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Want to take the Sabbath off? Supreme Court has a chance to reaffirm religious practice

The blatant attack on the First Amendment’s right to freely exercise religion may be going away soon.

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“Today’s Supreme Court may consider a case that, if a majority of justices agree, would return Title VII to its original meaning. After 43 years, it would be about time,” writes Jay Evensen.

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I was 15 when I landed my first job bagging groceries at a supermarket in my hometown of Phoenix. The year was 1974, and soon after the first day, I told my supervisor I would need to have Sundays off, for religious reasons.

He clearly wasn’t happy. He mumbled some words that, at my age, movie theaters weren’t allowed to let me hear, but he complied.

I didn’t know it then, but if the supervisor had refused, I could have taken the company to court under Title VII of the Civil Rights Act, which Congress had passed only two years before. It required bosses to accommodate religious practices, such as Sabbath observance, unless doing so would provide “undue hardship.”

Three years after I was hired, all of that changed, thanks to an unfortunate Supreme Court decision that defined “undue hardship” as just about anything, including having to rearrange employee work schedules.

In that 1977 case, the Supreme Court upheld Trans World Airlines’ decision to dismiss Larry Hardison because he wanted Saturdays off to observe the Sabbath. When Hardison was transferred from a night-shift job to a day-shift, he lost his seniority and had to work when he was told. A majority of the court sided with TWA, ruling that changing Hardison’s schedule, and the company’s seniority policy, would constitute an “undue hardship” for the airline.

That blatant attack on the First Amendment’s right to freely exercise religion may be going away soon. Today’s Supreme Court may consider a case that, if a majority of justices agree, would return Title VII to its original meaning. After 43 years, it would be about time.

Mitche Dalberiste is a Seventh-day Adventist. He also is an industrial hygiene technician. In 2016, he was hired by a company called GLE Associates, Inc., to provide safety monitoring at a Florida nuclear power plant that was planning a partial, temporary shutdown for maintenance. The offer letter said he might have to work some nights and weekends.

Dalberiste responded that he would need to be off from sundowns on Fridays to sundowns on Saturdays, to observe his Sabbath. Other than that, he could work any time.

The company withdrew the job offer, and Dalberiste sued.

So far, he has lost every step of the way, all because of that 1977 court decision. But Dalberiste has a not-so-secret weapon. He is represented by the Becket Fund, a Washington-based nonprofit law firm known for taking on religious freedom cases. Becket has won some high-profile cases in recent years, such as one granting Hobby Lobby an exemption from having to provide full contraceptive coverage for female workers as required under the Affordable Care Act. It persuaded the left-leaning 9th Circuit Court of Appeals to keep “under God” in the Pledge of Allegiance when recited in schools. And now it thinks the top court is ripe for overturning that old TWA case.

Todd McFarland, associate general counsel for the General Conference of Seventh-day Adventists, told me via email that “Dalberiste’s case has the potential to finally allow hardworking Americans to earn an honest living while following their deeply held religious convictions. 

“The Court has an opportunity to reaffirm the basic truth that faith and religious exercise aren’t confined to the four walls of a church, synagogue, or mosque. It should take the opportunity this case presents and confirm that our country’s laws protect Mr. Dalberiste’s ability to practice his faith in the workplace.”  

In its petition to the Supreme Court, Becket’s attorneys said the court “went off the rails” in 1977. Even a cursory look at the history of Title VII would substantiate that.

The bill’s sponsor back in 1972 was Sen. Jennings Randolph, an aging New Deal Democrat who first came to Congress when Franklin Roosevelt was inaugurated in 1933. He was a Seventh Day Baptist from West Virginia, and he worried about religious people being excluded from the workplace.

The Becket petition quotes Randolph as saying Title VII, would “assure that freedom from religious discrimination in the employment of workers is for all time guaranteed by law.” He was still a senator when “forever” came to an end.

Becket notes that back in 1977, Supreme Court Justice Thurgood Marshall dissented from the majority opinion in the TWA case. He said the decision “effectively nullified the purpose of Title VII and “dealt a fatal blow to all efforts … to accommodate work requirements to religious practices.”

McFarland said, “No one should be forced to choose between providing for their family and exercising their sincere religious beliefs — but that’s exactly the choice Mr. Dalberiste had to make because of the harmful precedent set in Hardison.”

We will never know how many other workers, from lowly grocery baggers to executives, also have been kept from exercising their religion because of it.