The U.S. Supreme Court heard arguments on Tuesday in a case centered on the rights of employees to observe their religious Sabbath, or day of rest.
Both religious and secular Jewish groups are watching Groff v. DeJoy closely, and some filed briefs on behalf of the plaintiff—evangelical Christian postal worker Gerald Groff, who refused to work on Sundays, his Sabbath. Groff offered to make up shifts on other days or to transfer to another branch, where he could maintain his day of rest.
His appeal asks the Supreme Court to overturn a 1977 ruling in Trans World Airlines v. Hardison, which maintained an employer need not offer religious accommodation when it places “undue hardship” on co-workers. The court defined “undue hardship” as an accommodation beyond a minimal (de minimis) cost.
Observers of Tuesday’s arguments say it’s very likely that the court will throw out the de minimis standard. The larger question, however, is what will replace it.
“For advocates of religious liberty, the glass was half-full today. On the one hand, it was great to see how thoroughly the so-called de minimis standard has been rejected across the board,” said Marcus, who is also a distinguished senior fellow at George Mason University’s Antonin Scalia Law School.
“On the other hand, it was disappointing not hearing stronger support for a full-body religious freedom standard by the conservative majority,” he added.
The justices appeared to seek a broad consensus, which would likely have the impact of a water-downed decision that could leave broader questions unresolved, according to Marcus. He cautioned that justices sometimes try out positions in oral arguments that they later disregard, so it’s hard to judge how far they will go solely on their basis.
“Having said that, it was conspicuous that Justices Neil Gorsuch and Amy Coney Barrett seemed potentially interested in a relatively narrow opinion,” he said.
Their tone seemed to surprise liberal Justice Sonia Sotomayor and Solicitor General Elizabeth Prelogar, arguing for the government, said Marcus. The court’s more liberal justices appeared to be highly skeptical of Groff’s arguments for a strong new standard, he added.
‘How broad or narrow the ruling will be’
Nathan Diament, executive director of the Orthodox Union’s Advocacy Center, told JNS that Prelogar tried to paint a rosy picture of religious freedom in the workplace, but even she didn’t defend the current standards.
“Nobody was defending a low standard. So, I would say we’re optimistic that we’re going to win the case,” he said. “What’s less clear is how broad or narrow the ruling will be. How strong will a new standard that protects religious workers be—that was more unclear.”
Diament said the solicitor general’s arguments centered more on the claim that the system, courts and the Equal Opportunity Employment Commission are applying the law in a way that is more protective of religious workers than some may think. She also argued that things are better on the ground than those on the outside might believe.
The justices seemed broadly dismissive of that view, and even liberal justices Ketanji Brown Jackson and Elena Kagan seemed sympathetic to Groff’s case, according to Diament. Kagan was focused more on stare decisis, which holds that courts and judges should generally honor prior case precedents in their decisions, rulings and opinions.
“Her view had little to do with the issues of this specific case, but more about whether it was appropriate to overturn this 1977 precedent,” said Diament. “You’re talking here about a statutory interpretation case, not a constitutional case.” (Statutory interpretation is the process by which courts interpret and apply legislation.)
Should the court rule in Groff’s favor, what could that decision look like?
On Tuesday, Groff lawyer Aaron Streett argued the standard should be taken from another accommodation statute: the Americans with Disabilities Act. He said that defines an employer’s undue hardship as “significant difficulty.” The government argued the proper definition was “substantial costs.”
That is a huge distinction, according to Diament.
During arguments, there was a discussion about how it wouldn’t be a big deal for Amazon to pay another worker a few extra dollars a week to take the shift of a Sabbath-observant colleague; for a small business, however, the extra cost could be much more difficult.
“I think the justices are going to articulate a stronger standard, but it’s still going to depend on the facts and circumstances of that particular case,” said Diament.
Marcus is concerned that if the court doesn’t provide a bold new standard, that will mean a continuation of the status quo. “It will be a de minimis standard by any other name,” he said.
The solicitor general appeared sympathetic to government agencies and employers that don’t want to spend significant amounts of money to provide reasonable accommodations, according to Marcus.
“One doesn’t hear that sort of sympathy when it comes to employers retrofitting buildings or providing other expensive changes to address the needs of disabled or other workers,” he pointed out.
Prelogar’s argument that there are already protections in place for workers, who are discriminated against due to their religion, alarmed Marcus.
This would allow employers and co-workers to continue hiding religious-based animus behind an illusion of simply not wanting to be “inconvenienced” by the beliefs of those religiously observant, said Marcus.
“There remains a real danger that if the court doesn’t just establish a strong, new doctrine of religious freedom, Jewish employees and other religious minorities will be at the mercy of employers and other employees who may not be sympathetic to their religion and not want them around,” he said. That’s especially concerning amid rising antisemitism in the workplace, he added.
The court’s decision is expected before the end of June.