Back in 1972, after a court had watered down the religious accommodation part of the Civil Rights Act of 1964, Sen. Jennings Randolph, an aging New Deal Democrat who first came to Congress when Franklin Roosevelt was inaugurated in 1933, sponsored a bill he thought would turn things back in favor of people with faith.
A Seventh Day Baptist from West Virginia, who observed Saturday as the Sabbath, he worried about religious people being excluded from the workplace. His bill clarified that employers must “reasonably accommodate ... an employee’s or prospective employee’s religious observance or practice,” according to a Supreme Court decision last week. The exception would be if the employer is “unable” to do so “without undue hardship on the conduct of the employer’s business.”
This, Randolph believed, 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 two years later, thanks to a Supreme Court decision against Larry Hardison, a TWA worker who wanted Saturdays off to observe his Sabbath.
Thankfully, the U.S. Supreme Court last week unanimously returned the interpretation of that act back toward Randolph’s original intent.
Unfortunately, the court did not completely overturn that earlier decision, which said, “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” The “de minimis” standard remains, but now it has been put into a proper context, which is undeniably a step in the right direction.
In Justice Samuel Alito’s majority decision last week, he wrote that courts had consistently taken the word “de minimis” out of context. Instead, he said, “... the Court described the governing standard quite differently, stating three times that an accommodation is not required when it entails ‘substantial’ ‘costs’ or ‘expenditures.’
“The statutory term, ‘hardship,’ refers to, at a minimum, ‘something hard to bear’ and suggests something more severe than a mere burden,” he wrote.
The current decision involves a former postal worker, Gerald Groff, who, as an evangelical Christian, wanted Sundays off. When the postal service began delivering packages for Amazon on Sundays, Groff began receiving “progressive discipline” for declining to work on his Sabbath. He eventually resigned and filed suit.
Because the court did not overturn the “de minimis” standard, that suit has now been remanded back to lower courts. His victory there is not assured, but he should benefit from the new, more generous standard.
Religious liberty is enshrined in the Constitution’s First Amendment for good reason. No liberty is more precious than the right to follow one’s conscience regarding worship. Many major faith groups, including The Church of Jesus Christ of Latter-day Saints, which owns this publication, joined in support of Groff. For too many years, employers have felt free to deny religious accommodations without having to demonstrate any real hardship.
We agree with Kelly Shackelford of the First Liberty Institute, who was part of the defense team, and who was quoted by the Deseret News saying, “No American should be forced to choose between their faith and their job,” adding, “This decision will positively help millions and millions of Americans — those who work now and their children and grandchildren.”
We hope that is true. The unanimity of the court ought to provide special emphasis to that point. Alito wrote that undue hardship is “shown when a burden is substantial in the overall context of an employer’s business,” and that employers must consider several reasonable options to accommodate an employee.
Time will tell whether that changes the equation for workers who merely want to take advantage of their right to exercise religion freely.
Still, we’re guessing Sen. Randolph would be pleased.