the wrong standard to apply. It “manifestly departs from the words adopted by Congress,” and is “oblivious” to the legislative history of Title VII’s religious discrimination provision. What’s more, they explain, there is a clear solution:
What standard should replace Hardison? Like scholars and other amici, we urge the Court to turn to the [Americans with Disabilities Act]. It uses the same “undue hardship” standard found in Title VII.. But unlike Title VII, the ADA contains an express definition of “undue hardship”: “an action requiring significant difficulty or expense…”
Second, the brief argues that the 3rd Circuit was wrong to characterize the impact a religious accommodation for one employee may have on the other employees as by itself enough to constitute an “undue hardship” justifying denial of an accommodation request.
If an employer can reject a request for religious accommodation whenever it “comes at the expense of other workers,” however trivial the burden and irrelevant to business operations, Title VII’s guarantee of religious accommodation becomes a dead letter.
The brief acknowledges that “extreme circumstances could make a burden on coworkers ‘an undue hardship’ on the conduct of the employer’s business,” if, for example, an accommodation “infringe(s) on the rights of coworkers or cause(s) disruption to the work,” adding that “[f]ortunately, extreme situations like that are rare.”
“Americans,” the brief argues, “shouldn’t have to choose between their jobs and their faith.”
The brief ultimately asks the court to overturn Hardison and its “de minimis” standard, and to clarify that some impact on coworkers is, alone, not enough to amount to an “undue hardship” on an employer’s business. “Hardison,” amici conclude, “creat[ed] a legal standard at war with the statutory text and so undemanding in practice that employers nearly always win. At long last, Hardison should be retired.”
The brief BJC joined notes that BJC and the other amici have been on opposing sides of recent religious liberty cases, but they are united in their call for the Court to overturn Hardison. They’re not alone.
Notably, religious groups of many faith perspectives, including the Sikh Coalition, Muslim Advocates, the Council on American-Islamic Relations, and the General Conference for Seventh-day Adventists, have also filed briefs asking the Court to overturn Hardison, explaining that the “de minimis” standard harms religious minorities.
Oral arguments in the case are set for April 18. Stay tuned.