Today the Court handed down its decision in United States v. Hansen. In so doing, it may have revealed its reasoning in a much more closely watched case Title VII case—Groff v. DeJoy—which will be announced in the next week or so.

In Hansen, the Court was faced with a criminal statute that prohibits “encourag[ing]” or “induc[ing]” illegal immigration. The defendant argued that these terms should be understood according to their ordinary meaning. And the ordinary meaning of these terms is so broad as to criminalize a whole swath of constitutionally protected speech, thus violating free speech doctrine that finds problematic prohibitions on speech that sweep too far.

The Court rejected this argument. It stated that the issue is whether the statute used the terms according to their ordinary meaning or a specialized meaning (i.e., criminal law meaning). And the Court found that because “encourage” and “induce” have well established legal meanings in criminal law, and the statute was a criminal statute, context determines which meaning is the operative one. See Slip Op. 10-11 (“When words have several plausible definitions, context differentiates among them. That is just as true when the choice is between ordinary and specialized meanings, . . . as it is when a court must choose among multiple ordinary meanings. Here, the context of these words—the water in which they swim—indicates that Congress used them as terms of art.”) And the narrower legal meaning of the terms presented no First Amendment overbreadth problem.

So what does that have to do with Groff v. DeJoy? As I have argued in an academic article, and as was described in an amicus brief filed in the case, Groff presents the same interpretive issue: whether the statutory term “undue hardship” should take on its ordinary meaning or a legal term-of-art meaning. Title VII requires employers to accommodate the religious beliefs and practices of employees unless doing so would work an undue hardship on the employer’s business. The Court thus has to determine what the term “undue hardship” meant in 1972 when it was added to the statute.

And applying the analysis of Hansen, the answer should be that “undue hardship” is a legal term of art. The term has a long pedigree in the law, yet is rarely used in ordinary English. And in the specific context of religious liberty in employment, the term had a developed meaning as it was used in a 1967 EEOC regulation, and fleshed out in a series of EEOC decisions, that Congress appears to have codified in the statute. Thus, it is that specialized meaning, not an ordinary meaning, that the Court should read the statute as embodying. (For an argument that "undue hardship" should take on an ordinary meaning, see the petitioner’s brief, and for an argument that stare decisis should control, see the respondent’s brief.)

The difference between the specialized and ordinary meanings of “undue hardship” matters for two reasons. First, it’s the Court’s job to get it right when interpreting a statute. Second, the specialized meaning of “undue hardship” is actually more protective of an employee's religious freedom in the workplace than is the ordinary meaning (this is spelled out in the article and amicus brief).

We’ll know soon enough whether Hansen portends Groff. But if the Court is methodologically consistent in decisions handed down the same month (and perhaps just days apart), then Title VII’s civil rights protection of employees’ faith on the job may be soon returned to its original robustness.

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