Morning Wire XX
[0] The Supreme Court heard arguments on Tuesday in the case of Groff v. DeJoy.
[1] A Christian postal worker wants to exercise the right not to work on Sunday so that he can observe the Sabbath, but the Postal Service says the accommodation is an undue burden on other staff.
[2] The ruling will have broad implications for the rights of religious Americans to observe their faith in the workplace.
[3] In this episode, we talked to a legal scholar about the details of the case and how the outcome will affect the rights of workers and employers.
[4] I'm Georgia Howe with Daily Wire Editor -in -Chief John Bickley.
[5] It's Saturday, April 22nd, and this is an extra edition of Morning Wire.
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[14] Joining us to discuss is Heritage Senior Legal Fellow Sarah Partial Perry.
[15] Sarah, thanks so much for coming on.
[16] Sure.
[17] Thanks for having me. So first off, can you give us an overview of this case?
[18] Graff v. DeJoy, and it's a case about employees' religious accommodations under Title VII of the Civil Rights Act.
[19] Now, that prohibits discrimination because of race, color, sex, national origin, and religion.
[20] But in addition to prohibiting restrictions on an individual because of their religion, you have to provide an accommodation.
[21] So that means unless there is ultimately more than an undue burden on an employer's sort of working operations that you should do everything within your power as an employer to accommodate a religious employee's request.
[22] In this particular case, Groff, who was a postal worker, was working for the USPS until the USPS contracted with Amazon.
[23] and as you know, they started to deliver packages on Sundays.
[24] Well, as a Christian, he wants to keep his Sabbath holy, put in for a religious accommodation saying, this is a day that I need off.
[25] While he was initially given the accommodation, the Postal Service ultimately backtracked, and when he wasn't willing to violate his religious beliefs, they fired him.
[26] So the oral arguments heard today in front of the Supreme Court are tasked with deciding ultimately, exactly whether or not the term de minimis standard, which shows up in 1977's Trans World Airlines versus Hardison case, that was something plucked fully out of thin air, whether it can be squared with the plain language of Title VII that says an undue burden is the standard on an employer's business activities.
[27] So what the petitioners actually arguing is that Transworld Airlines v. Hardison can and indeed must be overruled.
[28] Now, what has happened so far in the lower courts?
[29] Well, the Third Circuit in Pennsylvania upheld the Postal Service decision not to accommodate him.
[30] He then appealed again after the trial court determined there was no requirement to accommodate.
[31] Once again, the Third Circuit affirmed, essentially, and they got to.
[32] to the Supreme Court only after they had indicated that this accommodation would have caused an undue hardship only because the Postal Service had to find a substitute for George Groff in his actual work for the U .S. Postal Service.
[33] So both previous determinations, the trial court and the Federal Third Circuit Court of Appeals indicated specifically the employer, the U .S. Postal Service was not required.
[34] to accommodate Gerald Groff.
[35] Does it matter that he is employed at a government job versus a private employer?
[36] When he took the job initially, he took it presumably because it did not require work on Sundays.
[37] So does it matter that the employer changed policy subsequent to him taking that job?
[38] Yes, actually.
[39] And in fact, that's a good portion of why we're actually seeing this case before the Supreme Court now.
[40] In fact, this was a reason because he recognized that his Sabbath is, Sabbaths he would have by himself, he would have them off.
[41] Unfortunately, what we're seeing is a changing situation, is changing circumstance of his employment.
[42] Title VII of the Civil Rights Act does apply to federal governmental agencies, like it would apply to private enterprises, like it would your everyday mom and pop shop down the street, as long as there are at least 15 employees.
[43] So, in fact, Justice Thurgood Marshall wrote a dissent in Hardison back in the 70s, and he said that this de minimis cost standard basically nullified Title VII's promise of accommodating religious employees.
[44] And in fact, Justice Neil Gorsuch said later that Hardison had dramatically revised and really undid Title VII's undue hardship tasks.
[45] The plain language of undue hardship is not the same as the de minimis cost standard and hardison.
[46] Those two are in direct conflict, and that was a good portion of what oral arguments focused on today.
[47] Now, keeping the Sabbath holy is widely applicable to a lot of people.
[48] What are some other common examples of religious exemptions that could be affected by this ruling?
[49] There could be a couple of different manifestations.
[50] It could go, for example, to dress and grooming.
[51] It could go to the expression of religious symbols.
[52] This would have an impact on everything from, for example, a Sikh wearing a turban to a Muslim actually wearing a beard in a place that is restrictive of facial hair, for example.
[53] So this will have an impact not just for Gerald Groff himself and not just for evangelicalism.
[54] That's his particular faith predilection, but also for any employee of any religion within the context of their employment.
[55] Now, I imagine the counter argument would be this could open the door to a number of somewhat bogus religious claims and requests, and that could place a real burden on employers, especially small businesses.
[56] Well, I think this is going to be a fact -specific analysis, and here's what I would look to.
[57] You know, this undue burden test or undue hardship test shows up in two other employment law contacts, for example, the Americans with Disabilities Act and Eucera, which is the Uniform Services Employment and Reemployment Rights Act.
[58] We use the exact same language of undue hardship and the courts for years since the passing of Title VII have had no problem performing a fact -by -fact analysis.
[59] Every situation will be different.
[60] Justice Sotomayor seemed to be very bothered by that, saying everything was contextual.
[61] Nothing will ever be clean.
[62] So we should just stick to the de minimis standard from the Hardison case.
[63] But I would disagree.
[64] And I would say these have been naturally used in other employment law contexts in the ADA and UCERA.
[65] Why we can't employ it when it comes to religion.
[66] Why we give religion short shrift in employment.
[67] For me, that clearly conflicts with what we already know courts are capable of doing.
[68] Now, you mentioned Sotomayor's possible leanings here.
[69] I know it's something of a fool's errand to try to guess how the court will rule, but have any other justices said anything to indicate which way they lean?
[70] I will say it wasn't as cut and dry as I would have anticipated it would be based on the religious liberty jurisprudence from this court that we've seen in the past two years.
[71] We've seen significant religious liberty rulings.
[72] I anticipated the conservatives and possibly with Roberts sort of playing both sides against the middle to be very obvious in their lines of questioning with the liberal justices, the three women, in sort of a block raising questions on things like context and sort of unsettling decades of precedent.
[73] But what we heard were some ambivalent statements by justices Kavanaugh and Barrett, who did seem to be bothered.
[74] by the fact, that not only was there a request to overturn precedent, which is stronger when dealing with statutory law as opposed to constitutional law, but that now we would get into these more difficult factual analyses, and that didn't seem to be particularly in the case of Justice Barrett, something she sounded willing to engage in.
[75] So how this case ultimately comes out is anyone's guess.
[76] All right.
[77] Well, Sarah, thanks so much for coming on today.
[78] Thanks for having me. That was Sarah Partial Perry, senior legal fellow for the Heritage Foundation, and this has been an extra edition of Morning Wire.