Unanimous: Supreme Court Expands Protections for Religious Employees

WASHINGTON, DC - MARCH 25: Christian anti-abortion activists lead a prayer vigil called "E
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WASHINGTON, DC – Federal law grants Christian employees greater workplace protections than employers for decades thought they were required to grant Christians, and members of other faiths as well, following a unanimous decision by the Supreme Court on Thursday.

Lawyers from First Liberty Institute filed suit when a Christian postal worker was fired from the Postal Service, asking Supreme Court litigator Aaron Streett from Baker Botts, a former law clerk of the late Chief Justice William Rehnquist, to lead and argue the case raising serious religious liberty issues under federal civil rights laws.

“Gerald Groff is an Evangelical Christian who believes for religious reasons that Sunday should be devoted to worship and rest,” Justice Samuel Alito began for a unanimous court.

“Since its passage, Title VII of the Civil Rights Act of 1964 has made it unlawful for covered employers ‘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 . . . religion,’” Alito wrote, quoting Title VII. “As originally enacted, Title VII did not spell out what it meant by discrimination ‘because of . . . religion,’ but shortly after the statute’s passage, the EEOC interpreted that provision to mean that employers were sometimes required to ‘accommodate’ the ‘reasonable religious needs of employees.’”

This led to confusion, however, especially in an era where the Supreme Court followed a misinterpretation of the First Amendment’s Establishment Clause – which disallows government establishment of religion – which the Supreme Court did not correct until 2022, when it held in Kennedy v. Bremerton School District that religious establishments are whatever they were in 1791, in an era very friendly and respectful regarding religious beliefs and practice.

So Congress in 1972 amended Title VII to clarify what it meant by religious discrimination, with Alito explaining:

Congress provided that “[t]he 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.”

Then in 1977 the Supreme Court decided TWA v. Hardison, which deeply confused everyone about what the new Title VII language meant, mentioning that anything “more than a de minimis cost” – “de minimis” is Latin, meaning extremely small or minimal – would be an “undue burden” under Title VII.

“The EEOC has also accepted Hardison as prescribing a ‘more than a de minimis cost’ test but has tried in some ways to soften its impact,” Alito explained. “It has specifically cautioned … against extending the phrase to cover such things as the administrative costs involved in reworking schedules, the infrequent or temporary payment of premium wages for a substitute, and voluntary substitutes and swaps when they are not contrary to a bona fide seniority system.”

Then Alito dropped the hammer on what woke employers and leftwing activists have latched onto for years, writing, “We hold that showing ‘more than a de minimis cost,’ as that phrase is used in common parlance, does not suffice to establish ‘undue hardship’ under Title VII.”

“We therefore, like the parties, understand Hardison to mean that ‘undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business,” he wrote for the majority.

“… under any definition, a hardship is more severe than a mere burden. So even if Title VII said only that an em[1]ployer need not be made to suffer a ‘hardship,’ an employer could not escape liability simply by showing that an accommodation would impose some sort of additional costs,” Alito explained. “Those costs would have to rise to the level of hardship, and adding the modifier ‘undue’ means that the requisite burden, privation, or adversity must rise to an excessive or unjustifiable level.”

“When ‘undue hardship’ is understood in this way, it means something very different from a burden that is merely more than de minimis, i.e., something that is very small or trifling,” Alito added. “ So considering ordinary meaning while taking Hardison as a given, we are pointed toward something closer to Hardison’s references to ‘substantial additional costs’ or ‘substantial expenditures.’”

“An employer who fails to provide an accommodation has a defense only if the hardship is ‘undue,’ and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered ‘undue,’” the court ruled.

“Title VII requires that an employer reasonably accommodate an employee’s practice of religion, not merely that it assess the reasonableness of a particular possible accommodation or accommodations. This distinction matters.,” Alito clarified. “Faced with an accommodation request like Groff’s, it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary.”

The Supreme Court left it in the lower courts to develop this standard, but this decision is a major win for Americans of faith in the workplace, at a time when many employees face increasing pressure by woke companies and on LGBT issues that conflict with their religious beliefs.

The case is Groff v. DeJoy, No. 22-174 in the Supreme Court of the United States.

Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department.


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