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    October 31, 2023 HUMAN RIGHTS

    Clarification or Expansion of Workplace Religious Expression?

    by Mark I. Schickman

    Title VII of the Civil Rights Act of 1964, as amended in 1972, prohibits discrimination on the basis of a series of categories, including religion and “all aspects of belief, observance, and practice.” The U.S. Equal Employment Opportunity Commission regulations enforcing Title VII are clear that an employer must provide “reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer’s business.” 29 CFR § 1605.1 (1968). But the meaning of the terms “reasonable accommodations” and “undue hardship” has been the topic of argument for the past 50 years.

    In its June 29, 2023, unanimous decision in Groff v. DeJoy, the U.S. Supreme Court “clarified” that meaning, discarding a definition that had been operative for 46 years and bringing the definition of those terms into better harmony with other employment accommodation contexts. The decision is a welcome protection for a worker’s expression of religious practice. However, two other decisions from the last term may signal an expansion of the right to religious expression at work far broader than ever seen before.

    USPS Accommodation of Sabbath Observer

    Groff was an Evangelical Sabbath observer who would not work on Sundays. For many years, his job with the United States Postal Service (USPS) did not require Sunday work, but that changed in 2013 when new services were added that required Sunday deliveries. His employer made minor efforts to accommodate him, but when that did not work, Groff received progressive discipline for his failure to work on Sundays and resigned. He sued the USPS for failing to reasonably accommodate his Sabbath observance.

    The lower courts found direct authority in a 1977 case, Trans World Airlines, Inc. [TWA] v. Hardison, 432 U.S. 63 (1977). There, too, TWA employee Hardison asked to have the Sabbath off for his religious observance, and TWA’s needs for round-the-clock staffing could not always accommodate that. The Hardison Supreme Court ruled in favor of TWA, finding that an “undue hardship” exists if an employer must “bear more than a de minimis cost.” That analysis controlled the legal burden of religious accommodation for the past 46 years. This definition differed substantially from the more stringent test under the Americans with Disabilities Act (ADA), which defines undue hardship as imposing “significant expense or difficulty.”

    Two decisions from the last Supreme Court term may signal an expansion of the right to religious expression at work far broader than ever seen before.

    Two decisions from the last Supreme Court term may signal an expansion of the right to religious expression at work far broader than ever seen before.

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    Goodbye to the “De Minimis” Test

    The Groff Supreme Court found that common parlance precludes the “de minimis” test; “hardship” means “something hard to bear,” and the adjective “undue” requires the burden to be excessive or unjustifiable. While recognizing that the “de minimis cost” standard was mistaken, the Groff Supreme Court still would not adopt the ADA standard wholesale. Rather, it created a third definition of “undue hardship” that would allow an employer to refuse a reasonable accommodation, determined on a case-by-case basis, if it caused “substantial increased costs in relation to the conduct of [an employer’s] particular business.” Despite the difference in language, the new religious accommodation standard is similar to that under the ADA. Under both, an employer must “take into account all relevant factors [including] . . . the particular accommodations . . . and their practical impact [given the] size and operating cost of [an] employer.

    Many reasonable accommodations have little or no cost; for example, creating exceptions to uniform policies to allow for religious garb. Others have minimal cost, such as obtaining kosher or halal food for company functions. Allowing time off or requiring schedule swaps to accommodate religious observances can sometimes pose difficulties.

    The administrative burden of providing those accommodations, or the dissatisfaction of other employees whose schedule is disrupted by the accommodation, might have been sufficient to satisfy the “de minimis” test, but it is not likely to pass the new standard. On the other hand, it could cause an undue hardship to allow a nightclub manager to take every Friday and Saturday night off for religious reasons. While the cost of hiring and training a substitute employee to cover a religious holiday might be required of General Motors, it might be an undue hardship for a very small employer.

    Many employers did not understand that the Courts had created two very conflicting definitions of the phrase “undue hardship.” The unanimous Court resolved that and restored the concept of reasonable accommodation contemplated by Title VII.

    What Are the Limitations to Workplace Religious Expression?

    Keeping in mind the material differences among private employment, government employment, and independent contractor status, the Supreme Court issued two other decisions last term whose logic creates concerns regarding religious expression in the private sector workplace.

    The workplace and Thanksgiving dinner have one thing in common: politics and religion should be discussed at neither of them. Indeed, the policies of most sophisticated employers preclude discussion of those topics at work. The rationale is that those topics often lead to heated arguments, or claims of discrimination or harassment, so they are declared off-limits at work.

    If an employee needs time to engage in private prayer, that is generally viewed as a reasonable accommodation. But if a supervisor asks to provide inspirational religious homilies to her staff or organize a lunchtime or after-work prayer session on the worksite, management will generally refuse for fear that employees might feel (or claim to feel) coerced or pressured into attendance or that practitioners of other faiths might feel discriminated against.

    In the very different public employment context, the Supreme Court in Kennedy v. Bremerton was confronted with a constitutional “free exercise of religion” claim by a high school football coach whose practice was to kneel in prayer on the 50-yard line after football games, often with students surrounding him, despite the school board’s direction that he not do so. He challenged the school board’s decision not to rehire him, claiming state interference with his religious expression; by a 6–3 majority, the Supreme Court agreed.

    The majority and the dissent disagreed sharply on the facts; moreover, while the majority quoted the coach’s statements that he did not force anyone to attend, the dissent made the practical point that when a coach (or a supervisor) has a meeting, there is implied coercion to attend. One underpinning of the holding was that fear of legal liability is insufficient reason to suppress religious expression, at least in public employment. Why shouldn’t the same rationale apply to a private employer who prevents public religious expression in order to guard against a claim of creating a hostile work environment?

    Last term, the Court went one step further in the independent contractor context in 303 Creative LLC v. Elenis, in which web designer Lorie Smith violated Colorado law by refusing to create wedding websites for same-sex couples because doing so would violate her First Amendment right to free speech. Justice Gorsuch’s opinion noted that Smith’s creative and artistic website designs are limited by her conviction that “She will not produce content that ‘contradicts biblical truth’ regardless of who orders it.”

    Again, in the context of governmental action, the Supreme Court noted that a state could not require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal.” To the contrary, up to now, private employers can direct their employees to perform their essential job functions even if contrary to their political or religious views. An assertively atheist print shop employee cannot refuse to create and copy heavily religious brochures for a local church, nor can politically conservative employees refuse to do the same for the American Civil Liberties Union. An employee with sincerely held religious political beliefs that women should not work, let alone manage or supervise, must suppress any practice or expression of that belief or be terminated. In each of these examples, a private employer has always had the right to demand compliance and service whether or not it interferes with the employee’s right to free speech or religious expression.

    Have religious expression rights expanded so greatly that they are legally superior to management discretion? Concerns have been expressed that a more conservative, and more religious, Supreme Court is moving in that direction. Are protections intended to protect religious minorities being used to establish religious hegemony instead? Has religious freedom become a political issue of the right?

    Considering that question, it is worth noting liberal champion Justice Thurgood Marshall’s impassioned dissent to Hardison v. TWA, joined by Justice William J. Brennan Jr. Bemoaning the dilution of religious accommodation, the dissent writes, “As a question of social policy, this result is deeply troubling, for a society that truly values religious pluralism cannot compel adherents of minority religions to make the cruel choice of surrendering their religion or their job. And, as a matter of law, today’s result is intolerable . . . .”

    While it is a mantle alternatively worn by one political party or another, protection of religious pluralism, and freedom to engage in one’s own religious ceremony and expression, is a founding principle of our nation, animated by our freedoms of speech, thought, and assembly. Generally, those protections do not interfere with those of others and can be accommodated in the workplace. Employers continue to be well served by work policies that prevent religion from being a source of conflict or dissension at the workplace. We await any further guidance from the Supreme Court.

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    Mark I. Schickman

    ABA Civil Rights and Social Justice Section Delegate

    Mark I. Schickman has served on the ABA Board of Governors and has chaired the ABA Section of Civil Rights and Social Justice, the ABA Commission on Domestic & Sexual Violence, and the Standing Committee on Pro Bono and Public Service.