Religious freedom’s next big win?

A case on the obligations of employers to accommodate workers’ faith-based beliefs could be the next big win for religious liberty at the Supreme Court. Here’s the story: Gerald Groff was an employee of the United States Postal Service (USPS), responsible for delivering mail and packages on a rural route. As an evangelical Christian, his faith taught him that he could not work on Sundays but must maintain that day as a Sabbath. This had not been a problem, since the mail usually comes only Monday through Saturday. But when the USPS committed to Sunday deliveries as part of a new contract with Amazon, Groff’s work and faith came into conflict. He was eventually let go from his rural route because of his refusal to work Sundays.

Historically, religious liberty in the private workplace (USPS counts as a private and not a governmental employer for the purposes of this case) has historically been a complicated issue for conservatives. On the one hand, we are ardently committed to religious liberty and want a culture that values and protects it. On the other hand, as free marketeers we are skeptical of governmental interference in the private workplace, especially from the federal level.

Ultimately, I’m okay with Title VII (the federal civil rights law) because it serves to prohibit multiple types of discrimination in the workplace. Employers cannot discriminate based on race, sex, or national origin under Title VII. Other federal laws prohibit discrimination based on pregnancy or genetic traits. Some of those things are pretty straightforward: You cannot refuse to hire an employee because he is black, or fire an employee when you find out he’s Lutheran because you don’t like Lutherans. But what should employers do for employees whose religious practices present an inconvenience for the employer—what if you don’t care what Groff believes, but he won’t deliver packages on Sundays because of his faith?

In that case, the law expects that the employee and the employer will work together to see if a reasonable accommodation is possible. Initially, in Groff’s case, that meant transferring him to another route that didn’t deliver on Sundays. When that route also came within Amazon’s ambit, USPS sought other employees to cover Groff’s shifts. When no one came through and he had missed 24 assigned Sunday shifts, Groff was fired.

The question, after accommodation fails, is whether the religious practice imposes an “undue hardship” on the employer. However, over the years, courts have defined down what constitutes an “undue hardship” to anything that “results in more than a de minimis cost to the employer,” according to a Supreme Court decision in 1977. In Groff’s case, his unwillingness to work on Sundays, plus the inconvenience this put on other workers, plus the difficulty of scheduling, was considered enough to justify his termination, according to the lower courts.

In the federal law prohibiting discrimination against persons with disability (the Americans with Disability Act), an employer must offer a reasonable accommodation or prove an “undue hardship,” which means “significant difficulty or expense.” Many, including an influential federal judge on a Court of Appeals, have pointed out the disconnect between the standard for religious employees and for disabled employees.

The Supreme Court recently heard oral argument on the question of whether to overrule its 1977 decision defining “undue hardship” at the expense of religious employees. It is hard not to see the possible hand of Justice Amy Coney Barrett here. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch have agitated previously on this point. One can’t help but hope the fourth vote to accept the Groff case came from Justice Barrett, whose mentor, Justice Antonin Scalia, authored the last major Title VII religion case (upholding the right of a Muslim job applicant to wear a hijab while working as a retail employee of trend-setting clothier Abercrombie & Fitch).

In this situation, the intent of Congress seems clear. Hopefully the Court will use Groff’s case to reset the test in line with what Congress intended and what rights are extended to Americans in other contexts. We’ll know the answer by the end of the summer.