Speakers: John Walsh, Felicia Ellsworth and Matthew Martens
John Walsh: Welcome to “In the Public Interest,” a podcast from WilmerHale. I’m John Walsh.
Felicia Ellsworth: And I’m Felicia Ellsworth. John and I are partners at WilmerHale an international law firm that works at the intersection of government, technology and business.
Walsh: Today’s episode is the latest installment of our new Supreme Court miniseries. Where we dive into the most hotly contested decisions coming out of the Court this term and discuss the implications of several of the courts rulings going forward.
Ellsworth: For this episode, we’ll be discussing the courts recent decision in Groff v. DeJoy, which concerns religious liberty and employment accommodations under title seven of the Civil Rights Act. Joining me to discuss this case is Matthew Martens, a partner in WilmerHale’s Washington DC office who specializes in high stakes criminal and civil investigations, securities litigation and appellate work. Thanks so much Matt for joining us on this episode of our Supreme Court miniseries.
Matthew Martens: Thanks for having me.
Ellsworth: So this is a very important case, Matt, with large implications for religious freedom and for business operations and I think it would be useful to start with some facts. Could you maybe give us a quick overview of what happened in this lawsuit.
Martens: Sure, in this case, Mr. Groff was a rural carrier associate with the US Postal Service from 2012 through 2019, who requested a religious accommodation because, as an evangelical Christian, he recognized Sunday as his Sabbath when he didn’t want to work and this created some tension both with his coworkers and his supervisors, because he was unwilling to work on Sundays. For a while they were able to accommodate that by moving him to a different location, but ultimately, because of Amazon’s partnership with the US Postal Service for Sunday delivery, it became impossible for him to avoid the need to work on Sunday without some type of accommodation. He was subjected to progressive discipline because he refused to do so and ultimately resigned, he contended, because he was about to be fired and so the question when he brought his lawsuit, was whether or not he was protected in his religious right to not work on Sunday, or whether he could be terminated because of that.
Ellsworth: What were the legal issues or the statutes and laws implicated by the facts of this case?
Martens: The statute was Title 7, which is what he brought his lawsuit under the Title 7 of the Civil Rights Act of 1964, which protects him from discrimination on the basis of religion in the terms and conditions of employment. And there was a provision in there that said that a employer had to accommodate his religious practice if they could do so without undue burden. That undue burden language had been interpreted by the Supreme Court years ago in the 1970’s, in a case called Trans World Airlines versus Hardison. In Hardison the Supreme Court had said that there is an undue burden on an employer if there was more than de minimis cost to the employer in providing the accommodation. So lower courts had over the years interpreted that to be a pretty low threshold and thus had not really required employers to provide much of an accommodation.
Ellsworth: What were the parties different positions in the case or the arguments presented to the Court?
Martens: This is one of those rare cases where the parties agreed that the de minimis language in Hardison was not a proper interpretation of the undue hardship test that Title 7 contains and so the question was, should it be overruled? Does it need to be overruled? Can it be reinterpreted and what is the proper meaning of undue hardship? The parties each put forward their own phraseology as to what undue hardship should mean. So the Counsel for Groff said it should mean significant difficulty or expense. The government said it should mean substantial expenditures or substantial additional costs. I mean, this is a dispute that only lawyers love, is it significant expense or is it substantial expenditures? This was to some degree this semantic fight. The real dispute was over how it would play out. There were lots of hypotheticals that the justices were discussing with the lawyers about how whatever language they adopted, if it’s not de minimis, what does undue hardship mean in practical life and which expenses count? Do burdens on coworkers count, or is it burdens on the business as a business count? And so this was the back and forth that was occurring in the argument to sort of sort out both semantic issues, which the court kind of dodged and said, listen, it’s something like a lot of expense or substantial expense and we don’t really have to answer every hypothetical here and left for another day. The hypotheticals about how it would play out.
Ellsworth: So before we get to the Court’s decision, can you talk a little bit about WilmerHale’s role in this case.
Martens: The team of counsel and associates at WilmerHale and I filed an amicus brief in support of Mr. Groff on behalf of the American Hindu coalition. Our firm has a long history of doing religious liberty work of various types, and this was a natural fit for us to get involved and what we wanted to emphasize in the brief on behalf of the American Hindu Coalition is the unique burdens that minority religions face in the United States, the idea of a desire to take a Sabbath is probably not foreign to a lot of folks, even if they themselves don’t observe it. They may have heard of that. Because of the United States history, it’s easier for people in majority religions to get accommodations, either through the legislative process or just because their practices are more familiar to employers and what we wanted to emphasize was the degree to which that’s not true for minority religions, and that how the core interpreted that undue hardship language in Title 7 could have very practical and substantial impacts on minority religions, and that they should keep that in mind as they devise the appropriate test.
Ellsworth: Very interesting. So with that context in mind, Matt, tell us about the courts decision. What did the court eventually decide in this case? Did they say anything about the decision in Hardison?
Martens: Well, so they don’t technically overrule Hardison, or at least they say they don’t. They say, well, that sentence about de minimis cause you have to read in the context, and there’s two contexts that they flag. One, at the time of the Hardison decision back in the 70’s, there was a much more robust or vigorous interpretation of the Establishment Clause, and so there was some concern that a broad reading of undue hardship could start raising establishment issues and then secondarily, the particular dispute in Hardison was whether or not that undue hardship language could be used to overcome seniority rights and a collective bargaining agreement. And so the court flags both of those and says, listen, we’re not saying that we’re overruling Hardison in terms of whether the undue hardship test, triumphs, seniority rights and a collective bargaining agreement. It does not, and they reaffirm that. But they said the de minimis language was really loose language. We also, in the same opinion, referred to substantial increased costs and so where we’re gonna come down is that an employer has to show that granting an accommodation would result in a substantial increased cost in relation to the conduct of its business. And so they adopt a substantial cost language from Hardison and say, the de minimis language, if it matters at all, is only in the context of seniority rights and a collective bargaining agreement. And then they say it’s a fact specific inquiry. You’ve got to look case by case and you have to focus on cost to the business, not cost to coworkers.
Ellsworth: Given all that, what do you think the case means in terms of implications going forward for other employers?
Martens: Well, I think the primary thing it means given that it’s a fact specific inquiry is that employers are probably much less likely to get summary judgment in these type of cases. I mean, that’s in fact what happened to Mr. Groff is that he lost the summary judgment stage because the court below had said he couldn’t show something more than the de minimis burden. So I think it will be much easier for employees to get over that threshold and more likely that the case would go to a jury trial and probably thus more likely that employers and employees would have to negotiate either in the context of litigation or before litigation over or what would be a proper accommodation because the fact specific inquiry makes it more likely that employees would win, but the fact specific inquiry also means it’s not clear who wins. It’s very by definition, very fact intensive and so, I think you’ll see more accommodation in the future because both sides face risks, but employees face more likelihood that they could prevail.
Ellsworth: Can you touch a bit on Justice Sotomayor’s concurring opinion, what did she have to say and what, if anything, do we take from it?
Martens: What I see Justice Sotomayor doing is two things, one emphasizing the importance of stare decisis, particularly in the context of statutory interpretation that the court is loath to almost ever overrule a statutory interpretation because, and I think rightly so, the court views that as the job of Congress, if the court misinterpreted a statute, Congress can fix that by a simple majority. There’s no reason for the court to go back and change its interpretation, so she just wants to emphasize that stare decisis element of their ruling here, that they aren’t and shouldn’t be overruling prior interpretations, but then she also discusses a point of some disagreement that you saw in the oral argument and in the opinions, which is the degree to which undue hardship on fellow coworkers satisfies the undue hardship test the statute refers to undue hardship on the conduct of the employers business. It doesn’t say undue hardship on the business and it’s that conduct of the business language that Justice Sotomayor said could allow for taking into account. Impacts on coworkers because labor is important to a business, so she believes there would be some impacts on coworkers, that could be a proper basis for denying an accommodation.
Ellsworth: What implications beyond this specific case and beyond Title 7 do you see from the court’s decision in this case in terms of religious liberty or the requirement of employers to accommodate individual employees exercise of their own individual religions?
Martens: Well, I think what you’ve seen over the last probably decade, maybe a little more than a decade is a court that is much more vigorous in protecting religious liberty, much more protective of religious practice than perhaps prior courts, even though the prior courts were quite protective of religious liberty. I think you see it on over drive with this Court, but most of those cases have been in the context of the individual vis-à-vis the government, whether the state government or the local government or public university, or the federal government in this case is unique in that it now takes a vigorous view of the rights of employees to engage in religious practice vis-à-vis private employers and so I think it’s this move into the private sphere that distinguishes the Groff decision from the many other religious liberty cases that the court has been handing down over the last decade.
Ellsworth: Well, very interesting and more to come for sure on this front and others from this court. Thank you so much, Matt, for joining us today to talk about this important case. We really appreciate it.
Martens: Thanks for having me.
