Founders’ First Freedom has filed an amicus brief with the Supreme Court asking the Court to overturn a 1977 case that redefined the “undue hardship” in federal religious accommodation laws as any “de minimis cost or expense.”
Under other contexts, the term “undue hardship” in federal law typically means that if an employer could claim accommodating the employee would incur a “significant difficulty or expense,” they could be excused. But when it came to religious accommodation, often in cases of religious dress or holy day observance, the standard was lowered significantly, with some employers claiming that they would be discriminating against non-religious employees if they provided the accommodation. Although Congress passed several amendments to Title VII of the Civil Rights Act of 1964 to tighten up requirements in response to Equal Employment Opportunity Commission (EEOC) concerns, employers continued to push back against the requirements, culminating in the TWA v. Hardison (1977) in which the Court essentially defined accommodation requirements out of existence.
Founders’ First Freedom previously submitted briefs in 2020 and 2021 asking the Court to address the issue in the Patterson and Dalberiste cases. While some justices wrote that they thought the issue was important, they did not move forward to address it. Finally, the Court agreed to address the Hardison language when the Groff v. DeJoy case came up late last year. The Groff case involves a US Postal Service worker who was required to work on Sundays to deliver Amazon packages in violation of his religious beliefs.
This case has received widespread attention, with 34 amicus briefs filed in favor of religious accommodation from a wide variety of perspectives.
According to Kassie Dulin of the First Liberty Amicus Team, which was spearheading the effort, “Amici included Members of Congress, states, religious liberty experts, employment law scholars, EEOC leaders, civil rights groups, business owners, employee advocates, and a remarkable eight law school clinics. (Special shout out to the students who helped make the clinic briefs happen.) We also received the support of the most diverse coalition of religious minorities to ever ask the Court to correct Hardison’s errors, including Christians, Jews, Muslims, Sikhs, Hindus, members of the Church of the Latter Day Saints, and Seventh-Day Adventists.”
According to Founders’ First Freedom president Michael Peabody, Esq., “Every brief has a different emphasis to bring to the Court, and our brief focused on providing the Court with a template that could be used to meet the legitimate business need of accommodation requirements that take into account the type of business, size of business, and other factors while providing a fair accommodation opportunity for people of faith.”
“When it comes to religious liberty issues, people often feel pigeon-holed into an “all or nothing” position. But the goal is to find ways for everyone to work together in more productive ways to help businesses continue to be successful while enabling peaceful people of faith to draw strength from their religious practices.” Peabody concludes, “Rather than lead to increased litigation, consistent and predictable outcomes will provide points of clarity that will allow for the resolution of most accommodation disputes before attorneys get involved and file cases.”
Oral arguments before the Court in Groff v. Dejoy are scheduled for April 18, 2023.
Case Materials: Groff v. Dejoy, Docket 22-174 – https://www.supremecourt.gov/
Founders’ First Freedom Amicus Brief link:
