There Is No Right to a Religious Accommodation

Overshadowed by the Supreme Court decision in the case of Students for Fair Admissions v. President and Fellows of Harvard College that struck down affirmative action programs at Harvard University and the University of North Carolina — which was decided on the same day — was the court’s ruling in the case of Groff v. DeJoy. 

Gerald Groff was employed by the United Stated Postal Service (USPS) as a rural carrier associate, and Louis DeJoy is the postmaster general. Groff is an evangelical Christian who in 2012 accepted a position with the USPS. He believes that because Sunday should be devoted to worship and rest, he should not perform “secular labor” on that day. When the USPS made an agreement with Amazon to begin facilitating Sunday deliveries, Groff refused to comply, and the USPS redistributed his Sunday assignments to other carriers. During this time, Groff received “progressive discipline” for failing to work on Sundays. He resigned in 2019 — “in light of expected termination” — and then sued the USPS under Title VII of the Civil Rights Act of 1964, alleging that USPS could have accommodated him “without undue hardship.”

Title VII of the Civil Rights Act states that it shall be an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 

Congress amended Title VII in 1972 to explain that the term religion “includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

A Pennsylvania federal district court sided with the USPS, as did the U.S. Court of Appeals for the Third Circuit in Philadelphia, which, based on the case of Trans World Airlines Inc. v. Hardison (1977), believed “that requiring an employer ‘to bear more than a de minimis cost’ to provide a religious accommodation is an undue hardship.”

But in a unanimous decision authored by Justice Samuel Alito, the Supreme Court vacated the judgment of the Court of Appeals and remanded the case after repudiating a single line in the Hardison decision. Religious accommodation requests should be granted unless they impose a “hardship” on the employer that “would be substantial in the context of an employer’s business.” The de minimis interpretation of Hardison is “erroneous.”

Kelly Shackelford, President, CEO, and Chief Counsel for First Liberty — the public interest law firm that represented Groff — stated about the decision:

This is a landmark victory, not only for Gerald, but for every American. No American should be forced to choose between their faith and their job. The Court’s decision today restores religious freedom to every American in the workplace. This decision will positively help millions and millions of Americans — those who work now and their children and grandchildren.

Cardinal Timothy Dolan, chairman of the Committee for Religious Liberty of the U.S. Conference of Catholic Bishops (USCCB) commented: 

In so many ways today we see people of faith being told that they can only follow their religious beliefs in private or within the four walls of a church. Religious freedom means nothing if it does not extend to the public square. And the public square is better off when religion is welcome there.

The Groff decision basically strengthens legal protections for employees seeking religious accommodations. It will affect all employees of the federal government, as well as state and local governments and private employers with 15 or more employees. 

Some observations on the decision are in order.

One, the decision will undoubtedly lead to a number of lawsuits by employees to test in the courts the extent of the new rule. As progressive journalist Ian Millhiser recognized:

This new rule is likely to inspire some plaintiffs to test whether the courts will take their side in cultural disputes with their employer or a co-worker. As the Groff opinion itself does not say how such cases should be decided, beyond announcing the vague new “whether a hardship would be substantial” test, many employers might face a rough road in the short term, as courts try to figure out how to apply the new rule.

Two, the decision may backfire on the religious conservatives who are cheering the as-yet-untested new standard on religious accommodations in the workplace; for example, what if Muslim employees want religious accommodations to pray five times a day, wear religious head coverings, keep the Koran at their desks, and have Fridays off for Friday prayers? Would conservatives favor those accommodations? 

Three, for 45 years, we have had the Hardison rule to follow. Now we will have the Groff rule, and a future Supreme Court may give us some other standard to follow. These arbitrary rules are based on the whims of the Supreme Court and not grounded in natural law, individual liberty, and property rights.

Four, it will still be up to the government to determine what qualifies as a religious practice and what constitutes an undue hardship. 

And five, the decision is not technically about religious liberty. Consider the response of Gerald Groff himself to the decision:

I am grateful to have had my case heard by the U.S. Supreme Court and that they have decided to uphold religious liberty. I hope this decision allows others to be able to maintain their convictions without living in fear of losing their jobs because of what they believe.

Mr. Groff had, and has, the liberty to hold certain religious convictions and beliefs and speak about them to others. He had, and has, the liberty to attend religious services and possess religious books. Requiring him to work on Sundays along with all the other employees was not infringing his religious liberty. 

Although I am a religious person and would like to see businesses provide religious accommodations to their employees, such accommodations must be voluntary. There is no right to a religious accommodation. I vehemently object to government religious accommodation mandates just like I vehemently object to other government mandates on businesses, for example, those regarding E-verify, health insurance, the minimum wage, occupational licensing, hours of operation, family leave, and overtime pay. You can’t just pick the government mandates that you like and rail against the rest. 

Whether the federal government via the USPS should grant religious accommodations to its employees is a question that has no simple answer. But one thing is for certain: The government telling private employers when and to what extent they should be giving employees accommodations of any kind is anathema to the free market. 

There is no reason to believe that businesses of their own accord without government mandates would not grant their employees certain religious accommodations. After all, there are no government mandates stating that employers must provide their employees vacation time and sick leave. Yet, the vast majority of employers provide both. 

It’s important to also state the obvious: In a free society, there would be no Civil Rights Act, no Equal Employment Opportunity Commission (EEOC), no anti-discrimination laws, and no religious accommodation mandates. There would also be no USPS, as all mail delivery would be private.

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