S4, Ep. 19: Searching for common ground: SCOTUS hears Groff v. DeJoy

The Supreme Court seemed less divided by ideological lines during the Groff v. DeJoy oral arguments, as justices searched for common ground to clarify a standard from a 1977 decision that no advocate seems to be fully supporting. Amanda and Holly share their thoughts from the day, playing key moments from the courtroom in their breakdown of the legal issues and sticking points in the case. What, exactly, constitutes “undue hardship” when looking at the practical realities of the modern workplace and the strain that one worker’s need – religious or not – can cause on others? 

SHOW NOTES:
Segment 1: Statutory stare decisis (starting at 00:47)

Learn more about Groff v. DeJoy on our website: BJConline.org/Groff, which includes a link to the brief BJC joined and Holly’s preview column.

Listen to our preview of the case in episode 17: Is ‘de minimis’ enough?

Holly mentioned this story from Nina Totenberg on NPR: Who bears the burden, and how much, when religious employees refuse Sabbath work?

Visit the Supreme Court’s website to listen to oral arguments in Groff v. DeJoy and read a transcript. 

At the Supreme Court, Aaron Streett argued on behalf of the petitioner, Gerald Groff, and Solicitor General Elizabeth Prelogar argued on behalf of the United States Postal Service. 

We played one clip from the oral arguments during this segment:

• Justice Elena Kagan and Aaron Streett (this exchange takes place at 12:29 in the oral arguments)

 

Segment 2: A Court looking for common ground to clarify the law  (starting at 14:14)

We played five clips from the oral arguments in this segment:

• Justice Neil Gorsuch and Elizabeth Prelogar (this exchange takes place at 57:58 in the oral arguments)
• Justice Elena Kagan and Aaron Street (from 31:26 in the arguments)
• Justice Brett Kavanaugh and Aaron Street (from at 34:26 in the arguments)
• Aaron Street responding to Justice Amy Coney Barrett (from 40:29 in the arguments)
• Justice Brett Kavanaugh and Elizabeth Prelogar (from 1:35:11 in the arguments)

 

Segment 3: How will the Court fix this problem?  (starting at 25:43)

Respecting Religion is made possible by BJC’s generous donors. You can support these conversations with a gift to BJC. 

Transcript: Season 4, Episode 19: Searching for common ground: SCOTUS hears Groff v. DeJoy (some parts of this transcript have been edited for clarity)

 

Segment 1: Statutory stare decisis (starting at 00:47)

AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.

HOLLY: And I’m General Counsel Holly Hollman. Today we’re going to review oral arguments in a case heard by the Supreme Court on Tuesday, April 18. That’s today — we’re recording on the day we heard arguments. The case is called Groff v. DeJoy, and we previewed this case just a couple weeks ago, and we promised we’d follow up. So here we are today.

This case arises out of an employment dispute and addresses the Court’s interpretation of Title VII, specifically the protection against religious discrimination in the workplace that requires employers to reasonably accommodate the religious needs of employees, unless doing so would create an undue hardship on the business.

The questions presented for the Court are, first, whether the Court should disapprove a standard called the “more than de minimis cost standard” for refusing Title VII religious accommodations, which was stated in Trans World Airlines v. Hardison back in 1977.

The second question is whether an employer may demonstrate an undue hardship on the conduct of the employer’s business under Title VII merely by showing that the requested accommodation burdens the employee’s co-workers rather than the business itself.

BJC joined a brief in this case on the side of the employee that was specifically focused on the need to revisit that 1977 case, TWA v. Hardison, because that case made it too easy for an employer to claim an undue hardship and deny an accommodation.

In Hardison, the Court found that the employer could meet the undue hardship test if there was more than a de minimis cost to the employer. We argue that a better definition of undue hardship would take into account whether providing the accommodation would involve significant difficulty or expense.

AMANDA: And in our conversation today, Holly, we are going to focus on today’s oral arguments, but if this case is new to you as a listener, you can go back and listen to our preview in episode 17 or visit BJC’s page on this case which is found online at BJConline.org/Groff. And on that page, you’ll find a link to the brief that we joined, as well as Holly’s description of this case in a column that you wrote for our quarterly magazine, Report from the Capital.

Just as a reminder, this case, Groff v. DeJoy, involves a part-time mail carrier for the U.S. Postal Service, Gerald Groff, who was denied a religious accommodation not to work on his Sabbath, which is Sunday. The 3rd U.S. Circuit Court of Appeals ruled that USPS could refuse his request because allowing him to not work Sundays impacted other employees and amounted to an undue hardship.

HOLLY: This case is not quite as high profile as some of the cases we discuss on Respecting Religion, but it is an important and noteworthy case, in part because it addresses an issue that has long been problematic.

I heard Nina Totenberg, the veteran NPR reporter, preview the case this morning, and I think she ended on a note that is probably similar to the way many people think about this case or why they would pay attention, particularly those who are really interested in the law of religion and this Court.

She said, “Tuesday’s argument will, of course, be before a Court that is dramatically different from the Court that decided what it means to accommodate religious views in the workplace nearly a half century ago. That Court sought to balance burdens, while the current Court has consistently and explicitly shifted the balance to favor religiously observant groups, whether those groups are religious employers or religious employees.”

And speaking of that new Court, Amanda, I am really glad that you were in the courtroom to see them in person.

AMANDA: I was. This was my first time back in the courtroom at the United States Supreme Court since before the pandemic, and I found that really much of the process and the feeling of being at the Court was exactly the same as it was before the pandemic.

HOLLY: You got up early. Right?

AMANDA: I got up early. I was down there at 6:45 a.m. on a beautiful spring morning, so it wasn’t too much of a hardship to wait in line. I was glad that I was not there at 3:30 a.m., which is the time the first person in the Supreme Court bar line was in line. This is usually a shorter line than the public line, a little easier to get into the courtroom. So, we were let into the building shortly after eight o’clock to wait in some more lines.

I finally got into the chamber about 9:15, 45 minutes before the argument started. We are in very close quarters. Those chairs are right next to each other. I noticed it was for the most part just as crowded as it was in pre-pandemic times, except for the press box. There’s an area of the courtroom where members of the press who cover the Supreme Court sit, and that area was rather sparsely attended.

And I think it might be because journalists would rather cover this by listening to the livestream and be able to quickly file their stories than have to be limited in the technology — technology being limited to a pad of paper and a pen, to what you’re allowed in the courtroom. So that was a rather empty area of the courtroom.

But I did notice again just how helpful it is to be able to see the expressions on the justices’ faces. As we’ve become accustomed to during and post-pandemic, these arguments are much longer because every justice is given the opportunity to ask questions, and so these arguments were nearly two hours long.

HOLLY: But what did it feel like to sit through all of that argument in the courtroom? What was your overall impression?

AMANDA: Well, for the most part, I thought that it was a rather collegial conversation, both between the advocates but also among the justices. The argument lacked the fraughtness of some of the oral arguments in the religious freedom cases that we’ve heard from this Court, or as we have sometimes called them on the podcast, “this emotional Court.” And this argument, in contrast, was much more business-like, which fits with the nature of this business dispute.

HOLLY: I agree it was a business-like argument day, and I think that’s partly because of the excellent advocacy of both attorneys, representing the petitioner and the respondent. They seemed to make their arguments without much confusion. They didn’t have any problem with the questions.

So let’s talk about what we heard. You know, Amanda, while you were sitting in the courtroom with the other Supreme Court lawyers, I was comfortably at my desk a couple blocks away ‑‑

AMANDA: Cup of coffee maybe?

HOLLY: I had a cup of coffee, a little snack, and was listening to this excellent oral advocacy and following along as they went. So let’s talk about what we heard.

The petitioner, Gerald Groff, was represented by Aaron Streett from Baker Botts, along with First Liberty, and Mr. Streett came out really strong. In his opening statement he said that the Court should reverse Hardison. He noted that the other side, the government’s side, doesn’t even defend the test that was used in Hardison, and then he talked about why the doctrine of stare decisis does not prevent the Court from doing so.

AMANDA: Stare decisis, which is Latin for “to stand by things decided,” is the legal principle that we use precedents to decide future cases. And the Supreme Court generally avoids overturning past decisions, though we know that sometimes they do, like in Dobbs last term which overturned Roe v. Wade and Planned Parenthood v. Casey.

The applicable precedent in this case, as we’ve mentioned, is TWA v. Hardison from 1977. So it makes sense that the first issue out of the gate is for the advocate for Mr. Groff to explain why the Court, having interpreted the statute and having lower courts follow that interpretation, would be reviewing that standard now.

HOLLY: That’s right. That’s the question that Nina Totenberg alluded to at the end of her story, and Mr. Streett gave multiple reasons why that doctrine was not a barrier to this Court’s review. He says that the Court’s decision was wrong when the Court decided it, that no one stands by Hardison, plus it’s dicta. Just look at the statutory language. You cannot equate undue hardship with de minimis. So he said that stare decisis should not be a barrier to the Court’s overruling of Hardison.

AMANDA: Justice Kagan seemed to be particularly skeptical about that argument, and we’re going to play a clip here about why she has problems following that argument in this case.

JUSTICE KAGAN: (audio clip) And we’ve said over and over that when there’s a statute involved rather than the Constitution, stare decisis is at its peak. And this has been, you know, for decades. This has been the rule. Congress has had that opportunity to change it. Congress has not done so. You can count on like a finger how many times we have overruled a statutory ruling in that context.

 MR. STREETT: (audio clip) Two points on that, Your Honor. First, the starting point should be footnote one in Patterson v. McLean, where the Court says, “In a stare decisis case, mere congressional inaction is not sufficient for this Court to abide by an erroneous interpretation.” And that’s when the Court looks to other indicia of congressional ‑‑

 

JUSTICE KAGAN: (audio clip) That’s a different stare decisis rule than any I’ve ever heard. I thought that our statutory stare decisis went like this: It doesn’t really matter whether the thing is wrong. I mean, stare decisis only has a role to play when the ruling is wrong. If the ruling were right, we wouldn’t need stare decisis.

 

Stare decisis has a role to play even when ‑‑ I mean, only when a ruling is erroneous, and still we say, Congress has had a chance to; the ball was in Congress’s court; Congress has not done it. For reasons of predictability, for reliability, for reliance, for reasons of the credibility of the judicial system, we maintain what we said about what statutes mean.

HOLLY: That’s a helpful clarification. Of course, it is Congress’s job to write the statutes, and then it is the Court that interprets them. And Congress can go back and tell the Court they got it wrong. But it’s not like that happens seamlessly. It’s not like that’s so easy. And we know something about that, because we did argue ‑‑ we, BJC, have argued in the past that Congress should act and change the law by amending Title VII to include “significant cost or difficulty,” to explain that that’s what undue hardship meant.

Now, those efforts, which were the efforts of a broad religious organization coalition under the title Workplace Religious Freedom Act, did not get very far. We made consistent efforts to do that, but I don’t know that that’s because Congress agrees with the Court’s interpretation of undue hardship as they have interpreted it in Hardison.

AMANDA: That’s right. There are many reasons that Congress might not act on any given piece of legislation, and we don’t have any indication that Congress has explicitly agreed with the standard put forward in Hardison.

HOLLY: And putting that aside, I don’t think that would keep this Court from reviewing this if they wanted to, so that’s an interesting part of the argument, that they should or should not be reviewing this case. I think a more compelling argument that was in many of the briefs is that this Court and courts in general since 1977 have put more emphasis on textual language in the statute, and it is really hard to get to de minimis from the textual language of “undue hardship.”

And so counsel for Mr. Groff, you know, came out really arguing very forcefully that we need to get straight to the business of changing that standard.

AMANDA: And there are ways to change the standard that come short of violating the doctrine of statutory stare decisis here.

HOLLY: Yes. And, of course, we also heard from the respondent, represented by the U.S. Solicitor General Elizabeth Prelogar, representing the U.S. Postal Service. She urged the Court not to overturn Hardison, but she talked about clarifying the test. And so I think the Court is going to get to the issue about the test and the problem with Hardison, regardless of the doctrine of stare decisis.

AMANDA: And we saw several justices engaging on this question of if we are going to clarify the test, how do we clarify the test and what are the repercussions on business if we do that. I think we saw ‑‑ and we’ll get into some specific examples, but particularly from Justices Barrett and Kavanaugh, engaging in ways that I think many people had assumed that the conservative justices weren’t going to be quite as engaged in the details here and what impact it would have on the employer, since this was another case of a religious claim coming to the Court, and this Court has been particularly solicitous of these religious claims.

 

 

Segment 2: A Court looking for common ground to clarify the law (starting at 14:14)

HOLLY: We’ll see what the Court says in its opinion about stare decisis and if they have to justify why they are reviewing Hardison or if they just get right to it. But the next thing that was most striking about the arguments is that from the beginning, the Court seemed to be looking for common ground, you know, trying to look for places that the two sides agreed upon, to see if perhaps there was a way to clarify the law, maybe to do something that was not as extreme as overturning a case from 1977.

AMANDA: And I think Justice Gorsuch was most explicit in his attempts to find common ground. He was pointing out some of the similarities between the arguments that both sides were making and asking, Just how much daylight is there between the two sides?

You know, litigation necessarily means that there will always be a winning and a losing party, but there does seem to be some agreement on the standards that should be used to decide the various cases. In questioning Solicitor General Prelogar, Justice Gorsuch had her agree that both sides said that these inquiries were context dependent, mattered very much on the particular facts of a given case, and also that de minimis is not the right standard when it comes to civil rights cases like this, that it must mean something more than a “trifling” for a business to be relieved of its duties to accommodate religious practice.

But then there was a little bit more difficulty in getting to, Then what should we really clarify this test to mean? The petitioner, Mr. Groff, is asking the Court to define “undue hardship” to mean significant expense or difficulty. And the government is suggesting the term “substantial cost” as the way to understand undue hardship. And so in this clip, they talk about how that might play out as they’re maybe outlining what the contours of a decision might be in this case.

 

JUSTICE GORSUCH: (audio clip) Some courts have taken this “de minimis” language rather seriously, and no one before us defends it, and it wasn’t even briefed in Hardison itself. That wasn’t something that anybody advocated for, even in Hardison. And maybe we could do some ‑‑ a good day’s work and put a period at the end of it by saying that that is not the law.

 

SOLICITOR GENERAL PRELOGAR: (audio clip) I would agree with that, and I think that that could be a useful clarification for any courts that are led astray by that de minimis, but I would urge ‑‑

 

JUSTICE GORSUCH: (audio clip) And then just remand ‑‑

 

SOLICITOR GENERAL PRELOGAR: (audio clip) — the Court ‑‑

 

JUSTICE GORSUCH: (audio clip) Remand the matter ‑‑ I’m sorry to interrupt. And then remand the matter back and be done with it.

 

SOLICITOR GENERAL PRELOGAR: (audio clip) If I could add one small piece on the remand ‑‑

 

JUSTICE GORSUCH: (audio clip) Of course.

 

SOLICITOR GENERAL PRELOGAR: (audio clip) — which is to please confirm that the EEOC has properly understood Hardison in light of the facts and that ‑‑

 

JUSTICE GORSUCH: (audio clip) Well ‑‑

 

SOLICITOR GENERAL PRELOGAR: (audio clip) — the Court is not overruling Hardison on its facts. [courtroom laughter]

 

HOLLY: Well, and before we return to that division, there were other areas of agreement that came out during the oral argument. Surprisingly, one of those areas of agreement was on the difficult issue ‑‑ or I should say, the controversial issue — of what role does the effect on other employees play in finding an undue hardship on the business.

I think there was a lot of helpful argument here. I appreciated that, because it was very practical, and what the Court was getting to is whether or not the undue hardship standard could be met simply by saying that an accommodation had some effect on other employees. And we certainly don’t think so, and we argued very clearly in our brief and the petitioner made that very clear, that it has to be more than just some effect on other employees.

I mean, it makes no sense, if you think about it. There are many legal requirements that employers must follow from many laws that would have an effect on other employees. We accommodate medical interests. We accommodate other civil rights claims like disability claims, and just the fact that you have to do something differently in the workplace should not satisfy the employer’s obligation to provide a reasonable accommodation absent a truly undue hardship.

AMANDA: And Justice Kagan introduced this point to attorney for Mr. Groff by giving him a hypothetical of a rural grocery store that had three employees, one of whom was a Sabbatarian and the other two who did not have a religious observance of being required to take off work on their Sabbath, but who might want to have a Sabbath day off. Maybe it was to attend religious services or for some other secular reason, like to go to a Little League game.

So she asked him about this hypothetical, and then I think it did helpfully get to a clarification of what exactly Mr. Groff’s argument was on how to take into account the burden on other employees for having to fill in or pick up the slack from an employee who was not able to work on a given day. And we’ll play that clip here.

JUSTICE KAGAN: (audio clip) Your brief seems to me to be pretty hard-line about you just can’t take into account co-employee burdens. Are you backing away from that now?

 

MR. STREETT: (audio clip) Well, we’re not backing away, because that’s never been our position. We said that the effect on co-workers can be relevant evidence of an effect on the conduct of the business. So the employer can come forward with evidence that the morale issues or the quitting of an employee or the over-burdened nature of the employees’ work can be put forward as evidence, but it must show that there is some disruption to the operation of the business.

HOLLY: That was really helpful for the practical realities of the modern workplace and the strains on workers, which, you know, just come from having to work long hours and the difficulty of meeting employer demands with the rest of life. And I think it was soon after that that Justice Alito acknowledged how productive the arguments had been.

AMANDA: That was a surprising moment in the argument.

HOLLY: Yeah. I think he thought so on this point, and he thought they were productive because that colloquy really made clear that there could be an effect on employees, but for it to be an undue hardship, it had to be more than just some effect, that there had to be something that was significant that really affected the business. And it was good to have both parties agree. Of course, effects on employees matter at some point, but it’s not an automatic meeting of the standard of “undue hardship.”

AMANDA: In his questioning, Justice Kavanaugh picked up on this theme of considering morale between employees, and he talked particularly about differential treatment to different employees from different religious traditions.

And he gave the attorney for Mr. Groff a hypothetical, where you imagine someone like Mr. Groff, who has a religious requirement not to work on the Sunday, with other employees ‑‑ he specifically noted a Catholic, which, of course, is his religion, and a Baptist, which is our religion, Holly ‑‑ as examples of people who are religious but who did not have a religious requirement not to work on the Sabbath, and asking, you know, would this be fair in this workplace to treat these people from different religions differently, and what kind of impact this has on morale.

HOLLY: Yeah. He’s imagining a situation where all the employees feel this and feel the need to have time off on their Sabbath, and whether or not the situation could at some point create an undue hardship on the business because of a feeling of unfairness.

AMANDA: We’ll play a short clip here of Justice Kavanaugh posing this question and then the response from Mr. Streett.

JUSTICE KAVANAUGH: (audio clip) It seems concerning that you’re told, in effect, You don’t get Sunday off, even though you’re religious; the other guy next to you gets Sunday off because he’s religious but his religion gives him a little more ‑‑ a little more benefit there.

 

MR. STREETT: (audio clip) Certainly the statute does frame this in terms of the person who asks for the accommodation and believes their religious practice requires them to do something. And I think Congress understood that there is something different in kind about asking somebody to surrender their conscience or their job than it is about giving up a preference, even if it’s a religious preference, but certainly as to secular preferences as well.

 

Now, again, if that’s ‑‑ if the employees feel that that’s unfair and they go to their employer and they complain or they quit, then that’s something that the employer could put forward as evidence that could ultimately rise to the level of an undue hardship on the business if they can show concrete evidence on the operations of the business.

HOLLY: Well, we know Justice Kavanaugh wasn’t just concerned about morale issues between various religious employees, because he kept pushing on what would make a difference. The Court was really pushing to make sure that they were clear on Mr. Streett’s position that the effect on employees could be taken into account to find an undue hardship on the business.

At one point, Mr. Streett had to make that crystal clear. Here it is.

MR. STREETT: (audio clip) The employer has flexibility to select an accommodation that’s not the religious employee’s preferred accommodation, and as part of making that reasonable accommodation, the employer can take into account the effect on the co-workers or take into account the effect on the business. And, of course, that’s what we had here. This is not a “get out of work free” card for Mr. Groff. He volunteered to work on Saturdays. He volunteered to work on non-Sunday holidays, and it simply shifted around the shifts that individuals were working.

AMANDA: And then Justice Kavanaugh is not just concerned with balancing the rights of different religious employees in the workplace, but he also has the rights, if you will, of the business in mind, including the right of the business to make money. And so we’re going to play an exchange here between Justice Kavanaugh and Ms. Prelogar.

JUSTICE KAVANAUGH: (audio clip) Do you understand “undue hardship” ‑‑ I understand that term in the original statute to reflect a balance between two important values: one, religious liberty and the other, the rights of American businesses to thrive, and to thrive, you have to be able to make money. Is that how you understand “undue hardship”?

 

SOLICITOR GENERAL PRELOGAR: (audio clip) I certainly understand it to recognize that there are interests on both sides of the balance, but we don’t think that the standard requires trying to measure the interests of the employer, for example, as against the significance of the employee’s religious practice. The concern with that is that it’s just incommensurable interests, and there’s no real way for courts to conduct that balance. And so I think the right way to think about it is Congress struck the balance. It recognized that it is important to protect religious practice and liberty in the workplace. It created this duty to accommodate, but up to the line of undue hardship, and then to figure out what’s undue, you look only at the employer’s side of things to figure out when the costs become inappropriate or unwarranted.

AMANDA: And that’s the whole point of this case: What exactly constitutes “undue hardship”?

 

 

Segment 3: How will the Court fix this problem? (starting at 25:43)

HOLLY: And so what remains for the Court — as they go back to their chambers and review oral argument and start drafting opinions — what remains is how the Court will fix the problem. Will it do so in a way that overturns Hardison, or will it do so in a way that just clarifies it? And how much disruption will there be of case law from 1977 until today?

And, of course, Solicitor General Prelogar is mostly concerned with the mischief of new language that the Court might adopt and maybe the loss of what she thinks is good law below and maybe confusion between standards that this Court might adopt and standards that are in other statutes.

But Mr. Streett made a very strong argument that the Court must disapprove of the de minimis standard and put in its place that undue hardship means significant difficulty or expense. And that’s necessary simply for a lower court to be able to follow the textual language of the statute, to ensure the protection that employees are entitled to under the congressional statute.

AMANDA: So, Holly, if we are guessing about how the Court might come out in this case, I think it’s likely that we see a decision that clarifies the standard for undue hardship but that stops short of overturning the case of TWA v. Hardison.

HOLLY: Even if the Court does not overturn Hardison, the Court can do a lot of good in this case by disapproving of the de minimis standard and returning to the textual language of “undue hardship.” And I think that’d be very productive, like the Court, you know, seemed to be saying they wanted to be productive in this case. And it would be useful, not just for the next case that goes through litigation, but for religious employees that day to day want to do their jobs.

We haven’t really noted in this episode, Amanda, but there was a lot of amicus support on the side of Mr. Groff, and not because all the religious organizations agree on how every single case comes out, but because they know that if you have too low a standard, you don’t even get the conversation with your employer. It’s just too easy for the employer not to accommodate the employee.

But if the Court in this case really fixes the problem by distancing itself from that “de minimis” language and sticking more closely to the statutory language, we’ll be much better off, both religious employees that need an accommodation and, I think, employers by having a more clear standard, and so a correction of that will do a lot of good in practical situations in the workplace, hopefully far before an issue has to get to litigation.

AMANDA: And we’ll see what the Court does. We expect an opinion in this case before the end of June, and we will, of course, be back on Respecting Religion, Holly, to analyze that opinion when it comes down.

HOLLY: That brings us to the close of this episode of Respecting Religion. Thanks for joining us for today’s conversation. For more details on the Groff v. DeJoy case, visit our show notes and our special website page, BJConline.org/Groff.

AMANDA: If you enjoyed today’s show, share this program with others on social media and tag us. We’re on Twitter, Instagram and YouTube @BJContheHill, and you can follow me on Twitter @AmandaTylerBJC.

HOLLY: As always, you can email both of us by writing to [email protected].

AMANDA: Thank you for supporting this program. You can view our show notes for a link to donate to support this podcast, and for more episodes, you can see a full list of shows, including transcripts, by visiting RespectingReligion.org.

HOLLY: We encourage you to take a moment to find out more about BJC and how we’ve been working for faith freedom for all since 1936. Visit our website at BJConline.org for a look at what we do and some of our latest projects.

AMANDA: Join us on Thursdays for new conversations Respecting Religion.