Federal civil rights law requires employers to accommodate their employees’ religious needs unless the request would impose “undue hardship on the conduct of the employer’s business.” Congress didn’t bother to define “undue hardship,” so 46 years ago the Supreme Court came up with a definition of its own.
An accommodation requiring an employer “to bear more than a de minimis cost” — meaning a small or trifling cost — need not be granted, the court said in Trans World Airlines v. Hardison. In that case, an airline maintenance worker claimed a legal right to avoid Saturday shifts so he could observe the tenets of the Worldwide Church of God, which he had recently joined. Ruling for the airline, the court noted that if one worker got Saturdays off for religion reasons, the burden would fall on other workers who might have nonreligious reasons for wanting to have the weekend off.
“We will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath,” the court said.
Treating religion as nothing particularly special, the decision reflected the spirit of the times but was deeply unpopular in religious circles. There have been many attempts over many years to persuade Congress to amend the law, Title VII of the Civil Rights Act of 1964, to shift the balance explicitly in favor of religiously observant employees.
[N]ow, a very different court from the one that ruled 46 years ago is about to do the work itself.
That isn’t an idle prediction but rather the surely foreordained outcome of the new case the justices recently added to their calendar for decision during the current term. The appeal was brought by a conservative Christian litigating group, First Liberty Institute, on behalf of a former postal worker, Gerald Groff, described as a Christian who regards Sunday as a day for “worship and rest.”
Mr. Groff claimed a legal right to avoid the Sunday shifts required during peak season at the post office where he worked. Facing discipline for failing to show up for his assigned shifts, he quit and filed a lawsuit. The lower courts ruled against him . . . .
The decision to hear his appeal brings the Supreme Court to a juncture both predictable and remarkable. It is predictable because Justices Samuel Alito, Clarence Thomas and Neil Gorsuch have all called for a case that would provide a vehicle for overturning a precedent that is clearly in tension with the current court’s privileging of religious claims above all others, whether in the context of public health measures during the Covid-19 pandemic or anti-discrimination claims brought by employees of religious organizations. . . . . To today’s court, as Justice Alito has repeatedly expressed it, the real victims of discrimination are those who take religion seriously.
It takes the votes of four justices to grant a case, and it’s hardly surprising that this determined troika found a fourth, and most likely a fifth and sixth as well. Mr. Groff’s petition, filed in August, even describes Trans World Airlines v. Hardison as an “egregious error,” as if to remind Justice Alito of the words “egregiously wrong” he used to describe Roe v. Wade in his Dobbs opinion overruling that decision two months earlier.
The moment is remarkable for the bold activism the court is about to display. . . . . That Congress has refused for decades to revisit the meaning of “undue hardship” carries no weight with the justices pressing to revisit the issue on their own. That was certainly the view expressed by Justices Gorsuch and Alito two years ago in dissent from the court’s decision not to hear an earlier case challenging the 1977 precedent.
It may be just a coincidence, but the plaintiff who finally persuaded the justices to take his case is in fact, according to the joint statement of facts agreed to by the parties, “an evangelical Christian within the Protestant tradition.” When the court doubtless rules for him later this term, the decision will not stand for a vindication of minority rights. It will instead signify the court’s complete identification with the movement in the country’s politics to elevate religion over all other elements of civil society.
Religion is the lens through which the current majority views American society; as I have written, there is no other way to understand the overturning of Roe v. Wade. The endpoint of this project is not yet in view. Those of us not on board are left to watch, to try to understand, and to call the court out with each additional step it takes.
Expect more special rights for far right "Christians." One can only hope that in time when Christianity becomes a true minority religion in America, a future Court will strip these religious extremists of the special rights the current coourt is bestowing on them.
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