Courthouse Steps Decision: Groff v. DeJoy

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On June 29, 2023 SCOTUS issued an opinion concerning Title VII, religious liberties, and employment law. In deciding Groff v. DeJoy, the Court held “ Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”

The case involved Gerald Groff, a Christian who due to his religious convictions treated Sundays as a sabbath and thus did not work on those days, who formerly worked for the U.S. Postal Service in Pennsylvania. His refusal to violate his beliefs to work Sunday shifts led to disciplinary action and his eventual resignation. Groff sued and the following litigation raised two questions that the Court considered. Both concerned the protections provided to employees who seek to practice their religious beliefs in the context of the workplace. One was whether the Court should overrule the “more-than-de-minimis-cost” test for refusing religious accommodations under Title VII of the Civil Rights Act of 1964 established in Trans World Airlines, Inc. v. Hardison. The other concerned whether burdens on employees are sufficient to constitute “undue hardship on the conduct of the employer’s business” for the employer under Title VII.

Please join us for a Post-Decision Courthouse Steps webinar, where we will break down and analyze the Court’s decision. 

Featuring:

  • Stephanie Taub, Senior Counsel, First Liberty Institute
  • Bruce Cameron, Senior Atorney, National Right to Work Legal Defense Foundation

 

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

Chayila Kleist:  Hello, and welcome to The Federal Society’s Webinar Call. Today, July 5, 2023, we host the post-decision Courthouse Steps webinar on Groff v. DeJoy, which was decided just last week by 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 experts on today’s call, as The Federalist Society takes no position on particular legal or public policy issue. Now, in the interest of time, I’ll keep my introductions of our speakers brief, but if you’d like to know more about anybody on this call today, you can access their impressive full bios at fedsoc.org. 

 

Today, we are fortunate to have with us Stephanie Taub, who serves as Senior Counsel with First Liberty Institute, focusing on litigation, appellate advocacy, and legal education. While at First Liberty, her article on the rights of faith-based organizations under Title VII of the Civil Rights Act of 1964 has been published with the Texas Review of Law and Politics. She’s also authored pieces to be published in the National Review, Daily Signal, the Washington Times, the Des Moines Register, and the New York Daily News. In 2017, Ms. Taub was named one of the 15 recipients of the James Wilson Fellowship in natural law.

 

Also joining us today is Bruce Cameron, who’s staff attorney with the National Right to Work Legal Defense Foundation, as well as the Reed Larson Professor of Labor Law at Regent University School of Law. In the latter role, Professor Cameron teaches on employment discrimination with a focus on faith, labor law, and administers the right-to-work practical. Prior to coming to Regent, Professor Cameron spent over 30 years litigating religious freedom and constitutional law cases in important contexts, and I’ll leave it there.

 

One last note about the panel, if you have any questions, please submit them via question-and-answer feature so they will be accessible to our panelists when we get to that portion of today’s webinar. With that, thank you all for being with us today. Ms. Taub, since I believe you’re speaking first, the floor is yours.

 

Stephanie Taub:  All right. Wonderful. Thank you, Chayila, and thank you to The Federalist Society for covering this very important case. So it is Groff v. DeJoy. This is a unanimous Supreme Court decision that came down last week. It strengthens employee religious liberty rights in the workplace. So this is a religious accommodation case. Federal law Title VII sometimes requires employers to modify the way things are done at work so they aren’t forcing their employees to violate their religious beliefs. This is called a religious accommodation. So whenever an employee has a conflict between their religious beliefs and some aspect of the job, that employee might request a religious accommodation.

 

And so the question of this case is, when do employers have to accommodate the religious beliefs or practices of their employees? And so we often see these religious accommodation cases when it comes to a Sabbath observance, especially employees who believe they have to observe the Sabbath as a day of rest, whether that’s on Saturday or Sunday or another day. And these employees might need some sort of a schedule change at work.

 

We see religious accommodations in other contexts as well. They can often come up when it comes to dress or grooming requirements. So things like headscarves, yamikas, beards, cross necklaces, other things like that. You could see modest dress. And they could be -- but overall, you can have a religious accommodation request in a variety of contexts, and we’ve seen them in vaccine area recently, so whenever there is a conflict between an employee’s religious beliefs and some aspect of the job.

 

All right. So this case, the Supreme Court held last week that businesses are required to provide reasonable religious accommodations unless doing so would cause an undue hardship, and they defined undue hardship in this case to mean substantial increased cost on the business. So this is important because, previously, employers could simply deny religious accommodation requests by just pointing to some sort of minimal burden, some sort of de minimis cost on the business. But now, they have to show that granting that accommodation would actually cause a net substantial cost on the business. So this is a very significant change to the legal standard that applies when employees are requesting religious accommodations, and it applies in all workplaces that have 15 or more employees. So on the ground, this means that fewer employees will be put in that difficult position where they have to choose between their job and their faith.

 

Okay. So today, we’re going to dive into the case, the legal reasoning, some open questions, and we’re honored to have Professor Bruce Cameron here to address the labor aspects of the case, anything to do with the union and the collective bargaining agreement. So he is Professor of Labor Law and has worked with the National Right to Work Foundation. We’re very happy to have his take here. I know there’s a lot of open questions in the light of this case. All right. So my name is Stephanie Taub. I’m Senior Counsel at First Liberty Institute. We represented the plaintiff in this case along with the Independence Law Center, the Church State Council, and Aaron Streett of Baker Botts as lead counsel in the case, and he argued it before the United States Supreme Court.

 

All right. So who’s Groff? Who’s DeJoy? More info on this case. So this case involves the United States Postal Service. So the USPS denied a religious accommodation to a postal carrier named Gerald Graft to be able to observe the Sabbath on Sundays. He joined the Postal Service—this is one of the main reasons why he joined the Postal Service—because it traditionally was closed on Sundays.  And that worked very well for him until Amazon came along, and the post office started delivering packages on Sundays. So he switched to a different location that hadn’t started delivering on Sundays to try to resolve this conflict so that he wouldn’t -- he could still continue his job without being forced to violate his faith.

 

But then that location started delivering on Sundays. And so, he had to request a religious accommodation again. For a time, they made it work, and they didn’t schedule him on Sundays, and instead, he would cover other shifts, including Saturdays and non-Sunday holidays. But then the USPS took away that accommodation. And then, when it was clear that he was going to be terminated for observing the Sabbath on Sundays and staying true to his convictions, then he was forced to resign. So he sued the Post Office under Title VII for failure to accommodate his religious beliefs. This is the case out of Pennsylvania. The Third Circuit affirmed the summary judgment for the Post Office over a dissent, a notable dissent by Judge Hardiman. Then the Supreme Court granted cert to clarify what the undue hardship standard really meant.

 

So background on stepping back on the legal issue, this is a Title VII case. So it’s not a First Amendment case. It’s a Title VII case. Title VII of the Civil Rights Act of 1964 is a federal employment discrimination law. It outlaws discrimination on the basis of religion and other protected classes. It has very broad applicability. It applies to workplaces across the country that have 15 or more employees, so virtually everyone except for your small mom-and-pop that has less than 15 employees. It applies to private businesses as well as government employers. If you’re a government employee, you might have additional rights under the First Amendment and RFRA or state law, if you’re for religious rights.

 

But here, we’re talking about Title VII. So after the Title -- the 1964 Civil Rights Act was passed, right away, there were questions about whether it was religious discrimination for employers to force their employees to work on their Sabbaths. So initially, the Civil Rights Act of 1964 just said no discrimination on the basis of religion, in addition to the other protected classes. But it didn’t have anything specifically about religious accommodations. So there was a little bit of ambiguity there. And the EEOC, being pro-plaintiff said, “Yes, generally. Employers do have to provide religious accommodations.” In 1968, they put out these guidelines that said -- that basically created the undue hardship language. And they said, “You have to provide accommodations. You have to accommodate the religious needs of your employees, unless it would cause undue hardship on the conduct of the employer’s business.”

 

But the courts didn’t always abide by that. They didn’t -- this is the ’70s. They didn’t really like religious accommodations. The Establishment Clause loomed large over these cases at that time. And so there was this thinking that, “Okay, by making modifications to help out our religious employees and making sure they don’t violate their beliefs, is that giving them favored treatment? Is that discriminatory against others?” And so, the courts weren’t always -- weren’t always requiring employers to provide these sorts of religious accommodations. And in 1971, there was a Supreme Court case called Dewey, which is a Sabbath case, that affirmed the decision that did not require employers to accommodate the religious practices of their employees.

 

And Congress didn’t like that very much. Sabbath is one of the very key aspects of religious discrimination that they wanted to fight against and they wanted to provide these sorts of religious accommodations -- or they wanted employers to accommodate religion unless it would cause an undue hardship. So they passed the 1972 amendments to Title VII that mirrored the EEOC guidance, and they said, essentially, “You have to accommodate unless it causes undue hardship.” And then the question is, what does undue hardship mean? So we have the infamous 1977 case of Trans World Airlines v. Hardison. It was also a Sabbath case. And there, the Court said they have -- they said to require TWA, the employer, to bear more than a de minimis cost in order to give the Plaintiff Hardison Saturdays off is an undue hardship.

 

So courts ran with that language of the opinion and said, “Okay. Employers, the Title VII religious accommodation requirement doesn’t really mean a whole lot. It’s very pro-employer. It means that all you have to do is point to some sort of de minimis burden, and then you’re off the hook. And you don’t have to respect the religious rights of your employees.” And so, immediately, after Hardison, there was a lot of criticism, especially when it -- we have criticism from the left and the right, when -- especially about the impact on minority faiths. So these are the people that maybe are most in need of Sabbath accommodations, of dress and grooming accommodations, ones that their employer may not necessarily agree with them or provide them accommodations unless they have a right to it in law.

 

So this -- we’ve seen -- if you just take a look at the number of amicus briefs. In the Groff case, we have amicus briefs from a variety of different fates—Sikh, Muslim, Hindu, Jewish, Seventh Day Adventists—arguing about the terrible effects that Hardison’s de minimis standard has had on these various groups. And then you can also look at the numbers. Most of the time, employers were victorious in these religious accommodation challenges. In a study -- or a survey of appellate cases from 2000 to 2020, 86 percent of the time, the religious accommodation claim was denied, and so it ruled in the employer’s favor.

 

So this is a -- this is a standard that had really disastrous impacts. It was plainly against the plain meaning of what Congress was trying to do with the 1972 amendment. It’s against the intent of what Congress was trying to do, and it has this -- this impact on workplaces across the country. And so that tees up the Groff v DeJoy case. Does undue hardship -- does this really mean that all the employer has to do is point to something minimal to get away with denying religious accommodations? Didn’t the Supreme Court in Hardison totally rewrite the statute when it decided that case?

 

So we are arguing -- against the briefing in this case, we argued that the Supreme Court should give undue hardship its plain meaning, which we argued was significant difficulty or expense. That was the term that we preferred. We said, “Usually, when Congress uses undue hardship in the context of employment accommodations, which it does several times, it defines explicitly in other statute as meaning significant difficulty or expense.” That’s in the Americans with Disabilities Act. It’s in as recently as the Pregnant Workers Fairness Act. So when you’re talking about accommodations for pregnant or nursing mothers in the workforce, they use this language. Also for veterans, they use this language. And so we thought that that made sense, and that was played plain meaning.

 

What’s interesting is the solicitor general representing the Post Office agreed that the de minimis standard was wrong and not in keeping with the statutory language and went too far. They agreed that Hardison had problems and that courts weren’t always applying it correctly. So they -- the solicitor general previously argued that Hardison should be jettisoned entirely. But now, in this case, they took a more modest tact in saying that, “Oh, maybe Hardison can be salvaged,” and they reconceptualized it in a new light by pointing to Footnote 14 of Hardison, which said the employ all -- which basically used the term “substantial costs” and made it seem that undue hardship really meant substantial costs, not de minimis. So they prefer the term substantial costs when it came to -- when it came to defining what undue hardship met.

 

And so the theme of the opinion is that the two sides aren’t really that far apart. From the oral argument, I mean, you can see the justices coming together in real time. At one point, Kagan said, “I’m happy we’re all kumbaya-ing together,” and that was what provoked some laughs from the audience. Alito, in the opinion, calls our two tests “significant difficulty or expense” and “substantial cost.” He calls them synonyms, and then he goes with substantial cost, which is -- which is fine by me. Getting rid of the de minimis standard is a huge victory for employee rights, for religious employees, and it’s caused so much -- so much chaos in its wake. So it really gutted Hardison of the disastrous consequences that it had and restored a much closer to the original meaning of undue hardship.

 

So a key passage from the opinion is from Justice -- it’s Justice Alito’s unanimous opinion. There was a concurrence by Justice Sotomayor, which was joined by Justice Jackson, no dissents. Alito says, “In this case, both parties agree that the “de minimis” test is not right, but they differ slightly in the alternative language they prefer. We think it’s enough to say that the employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” So sometimes, they use the term “substantial costs,” sometimes “substantial additional costs,” and sometimes “substantial increased costs.” Either way, you’re talking about net, whether it would cause additional cost compared to not providing the accommodation.

 

And so, “What matters more than a favored synonym for undue hardship is that courts must apply the test in a matter -- manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size, and operating costs of the employer.” So they didn’t overrule Hardison in its entirety. They reimagine Hardison. And even the concurrence calls the de minimis standard, “loose language.” And they said they were brushing that de minimis standard aside, which is all well and good.

 

All right. So there’s important -- so if you are representing a corporate employer, you might want to say, “Okay. What is this -- what does this new standard mean? What are the takeaways on the ground? How do we actually interpret the substantial costs?” So there are a few guidelines that the Supreme Court clarified here that should be helpful for you all. So, first, they made a point to say that you’re taking into account the size and operating costs of your employer. So that means if you’re representing a larger employer, a large government agency, you are -- have a greater ability to accommodate, so you’re more likely going to be required to accommodate.

 

Then they talked about impact on coworkers. It could be a hardship. Both sides agree that it could be a hardship, but it has to -- it has to rise to the level that it impacts the business, that it has substantial costs on the business because that’s the term that’s in the statute. So a lot of times courts just say, “Oh, that one coworker is grumbling; therefore, you don’t have to accommodate.” That’s not going to fly. It has to actually rise to the level of substantial cost on the business itself. So you have to take that additional step into the analysis. And then the other really important -- really important point is that employers can’t point to religious animus to justify denying an accommodation. So if your coworkers don’t like their other coworker’s religion, the religious beliefs, or they don’t like the fact that he’s being accommodated, that’s not sufficient. You can’t premise your denial of a religious accommodation on bias or hostility or animus. So that’s going to be important moving forward.

 

And then the other tangible takeaways are the discussion of EEOC guidance. So after Hardison’s de minimis standard came out, the EEOC was pushing the boundaries of that with some guidance that was saying that temporary costs, voluntary shift swapping, occasional shift swapping and administrative costs are most likely going to be required by -- and not rise to the level of undue hardship. So that guidance is still in effect, and we’d say -- we’d argue that this means that this is now a floor for what’s required.

 

A lot more than that should be required and will be from -- in many instances, especially if you’re representing a larger employee. A few other things that they said, exemptions from dress code requirements are generally going to be required. Covering occasional absences, expending administrative costs, and reworking schedules, paying infrequent or temporary premium wages for substitute, that’s going to be required. And facilitating voluntary substitutes and swaps among employees is most likely going to be acquired.

 

I guess a couple more things before I conclude and pass it over to Bruce. A very important issue to flag is they’re talking about -- in the section when they’re talking about reasonable -- reasonableness, reasonable accommodation, they didn’t dive into it very much except to say one line. They say, “Title VII requires that an employer reasonably accommodate an employee’s practice of religion, not merely that it assess the reasonableness of a particular possible accommodation or accommodations. This distinction matters. Consideration of other options (beyond the one that Plaintiff suggests) would also be necessary.”

 

So this is an affirmative requirement that the employer consider other options for accommodating, for resolving the conflict between the job and the religious beliefs beyond just the one that the plaintiff suggests, which is something that we haven’t quite seen as strongly required before. So this is very important for employers to be the ones that actually try to make this work, and this is an affirmative requirement. And it makes sense because the plaintiff might not know all of the options that are available for resolving the conflict, and the employer is really the one that’s in the best position to figure out a solution that works for all of the employees, for all of the coworkers, and for its business as a whole.

 

And then one important note on what’s not in the opinion, stare decisis. A huge portion of the party’s briefing, especially the government’s briefing, focused on stare decisis arguments, and there is no mention at all of this term in the -- or in the meaning.  Instead, we just talked about supplies the ordinary meaning of the term undue hardship. There is one paragraph on stare decisis in Sotomayor and Jackson, Sonia joined by Jackson’s concurrence. Congress basically argues that Congress is free to make changes to the statute to Title VII if the Court gets it wrong, which is, of course, true. It might be difficult for Congress to make these changes. But that is a true point.

 

 Our briefing focused primarily on the reasons why stare decisis was very, very, very weak in this instance, not least of which because no party was advocating for the de minimis standard and no party was arguing that Hardison’s reasoning was still in effect. So it’s mostly -- so most of the reasons for applying a stare decisis just weren’t here. And then also the fact that it was applying a guidance document, technically, not -- rather than the actual statutory language of that Hardison case. But, in any event, no discussion of stare decisis in the -- in the majority opinion.

 

So a few open questions. So reasonable accommodation, there is a circuit split in the lower courts about whether your employer has to fully resolve the employee’s religious conflict in order for it to count as a reasonable accommodation or as an accommodation. Our argument is, yes, forcing an employer to violate his religious beliefs a little less often is not an accommodation at all saying that, “Oh, instead of having to work every Sunday, you have to work half the Sundays.” They’re still requiring you to violate your religious beliefs, and so it doesn’t count as an accommodation. And then reasonable accommodation might mean that you don’t necessarily get your first choice in ways to resolve the conflict, and the employer has some more leeway there.

 

So there’s more briefing on that circuit split if you want to look it up. In the briefing at the Third Circuit in this particular case, in Groff, the Court -- the Third Circuit went our way on that issue but not on the undue hardship issue that led to the cert grant here. And the other open question, which I’m sure Bruce will talk about more right now, is everything to do with the conflict between seniority systems, the union, collective bargaining agreements, and religious accommodations or other forms of discrimination. So mostly, the courts sidestepped that and left that for another day. So I’ll pass the floor over to Bruce.

 

Bruce Cameron: Thank you, Stephanie. Great information. I will talk about the partial accommodation at the bottom of my comments. I don’t actually think it is an open question after Groff, but we will see. In any event, thank you. 1977 was a very bad year for the United States Supreme Court. It decided two cases involving employee civil rights, and it got both of them badly wrong. The first was Abood v. Detroit Board of Education, which was a case that had to do with whether or not employees who did not want to be a part of the union did not want the union to speak for them. The Court held those employees could be required to speak in the tongue of the union. And that case is no longer valid because of the recent decision of the United States Supreme Court in Janus v. AFSCME. The second case that the Court got wrong in 1977 was the Hardison case, which is what we’re -- we’re talking about today in the context of the Groff opinion.

 

Now, the sad news is that it has been almost 50 years that it has taken to correct those two wrong decisions, and 50 years encompasses the working lifespan of most employees. So employees who took seriously their obligation to God in the workplace have found that they’ve had to deal with both the bad Abood decision and the bad Hardison decision. Now, because this is The Federal Society and we’re all textualists here, I will drop this footnote that in Hardison, liberal Justice Marshall is the one who is arguing for the actual language of the statute, that is the 1972 amendment to the definition of religion in Title VII. We’re all textualists now, and I think that largely accounts for the victory in this case.

 

Well, at the bottom of both of those wrongheaded 1977 decisions was a union and a collective bargaining agreement. And that is true in Groff’s case as well. The opinion calls the collective bargaining agreement an MOU—memorandum of understanding—but they mean the same thing, that the employer and the union have collectively negotiated on behalf of all employees, that is the union represents all employees to the employer. And the collective bargaining agreement was central to Groff’s problem. The Court said at page 2 “that the collective bargaining agreement specifies the order in which the United States Postal Service employees are to be called on for Sunday work outside the peak session -- peak season.” And so, that provision was at the heart of his problem.

 

Unfortunately, the Groff decision leaves open the issue whether or not these seniority provisions in a collective bargaining agreement are vulnerable to religious accommodation request. The Court said the issue wasn’t before. It noted at the page 10 note 10 that Groff did not challenge the core provisions of Hardison, meaning that the provision that it would be an undue hardship to violate the seniority provisions of a collective bargaining agreement. Unfortunately, the Court did nothing in the opinion to undercut the idea that these seniority provisions in a collective bargaining agreement are sacrosanct. Instead, it said, “The Hardison Court was very clear that these rights were off limits,” that is those rights could not be required for an accommodation. You couldn’t sacrifice those rights in an accommodation requirement. The Court said that at page 12.

 

What does that mean? Well, that means that it’s going to take another case where -- which challenges directly whether or not the collective bargaining agreement and its seniority provisions are subject to reasonable accommodation concerns. I think that that they should be subject to a reasonable accommodation requirements because, as the Court went at lengths to explain—and I’ll get into in just a minute—the opinion of other employees really doesn’t matter in an accommodation case, that I think collecting the employee opinions together and putting them in a collective bargaining agreement doesn’t matter either. So collecting them shouldn’t change the equation.

 

Now, this protection, though, for seniority rights under a collective bargaining agreement does not extend to other provisions of a collective bargaining agreement. Those are, I think, amenable, open, required to accommodate, that is they are not sacrosanct. They can be overridden. And here’s why. The Court said that Hardison’s “guidance on undue hardship in situations not involving seniority rights is much less clear.” That’s at page 12 of the opinion.

 

And so Groff sets out what I see as a two-part test for whether or not provisions of the collective bargaining agreement have to give way to religious accommodation request, that is when the employee’s religious beliefs come in conflict with a provision of the collective bargaining agreement, I think the Court sets out a two-part test. I’m a law professor. We like tests, and so that’s -- that’s how I see this. And I find this at page 19 of the opinion.

 

The first test is this. Does the accommodation request create an adverse impact on the rights of fellow employees? If it doesn’t, then accommodation would be required. If it does create an adverse impact, then the second test kicks in, which does that adverse impact on fellow employees affect the employer’s business to create an undue hardship? And by the way, I prefer the term undue hardship over any other of the synonyms that the court was mentioning. In fact, I think Justice Alito is pushing through that -- to that throughout the opinion. He says, you know, “Hardship is one thing; undue hardship is above that.”

 

So let’s look at some examples here and apply the test that I see to figure out where this ends up. What about employees who have religious objections to joining or financially supporting a labor union? There have been a lot of those cases so far. In those cases, the employees have volunteered to pay to charity in equivalent sum to the amount that they would have to pay to the union. There’s one case, the [inaudible 33:20] case, where the employee refused to do that. And the Court said, “Well, that would be an undue hardship.” I think Groff resolves that.  Because applying the two-part test, you say, is releasing the religious objector from paying any money to the union, does that adversely impact the rights of fellow employees? Well, as a practical matter, the answer would be no. I mean, you know, how much -- how much of an adverse impact could this employee not paying the fees affect these employees? I mean, how much could the impact be on them that would be adverse?

 

I also think that aside from just the factual issue, the U.S. Supreme Court has foreclosed this in the Janus case. It is said that this idea about free riders is not sufficient to overcome First Amendment rights, and the Court points out that we’re all free writers to some degree or another with regard to things that go on in our life. My neighbor mows his lawn. Hey, I’m a free writer from having a mowed lawn. And so, I think the first test for these religious objections to union fees are that it does not adversely affect the interest of fellow employees. But even if it did, you’d have to say, “Well, does that adverse impact on fellow employee rights rise to the level of undue hardship on the employer’s business” And the answer is obviously not. It couldn’t possibly be, it seems to me.

 

There’s a related question that is rare, but I think is going to be litigated after the Groff case. And that is employees who not only say, “I have a religious objection to joining or financially supporting the union,” but they say, “I have an objection to be represented by the union.” Now, the Bible lays out how employees should relate to their employers, and the employee says, “The way my union is representing me on behalf of the -- representing me with this employer is nowhere close to what the Bible says should be done.” And so, employees who have religious objections to be represented by the union, I believe, will now win under the two-part test.

 

Why? Number one, what’s the adverse impact on fellow employees taking an employee out of the bargaining unit? The answer should be none. I mean, there are exceptions to the content of a bargaining unit anyway. For example, confidential employees under the National Labor Relations Act are out. Certain supervisors under the National Labor Relations Act are out. And the contours of the bargaining unit are subject to negotiation. So it seems to me excluding these employees who being represented by the union has no adverse impact on fellow employees. Even if it did, is it isn’t an undue hardship on the part of the employer’s business? And the answer would be no for the same reasons I’ve mentioned. The law already requires exclusions for confidential employees and some of those supervisors.

 

But then there’s the a-thousand-pound gorilla sitting in the room and that is under the National Labor Relations Act, 94 percent of employers do not bargain with a labor union. And so, all of these employers are running their business, having to deal with all their employees. And so taking an employer to or maybe many out of a bargaining unit and saying, “Employer, you have to deal directly with them,” puts that employer in the same position as 94 percent of all other employers in the country.

 

All right. What about Sabbath cases, which, of course, is the Groff case. Well, as Stephanie mentioned, the Court said, you know, voluntary shift swapping, and that actually has been going on in the lower courts for some time to a certain degree. But then the Court said something very, very interesting. Right after it mentioned voluntary shift swapping it said, “occasional shift swapping.” Now, what can that mean? That’s got to be -- that’s got to be nonconsensual, you know, involuntary. If it were voluntary, it would be in with the first group. So I think that means that the Court is telling us that the employer can say, “Paul, you know, you’re working on Saturday because Bob’s got to go to church or synagogue.” And, you know, a couple weeks later, “Hey, Matt, you’re working on Saturday because Bob’s got to go to church or synagogue.” These occasional, nonconsensual shift swaps do not arise according to the Court to an undue hardship.

 

And then there’s a really big one, I think, and that is Groff positively, absolutely endorses incentive pay. It said with regard to the opinion below, “This may have led the Court to dismiss a number of possible accommodations, including those involving the cost of incentive pay.” That is the solution to this protection given to seniority agreements under the collective bargaining agreement. Those employees who are senior, they get to keep their rights, but the employer is required to pay them off for those rights.

 

And so, this was an issue between the dissent and the majority in Hardison. And Groff is now saying that employers are required to pay incentive pay to allow religious objectors to have their Sabbaths off. And, of course, with the undue hardship standard now being a hardship on the conduct of the employer’s business that takes into account the size of the business and it has to be more than hardship—it must be undue—it seems to me that employers are going to resolve this. They will be required to resolve this by paying these employees who hold the seniority rights.

 

There are some other accommodations the Court mentions. It says, “Considerations of other options would be necessary.” So the Court leaves it open, I would say another option for Sabbatarians would be moving them out of the bargaining unit. That has been done on an occasion or suggested on occasion in the past, but now I think that it’s required. Now, the notable holding that Stephanie and I were discussing—she talked about the very end, and I mentioned at the very beginning—is this partial accommodation. This has been a battle before the U.S. Supreme Court. In the most recent Walgreens case, that was an issue. There are three circuits that have said that a partial accommodation is appropriate.

 

So what do I mean by that? Let’s take a Sabbatarian again. So the employer says, “Well, you can’t work on Saturday. So for the next 12 Saturdays, we’ll only make you work 2 of them,” you know. And then the theologian employer and the theologian court say, “Well, that’s reasonable,” you know. So I think the Court absolutely forecloses that. It’s page 20 of the opinion. Here’s what it says. “Title VII requires that an employer reasonably accommodate an employee’s practice of religion, not merely that it assess the reasonableness of a particular possible accommodation or accommodations.”

 

And so, when it says, “Title VII requires an employer reasonably accommodate the employee’s practice,” it means you have to accommodate what the employee understands to be the appropriate practice of their religion. You can’t sit back and say, “Oh, well, we think this is reasonable.” I’ve always thought these circuits that adopt a reasonableness are just whistling Dixie as it were because courts are not theologians. Who gets to decide the reasonableness of the employee’s religious belief other than the employee? What the Court gets to decide is whether or not accommodating the employee’s religious beliefs is an undue hardship or not.

 

And now that Stephanie has gotten this all resolved and undue hardship means undue hardship, I think we’re in business for those employees who have been losing their jobs over their faith. And so, it’s a new day, and 50 years later, we’ve finally gotten those two cases right. Employees who object to union fees for religious reasons and political reasons, they’re free if they’re in the public sector, and employees who seek an accommodation of their religious beliefs, well, they are greatly aided by the Groff decision.

 

Stephanie Taub:  All right. Wonderful, Bruce. I love that, especially the -- those last points about resolving the circuit split. I think that’s a fantastic argument, and I’m going to use that.

 

Bruce Cameron:  Well, you know, Stephanie, one of the things is I think Justice Alito is aware of that. I mean, he doesn’t flag this, and maybe he didn’t flag it to get a 9-0 opinion. But this has clearly been one of the major disputes. I think that language addresses that issue.

 

Stephanie Taub:  Yeah. Absolutely. And then looking at the Q&A, it looks like -- I think we can knock out a few of these. So the first one, Alito says Lemon is now abrogated. Does that mean it’s overturned? Yes. Look at Kennedy v. Bremerton. They were pretty clear on that. So this is -- I wouldn’t categorize this as a cleanup case because it’s not a First Amendment case, but it’s looking at the background of the – I’m trying to explain what happened in Hardison. There was a very different understanding of how to protect religious liberty rights at the time. So that’s when they flagged that. Will the standard apply to ADA cases?

 

Bruce Cameron:  Can I just say something? There is a world to win on this issue. Because the abrogation of Lemon in the Kennedy case opens up, what is the new test? And I think the new test is a historic test. If you look at the Janus decision, which talks about the fact that the former compelling state interest standard is now given to the important interest standard, that is it no longer is the compelling state enter standard only attached to strict scrutiny. It’s attached to a lower level of scrutiny. And so, if you add Bruen into this, Bruen indicates that we’re looking at a historical test for the Second Amendment, but it specifically says the First Amendment as well. So this is where I think the future lies with regard to the argument for religious freedom.

 

Stephanie Taub:  Fantastic. And then the next question is, will the standard apply to ADA cases? No, ADA has its own definition for undue hardship. They go with significant difficulty and expense. There also are other questions about -- or other differences between the two statutes and some procedural differences. So different cases. Next one is, do substantial costs and similar concepts refer only to financial costs, or is it broader? Assuming the accommodation is financially free, would it always be required if it has some other significant intangible costs? Bruce, do you have a -- do you have a thought on that? I’ve got a couple of thoughts.

 

Bruce Cameron:  I think not only money is involved. I think that a hardship means hardship on whatever, you know, the front for the employer. So, you know, it all -- most of these things reduce to money.

 

Stephanie Taub:  Yeah.

 

Bruce Cameron:  But I think if there’s something that’s outside that, that it is also subject to the statutory standard.

 

Stephanie Taub:  It sure looks like they are reducing it to money because Hardison uses the term expenditures. They use the term cost, and then those are repeated here in Groff. And then this kind of goes -- a lot of aspects of the case law talk about the importance of, you know, risk quantifying -- quantifying this and how the employer can’t just make up some sort of hardship. So if we’re requiring them to actually prove this, it usually should be quantifiable in some way. So I would argue it probably does need to have a financial aspect or at least some other sort of quantifiable thing, but there’s a little bit of ambiguity there.

 

Bruce Cameron:  Well, Stephanie, can I -- I’d point out the actual text of statute says, “an undue hardship on the conduct of the employer’s business.” So it doesn’t say money. It says conduct. And so, I think that covers the waterfront.

 

Stephanie Taub:  All right. Then the next one, it looks like it’s for you. Do you want to -- do you want to go ahead and read that one?

 

Bruce Cameron:  I’m not looking at them. So what is it?

 

Stephanie Taub:  Okay.  I’ll read it for you. It’s in the Q&A. It says, “To Bruce, you put forward one theory that employees’ opinions can’t be aggregated into a union opinion opposing religious accommodation. What is the strength of the argument that a business can’t bargain away and employee’s religious rights to a union? “

 

Bruce Cameron:  Well, the employers can presumably bargain away the rights to begin with. But when the employees can forward and say, “This is the conflict between my right and your -- whatever you’ve agreed to,” the employer has to reasonably accommodate, unless it would create an undue hardship. So I would say a prudent employer will be careful not to bargain away these rights. But even if they do, the remedy is in Title VII, where you say, okay, you know, because religious beliefs vary. Different employees have, you know, different religious beliefs, and so it’s kind of hard for an employer to determine all of them, particularly since employees don’t have to declare them on being hired.

 

Stephanie Taub:  All right. Looking at the --

 

Bruce Cameron:  Thank you for that. Let me see where -- if I can figure out how to do the...

 

Stephanie Taub:  The next one, it looks like, what happens -- okay. What happens if a lot of people are asking for these religious accommodations, essentially? So I would argue that the Title VII statute is -- you have to look at it on -- it’s very fact specific, this question, and you have to look at it with respect to the individual plaintiff. So you got--  there’s a lot of good -- there’s good language actually in the Bostock opinion saying that you have to look at a plaintiff at – individually, with respect to the plaintiff when you’re looking at the discrimination. So it would make the same analogy here. So it remains to be seen. But these are very fact specific inquiries, so I don’t want to make a blanket statement there.

 

Bruce Cameron:  Yeah. It’s the same standard. I mean, is it an undue hardship on the conduct of the employer’s business? I mean, I suppose the greater the number of employees, the more difficult it is. I once met with a bunch of teachers in Benton Harbor, Michigan, and they all wanted to leave the union for religious reasons. And it turned out that the people I was meeting with were Seventh Day Adventists, and this is an area where a lot of Seventh Day Adventists live. And so, a huge percentage of the bargaining unit had now gotten religion because the union was going to strike, and so it complicated the issue of undue hardship, particularly when it had the de minimis label attached to it.

 

Stephanie Taub:  All right. And, Chayila, feel free to jump in here if you can summarize faster than I.

 

Chayila Kleist:  I believe the next question refers to whether or not the Court is positioning itself as a business expert. You had mentioned it could be not trying to review the back to the -- the not-theologians. I mean, here, it may be that they’re assessing the business aspect. To what degree is that been done in this decision?

 

Stephanie Taub:  Yeah. Okay. All right. Bright-line rules about Sabbath accommodation? Yeah. I mean, that’s a great point, is that sometimes there are specific context that religious accommodations come up more frequently, Sabbath being one. And we could have some sort of bright-line rules here, and that is actually -- I mean, that’s a good idea to talk -- if Congress were to make some more maybe bright-line rules about this to have clear standards for employers and employees about what their rights are. I know states like New York have some more specific requirements about Sabbath. And so there are -- it is a possibility for -- but right now, we’re living in the universe where we have to look at the text of what Title VII said. And so we’re -- it is a fact specific inquiry, and so we’re going to have to take a look on a case-by-case basis.

 

Chayila Kleist:  Got it. I think the next question refers to, assuming Lemon is gone, is it possible that a future case can address the constitutionality of Title VII’s religious accommodations requirement under a coercion theory of the Establishment Clause, i.e. government forces an employer to reimburse an employee for a religious practice?

 

Bruce Cameron:  Well, the Court in the Groff opinion was that, you know, pains to say, “Well, that used to be the issue. That used to be what was claimed to motivate the Hardison sort of corrupted interpretation of undue hardship. But I think the Amos case that followed says that these accommodations creating a level playing field for religious minorities are not an establishment of a religion. And so, I don’t think that Title VII is open to being struck down based on the Establishment Clause. And I would say, if you look at this argument I was making before about what Bruen is saying, New York Pistol Association v. Bruen, is saying about the future, I can’t imagine that any of these collectively bargain provisions would be able to override religious faith. You know unions were an illegal combination, you know, at the time of the constitution.

 

Stephanie Taub:  Yeah. I think that that’s absolutely right. Yeah. Definitely look at the Amos case, which is supporting the fact that sometimes you do need to accommodate people in order to have a level playing field. And we don’t normally think of accommodating people in the ADA or accommodating pregnant or nursing moms as giving them favored treatment. It’s more about making sure that they have equal opportunities. Because if you don’t allow -- if you don’t have protections for Sabbath observers, they could be barred from wide areas of the workforce. There could be so many jobs that they’re perfectly capable of doing and with an accommodation, but they wouldn’t be able to do if they didn’t have these sorts of legal protections.

 

And it looks like the last question is, what happens when protected classes clash? So I guess we’re going to see some more litigation on that. We don’t squarely talk about that, but we do have the discussion from Justice Alito that’s saying that discrimination or animus against religion, against people that have religious beliefs, or about the fact that they are -- the employer needs to provide an accommodation, that that’s not going to be sufficient for an undue hardship.

 

Bruce Cameron:  Yeah. I would point out what the Court just said in 303 Creative. There was the clash between religious freedom and a protected category, and religious freedom prevailed.

 

Stephanie Taub:  Yeah. 303 Creative was a free speech case --

 

Bruce Cameron:  Right.

 

Stephanie Taub:  -- in the marketplace -- in the marketplace context. But this is -- it is important lessons to be drawn here. So we’re talking about everyone has the right to express their opinion and without being coerced by the government. So this is very -- they were decided just a day apart, very interesting opinions. They are going to have big impacts moving forward.

 

Chayila Kleist:  Got it. Well, barring final thoughts, we’ve come to the end of our questions. So we can wrap it a couple minutes early, give everybody back a few minutes of their time. On behalf of The Federalist Society, thank you so much to our experts for the benefit of your valuable time and expertise today. We really appreciate you carving up this hour to join us and talk about this case. And thank you to our audience for joining and participating. We welcome listener feedback by email at info@fed-soc.org. And, as always, keep an eye on our website and your emails for announcements about other upcoming virtual events, including ones like the Courthouse Steps on Samia v. United States, which is a criminal law case being held late this afternoon. With that, thank you all for joining us today. We are adjourned.