Courthouse Steps Oral Argument: Groff v. Dejoy

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Chayila Kleist:  Hello and welcome to The Federalist Society’s webinar call. Today, April 18, 2023, we are excited to host this post oral argument “Courthouse Steps” on Groff v. Dejoy, which was argued earlier today before the Court.

 

      My name is Chayila Kleist, and I’m an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today’s call, as The Federalist Society takes no position on particular legal or public policy issues.

 

      In the interest of time, I’ll keep my introduction of our speaker brief, but if you’d like to know more, you can access his impressive full bio at fedsoc.org.

 

      Today we are fortunate to have with us Hiram Sasser. Mr. Sasser, the Executive General Counsel for First Liberty Institute, where he oversees First Liberty’s litigation and media efforts. Mr. Sasser’s practice focuses primarily on the First Amendment and other constitutional and civil rights issues. He has numerous appearances on ABC, NBC, CBS, CNN, and the BBC, as well as being heard on various radio stations throughout the United States, Asia, Africa, and Europe.

 

      In 2016, Mr. Sasser took a leave of absence to serve as a temporary assignment, the Chief of Staff for the Attorney General of Texas. He currently serves as an Adjunct Professor of Law at both the University of Texas Austin Law School and the Oklahoma City University School of Law. He is also the co-counsel in this case representing Mr. Groff, and I’ll leave it there.

 

      One last note. Throughout the panel, if you have any questions, please submit them via the question-and-answer feature that can be found at the bottom of your Zoom window, so we’ll have access to them when we get to that portion of today’s webinar. With that, thank you all for being with us today. Mr. Sasser, the floor is yours.

 

Hiram Sasser:  Thank you. Thank you so much. Well, this was a fantastic case, starting from the very beginning. We came in at First Liberty to represent Gerald Groff once it got to the Third Circuit and brought in Baker Botts with Aaron Streett as our lead counsel with us at the Third Circuit and then on to the Supreme Court.

 

      Just to give you a little factual background—just to get a flavor for this. Lancaster, Pennsylvania may seem familiar to a lot of folks. It’s the area of -- it’s really called Amish country, and a lot of people visit that area because it’s fun to see in a way people lived some time ago and continue to live that way by religious choice. I call it the land of religious exemptions, in a sense, because it’s where—and religious accommodations—everybody is accommodating -- like on the roadways, just on an everyday basis, you’re accommodating somebody based on their faith. And so, it’s just fascinating to me that the case came from there.

 

      But Gerald, I think, is a twelfth-generation person living in Lancaster, Pennsylvania. I apologize, I’ll sometimes call it Lancaster because I’m from Texas, but I know they call it Lancaster there, so I slip a little bit. But Gerald Groff grew up there in Lancaster and went off and served as a missionary for a number of years, in various capacities, in Asia and Africa. He decided he wanted to come back to Lancaster and to start a career, and the post office was a great place for him, in his mind, because, well, he has a religious objection to working Sundays. He'd grown up as a Mennonite but now considers himself to be an evangelical Christian but is very committed to honoring the Sabbath. And the post office, they didn’t have any Sunday deliveries, and no one worked on Sundays, and it was great.

 

      So Gerald got a job as a Rural Carrier Associate—that position is, literally, a position that he could end up doing any number of routes or any number of things in the area—and enjoyed that for quite some time in the Quarryville Post Office until Amazon cut a deal with the Postal Service. And so, that’s what led to Sunday deliveries for the post office. And in the beginning, the post office accommodated Gerald and eventually decided they were not going to accommodate Gerald. And what’s fascinating is they were going to accommodate -- they were accommodating Gerald. When they took away that accommodation—where he did not have to participate in the Sunday deliveries—he was very close, seniority wise, to becoming a full carrier with his own route, and he would have been exempt from Sunday deliveries. So he probably only had a few Sundays left that he would have to violate his faith.

 

      His faith was so strong he said, “I can’t do that.” So he chose to transfer to Holtwood, which is another postal area -- another post office that is more rural and no Amazon deliveries were happening at that time. He forfeited all of his seniority and went back to the back of the line. But of course, Amazon deliveries came there as well. One of the fascinating things about this case is that the government—and I’ll highlight this a little bit later—made a lot of hay over the fact that, “Well, this is a small post office. There’s only a few postal workers. Well, goodness sakes, if he can’t deliver on Sundays, that puts this burden on just a handful of other people.”

 

      But for the most part, what they did in that area was that all the rural carrier associates would report to the Lancaster Annex, and they all became a fungible resource. So you might have 40 of them showing up on a particular Sunday to go deliver a round, maybe, approximately 20 or 22 routes—sometimes only 15 routes—and so, as a result, there were plenty of other folks not only who could do it, but  many of them were enthusiastic about doing so because just as Gerald would have to be paid overtime because he’d already worked too many hours that week to deliver on Sunday, so too would the other -- anybody who filled in for him anyway. 

 

      So the case arose because, eventually, Gerald resigned after a series of disciplinary actions. And instead of facing the discharge right at the last moment, Gerald resigned and sued and lost at the district court, lost 2-1 at the Third Circuit, and then here we are at the Supreme Court. Well, the argument is really fascinating because, essentially, what you have is on the law under Title VII—which is how this case was brought against the U.S. Postal Service—Congress passed the Civil Rights Act of 1964, which was later amended in the 70s to incorporate some additional changes—that’ll come into play in a second. But what’s fascinating about it is that they had the undue hardship language. And so, in other words, as an employer, you have an obligation to accommodate the religious practices and beliefs of your employees unless doing so would cause an undue hardship.

 

      And when most people -- you talk to the average person, “What’s an undue hardship mean?” it sounds like it’s something that’s really significant, like some sort of significant difficulty or expense. And they would be right because later on Congress, when they passed the American with Disabilities Act, they actually defined -- they used the same undue hardship language, and they actually defined it as significant difficulty or expense. But Congress did not define undue hardship in the Civil Rights Act.

 

      Well, there was a case that came along, TWA v. Hardison—and I don’t want to spend too much time explaining that legal backdrop but just enough so everybody gets a picture of this. There was a statute that was on the books, talking about the Civil Rights Act, that required religious accommodations. The EEOC issued some guidelines that included the undue hardship language—that I was just talking about—for the first time. The statute was then amended after that. But when TWA v. Hardison was before the Supreme Court, the issue that was in play was actually the regulations from the EEOC and not the amended statute.

 

      So when TWA v. Hardison came down, the issue, the holding of that case really dealt with the regulation and not the statute. And so, the Groff team, in arguing—Aaron Streett from Baker Botts argued the case, and he did a fantastic job. And Solicitor General Prelogar, she did a fantastic job for her side, as well, and we’ll describe that a little bit. So Mr. Streett, when he was making his argument, the big—oh, okay. I’m sorry. I saw a little note here on the bottom, and I just wanted to make sure I didn’t miss that. The argument that he was making, essentially, was “Well, because it was interpreting the regulation and not the statute, the Court, today, owes no statutory stare decisis deference to TWA v. Hardison, because the statute was not in play, and therefore any language dealing with undue hardship as to the regulation is actually only dicta, as to the statute. And so therefore, statutory stare decisis would not come into play.”

 

      A brief definition of statutory stare decisis is -- and most people know what stare decisis means. Well, for statutes, when the Court is interpreting a statute, there is a little bit of deference that the Court engages in towards Congress or towards previous decisions by the Supreme Court interpreting a congressional act. And so, if a Supreme Court decision comes down interpreting a statute and later on the Court wants to revisit that, the statutory stare decisis asks some various questions to see if, in fact, this is what -- the Court should overturn they said, themselves, or if the Court should wait to see if Congress wants to reverse their -- if they think it’s an erroneous decision, an erroneous interpretation.

 

      And so that was an issue that was at play here, but Justice Thomas starts of rather quickly by asking, “Well,”—what we just described—“isn’t this -- wasn’t the statute really not in play during TWA v. Hardison?” And Mr. Streett answered that the answer is “Yes, it was not in play.” He ended up asking a variation of that question also of Ms. Prelogar, and she concurred, but she had some additional gloss on that because the government really wants the Court to apply statutory stare decisis.

 

      What was fascinating was Justice Kagan had an interesting observation. She said, “Well, statutory stare decisis would only apply if our past decision was wrong.” So the fact that it was wrong, that if the Court interpreted undue hardship wrongly before, then it would be a -- obviously, that’s the only time you’d invoke statutory stare decisis, and therefore that fact that they got it wrong or maybe got it wrong should not be that big of a deal. It was sort of an interesting take on it. But the issue --what happened in TWA v. Hardison and why it was such a big deal was that they -- the Court in TWA v. Hardison declared that or found that undue hardship meant de minimis. So in other words, if there was any de minimis cost at all on the business—I mean, de minimis, anything—then that was an undue hardship. Mr. Streett, in his argument, pointed out that “Well, that doesn’t sound the same thing.” I mean, undue hardship sounds like how -- the ADA defines it as significant difficulty or expense, but de minimis doesn’t seem to match just, almost, the dictionary definition of undue hardship.

 

      For the government’s part, they actually didn’t try to defend undue hardship equaling de minimis either, in one sense, and then tried to defend it in another. And it’s really difficult to unpack it because the solicitor general, she was very—schizophrenic is a harsher word than I would like to use, but I don’t know what other word I should use to describe the waffling around that she had. I mean, to be honest with you, the government’s position seemed to grow emptier throughout the argument, in terms of what was being offered as a substitute for Mr. Streett’s presentation with significant difficulty or expense. Ms. Prelogar said, “Well, maybe undue hardship shouldn’t mean de minimis as we understand it, but maybe we can redefine de minimis as substantial expense.” And for her part, she pointed to the EEOC guidelines that came out after TWA v. Hardison, interpreting undue hardship, and she said that those guidelines seemed to add a little bit more umph—and that’s my word for it. Ms. Prelogar was much more articulate—to the de minimis -- sort of a de minimis plus something that the EEOC guidelines seemed to offer.

 

      And she pointed that there had been some plaintiffs who had brought cases under Title VII who had survived summary judgment under the undue hardship standard as de minimis and therefore that maybe this is not as difficult of a problem as Mr. Streett was pointing out. And of course, Mr. Streett was pointing out “Well, goodness sakes, this is really a losing proposition for plaintiffs who are seeking to vindicate their civil rights guaranteed them in the statute because de minimis is really almost nothing and very easy for an employer to advance.” And it really put a giant wet blanket over the requirement of a religious accommodation that Title VII requires. And so, as a result, there was a lot of back and forth between both sides talking about terminology, significant difficulty or expense on the petitioner’s side, substantial expense on the respondent’s side.

 

      Justice Kavanaugh challenged both sides to say, “Well, what do these words mean, and what are the examples that you would talk about?” And it was fascinating because the government -- Ms. Prelogar, morphed her argument throughout to decide -- well, there was some backpedaling, and she kind of landed on, “Well, we want to keep de minimis as a name but, maybe, have a little bit more room for a requirement that the employers actually incur, something a little bit more than just de minimis,” but wanted to continue to call it that and preserve all of the case law over the past 46 years that have been applying this watered-down version of undue hardship under Title VII. And as a result, it was difficult to grab a hold of whatever the real test that was being offered, other than some examples that Ms. Prelogar provided, which were helpful, I thought, in terms of trying to figure out where the government stood.

 

      And one of the examples was they thought that payment of any premium wages would be an undue hardship and then providing any kind of time-off exemption or exception—just accommodation of somebody—if it ends up causing a morale issue, in terms of some people are upset about that, that that would be an undue hardship as well.

 

      A couple of interesting points—and I want to make sure we save time for questions. We already have one, and we’ll get to that one soon. But a couple of interesting points, Justice Alito asked about -- Ms. Prelogar was taking the position that minority faiths have really been okay under the de minimis standard, and they’ve been fine. And Justice Alito held up a bunch of amicus briefs filed by various Muslim, Hindu, Jewish, Seventh Day Adventist, and other minority faiths and said, “Well, they seem to disagree because they filed on the petitioners side.” And there really wasn’t a lot of conclusion from that, but I thought that was a fascinating moment.

 

      Another interesting, fascinating moment was Justice Sotomayor, she seemed very concerned that corporations were not going to be profitable if they have to comply with all these burdensome government regulations. She seemed very concerned. And Justice Kagan shared some of that concern of businesses and corporations—corporate America—suffering financial harm as a result of having to comply with civil rights statutes. So that was sort of a new and surprising phenomenon that happened during the argument.

 

      So anyway, the last thing that I’ll say—and then we’ll start addressing some questions and we’ll throw in some additional detail—one of the features of Mr. Streett’s opening -- and there was no pushback really from the government and really not a lot of use of this in the argument by the justices, so I don’t know if they just didn’t find it significant or what its significance will end up being. But the 30(b)(6) deposition of the government revealed that they could not identify an undue hardship in this particular case with Gerald Groff, and fascinatingly, that the postmaster for Gerald, at the time of -- during all the disciplinary hearing or whatever, could not -- said that prior to them deciding that, while they were accommodating Gerald, did not actually create an undue hardship. There really wasn’t a lot of use of that. But what was also surprising there wasn’t a lot of discussion of this particular case during the oral argument. A lot of the discussion was “How do we find the standard?”

 

      One last thing I’ll say before we get to the questions is several of the justices—like Justice Gorsuch for example, Justice Kavanaugh, Justice Kagan—mentioned maybe we’re all coming together, kumbaya, which was this effort of what is the common ground between both sides? The common ground seemed to be, “move away from de minimis.” But when you drilled down to it with the examples, it didn’t feel like the government was really committed to that in a meaningful way—more of a slogan way but not necessarily in a meaningful way—because I think that they didn’t want to get pinned down because they had argued and were continuing to argue in their argument that they want to keep all the undue hardship de minimis precedent still intact and were simply suggesting a slight modification to that in sort of labeling -- in a labeling aspect. But it was difficult to figure out, in a substantive aspect, how that would play out because they seemed to be confident that the current EEOC guidelines were good enough.

 

      So with that, I think we’ll go ahead and start taking some questions and then we can proceed with some additional information as we go along.

 

Chayila Kleist:  Absolutely. Thank you so much for that background and breakdown of oral argument. It’s really helpful. As you mentioned, we already have some questions coming in, so we’ll hop right into those, although I’ll briefly remind our audience if you have questions, we’d love to hear them. Just use the Q&A feature at the bottom of your Zoom screen.

 

      First question comes from Rafael Vim (sp) who asks if you anticipate this case turning on the stare decisis issue, and further asks, “Is it a compelling argument that Hardison is dicta when, in effect, it’s been treated as a holding for so many years, creating almost a stare decisis effect?”

 

Hiram Sasser:  Yeah. I don’t know that there’s going to be a lot of discussion in the opinions. I’m not predicting that this case is going to turn on statutory stare decisis because for it to turn on statutory stare decisis, I really think that you would’ve had to have the government defending the essential reasoning—the underlying reasoning—of the original decision in TWA v. Hardison, and they completely abandoned that, both in the briefing and during the oral argument. And so there really wasn’t an advocate for the old standard as such. But Justice Kagan did -- she made a good run at continuously raising the statutory stare decisis issue. And it seems that the fight there is between Thomas and Kagan, where Thomas is saying, “Well, technically, it really wasn’t. I get your point that, well, some of the lower courts have treated it as if it is precedent, in a sense that it has some sort of an effect of precedent and therefore can grow into that, but that’s not really how statutory stare decisis works.” You can’t morph into it by accident, and Justice Thomas, I think, was trying to make that point. But Justice Kagan had a counterpoint to that.

 

      But for this case to turn on statutory stare decisis—for that to be meaningful—would, essentially, lead to, I think, to Mr. Groff having a difficult time in the case. And I just don’t think that the justices --at least, there didn’t seem to be enthusiasm with -- for example, Justice Barrett or even Justice Gorsuch or the Chief Justice to support that kind of analysis. Certainly, Justice Kavanaugh didn’t spend any time on that issue as well. So I suspect that while there was a lot of briefing on that issue, there was a lot of discussion on that issue, that it is going to not be something that is going to garner enough support on the side of treating Hardison according to statutory stare decisis that it’s going to matter a lot in the case. That’s just my prediction, but I could be incredibly wrong.

 

Chayila Kleist:  Fair enough. Well, thank you. Our next question asks whether there are Establishment Clause concerns associated [inaudible 26:58] the accommodation requirement more broadly than TWA does?

 

Hiram Sasser:  Yeah, the 1970s were an interesting time for the Establishment Clause cases. I mean, that was when Lemon v. Kurtzman, which is no longer good law, came out with the three-part test on the Establishment Clause. And it was a time when accommodating religion or religious practice in a way that you were not doing so for secular reasons or purposes or actions was deemed to be verboten under the Establishment Clause. And TWA v. Hardison does make reference to that reasoning, and it really is almost -- TWA v. Hardison’s almost a product of its era, in that sense. And now that we’ve had changing Establishment Clause understanding, where a religious accommodation is not prohibited, in a way, even if it is giving an accommodation to something that’s religious, that’s not giving equal accommodation or deference to its secular counterpart, that it’s not an equality principle; it’s a protection principle.

 

      I think that really erodes some of the underlying reasons why the Court would’ve tried to be -- would try to water down religious accommodation, such that they would equate undue hardship with de minimis, which doesn’t make any sense but does make sense if there’s a statutory -- or a constitutional avoidance element to what was going on. And that was discussed during the argument, which is part of what was going on in TWA v. Hardison is “Well, maybe they were trying to read the statute in a way that would make it so they wouldn’t have to declare it unconstitutional under the Establishment Clause, for example, and that avoiding a constitutional problem was the motivating factor behind that watering down of the undue hardship language.” So that was discussed, and the Chief Justice laid down the marker on that during the argument by positing, “Well, hasn’t there been a changing understanding of the religion clause, and so doesn’t that make a difference?” And of course, each side had their own take on that.

 

 Chayila Kleist:  Fair enough. Well, thank you. Our next question comes from an audience member who apparently made it to oral argument and so is coming to us afterwards. They pose a question about a buckets argumentation by the SG. So I’ll ask, first off, what was that? Can you summarize what that argumentation was and then what its possible effects could be in the case?

 

Hiram Sasser:  Sure. Yeah, the solicitor general offered this categorical idea that there are certain buckets of types of cases that come up and, basically, a way to categorize the de minimis impact as to various types of cases. And Justice Gorsuch said, “I’m really interested in your buckets.” One of the buckets was the payment of premium wages, and another bucket dealt with whether or not there was an impact on co-workers, and my third bucket is escaping me now, and I so apologize for that. But the point was, as you drilled down into these buckets of categories, you really saw that de minimis was the ruling category. I mean, she tried to re-define de minimis during the argument—almost on the fly—a couple of times to avoid, I think, the idea that, “Well, maybe the Court could go over to significant difficulty or expense,” and try to go away from them.

 

      I don’t know how much purchase all of that had because at the end of the day the argument essentially boiled down to -- oh, the other one was dealing with any kind of memorandum, any kind of union contract, or a union memorandum of operations. And so, I don’t think that the justices are all going to be enamored with the fact that unions and corporations can get together and, essentially, create a contract that says, “Well, there’s not going to be any religious accommodations.” So I think that fails.

 

      I don’t think premium wages -- even under de minimis, as the government was describing it, didn’t even match up with that bucket of, “Well, the payment of premium wages over time is enough.” She tried to draw a distinction between short-term and long-term payment of premium -- of wages, but that’s not the comparison. The comparison is the impact on the business, and that’s going to be a context-specific analysis. But at the end of the day, it’s not going to -- there’s no magic about short-term versus long-term premium wages. It’s just simply going to be, essentially, what’s the burden on the business in its totality? And so, I think what was being offered sounded neat but really didn’t have a lot there.

 

Chayila Kleist:  That’s good. Thanks for breaking down what that argument was and then addressing the question. Our next question comes from someone who notes that very few businesses in this day and age are closed on Sundays with the exception maybe being Chick-fil-a or Hobby Lobby. Do you think that we will see more of these types of challenges or issues come before the Court?

 

Hiram Sasser:  I actually don’t know that there’s going to be -- if the Court -- even if the Court were to adopt the significant difficulty or expense standard under the ADA, that -- well, it’s not adopting it under the ADA. We’re just using that as an example, or Mr. Streett was using that as an example of a workable definition of undue hardship that seems to be okay. It’s also the definition, though, and the standard that is used in state courts in both California and New York. Mr. Streett pointed that out, and the solicitor general, she responded and said, “Well, there’s just really not that many cases there.”

 

      And I think she was making that argument to say that we really can’t use that as a workable standard because we don’t know workable it is because there’s not enough cases and data points to judge it. And I think that’s -- but I think it -- it also weighs against her because if the argument is, as this question suggests, “Well, won’t there be many, many more of these cases coming along, and won’t that be a problem?”—sort of the Sotomayor concern that corporate America may suffer financially as a result of all of these civil rights claimants that might emerge. Actually, the absence of a ton of cases in California and New York, actually, weigh against that. And it’s not that you could say, “Well, they would bring them in federal court in those states if the standard is better in state court.”

 

      So I just don’t think -- I don’t know if this is a good thing or a bad thing for America, I’m just pointing this out. I just don’t think that there’s a lot of a -- enough of a population who have an objection to working on a particular day, such that they could raise a sincerely held religious belief, to advance that as a need for an accommodation. I just don’t think there’s enough that really is going to end up causing that big of an issue.

 

      I mean, the atheists, for their part, in their amicus briefs, they pointed out, “Well, why should a secular reason not be treated as favorably as a religious reason?” That’s their argument, but of course, you have the Chief Justice pointing out that it’s okay to accommodate religion in a way that you’re not accommodating secular desires, and that’s our current jurisprudence on that issue.

 

Chayila Kleist:  Got it. Well, you just mentioned this a little bit, so I’ll turn to our next question. What are the arguments against interpreting undue harm, as it’s put forward in the ADA?

 

Hiram Sasser:  Well, the government’s position is that disabilities are different than religion, at least -- first, because it’s something that is defined and limited as to you have a disability, like, you can’t lift a box, or you can’t -- you have to use a wheelchair, or you need a sign language interpreter or something of that nature, whereas religion is something that you can raise -- it can be many, many -- Justice Barrett said, “Well, it could be many more people could have a religious -- a need for a religious accommodation.” The population is almost -- the potential population of that would be everybody, whereas disability is going to be much more limited and finite. And the other thing is that accommodating those things seemed to be more relatively straightforward, according to the government.

 

      But at the end of the day, we have to first talk about—as Groff’s attorneys point out, as Aaron Streett points out, especially in the briefing—is that “Well, the significant difficulty or expense, it’s not a test that you would be adopting from the ADA over to Title VII. It is a good working definition of the words “undue hardship,” which happen to be the same words in the ADA and in Title VII. The other thing is that there are lots of attendant issues and subparts that have been addressed over time through the ADA, and some of that reasoning and issues and ways of thinking about accommodation can imported over to Title VII.” To the government’s part, they said, “Well, there’s a lot more parts to that than you’re -- and you’re glossing over some of the extra complexities.”

 

      So at the end of the day, I don’t think it’s a, “Hey, why can’t we just use the ADA standard?” I think, really, what the argument is, is what do the words undue hardship mean? Is this a good definition: significant difficulty or expense? Is that the appropriate definition? And what are the pitfalls of using that definition? It may be some of the ADA experience helps guide employers so that it’s not in uncharted waters for them to navigate.

 

Chayila Kleist:  Well, thank you. We’ve had someone pose the opposite question, and if I understand your last answer correctly, this answer may be a fairly short response. But will this case have any effect on the way that undue hardship is interpreted in ADA cases moving forward?

 

Hiram Sasser:  I don’t think so because I don’t think the Court looked like they were intending to move in the opposite direction where they would go, “Yeah, the ADA seems off. Significant difficulty or expense, maybe those guys should have to live under the de minimis standard as well.” Nobody seemed to have the appetite for that. I think what was really going on during the argument is that the government, Mr. Groff’s side, and all the justices were trying to figure out where was the common ground. The challenge on that is that the common ground appeared to be, at the surface, available, in a sense. What’s the difference between substantial expense, which is what the solicitor general kept saying, and significant difficulty or expense? As Mr. Streett pointed out, there may not be any difference. The devil’s in the details and some of the examples that would be provided, which leads to, “What do we think they’re going to do with this case, and where do we think that we’re headed as an outcome?” There doesn’t seem to be any appetite, based on any of the justices, except for Justice Kagan who made some of her points about statutory stare decisis, but I just don’t see that that had any kind of majority purchase at all.

 

      And so, I don’t think that de minimis is going to stay put. I think what’s going to happen is there’s going to be something else that’s going to take place, and we’re going to get a clarification that TWA v Hardison, that the de minimis standard articulated there in place of undue hardship is just not going to stick. What they’ll call it, how they will articulate a new standard—a definition for undue hardship—and what examples they use in the opinion will be extremely helpful.

 

      As I mentioned before, there’s an easy out for them on this case, in the sense that after articulating all of that, they could actually reverse and render judgment in favor of Mr. Groff, based upon the admissions of the other side that there was no undue hardship in accommodating him.

 

      So it just -- at the end of the day, we’ll have to wait and see, but I don’t think de minimis is going to survive. I’m not sure that they are going to go with significant difficulty or expense or incorporate some of the ADA language or if they’ll call it something else, but the true test will be buried in the examples that they would inevitably use in the writing.

 

Chayila Kleist:  Got it. Well, continuing on with that, we have a question from one of our audience members, asking if you think there are five votes to overturn Hardison. It seems the answer may be “Yes,” but I’ll pose the hypothetical alternately. Assuming that doesn’t happen, what would be the recourse? The audience member asked, “Would the next step be to lobby Congress to amend the statute?”

 

Hiram Sasser:  The government pointed out, “Hey. You guys on the other side of this issue have tried to lobby Congress to get them to change the standard.” And in the early 90s, there were some hearings on it, and of course, what was one of the main arguments? “Well, this would be a violation of the establishment clause.” And so, that argument had some weight to it in the early 90s that it doesn’t currently carry. So there’s that consideration.

 

      And Mr. Streett, he argued that “Well, you can’t interpret congressional silence here as acquiescence because, in effect, there really hasn’t been a full vote in Congress, and the burden is not necessarily on Congress to fix a misunderstanding of a regulation that had the same words.” I mean, that’s sort of the argument. I guess that would be the next path, if for some reason the Court came back and said—and I just don’t think this is going to happen—“Hey. We like de minimis. It’s great. The plaintiff almost always loses.”

 

      The solicitor general said, “Well, that’s not true.” Here’s at least four or five examples where plaintiff survived summary judgment.” And the other side, Mr. Groff’s side, does not think that that necessarily demonstrates that the standard is working in a way that’s even. It certainly does bolster one of the elements of statutory stare decisis’s workability if plaintiff always loses. Well, that’s highly workable. It’s really easy. The plaintiff loses. But that doesn’t seem to be the direction that I think the majority will be going. And I’m really not sure, by the way, that Justice Kagan is a foregone conclusion. I think there’s a lot of different angles that this could go.

 

Chayila Kleist:  Got it. Next audience question is, “Any thoughts on whether this is a standard liberal/conservative split or if it’s something else? There will be different ideological lines?

 

Hiram Sasser:  Well, the amici were certainly -- mostly the left and the right were together. I mean, Americans United for Separation of Church and State, they’re not fully in support of the petitioner, I would say, in every respect, but they say, “De minimis, this is not going to work.” You have Care (sp). You have Hindu groups and Jewish groups, Seventh Day Adventist, the Church of Jesus Christ of Latter-day Saints. You have a lot of different, varying groups that have come together, as Justice Alito has made reference to. And so, it was about a 4-1 imbalance on the amici, in support of Mr. Groff. And so, I don’t know that this is -- I mean, Justice Jackson gave every indication that she was open to revisiting this de minimis standard and finding something that would be closer to what undue hardship should mean. Does that mean that that’s where she’s going to end up? Who knows? But she certainly seemed very open to that approach.

 

Chayila Kleist:  Got it. Appreciate that and appreciate you going a little bit more into how the various justices may break out. A question from attendee Sarah Reece (sp) asked, “Did anyone argue that it’d be easier for companies and HR personnel if the same meaning of undue hardship applied in religious and disability accommodations?”

 

Hiram Sasser:  Well, Groff’s lawyers argued that it’s a familiar standard. It makes sense, and it’ll be easier for companies to update their employment manuals, that it undercuts the reliance arguments—reliance on de minimis—and that’s certainly true. The government’s argument is that the ADA accommodations involve a few more steps and other issues that are not the same and not the equivalent of religious accommodations. But certainly, foreseeability is important, I think, to companies, being able to plan appropriately. And it is true that it’s easier for them to plan now because the plaintiff almost always loses, and something that’s not that is going to have to involve a little bit more planning. But, again, as the question points out, having a similar standard or something that’s already being accommodated certainly makes that much, much easier, which is part of why Mr. Groff’s lawyers were suggesting it as a potential solution.

 

Chayila Kleist:  Thank you. Transitioning to hypothetical outcomes and the possible ramifications of either side, I’m going to take a question from the audience and blend it with one I’ve had for a bit. I realize that this is the opposite of what you’ve said probably will happen, but assuming that the justices rule in favor of Dejoy and the de minimis test stays in place—whether in name or in practice—what will the ramifications be for the practice of religious liberty in the workplace, and what is the conversation going to be on, whether or not religious liberty actually gets constitutional protection, in the context of the workforce?

 

Hiram Sasser:  Title VII is a statute, and it applies to both the private industry and government employers. It’s a separate and distinct issue from whatever constitutional protections that someone may have, as to their government employer—obviously, the constitutional protections wouldn’t apply to a private employer. But if de minimis is preserved—according to the amici, anyway, especially of the minority faiths—it’ll be a significant blow to their ability to participate meaningfully in the workplace because many people -- many minority faiths have various requirements, some of which require a little bit more accommodation than others.

 

      Like, maybe an orthodox Jewish person requires to be off from sundown on Friday to sundown on Saturday, but someone else may have a religious accommodation to, merely, wear a hijab or a turban or a beard or something else. And if it’s de minimis, then everything I just mentioned, it’s easy for them to lose because all the employer would have to do is show that some above-zero-line cost or problem and, “Sorry. You’re out of here.”

 

      What the cases don’t really capture are all the conversations that take place that never make it to the EEOC or make it to the courtroom. Todd McFarland, who’s been working on this issue for the Seventh Day Adventists for a long time, pointed this out to me, and he said, “Look. There’s so many times when the EEOC never sees these cases because they end in a discussion.” The employee asks, “Can I have a religious accommodation” let’s say “for wearing my yarmulke?” And the employer says, “No. That wouldn’t allow you to wear the special hat we want you to wear so that you can present the corporate image we want to present, and we might suffer a little bit of loss in customer satisfaction, and therefore, that’s de minimis, and you’re going to lose here,” and the employee abandons their request or abandons the job, and no one every hears about it.

 

      So when the deck is stacked so heavily in one direction, there’s a ton of scenarios that happen that nobody ever finds out about. In fact, Gerald Groff, himself, was told by one of the members of management of the post office, “You have a 99 percent chance of losing.” And probably that person was underselling his detriment. I mean, he probably had a 99.9 percent chance of losing under de minimis. Now, there were some fortunate admissions that took place in the case, and as it turned out, they may not have had any problems accommodating him, and they created the problems themselves just to make a point. That seems to be what the factual record demonstrates.

 

      But put that all to the side, there’s a lot of different scenarios that end up happening that just never make it to the light of day, and so it’s very, very difficult to know what the impact is going to end up being, other than we have our examples from California and New York, which suggest that the people who need the types of accommodations that are, at least, at issue in the Groff case—for Gerald, the Sabbath-type accommodation—there’s just not a lot of people that are in that bucket.

 

Chayila Kleist:  Understood. Well, I know we’re approaching the end of our time, so I’ll flip to the other hypothetical before we wrap out. Assuming that the Court rules in favor of Groff, what could this mean for the future of religious liberty protections, particularly for practices that might not have been considered covered under Title VII? And what harms might employers have to take on, based on a requirement to accommodate those practices?

 

Hiram Sasser:  Well, you have to remember Title VII does not apply to companies that have 15 employees fewer, so it’s not going to have any impact on small businesses, one way or the other. But I think what we’ll find is that there’s a very small population of people who need a religious accommodation to meaningfully participate in the workplace, that those are going to come in various shapes and forms. Some of them are going to be Sabbath-type cases or other holy days—maybe irregularly so—and the folks will, more often than not, be easily accommodated, especially by large corporations that have a lot of fungible people to move around. And, in fact, some people who have certain shifts that they would desire -- for example, if weekend work is really, really important, and somebody really needs Saturdays off but doesn’t mind working on Sundays, that trade will be pretty easy to achieve with someone who has the Sunday Sabbath issue and vice versa for somebody who has the Saturday Sabbath issue or orthodox Jewish person or someone who has some other holy day.

 

      But at the end of the day, at most, what you would be looking at, in some of these cases, mostly deal with blue collar workers, is going to be a very small amount of additional premium wage. Of course, there was a fight in the case we don’t have time to discuss -- they were fighting over whether premium wage meant dollar more or time-and-a-half, I mean, trying to get the answer, what that really meant—what the solicitor general meant—would have been like nailing Jell-O to the wall a little bit. It was difficult. Or as my grandfather would say, “like tackling a greased pig.” But it was just very difficult to find out from the government where they were really going to draw the line on premium wages because sometimes, she would say -- it would be time-and-a-half but then sometimes it would drift around and so it was difficult.

 

      But at the end of the day, what you’re looking at is, potentially, maybe another 100/150 bucks, potentially a week, to make an appropriate religious accommodation—far less than hiring a translator or making other types of equipment changes that the ADA requires. So I just don’t think this is going to be that -- at the end of the day, I think a lot of -- there’s going to be a small population of America that actually has their religious liberty properly restored, and most companies are going to shrug their shoulders, and it’s not going to be a big deal.

 

Chayila Kleist:  Got it. Well, thank you. On behalf of The Federalist Society, I thank you, Mr. Sasser, for joining us today. I really appreciate the benefit of your valuable and expertise. I know it’s been a busy day. Thank you also to our audience for joining and participating. As always, we welcome listener feedback by email at [email protected]. And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events.

 

      Thank you all for joining us today. We are adjourned.

 

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