Litigation Update: Groff v. DeJoy: Religious Liberty in the Workplace?

[Music]

 

Jack Cappizi:  Welcome to today's Federalist Society virtual event. Today, February 7, 2023, we are excited to present a litigation update in Groff v. DeJoy and the topic of religious liberty in the workplace. My name is Jack Cappizi and I'm an assistant director of practice groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call.

 

Today, we are joined by Stephanie Taub, a senior counsel at First Liberty Institute, Blaine Hutchison, a staff attorney at the National Right to Work Legal Defense Fund, and Professor Bruce Cameron who is a professor of employment discrimination at Regent Law. He is also an attorney at the National Right to Work Legal Defense Fund. This is his 47th year with the foundation and his 16th year teaching at Regent Law.

 

After our speakers have given their remarks, we will turn to you, the audience, for questions. If you do have a question, please type it into the Q&A feature at the bottom of your screen at any point and we will handle the questions as we can towards the end of today's program. With that, thank you all for being with us. Stephanie, the floor is yours.

 

Stephanie Taub:  All right. Wonderful. Thank you to The Federalist Society for hosting and to our friends, Blaine and Bruce, at National Right to Work for putting this webinar together. So today we're talking about Groff v. DeJoy, a case that the Supreme Court has recently taken up. And it has the potential to restore religious liberty protections in the workplace.

 

So this case provides an opportunity for the Court to restore Title VII's protections for religious employees to what Congress intended before the courts watered it down. We're essentially asking the Supreme Court to clarify the legal standard that applies when employees ask for religious accommodations. And so in short, we're asking the Court to apply the law as written and require employers to give meaningful religious accommodations to people of faith.

 

Right now I'm going to go over a very brief case background, history, questions presented, then I'll turn the floor over to Blaine to really dive into the legal issue here of what the undue hardship standard means and what the arguments are in the case. So the lead counsel for Groff is Aaron Streett at Baker Botts. My firm, First Liberty Institute, along with Baker Botts joined the case at the Third Circuit. And also on the team are Alan Reinach of the Church State Counsel and Randy Wenger of the Independence Law Center who have been with the case from the very beginning. So I'm also working on amicus coordination. So if anyone has questions about participating as an amicus, you can email us at [email protected].

 

All right. So a really brief background of turning to the facts of the case. Gerald Groff is a former post office employee. He was a mail carrier who wanted to stay faithful to God by observing the Lord's day, the Sabbath on Sundays. And that's originally why he joined the United States Postal Service because they were traditionally closed on Sundays and he thought this was an opportunity for him to have a great career and also stay true to his religious convictions. And that all worked out well until USPS started a contract with Amazon to deliver packages on Sundays.

 

And so for a time, it worked until Gerald's post office began delivering on Saturdays. So he figured out a solution to be able to transfer to a post that had not yet started delivering on Sundays. And then that worked. And then they started delivering on Sundays. And then he figured out another solution to get someone to swap his shifts. He was willing to work additional shifts throughout the week. He was willing to work non-Sunday holidays. And he even switched posts to be able to stay faithful to his religious beliefs.

 

But ultimately though the post office wasn't willing to provide him with an effective accommodation even though it had accommodation options available. The simplest being swapping shifts in a way that would skip him in the Sunday rotation which they did for a time without a problem. And we even have post office officials conceding that scheduling an extra mail carrier to take Groff's place on Sundays would not harm the post office.

 

And so that's where this case really gets started. So after that he was essentially forced out of his position and filed a lawsuit in 2019. The district court sided with the post office and concluded that it would be an undue hardship for the post office to accommodate Gerald Groff which we argue, of course, was erroneous. And so then the Third Circuit affirmed on the basis of undue hardship and then we brought the case before the United States Supreme Court. And specifically our two questions presented are whether the Court should disapprove the more than de minimis cost for refusing Title VII religious accommodations and that standard was first stated in a case called TWA v. Hardison from 1977. And so we're arguing that the Court should disapprove the standard for reasons that my friends here will get into in the next section.

 

And then the second question presented is whether the employer may demonstrate undue hardship on the conduct of the employee's business under Title VII by merely showing coworker impacts rather than business impacts. So our argument is, essentially, focusing on the harm to the business as a whole is the proper standard puts the burden on the business to find a solution that works for everyone, coworkers and people requesting the religious accommodation alike. So that's a 50,000-foot view of the case. Happy to jump right into it. So I'm going to turn the floor over to Blaine to talk about the particular -- the first legal issue which is under TWA v. Hardison.

 

Blaine Hutchison:  Well, thanks so much, Stephanie. We really appreciate it and thanks for joining as well. Stephanie was willing to join at the last minute so we appreciate that. The first question presented, we're really hopeful maybe even for a unanimous Court on this issue because Title VII is very clear. What it says is that employers and unions must accommodate employee's religious beliefs and practices unless it would impose an undue hardship on the cost or the conduct of the employer's business. And so that phrase "the conduct of the employer's business," that's the focus as Stephanie pointed out and it's an undue hardship.

 

And so undue hardship -- most of us understand what a hardship is. Basic English. A hardship is something difficult. And the dictionaries -- if you look at the 1970s, they're the same as today. Hardship has the same meaning. It's something difficult to endure, some sort of challenge. But that's not enough. It's not enough that the accommodation is simply challenging. Congress required something more. It required it to be an undue hardship. And so undue, that's something that's excessive or inappropriate. And so you can clearly see when the Court said in Trans World Airlines v. Hardison it just says in the middle of the opinion without any explanation -- it simply says that there's no need to accommodate in the case and that undue hardship means anything more than a de minimis cost.

 

And so this completely guts the statute. Marshall noted in his dissent it made a mockery of Title VII. He says, "Although it sounds with fire and fury and all of these great protections for religious employees, the majority waters it down to essentially mean almost nothing." So there's a few things I want to point out that have been said about it. I mean, we can all understand, as lawyers, basic statutory interpretation English language. Undue hardship -- it doesn't mean something more than the fractional part of a penny. It doesn’t mean a de minimis cost. I think we know that and there's a lot that's been said about it.

 

So the first time the Court has really mentioned recently this growing tide to revisit Trans World Airlines v. Hardison and this undue hardship de minimis standard in Kennedy v. Bremerton the first time the Court remanded the case to the Ninth Circuit, there were four justices, Alito, Thomas, Gorsuch, and Kavanaugh. And as they closed their opinion, they noted that the parties didn't ask to revisit Employment Division v. Smith and Trans World Airlines v. Hardison. And so that was a glimmer of hope that the Court might restore these really critical protections for religious employees that they rely on to practice their faith and keep their job.

 

And so the next case that followed Bremerton is Patterson. So this was a case that directly implicated asking the Court to revisit Hardison and there was a lot of hope the Court would take that case. In fact, the Court asked the United States views and the solicitor general said "Yes. You should take this case. Hardison does not properly interpret the undue hardship statutory test. It conflicts with Title VII and takes away these important rights that employees rely on." But nonetheless, despite the U.S. agreeing, there was some dispute about which questions the Court should take so the Court decided, we'll take none of them, but there was a concurrence that was written by Alito and it was also joined by Thomas and Gorsuch.

 

And so in the concurrence, they agreed with the U.S., and they said a couple of important things. They said first, Hardison doesn't represent a likely interpretation of the statute and I think that's an understatement. It isn't a proper interpretation, but they also pointed out not only is it not in the briefs, not only does it not come from the parties in the case that all assumed of course undue hardship means much more than a de minimis standard, they point out the Court gave no explanation, no analysis whatsoever for its basically off handed remark that undue hardship means anything more than de minimis. And so unfortunately, the Court didn't take the case but there's an important concurrence.

 

Then there's two cases. Right to Work, we've been involved as amicus trying to push back and protect employees specifically in this sphere. So we were involved as an amicus in Patterson. We were also involved as an amicus in Dalberiste. The Court didn't comment about not taking Dalberiste but at the same time, Small v. Memphis Gas and Light went up to the Court and justices this time instead of concurring in not taking the case, this time there was a spirited dissent written by Gorsuch. And Gorsuch showed great displeasure the Court didn't take the case. And in his words, he says, "Hardison undid Title VII." And so he had a lot to say that was very helpful and showed some frustration the Court didn't take it.

 

Also notably in Small as well as in this case, there was a great concurrence actually written by the court below it, the court of appeals. In Small Judge Thapar and also Judge Kethledge, they wrote even though that they were bound by Hardison, they stated Hardison rewrote the statute and pointed out many problems with Hardison itself. There was also in this case an argument below by Judge Hardiman who pointed out especially on issue two some real conflicts with the statute that are brought about by Hardison.

 

And so there's a lot that's been said on it. There's been a growing consensus and push for the Court to take this case that undue hardship has to mean more than something that's de minimis. And I'll say something as well just about this before we dive into why the Court said what it said and some of the reasoning from Hardison, but in Hardison itself, even though the Court says there's no duty to accommodate if the cost is more than de minimis, Justice Marshall pointed out the cost would've been de minimis in Hardison to actually accommodate Larry Hardison. He noted in the dissent, Trans World Airlines was one of the largest employers and airlines in the world at the time and the dissent reads that it would've been $150 for three months. So I don't know if it's $150 total -- if someone knows they can correct me -- or if it's $150 each of those months. But his point was this is a de minimis cost. This isn't even the fractional part of a penny for this huge employer but the Court made no effort to explain. It made no effort to elaborate. It simply said out of hand this is a de minimis cost. There's no requirement to accommodate. And so it said you can fire this employee who simply, like Groff in this case, wants to practice his religious beliefs. And so --

 

Bruce Cameron:  Blaine, can I just jump in a minute. There's another fact in the Hardison case and that is that Hardison got in trouble because another employee went on vacation for two weeks. So theoretically, the record doesn't reflect it Justice Marshall says, but theoretically, TWA would've only been on the hook for overtime for two weeks. It's unbelievable. I mean, when you think about such a huge air carrier, what would be a hardship on it? A loss of a million dollars? A loss of a hundred million dollars? Now what would it take to rock the stock of TWA? And the statute says not hardship but undue hardship. That's ludicrous.

 

Blaine Hutchison:  Yeah. There's also -- that's a great point Bruce. There's also some analysis -- I'm thinking about Professor Michael McConnell and Douglas Laycock that point out, in this period of time, if you look carefully at the religion cases, there's not a lot of nice things said about the religious individuals that come up before the Court and in fact you have to really puzzle and look hard to find anything that's really said about his religion and there's almost this effort in Hardison as you point out to even blame it on the individual. They said "Well, he was being accommodated and he transferred," as if this was his fault. But you really puzzle and scratch your head when you hear this topline holding that undue hardship means more than de minimis and there are really two reasons behind it.

 

In Judge Thapar's concurrence in the Sixth Circuit, he lays this out very nicely. He says there's the stated reason and the unstated reason. I think this is a really helpful way to understand everything the Court did in Hardison. In some ways, Hardison -- it's like the old joke -- the mosquito in the nudist colony. There's so much wrong with it, where do you start? Well, it's really all connected, and it's connected to these two ideas. And so one is the philosophy of formal neutrality and it's an utter and complete rejection of accommodation. What Hardison would not and did not accept is that Title VII in the law requires accommodation to protect religious employees. And so contrary to an accommodation approach which would require something like lifting burdens to protect religious employees and that's doing so based on a protected class.

 

Formal neutrality, that's the idea that you should treat everyone the same and there should be no differential treatment that's based on a protected class. And so what does that mean? Well, a rule is formally neutral if you say everyone works seven days of the week. Why is it formally neutral? Well, it doesn't matter that some religious individuals can't exercise their faith. That doesn't matter. The rule itself applies to every protected class and it doesn't use a protected class as a category. So it doesn't say only religious people or only women have to work seven days a week. It doesn't apply based on a protected class. It doesn't use protected class and so it's formally neutral. And really the theory for formal neutrality is that protected class is largely irrelevant and so the best way to protect protected classes -- so religious individuals, women, immigrants -- is simply to prohibit employers from making decisions based on those protected classes. And so if an employer doesn't make a decision based on a protected class, in general the presumption is that's something that's acceptable.

 

And there's this underlying theory, this idea that immutable characteristics, something that a person can't change, those should not be a basis for losing a job or some sort of discrimination. So there's a distinction between what an individual chooses to do, and an employer may discriminate against on some personal choices and immutable characteristics, things like race and things like sex. Those things that make a person who they are that they can't change. And so Title VII is based and grounded on this really canonical antidiscrimination idea of formal neutrality. And to some extent, Congress has decided it works and it's acceptable but there's a real problem for religion. The problem is, unlike other protected classes -- at least Congress has determined unlike other protected classes -- religion uniquely involves conduct. And so it involves not just what a person believes but what a person practices. In fact, if you think about this it would be quite odd if you met someone that said, "I'm an Orthodox Jew but I don't do any of the things an Orthodox Jew does." You'd puzzle a little bit. And the law recognizes the law has a sincerity requirement. Sincerities -- because you look in general, well, what does a person do? And that shows and matches up sincerity. So religion -- it has to involve belief and conduct.

 

And the problem with formal neutrality, it only really protects religious belief because what it means is a person, they can believe, so religious status is protected but not their choices, not their conduct. And it's hollow so a person like Groff, they can believe what they want to believe, but if they try to practice it, they lose their job. And so that's a very difficult place for employees to be in. And Congress recognized this difficulty and in fact that's why it amended Title VII.

 

And so there are two cases in particular that motivated Congress to amend Title VII, Dewey and Riley. And I think they nicely illustrate the theory of formal neutrality and how it absolutely conflicts and repudiates the philosophy or approach of accommodation which is protecting individuals based on protected class. So both of those cases -- just like Hardison, they involved Sabbatarians individuals that they wanted to observe their Sabbath and they had a conflict with their work roles. And in both cases, the Court held that just like Hardison, no discrimination occurred at all. And the reason there was no discrimination even though minority individual this religious individual was fired for trying to practice his religious beliefs, they said well, the rules are neutral. Why? Because the rules don't mention religion. The rules that say when you're supposed to work and what you're supposed to do at work. And they apply to everyone so they're formally neutral.

 

And there's this really great line -- there's two great lines to point out in each of these cases. In one, Riley says basically that religious employees, they must either conform to the workplace or seek other employment. So in essence, religious choice is their personal choices and it's totally okay to force religious employees to compromise their faith and compromise their religious beliefs. And then Dewey follows and basically applies the same reasoning and the same logic, similar statements, but goes a step further and says accommodation is discrimination and says it would be discrimination against other employees to accommodate and then it goes another step and says it would constitute unequal administration of the collective bargaining agreement to accommodate the religious individual. And that's really important because the collective bargaining agreement is a central -- it's an important part of Hardison, an important part potentially in this case but sometimes it's forgotten that Dewey had a collective bargaining agreement. It was a central part of the Court's reasoning for discrimination and formal neutrality. It says there's another neutral rule here.

 

Congress completely repudiated, rejected those decisions. Congress said religion needs something more. And so they required accommodation under section 701J in 1972 and that amendment states -- it's a definitional section. So it defines religion -- it states that religion includes not only religious belief but also religious conduct, religious observance, religious practice and so it bakes that into the discrimination provision. And so what that means is an employer discriminates when they refuse to accommodate. And so there's no more formal neutrality. It's not only repudiated but the idea of conduct and status -- this separate idea between belief and practice, that's completely gone. Congress eviscerated that and it completely collapsed this distinction. Hardison despite Congress despite the legislative history they included Dewey and Riley in the amendment to show that these are decisions we wanted to reject. Despite the specific amendment to require accommodation the Court nonetheless basically applies Dewey and Riley wholesale. So the Court said there's no unlawful discrimination because Hardison was treated the same. All protected groups were treated equally. Even though again a Sabbatarian here one of the few in his workforce perhaps the only one was fired for his religious beliefs. The Court said this isn't discrimination.

 

And there's really an amazing statement just as the statement above about undue hardship and de minimis is difficult to understand, the Court goes so far as to say that the work rule, the seniority provision that caused Hardison to lose his job was itself a significant accommodation. And so it's hard to understand how he should view the thing that fires him as an accommodation. But the Court explained that this is a wonderful thing because it's neutral, we're treating everyone the same way, and so this is all good and fine. And I reread Hardison for the panel and it's striking. I think at least three times Hardison says the focus of Title VII is treating similarly situated employees the same way. In other words, reframing formal neutrality. We should treat people the same way, we shouldn't treat people differently based on protected class. And that utterly rejected accommodation. And as it closed, it continued to say things throughout like this, but I think most starkly in its final paragraph it says that to accommodate here would actually be discriminating because you would be violating formal neutrality. You would be treating people differently based on protected class and that's what Title VII forbids. That's not what Title VII is about.

 

So I think this lens is really helpful because number one, Congress has said you have to accommodate -- it requires an accommodationist approach, it requires an accommodation philosophy and logic. -- utterly rejected that in all ways and even the de minimis standard it's trying to repeat this neutrality view. It's any effect, which we're going to talk about, on coworkers or on the business, basically anything that deviates from neutrality, we're going to reject that.

 

Bruce Cameron:  So I'm next Blaine?

 

Blaine Hutchison:  Yeah.

 

Bruce Cameron:  The question then is why did the Supreme Court in Hardison do what they did? Are they all fools and incompetents? The dissent said the reason why Hardison ruled the way it did was because they were concerned about the Establishment Clause. The problem was the majority was simply too polite to mention it. The dissent however mentioned it and said, "Well, this is what's going on." And the majority should've considered the Establishment Clause because dissent cites a number of cases. They say Title VII and its accommodation requirements are constitutional. Now, this was actually a big issue back then because for a while, every federal district court to have considered an accommodation case had ruled Title VII to be an unconstitutional establishment of religion and every circuit court on appeal said "No it's not an establishment problem," but not too long after Hardison, about eight years later the Supreme Court decided a case called Thornton v Caldor which was a Connecticut case involving absolute requirement of accommodation for Sabbatarians. And the U.S. Supreme Court said, "That is an Establishment violation." And so these issues were out there then.

 

However, shortly after Caldor, that is in 1987, two years later the U.S. Supreme Court decided a case called Corporation of Presiding Bishop v. Amos. It was a case involving a clash between the religious beliefs of the Latter-day Saints Church, the Mormon Church, and its employees. And the Supreme Court said it is right for us to make an exception for religion and it's right for us to make an exception for the religious faith and practice of the church when it's in conflict with the religious practice of its employees. And so in Hardison, we had a clash between what? The faith of the employee and the rights of other employees to go fishing on Saturday but in Amos, it was a clash with religion on both sides. And the Supreme Court said this is not an Establishment of religion. And so I think it's very clear today that Title VII and its accommodation provisions are not unconstitutional.

 

So the question then becomes, is there some sort of exemption for the collective bargaining agreement? Now, this is a serious issue. In its CERT response, the government argued that it would be a violation of the MOU memorandum of understanding. It's another name for a collective bargaining agreement. It's the union contract. It would be a violation of the union contract to accommodate Groff because it would violate the seniority provision and the government said that it had specifically preserved this issue below and so there's no question in my mind -- I mean, obviously the government has not filed its brief yet in Groff but there's no question in my mind that they are going to argue that and so this collective bargaining agreement and the seniority provision I think are front and center.

 

So the question is this, Hardison suggests that if an accommodation would violate a collective bargaining agreement, there is essentially a presumption that that is an undue hardship. We're just going to say "If it violates the collective bargaining agreement, the employer is released from accommodating." But it seems to me that makes no sense because what after all is a collective bargaining agreement? A collective bargaining agreement is a decision between the employer and the employees to have a certain rule. So if an employer alone creates a rule and it is required to accommodate or at least attempt an accommodation, then why is an agreement of the employees sacrosanct? Why should that change things? It seems to me that in fact, there is a serious problem when you're looking at this issue of whether or not you should protect, give special protection for seniority agreement.

 

What after all is a seniority agreement? Isn't it an agreement that employees have to get in line? Isn't that really what this boils down to? You get in line. And we have "get in line" rules all the time in society and it's a very weak reason to give someone a reward. Anyone who's flown on an airline knows that you get in line, but they let people with small children, people with disabilities, people in the military, people who have flown on their plane before a number of times, they all get to go ahead of you. So how is this a strong reason? You go to a restaurant; you get in line. They determine when you actually get seated based on the number of people in your party.

 

So when you look at how society deals with this, the idea of getting in line as the basis for a reward is pretty weak. There's some other problems with the idea of basing this on getting in line. What about employment decisions themselves? If you had a "get in line" rule, the senior employee would always be promoted. Well, that would be pretty good for me because I've been 47 years with the National Right to Work Legal Defense Foundation, but it doesn't make any sense from a merit point of view. It's ridiculous, and so it seems to me that not only is there an obvious problem with a "get in line" rule but a "get in line" rule also tends to hold down wages just like non-compete agreements for low level employees because what does it say to an employee? It says that if you decide to go to another employer to increase your wages that you now what? You've lost your place in line in the new employer and you've lost your place in line in the old employer. And so this really is a way to hold down wages.

 

Even in collective bargaining agreements, they don't carefully protect the seniority agreement. There's something known in most collective bargaining agreements as superseniority which means that union shop stewards get to cut in line when it comes to reductions and force, they get to go to the back of the line, so they're not reduced. What's the reason for that? They somehow think it's a benefit to the union to have their shop stewards around. So that's an exception to the "get in line." There's another exception to "get in line" typically in collective bargaining agreements and that is the reduction enforce agreements. When they're deciding how to reduce employees, they generally have in that agreement a bumping rule that the senior employee can bump the junior employee and keep the senior employee's job but it requires that the senior employee have a level of competence in that job, and so I think that the idea in the abstract, just as a practical matter, that seniority agreements should be protected is very weak when you look at both the collective agreement scenario and in society as a rule.

 

The real evil though, the real problem with the seniority agreement and the collective bargaining agreement is that it comes from exclusive representation. That is, Congress, government has created a rule which says that every employee in the bargaining unit is divested of their right to represent themselves and instead a union -- a union that the individual employees did not all choose gets to represent them instead. Now, this is completely antithetical to common law and this is a violation of the antimonopoly provisions because this is a monopoly in the workplace. And so this is the genesis for this idea that collective bargaining agreements somehow give passes to union and employer rules. And the Supreme Court in our case, Janis v. AFSCME, said that exclusive representation is "a significant impingement on associational freedoms that would not be tolerated in other contexts." That's the Court at page 2478. I think Title VII is such a context. And why is that? What's the reason for Title VII? The purpose of Title VII was to protect minority rights. What is the purpose of a collective -- the exclusive representative? It is to represent majority rights and by its nature exclude minority rights. If the majority is acting on behalf of the minority, they have failed in their task.

 

So instead as Hardison suggests that there should be a presumption protecting a collective bargaining agreement, it seems to me that there should be a presumption that if a rule is collectively bargained, that it's hostile to Title VII and it's hostile to minority rights, and so there should be a presumption that these are invalid as opposed to being valid. And if you've been around as long as I have, you know the dark history of organized labor and discrimination against women and African Americans. It's really rather outrageous what has happened in the past in the name of the majority. So I say that, instead of the collective bargaining agreement automatically giving a pass to employers on accommodating, that the collective bargaining agreement should be presumed to be a violation of Title VII because it is a majoritarian rule which is antithetical to the purpose of Title VII. All right. What about coworker exemptions?

 

Stephanie Taub:  Can I jump in to --

 

Bruce Cameron:  Sure, go ahead.

 

Stephanie Taub:  Just to clarify a little bit of the party's argument here with respect to the collective bargaining agreement. So we're arguing that the Court really doesn't need to get into this -- the collective bargaining agreement and its application here because the Third Circuit below didn't address it at all. It was not the basis for their finding undue hardship. And it makes sense because the way that Gerald Groff's -- his position was structured is that it didn't assign Sunday shifts based on seniority at all. It was just a random selection. So seniority doesn't come into issue here. So we argue even if you do address it, it didn't violate the collective bargaining agreement and that might be why the Third Circuit didn't address it, didn't rely on it.

 

And so the Court -- really the normal course of action here is to -- we're asking the Supreme Court -- it's a very modest ask -- to clarify what the proper interpretation of undue hardship is and then they can remand back down to figure out how that applies in this particular factual context. And so the question, is how do you interpret undue hardship? And we're really saying -- so we've spent most of the time saying what it's not, which undue hardship does not mean minimal hardship. Undue hardship, we're arguing, should mean significant difficulty or expense which is how it's been interpreted in several other statutes that require employee accommodations such as the Americans with Disabilities Act. They define it in that term, so just as a matter of plain statutory interpretation, undue hardship should mean the same thing in these different similar contexts. And so we're arguing that it should be given the same interpretation that it's given in many other employment accommodation contexts. We've seen it even most recently in bills that have been introduced about pregnancy accommodations or nursing mother accommodations. So that's focusing on the Hardison standard and then remanding back down is what we're advocating for.

 

Bruce Cameron:  I've had this discussion, Stephanie, with Baker and Botts lawyers and I think they're wrong, and the reason why I think they're wrong is, if you look at the opinion, the opinion actually talks about the rotational basis for assigning Sunday work. That rotational basis is part of the collective bargaining agreement. It was agreed upon by the union, and if you look at the government's petition, the government specifically argues that it is the collective bargaining agreement that saves the government from having to accommodate. So I guess it's a matter of predicting the future, but my prediction for the future is based on what the government said in their CERT petition, and I think that's a pretty good indicator of what they're going to say on the merits. So I think the collective bargaining agreement is going to be front and center. Clearly, in Hardison the collective bargaining agreement was given special privileges and so we'll see. I mean, would it be easier for you not to have to break the collective bargaining agreement? Absolutely. Go for it. I don't think the forces on the other side are going to let you get away with that.

 

Stephanie Taub:  Well, they've made statements below, if you look at the record, where they're saying that -- they previously took the position that it didn't violate the collective bargaining agreement and the Third Circuit didn't even address it. So we're arguing that the Court really doesn't need to get into all of this and really just clarifying what -- that undue hardship means the same thing in the religious context as it does in any other context when you need employment accommodations in order to have equal opportunities in the workplace. But I think that is a good segue for turning into issue two which is the impact on coworkers' argument.

 

Bruce Cameron:  All right.

 

Blaine Hutchison:  I just want to say one thing too as well. In some ways, I'm really hopeful the Court will get rid of all of Hardison and not retain any of it because it all hurts employees. So we're so hopeful that you'll win on issue one and issue two but really, it's two sides. My view is it's two sides of the same coin. It's really -- the coin is this formal neutrality dispute the Establishment Clause. It says that it has to be de minimis because we can't deviate from neutrality. So an accommodation is a CBA. An accommodation is anything another employee can get but any sort of special treatment, anything different than that, we're going to forbid. We're going to rely on neutral rules even though accommodation says you need an exception from neutral rules and then it turns around and tries to defend its decision in Hardison. Well, a CBA is a super neutral rule so we're going to double down on our wrong approach that conflicts with accommodation. And so it really hurts employees.

 

And as Bruce mentioned, there's this larger point about what does Title VII do? Title VII was passed for the precise point because some workplaces don't want to accommodate and prefer to discriminate. That's the precise reason Congress stepped in and said, "We're going to invade the private sphere to require a certain level of treatment for employees." And so to turn around and say well all the employees want to fire the African American employees in 1964. That would not have been an allowed defense. Or all the employees -- they don't want to hire women so we're not going to hire women. But Hardison allows because it says it's discriminatory and you have this neutrality lens of comparing protected classes, they say well we can basically say if all the employees don't want to accommodate, want to fire Groff, that's fine or if all of the employees want to fire Hardison, that's no problem at all. A collective bargaining agreement simply takes these discriminatory practices and it adds another layer essentially of discrimination. So it's the same lens and I think that moves us -- thinking about issue two, there really shouldn't be any exception as we're arguing here, for coworkers' discriminatory practices especially when they're written down. What difference does it make whether they vote on firing their religious employee or they write it down with the employer?

 

Bruce Cameron:  Yeah. Blaine, can I add a point about this idea of the popularity of Title VII. In '64 when they passed Title VII, a senator put into the bill protection for women. It did not have that in the draft. And he did it as a poison pill. He thought it was so unpopular that they would give equal rights to women that that would certainly cause Title VII to be lost. And so that gives you an idea what the general population -- the thought at the time, and so Title VII was clearly contrary to majoritarian interests. And the idea as you stated before Blaine of giving employees a heckler's veto is precisely contrary to Title VII.

 

Stephanie Taub:  Absolutely. And Judge Hardiman's dissent in the Third Circuit goes into that in really good detail. So if anyone's looking for more on that argument point you in that direction.

 

Bruce Cameron:  Well, let me give what I think is perhaps the most compelling argument about concern about coworkers and American society. Since the Civil War, the United States has recognized exemptions for religious objectors to combat. And when you look at the Welsh and Seeger case, you see that religion is very, very broadly defined. And what is the effect on coworkers? What is the effect on others of giving a religious exemption to combat? It is that the other people face being killed or maimed or face a lifelong disability. And so when you talk about the coworker downside of accommodating Mr. Groff, maybe they can't go fishing that Sunday or maybe they're going to miss a family picnic or something. It pales in comparison to the historic concern the United States has had since at least the Civil War to protect religious belief in the military context.

 

Blaine Hutchison:  Well, I think we're getting close to the end here for questions. I'm skimming through. It looks like we have a handful of questions. Stephanie, is there anything you want to add about issue two?

 

Stephanie Taub:  Yeah. I think just a good way to look at it is to remember who really has the power to make these accommodations and figure out what's the best way to make this work. It's the employer, especially if we're talking about big employers like big corporations and big government agencies. A lot of times, they have the ability to make accommodations that may not occur to the particular employee that's requesting the accommodation. So things like transferring to different positions that are available or maybe rearranging the schedule in a way that will really be a win-win for everyone. And so allowing people to point only to coworker impact as a get out of jail free card, that can let employers get off the hook without really trying to find a good solution. So what we're advocating for is the significant difficulty or expense on the business standard is putting the burden back on the employer to try to make it work for their business. And if it really can't, then it really can't, but if you can make it work, if you can provide these equal opportunities to everybody providing these religious accommodations and then that really could be a win-win scenario. So that's what I have to say about question two. And this is a really important case that has the potential to impact employees of faith across the country and just restore these religious liberty protections. So we're very excited about this opportunity. The oral argument is going to be April 18th.

 

Bruce Cameron:  Stephanie, can I opine on this? The significant difficulty standard that you mentioned comes from the ADA, and I think that's a bad standard to argue because what are you trading? You're trading undue hardship for significant difficulty. Is a difficulty as bad or as high a mountain to climb as hardship? I don't think so. Is undue hardship -- is that as just a matter of English usage -- is that a lower standard than significant difficulty? I say and in fact the last question in our group is, what should the Supreme Court do? How should they draw the line? I think undue hardship, understood appropriately and consistently with the English language, is the correct standard because you say to the company, you have to show a hardship and more than that, you have to show that the hardship is undue. Now, you can't require an absolute accommodation, but it seems to me that it has to be an obligation that creates a hardship for an employer plus and that would be the undue hardship. And so I think the current language works. I don't think the ADA substitution helps. If anything, in the hands of a creative judge who is hostile to religion, it will diminish the rights of employees of faith.

 

Stephanie Taub:  Well, I appreciate where you're coming from. We were arguing that the significant difficulty or expense is getting at that. It's getting at what undue hardship means. Undue hardship certainly doesn't mean minimal hardship, it means a significant difficulty or expense considering the factors on the business. And so we'll respectfully disagree about what the proper interpretation is, but it seems like we do agree that it needs to be a very robust standard to implement what Congress had intended and it needs to be given some sort of a definition because right now without a replacement definition, Courts might fall back on this de minimis standard which has gutted religious protections for people of all faiths for decades.

 

Bruce Cameron:  I agree with you completely. I mean, the de minimis interpretation of undue hardship is ludicrous. As I mentioned before, if you're looking at Trans World Airlines, either the largest or second largest air carrier at the time, what loss would be a hardship on it? Clearly not a million dollars. You might even look at the accounting rules when you're doing an audit. Accountants say well we don't even have to look at this error because this amount of money doesn't make any difference to the accuracy of our final review. So I would say that, in the TWA v. Hardison, anything under a million dollars would not be an undue hardship for Trans World Airlines and they should've been required to accommodate this guy at $150. Or more likely, because it's not reflected in the record, the two-week overtime. I mean, this is a rounding error for TWA.

 

Stephanie Taub:  It's actually similar here because the main time period that we're looking at is the time period around the Christmas holiday, around the December holidays. And so this is the time when, if he's scheduled on a couple of those Sundays, they might have trouble. But there are several different ways that the post office could fix this problem and we're arguing that they simply just didn't want to because they had this idea of the formal neutrality that you were talking about earlier and because they had this idea, they couldn't see that some people need these religious accommodations in order to have access to these jobs. Otherwise, they could be barred from large sections of the workforce if not given meaningful religious accommodations.

 

Bruce Cameron:  You raised a very important point here. This is a big issue for Sabbatarians who are in the delivery business. This is the Sturgill case that came out of the Eighth Circuit where a guy had his Sabbath from sundown Saturday -- excuse me -- sundown Friday to sundown Saturday. He was a Seventh Day Adventist. And they were doing deliveries around the holidays. So you not only have a shortened day from sundown to sundown, but you have a high volume. And so this is a specific problem for Sabbatarians.

 

Blaine Hutchison:  Yeah. Abercrombie is something we haven't talked about as well, but Abercrombie says that Hardison's reasoning is wrong, and Abercrombie does approach it from the perspective of formal neutrality but it says that accommodation is special treatment. So there's certainly a way as Stephanie talked about -- special treatment or favored treatment is nice language but I actually prefer to go back to -- if you look at Sherbert v. Verner, Justice Brennan says "Accommodation is nothing more than neutrality in the face of religious differences." And even in Hardison, the United States amicus brief said look all these protections are trying to allow ultimately religious employees to join the workforce like every other protected class. And so Groff simply wants to be able to work like every other protected class. And in Hardison, what did he want? He wanted to work the same way women could work, the same way African Americans, and immigrants -- and simply wanted to do that and practice his faith. And that's what this case is really about. It's about these critical protections.

 

So just a couple quick notes. I was looking through the chat. A couple people have asked, and we talked about, could they avoid overruling Hardison given maybe there's a de minimis standard, but really what's gone on here from Hardison is the de minimis standard has allowed any cost whatsoever as a per say rule in the lower courts to reject these critical protections for religious employees. So $150 -- even any cost a lot of times is rejected by employers, is rejected by others. So I think that it's likely that we get a large or perhaps consensus an issue -- it's been so harmful. And it deviates so sharply from Title VII.

 

Bruce Cameron:  Yeah. One of our questions is whether or not the chief is going to assign the opinion to Justice Kagan to forge five votes. We've been seeing a series of victories in favor of religion. And sometimes five vote, sometimes more. So I don't think that is a significant risk that Kagan is going to be writing this opinion. Instead I think there's going to be -- well, since we have -- it seems four justices have already indicated a desire to relook at Hardison. I think we're going to have more than five on our side.

 

Stephanie Taub:  We're very optimistic about that. Even the other side doesn't seem to be really defending Hardison because as you mentioned, the solicitor general has filed a brief criticizing Hardison in the past and at the CERT stage, they weren't arguing a deference of Hardison. They were just saying don't take this one to overrule us but take another one. So there's not really a lot of defenders of Hardison these days.

 

Bruce Cameron:  I think we're in a little bit of a box because the solicitor general's office during President Trump said "Yes, take this."

 

Blaine Hutchison:  In Small in the brief and opposition, they in fact admit -- I think their language is we admit Hardison is not the best gloss on Title VII and they're supposed to be defending it. So even the defenders aren't defending Hardison. And that's why potentially it may rely on this coworker impact some of these other theories that Stephanie points out. Another comment for Abercrombie. Abercrombie says you can't add words to the text of the statute to make it do what you want it to do. The text says here, undue hardship on the conduct of the employer's business. It doesn't say hardship on a union or a CBA or coworkers or anything else. It requires accommodation unless it would impose some great expense on the business.

 

Bruce Cameron:  There's another question. It says was the proposed swap involuntary on the part of the employee who would then be required to work on Sunday instead of the plaintiff? The swaps were voluntary, right Stephanie? That's my understanding of the record. And that's part of the problem because a person who voluntarily swapped fell ill and could no longer swap.

 

Stephanie Taub:  Yeah. So this whole time period took place over the course of about four years. So there were voluntary swaps and there were times when people were -- when Groff was skipped in the rotation so there is several options that were available. And the times when he was swapped in the rotation, the corporate representative was asked during the deposition if this caused harm to USPS by scheduling someone else during those times. And they said no it didn't cause harm. So that should resolve the undue hardship question. The simple fact of the matter is there were several ways to accommodate him without causing significant difficulty or expense or undue hardship as you defined it under your even more rigorous standard. So it's absolutely time for the Court to readdress this standard, return us to the original meaning, and then we hope that this case will be resolved.

 

Blaine Hutchison:  Maybe just one final note. Someone asked about people making insincere claims and this is sometimes a point of pushback when it comes to accommodating protecting religious employees. The argument is well it would cause mayhem. There's these arguments in free exercise smith world or here. What about all of these people that might come up with these quirky ideas? But two things. One, religion often imposes great difficulty and expense on the actual adherent. Sabbatarians know this and they've said this for a long time. They don't believe that they have the choice to pick what day of the week is convenient for them. It's inflexible. And then secondly, we do have a sincerity test which is interesting because the camp that's often hostile towards religion and basically on one hand, says there's no relationship between what you believe and what you do then on another hand, turn around and love to say what does the religious person do here? So there is a sincerity test. There is an ability to figure out whether a person is sincere and at least under free exercise and similar statutes -- for example -- Courts have been readily able to distinguish between sincere religious beliefs. Prisoners come up with great ideas, like, my religion requires filet mignon at every meal. Courts are readily able -- they've not --

 

Bruce Cameron:   -- cat food.

 

Blaine Hutchison:  Yeah. I need my ceremonial dagger in prison. There's all sorts of these. Courts are equipped to handle it but I think that's what we're all saying. This is such a critical case to protect employees, allow them to exercise religion in the workforce. And so we're all optimistic that we will have great success on issue one and two.

 

Bruce Cameron:  Blaine, do we want to look at this? The very first question on this. Someone raises the Respect for Marriage Act and says, could Groff have an impact on that? The answer is absolutely because the Respect for Marriage Act may very well create problems for employees of faith in the workplace and therefore it seems to me that by restoring the true statutory standard for minority rights, religious minority rights, is going to help employees in all sorts of contexts including that one.

 

Stephanie Taub:  My understanding is that particular act might not affect Title VII statutes but there are different contexts, and it certainly is not just a Sabbatarian issue. There are other -- people of various faiths have sincere religious needs that need to be accommodated. Abercrombie is a great example. That had to do with an employee at Abercrombie who was required to wear a hijab, but she was discriminated against because Abercrombie had this supposedly neutral policy where you couldn't wear any head coverings -- any hats -- and they weren't willing to make even that minor religious accommodation. And so there's great language in Abercrombie about how it's important to provide religious accommodations for employees of faith.

 

Bruce Cameron:  Right. Abercrombie and Hardison cannot reside in the same box.

 

Blaine Hutchison:  Maybe just one final note and give a little bit of CBA Right to Work plug here. Another person asked about would Groff affect the constitutionality of the statute? Religious accommodations, they don't affect neutral work rules. So Abercrombie clarifies you can have a no headwear policy you can do a lot of these things you want to do. You can have even CBAs. What we've learned and Bruce and I represent individuals with religious objections to compelled union support that the CBA doesn't trump Title VII. You can still have your CBA but what Title VII does, all the accommodations does, is it allows religious employees to simply exercise their faith on the same basis as other protected classes or live in society like other individuals do and maintain their sincere religious beliefs.

 

Jack Cappizi:  I think that's definitely a good point to end. If none of you have anything else to say, we might wrap up.

 

Stephanie Taub:  Thank you so much for hosting.

 

Bruce Cameron:  Yes. We thank The Federalist Society.

 

Jack Cappizi:   Absolutely. I'll say on behalf of us, we thank you all for joining us today and providing your expertise. As always, we do welcome feedback at [email protected]. And please keep an eye on our website and your emails for upcoming events. That'll be all for today. Thank you, guys, for joining us. We are adjourned.