The Supreme Court heard oral arguments on April 18 in Groff v. Dejoy, a case dealing with religious accommodations in the workplace. This case, which centers around a Christian postal worker who wishes to observe the Sabbath, puts before the court a question of what burden employers must meet before denying religious accommodations to their employees. (See also: Explainer: Supreme Court hears arguments in religious postal worker case.)
The court is expected to issue a ruling sometime before the end of June 2023. Here is what you should know about the arguments made in that case.
What are oral arguments?
During oral arguments, an attorney for each side of a case is given the opportunity to make a presentation to the court and answer questions posed by the justices.
- Before this process begins, each side in the case submitted a written legal argument outlining each party’s points of law.
- The justices will have read these briefs prior to argument and are thoroughly familiar with the case, its facts, and the legal positions that each party is advocating.
As the Supreme Court website notes, “The arguments are an opportunity for the Justices to ask questions directly of the attorneys representing the parties to the case, and for the attorneys to highlight arguments that they view as particularly important.”
Oral arguments are not a requirement for a Supreme Court case. In fact, only about 53–70% of cases accepted by the court each year include oral arguments. But oral arguments provide the public their first glimpse into what issues or concerns the justices consider most relevant. Observers of the court must be cautious, though, because it’s difficult to impossible to tell how a case will be decided based only on this process.
What was the argument presented by the attorney for Groff?
Aaron Steett, the counsel arguing for Groff, said:
- Title VII requires religious accommodations unless causing undue hardship to employers and criticized the ruling in Trans World Airlines, Inc. v. Hardison (1977) for introducing the de minimis test, which violates Title VII wording of “undue hardship.”
- The court should reinterpret “undue hardship” as significant difficulty or expense since the government’s new test still allows unfair denial of accommodations. Adopting a significant-difficulty-or-expense test—such as the ones used in states like New York and California—would be preferable.
What was the argument of the solicitor general?
Elizabeth B. Prelogar, solicitor general of the United States, argued the case on behalf of the government. Among the claims she made, Prelogar:
- Argued against overruling Hardison, a 50-year-old case that provides guidance on analyzing undue hardship under Title VII, and highlights the strong stare decisis weight given to statutory holdings. She asserted that the argument for overruling Hardison is a policy argument that should be directed to Congress.
- Emphasized that lower courts and the EEOC have applied the “more than de minimis cost” language, and employers are not required to regularly pay overtime or operate shorthanded. The burden is thus on the employer to demonstrate undue hardship with concrete evidence. The speaker states that lower courts frequently deny undue hardship defenses, so there is no justification to dispense with Hardison.
- Discussed the facts of the case, pointing out that the petitioner’s job required Sunday work, and exempting him would have violated coworkers’ contractual rights. His absences created burdens on other carriers, causing issues with timely mail delivery and employee retention problems, which is an undue hardship under any reasonable standard.
What did the justices say?
In questioning the attorneys, the justices raised some concerns about expanding religious accommodations:
- Justice Sotomayor raised concerns about congressional acquiescence and noted that Congress has acted to overrule decisions it didn’t like in the past but hasn’t chosen to do so in this citation.
- Justice Kagan discussed the concept of statutory stare decisis with the attorney, emphasizing its importance in maintaining predictability and reliability in the judicial system.
- Justice Kavanaugh raised concerns about potential religious discrimination when employees of different faiths request time off for religious reasons. He questioned whether it was fair for an employee to be denied time off when another employee with different religious beliefs was granted time off
- Justice Barrett expressed concerns about the impact of multiple accommodation requests on workplace morale and how it might be difficult to quantify the effects on the business. Streett clarified that they do not advocate for a dollar amount test, but rather concrete evidence that the employer cannot carry out its operations. He noted that morale alone is not enough, but if a coworker quits due to the situation, that would be a concrete effect.
Justice Kavanaugh also discussed the interpretation of Hardison and Footnote 14, which refers to “substantial expenditures” or “substantial additional costs.” The attorney for Groff agreed that the substantial costs standard might be suitable but emphasized the importance of how it is applied in specific situations. Kavanaugh acknowledged that the real challenge lies in determining how to apply the standard to situations involving factors such as paying new workers, short-shifts, or violating collective bargaining agreements. The attorney suggested a “significant-difficulty-or-expense” test could provide more guidance, as it has been used in other states for religious accommodations. Both agree that undue hardship is a context-specific standard, and the attorney argued that the proposed test would help address the fact-specific nature of such cases.
Other arguments raised by some of the justices included:
- In response to Justice Sotomayor’s concerns about congressional acquiescence, Justice Alito asked about the legitimacy of considering congressional inaction in the context of potential constitutional problems. The attorney for Groff agreed that it would have been appropriate to discount an argument based on congressional inaction when witnesses had warned Congress about potential constitutional issues
- Justice Thomas questioned Prelogar about the Hardison decision and its relation to the amended Title VII and asked whether the term “more than de minimis” might seem imprecise.
- Justice Alito questioned Prelogar about her statement that the EEOC and lower courts have properly respected the rights of minority religions despite the Hardison decision. Alito pointed to amicus briefs from representatives of various minority religions—including a brief by the ERLC—that claim that Hardison has violated their religious liberty.
One hypothetical situation that was raised asked whether a $1 increase in hourly wage for an employee to accommodate a religious worker would constitute an undue hardship for a company like Amazon. Prelogar explained that the answer would depend on the nature of the accommodation and referred back to the court’s decision in Hardison, where it focused on the payment of overtime wages. She emphasized that reasonable accommodation should allow an employee to complete their work requirements without conflict with their religious beliefs, and that regularly paying overtime wages may cross the line.
What was the rebuttal to the solicitor general’s argument?
At the end of oral arguments, the petitioner is allowed to offer a rebuttal.
- Streett argued that the court should not apply the doctrine of statutory stare decisis in the Hardison case.
- He expressed disagreement with the government’s view of how lower courts have applied Hardison and noted that the EEOC has not joined the brief.
- He also contends that the government’s test for undue hardship will provide inadequate protection for religious liberty in the workplace and argued against some of the propositions defended by the government.
- He highlighted the lack of textual analysis from the government and asserted that the plain meaning of the statute should be followed.
- Streett also pointed out that employers in the United States are already applying a variety of accommodations under different statutes, such as the ADA, Pregnant Workers Fairness Act, and USERRA. Employers are familiar with the significant-difficulty-and-expense standard and can apply it to religious employees without issue.
- He concluded by questioning why religious employees should have less accommodation than individuals protected under other statutes with the same reasonable accommodation and undue hardship framework.