Groff v. DeJoy, a lawsuit that could potentially revolutionize the balance of power between religious workers and their employers and co-workers, will be heard by the Supreme Court on Tuesday.
It is an agonizing case, in part because it seeks to unravel a very real injustice.
Federal law 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.” Nearly half a century ago 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 no one thinks that this “more than a de minimis cost” rule is correct. Even Americans United for Separation of Church and State — an organization that, as its name suggests, typically argues in favor of less entanglement between the law and religion — filed a brief arguing that “Hardison is wrong in too many ways to withstand scrutiny.”
But, while a reevaluation of Hardison may be overdue, Groff also will be heard by a Supreme Court whose current majority is so sympathetic to the interests of the religious right that it often advances those interests to the exclusion of all others.
Just one month after Justice Amy Coney Barrett’s confirmation gave Republican appointees a supermajority on the Court, for example, the Supreme Court handed down Roman Catholic Diocese of Brooklyn v. Cuomo (2020), which gave individuals who object to a state law on religious grounds unprecedented power to defy that law. The Court did so, moreover, at the height of a deadly pandemic, and the Roman Catholic Diocese case halted attendance limits at places of worship that were intended to slow the spread of Covid-19.
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