Ahead of SCOTUS case on Sabbath work discrimination, groups decry ‘heckler’s veto’

If the court does not overrule a lower decision, grumbling co-workers could prevent the faithful from observing their holy days of rest, say American Jewish organizations.

U.S. Postal Service (USPS) collection box. Credit: Ron Adar/Shutterstock.
U.S. Postal Service (USPS) collection box. Credit: Ron Adar/Shutterstock.

Ahead of next month’s U.S. Supreme Court case about Sabbath observance in the workplace, several mainstream U.S. Jewish groups have joined Orthodox ones by weighing in on the matter.

On April 18, the high court will hear an appeal in case number 22-174, Groff v. DeJoy. An evangelical Christian postal worker, Gerald Groff refused to work on Sundays, his Sabbath. He offered to work make-up shifts or transfer to other branches to maintain his religious day of rest.

But the Pennsylvania man said that the U.S. Postal Service—an independent agency of the federal government—forced him out of his job in 2019, after placing the onus on him to regularly find replacements. This followed a USPS agreement with Amazon to deliver on Sundays, which the postal service did not do previously. Facing termination after multiple disciplinary actions, Groff opted to resign.

The brief asks the U.S. Supreme Court to reverse the appellate court’s judgment.

His appeal asks the Supreme Court to overturn a 1977 ruling in case number 75-1126, Trans World Airlines v. Hardison, which maintained an employer need not offer religious accommodation in the face of “undue hardship” on co-workers. The court defined “undue hardship” as an accommodation beyond a de minimis (or “minimal”) cost.

Lower court decisions in favor of the USPS had a “deleterious impact not only on Mr. Groff but on other Americans who observe the Sabbath on Saturdays, including Seventh-day Adventists and Orthodox Jews, and adherents of other faiths who may seek religious accommodations at their places of work,” according to a “friend of the court” (amicus curiae) brief, which the American Jewish Committee and religious-liberty scholars Asma Uddin and Steven Collis filed on Feb. 28.

The brief asks the Supreme Court to reverse the appellate court’s judgment, overrule Hardison’s interpretation of “undue hardship” and remand the case for consideration “under a more robust definition of that standard.”

Debates about the 1977 case’s standard have ignored the “chilling effect the decision has had on victims of religious discrimination” for too long, according to the brief.

“The de minimis standard has allowed employers to escape liability and avoid accommodating even the most modest needs of their religious employees, discouraging those employees from bringing claims,” according to the brief. Congress amended Title VII in 1972 to protect religious employees who observe the Sabbath on Saturday, as well as other religious minorities.

The brief noted that American culture, which favors wide open commerce on Saturdays, puts those who hold their Sabbath on that day in an extra precarious position.

“Because their beliefs are unusual, they are more likely to face reluctance at best and hostility at worst,” it states. This affords “bigots” a “heckler’s veto,” which allows employers to deny religious accommodation on the basis of complaining co-workers.

‘Not be left to an employer’s sole discretion’

The Zionist Organization of America (ZOA) also filed an amicus brief on Feb. 28.

“An employer is free to deny even the most minor accommodations that would enable an employee to follow their religious faith,” according to the brief. “Antisemitism is surging in the United States, and studies show that discrimination and bias against Jews is a serious problem in the workplace. To discourage anti-Jewish bias and ensure equal employment opportunity for Jews, Title VII’s ‘undue hardship’ standard should be re-evaluated, and the de minimis cost standard abandoned.”

National president of the ZOA Morton Klein said many members of his organization are religious Jews, who would have to violate their religious beliefs and obligations if forced to work on Shabbat.

“Employers should be required to make more than a trivial showing before they can deny a needed religious accommodation to an employee,” he stated. “The law must give employees sufficient legal protection so that they’re not put in the position of either discarding their religious observance or losing their jobs.”

An evangelical Christian postal worker, Gerald Groff refused to work on Sundays, his Sabbath. He offered to work make-up shifts or to transfer to other branches to maintain his religious day of rest.

Another Feb. 28 friend of the court brief brought together the Anti-Defamation League (ADL), Baptist Joint Committee, Church of Jesus Christ of Latter-day Saints, U.S. Conference of Catholic Bishops, National Association of Evangelicals and Southern Baptist Convention.

“Decisions over accommodations for religious beliefs and practices should not be left to an employer’s sole discretion, particularly when such beliefs and practices require observing a Sabbath day or other holy days or complying with particular dress standards,” the groups wrote.

“Religion is a protected class under the law and must be treated that way,” stated Jonathan Greenblatt, CEO and national director of the ADL. “If religious protections for employees can’t be enforced, they are effectively meaningless.”

Urging the Supreme Court to adopt a more rigorous legal standard for religious protection in the workplace, Greenblatt wrote that “people of faith will forever be unable to participate fully in society if they are forced to choose between their religion and earning a living.”

When asked about the case, Fisher Phillips—one of the largest labor and employment-management law firms in the United States—pointed JNS to its previously published analysis. The firm said that Groff’s argument for an upgraded standard of “significant,” rather than de minimis, cost on an employer before it is excused from offering an accommodation runs closer to the standard used in the Americans with Disabilities Act for accommodating disabilities.

The analysis also noted the appellate court’s interpretation that “poor morale among the workforce and disruption of workflow” are circumstances that “could affect an employer’s business and could constitute undue hardship.” This is the “heckler’s veto,” to which the AJC amicus brief referred.

Until the case is resolved, Fisher Phillips advises employers to review accommodation policies and practices, and “engage in a good faith interactive process” when an employee requests an accommodation. That includes exceptions for dress and grooming standards, schedule or shift changes, paid or unpaid time off, prayer breaks and private spaces for religious observances.

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