The stakes in Groff v. DeJoy, a case about religion in the workplace, are enormously high. The Supreme Court could give religious individuals an extraordinary new ability to reshape workplace cultures.
Yet, after oral arguments in Groff, which the Supreme Court held on Tuesday morning, the case now appears more likely to end in a fairly cautious decision. Several GOP-appointed justices, including Justices Brett Kavanaugh and Amy Coney Barrett — and, most surprising of all, Justice Neil Gorsuch — appeared to be looking for a way to decide this case without placing new burdens on employers that could fundamentally reshape the workplace.
The case concerns a provision of Title VII of the Civil Rights Act of 1964, which requires employers to “reasonably accommodate” their workers’ religious beliefs and practices unless doing so would lead to “undue hardship on the conduct of the employer’s business.” In Trans World Airlines v. Hardison (1977), however, the Supreme Court said that an “undue hardship” exists whenever an employer must “bear more than a de minimis cost” when it provides such religious accommodations (the Latin phrase “de minimis” refers to a burden that is so small or trifling as to be unworthy of consideration).
Pretty much everyone agrees that Hardison’s “more than a de minimis cost” framework is wrong, as it would all but neutralize Title VII’s religious accommodation provisions if it were taken seriously. US Solicitor General Elizabeth Prelogar spent much of her time at the podium arguing that neither the Equal Employment Opportunity Commission nor the lower courts have taken this “de minimis cost” framework particularly seriously, and that plaintiffs seeking religious accommodations frequently prevail in lower courts.
At the same time, several justices also acknowledged that cases involving workers who seek religious accommodations are, in Justice Ketanji Brown Jackson’s words, “all context specific”…
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