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Evangelical postal worker denied Sundays off gets wide religious, political support in SCOTUS case

Court briefs argue that narrow legal interpretation of religious accommodation empowers anti-Semitism, COVID "virtue signaling."

Published: March 6, 2023 3:40pm

Updated: March 6, 2023 11:26pm

An evangelical postal worker's plea to observe the Sabbath without losing his job is uniting advocacy groups for the world's major religions as well as individual professionals seeking workplace religious accommodations, including exemptions from mandatory COVID-19 vaccination.

Friend-of-the-court briefs poured into the Supreme Court through last week in support of Gerald Groff, who quit the U.S. Postal Service following termination warnings about his refusal to deliver packages for Amazon on Sundays as required by the USPS collective bargaining agreement.

Groff has also drawn wide support from Republican elected officials, including 22 states led by West Virginia and Louisiana. Sens. Ted Cruz (R-Texas) and James Lankford (R-Okla.) and Rep. Mike Johnson (R-La.) led a brief on behalf of 13 federal lawmakers, including several Senate Judiciary Committee members.

A student evangelist drew similarly uniform support across ideological lines when his public college twice shut down his campus proselytizing. The Supreme Court ruled Chike Uzuegbunam could sue for nominal damages, and Georgia Gwinnett College settled for $800,000.

The legal effort piggybacks on some success in courts against COVID policies that privileged secular over religious activities, including the Supreme Court's rejection of New York's limits on the size of religious gatherings.

The push in the courts dovetails with a slew of legislation in Republican-led statehouses against COVID mandates and public health regulators' wide discretion. Hundreds of bills have been filed this year in the name of medical freedom, Politico reported, citing the pioneering efforts by Florida Republican Gov. Ron DeSantis.

The Supreme Court will hear Groff's case in April, evaluating a precedent nearly as old and controversial as the since-rescinded Roe v. Wade, 1977's Hardison, which concerned airline maintenance employees.

In a phrase that only appeared in a footnote, known as dicta, the decision lets employers reject religious accommodations that impose "more than a de minimis cost" on their business. Critics argue this narrow interpretation of the "undue hardship" threshold adopted in the 1972 amendment to Title VII of the Civil Rights Act nullified the amendment's employment protections.

Companies have used Hardison to deny "even the most basic" accommodations for employees, especially those with "minority religious beliefs" and nonwhites, according to the religious liberty law firm Becket. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch previously called for its review.

Groff and USPS leaders in his Lancaster, Pa. area had difficulty settling on permanent accommodations. He transferred to a different station that later joined the Amazon program, at which point Groff refused an offer to work afternoons after attending morning services. 

He faced "progressive discipline" when volunteers couldn't be found to take Groff's Sunday shift. This required the postmaster and others to fill in for him, an unacceptable burden on both the station and employees in the view of the 3rd U.S. Circuit Court of Appeals.

The high court is considering both the merit of the "de minimis" interpretation and whether "undue hardship" applies to employees as well as the business itself.

The Council on American-Islamic Relations said Muslim women who wear hijabs are frequent targets of accommodation bans. It's fighting Delaware over a ban on hijabs of any size worn by the organization's clients (who are youth rehabilitation counselors) as a potential "weapon."

The Church of Jesus Christ of Latter-day Saints, U.S. Conference of Catholic Bishops, National Association of Evangelicals and Anti-Defamation League, among others, filed a joint brief noting they have disagreed in recent cases before the high court but agree here.

They urged the justices to not only reject Hardison but the extension of "undue hardship" to employees. "Coworkers may grumble when an employee gets time off on Saturday to observe her Sabbath," the brief said. "But denying a religious accommodation because of popular opposition is a dangerous principle that subverts the very purpose of a civil rights statute."

The Brandeis Center for Human Rights Under Law, a Jewish civil rights nonprofit founded by a Trump Education Department civil rights official, warned the Hardison standard is at odds with "undue hardship" in other statutes and disguises "anti-Semitic discrimination in a facially neutral scheme of workplace scheduling or attire requirements."

Former Equal Opportunity Employment Commission General Counsel Sharon Fast Gustafson gave the justices several examples of reasonable accommodations for Sabbath observance under Title VII that exceed offers to Groff.

Gustafson, who formed a "Religious Discrimination Work Group," pointed them to the Americans with Disabilities Act and Pregnant Workers Fairness Act, which both define undue hardship as "significant difficulty or expense" in relation to the business.

"The ongoing debate regarding how sincere religious objections to COVID-19 policies should be treated has exacerbated the discrimination and hardship" faced by more than 400 physicians, surgeons, nurses and medical professionals, according to a brief on their behalf by the Thomas More Law Center.

Their employers have shared confidential medical information with coworkers, subjected them to "rigorous and inappropriate questioning and insults" related to their religious beliefs, and denied them accommodations even for remote work. This "absurdly hostile treatment of religious exercise in the workplace" is the result of Hardison, the brief says.

The nonprofit Airline Employees for Health Freedom, formed by United Airlines employees fighting COVID vaccine mandates, said employees can endure years of discrimination before the pretextual grounds are exposed under the Hardison standard.

It cited Air Canada's rationale for banning pilots from wearing beards even for religious purposes — "hypothetical safety reasons related to the oxygen masks used on the flight deck" — that a mask study later undermined. 

The group compared employers to Pharisees who "tie up heavy burdens" on people and quoted 5th Circuit Judge James Ho's dissent in the United Airlines mandate case, which agreed the vaccine mandate was about "virtue signaling" and "currying political favor."