Forty-five years ago, writing in dissent in Trans World Airlines v. Hardison, Supreme Court Justice Thurgood Marshall said, “The ultimate tragedy is that despite Congress’ best efforts, one of this Nation’s pillars of strength — our hospitality to religious diversity — has been seriously eroded. All Americans will be a little poorer until today’s decision is erased.”
Four decades later, today’s Supreme Court has the opportunity to restore that national pillar when the justices decide Groff v. DeJoy.
The court recently has repaired some of the damage done to religious liberty over the years. In 2019, the court righted the presumption of constitutionality for monuments on public property bearing religious imagery. In American Legion v. American Humanist Association, the justices ended decades of case law that banished anything religious from the public square.
It was an “ageless principle” at stake, wrote Justice Neil Gorsuch. Courts for too long have pursued what Gorsuch called a “misadventure” at odds with the history and tradition of our nation’s commitment to welcoming religion into the public square. Offense no longer sufficed to remove a cross-shaped veterans memorial or end a legislative prayer in public. While Gorsuch hoped his “lower court colleagues [would] dispose of cases like these on a motion to dismiss,” it seems they did not get the message.
Then, in Kennedy v. Bremerton School District, the court finally removed the root cause of the “misadventure”: Lemon v. Kurtzman’s undermining influence.
In Kennedy, the justices determined the Constitution protected public high school football coach Joe Kennedy kneeling in a brief, quiet prayer at the 50-yard line after football games, even if he could be seen by students. Relegating Lemon to the ash heap of history, the court noted that in future conflicts between a citizen’s free exercise of religion against the state’s concerns over the establishment of religion should be “interpreted by ‘reference to historical practices and understandings.’”
Because of these decisions and others, Americans today enjoy more religious liberty than at any other point in our lifetimes, but there is more serious erosion to address. It is time for the court to restore religious liberty to the workplace.
Recognizing that no American should be forced to choose between making a living or freely exercising his religious beliefs, Congress a half-century ago amended Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin. But in 1977, the justices, in TWA v. Hardison, undercut that promise when they said that “employers could deny religious accommodations that impose ‘more than a de minimis cost.’”
This led to nearly five decades of courts watering down the high protections for religious employees that Congress intended in Title VII. Consequently, courts almost always side with employers when an accommodation would impose any burden, no matter how small. This interpretation has put many religious Americans at a disadvantage in the workplace, including Gerald Groff.
Groff grew up in the heart of Amish and Mennonite country in Lancaster County, Pa., and applied to work for the U.S. Postal Service, partly because it would allow him to not work and worship on Sundays each week.
When Amazon.com contracted the postal service to provide Sunday deliveries, initially the postal service accommodated Groff. But soon, it required him to work on Sundays, even though he covered coworkers’ shifts any other day, including holidays. Over the course of almost two years, Groff says the postal service subjected him to multiple pre-disciplinary interviews, a letter of warning, and two suspensions. He claims he was forced to carry more mail than other carriers, that his pay allegedly was docked without justification, and his superiors allegedly refused his requests to take unpaid leave. Groff resigned in January 2019, believing his termination was imminent.
Employees should not be forced to choose between their faith and their jobs, especially when we can accommodate religion in the same way we accommodate other workplace needs. Groff v. DeJoy asks whether Congress meant what it said when it amended Title VII to require the accommodation of religious employees unless doing so presents an “undue hardship on the conduct of the employer’s business.”
Our nation has a long history of protecting employees from unfair treatment at work because of their faith. Making sure everyone is treated fairly promotes our nation’s historic commitment to religious diversity.
Kelly Shackelford is president, CEO and chief counsel for First Liberty Institute, a nonprofit law firm dedicated to defending Americans’ religious freedom. First Liberty represents Gerald Groff.