A Postman "Carries the Mail" for Religious Liberty: Groff v. LeJoy
By John A. Sparks
In January 2019, Gerald Groff left the Holtwood Post Office in the small rural community of Holtwood, Pennsylvania, located in Lancaster County. When he left, he figured it was likely for good. He resigned his mail carrier position there because he knew that he was inching closer and closer to being fired. He had already endured various steps of the Post Office’s progressive discipline. What drove him to leave the USPS was its failure to accommodate his sincerely held religious convictions.
Groff understood Sunday to be a day that he was to be free from work. He believed Sunday should be devoted to the worship of God and to rest as set out in the Fourth Commandment. He was willing to work hard for the rest of the week, to take others’ shifts, to be as flexible as possible to avoid Sunday work assignments. Nevertheless, USPS called him to work on Sundays to fulfill a new contract it had made with Amazon to deliver its packages to the 3,000-plus people served by the Holtwood rural post office.
After resigning, Groff brought a lawsuit asserting his right to practice his Sunday religious observance free from the threat of dismissal. He lost in a federal district court and then lost again on appeal to the Third Circuit Court of Appeals. Instead of delivering mail along the Susquehanna River in Lancaster County, he now finds himself on One First Street, Washington, DC—the home of the U.S. Supreme Court.
Groff’s case is based upon a federal civil rights statute, not a constitutional provision. It is easy to forget that the freedom to engage in the exercise of religion is also protected by federal statutes, which although they may be repealed by subsequent acts of Congress, nevertheless are part of the protections which Americans enjoy.
It is one of those federal statutes—the Civil Rights Act of 1964—on which Gerald Groff is relying in his case. What does the Civil Rights Act say about employment and religious freedom?
Title VII of the Civil Rights Act of 1964 is best known for prohibiting discrimination in employment based upon race or sex. However, it contains other language preventing employers from discriminating against workers because of their “religion,” including their religious practices and observances. In order to give the protection of religion “real teeth,” Congress, in 1972, added the requirement that employers must “reasonably accommodate” the religious practices of employees as long as those accommodations do not impose “undue hardship on the conduct of an employer’s business.” That language seemed to give strong protection to religiously conscientious employees.
However, soon after the 1972 amendment, the Supreme Court in Trans World Airlines, Inc., v. Hardison (1977) interpreted “undue hardship” to mean any cost which the accommodation imposed upon the employer, beyond the most minimal (de minimis) of costs. This interpretation, often referred to as the “de minimis” rule, effectively judicially rewrote the statutory language. Employers had only to show that their costs of accommodation slightly exceeded minimal costs to be regarded by the courts as having met their duty under Title VII. Naturally, some federal courts across the country and employers that were ideologically inclined to minimize the duty to accommodate religious practices readily adopted the language of Hardison. Hardison became “established” law in these cases.
Groff is maintaining that the current court ought to revisit and reject the wrongful interpretation of “undue hardship” that the Hardison court espoused and which the lower court in the Groff case used to find against him. What are Groff’s arguments and how should the Supreme Court, as currently constituted, regard them?
Plainly put, Hardison ignored the plain text of Title VII. Congress amended the act in 1972 to require employers to take employee requests for religious accommodation seriously by using language in the amendment that was uncompromisingly clear and direct. Employers could only avoid adjusting for accommodations if the changes produced “hardship” on the employer’s conduct of his business. “Hardship” usually means that something is very hard to bear. Hardship means the employers business would face high costs due to the accommodations. If one adds to that, as Congress did, the word “undue,” the meaning is even stronger. “Undue” means “excessive.” Putting both together, the accommodation required by the employee request had to produce a significant, costly, jarring impact on the employer’s conduct of his business for him to avoid the accommodation. The Hardison majority instead opined that if the employer’s business conduct was affected by a little more than a small amount (de minimis), then such constituted “undue hardship.” The de minimis language is very nearly the exact opposite of the congressional language of “undue hardship.”
Moreover, the dissenters in Hardison, Justices Marshall and Brennan, immediately and correctly complained that the “de minimis test” of the majority “makes a mockery” of Title VII. It effectively “nullifies” the intention of Congress to provide a workplace free from terminations due to discrimination against observant believers. Marshall stated that the majority in Hardison “adopts the very position that Congress expressly rejected in 1972 as if we were free to disregard congressional choices that a majority of this Court thinks unwise.” That statement, coming from two of the most liberal justices of the court when it comes to interpretation, tells the whole story.
Both the Supreme Court in Hardison and the lower courts in Groff, were not faithful to the rest of the language of Title VII. Not only did they effectively gut the meaning of “undue hardship,” they ignored other key words in the statute which say that only if the “conduct of the business” of the employer is in jeopardy does an accommodation become too costly. The court majority in Hardison, followed by the lower courts in Groff, focused instead on the fact that granting religious accommodation to one employee sometimes meant that an increased burden was placed on other employees. Co-workers, for example, had to substitute for the spot left open by the accommodated employee. However, Marshall in his Hardison dissent stated that employee discontent should not be the focus of attention: “But if an accommodation can be rejected simply because it involves preferential treatment, then the statutes, while brimming with ‘sound and fury,’ ultimately ‘signify nothing.’” Title VII clearly says the court is only to look at the threat to the “conduct of the business” posed by the accommodation. If business conduct is substantially disrupted, then the accommodation has gone too far. But co-workers complaining about the effects of the accommodation on their own work schedules were not intended by the 1972 amendment to negate reasonable accommodation.
The court should revisit and reject Hardison. It should return to the actual accommodations language made law by Congress in the 1972 amendment, which calls upon employers to make a substantial effort to protect their religiously observant employees. Exercising one’s faith should not be a ticket to unemployment or unfair treatment. Mail deliverer Gerald Groff should be able to worship and rest on the Christian Sabbath without losing his job.
Dr. John A. Sparks is the retired Dean of Arts & Letters, Grove City College and a Fellow in the Institute for Faith and Freedom. He is a member of the state bar of Pennsylvania and a graduate of Grove City College and the University of Michigan Law School. Sparks writes regularly for the Institute on Supreme Court developments.
