Religious Employment Discrimination Could Overturn Bad Precedent

The High Court spent much of the hearing debating how employers can balance an individual's religious beliefs and faith demands with their economic bottom line. More specifically though, the Court focused on the precise meanings of “undue hardship” and “de minimis.”

At the heart of this case, Groff v. DeJoy, is the Supreme Court’s 46-year-old interpretation of “undue hardship” in Hardison interpreting it to mean when an employer suffers “more than a de minimis cost” in accommodating an employee’s religious exercise.

During yesterday’s oral arguments, Groff’s attorney, Aaron Streett, said that TWA v. Hardison set a bad precedent in that the “de minimis test” undermines Title VII’s “promise” to employees that they should not be forced to choose between their job of their faith.

“Hardison’s de minimis test makes a mockery of the English language, and no party truly defends it today,” said Streett in his opening statement. He recommended that SCOTUS “construe undue hardship according to its plain

text to mean significant difficulty or expense” to match the language in the accommodation standard of the “Americans with Disabilities Act.”

Solicitor General Elizabeth Prelogar, arguing on behalf of the Biden administration, told the Court she agreed that the “de minimis test” language needed clarification, but expressed concern about the Court making a new standard that calls into question the way the government and lower courts have been applying Hardison and the meaning of “undue hardship” for nearly 50 years.

In an exchange with Prelogar, Justice Neil Gorsuch asserted “de minimis is not the law” since no one was defending it, and that lower courts have used it out of proportion.

“I think there's common ground, too, that de minimis can't be the test, in isolation at least, because Congress doesn't pass civil rights legislation to have de minimis effect, right?” noted Justice Gorsuch. “We don't think of the civil rights laws as trifling which is the definition of de minimis… it's been a serious misunderstanding -- not all courts, but some courts have taken this "de minimis" language and run with it and say anything more than a trifling will get the employer out of any concerns here, and that's wrong and we all agree that's wrong…”

Justice Samuel Alito was “really struck” by Prelogar’s claim that Hardison properly protects religious exercise.

“I'm really struck by that because we have amicus briefs here by many representatives of many minority religions, Muslims, Hindus, Orthodox Jews, Seventh Day Adventists, and they all say that is just not true, and that Hardison has violated their right to religious liberty,” said Justice Alito.

Justice Amy Comey Barrett also stated, “We have an amicus brief from Americans for Separation of Church and State saying that Hardison was wrong,” stated Justice Barrett. “…to be clear, de minimis doesn’t mean trifling costs.” Justice Barrett went on to suggest the case be returned to the lower courts advising they had been “led astray” by imprecise language.

Chief Justice John Roberts addressed changes in religious liberty case law since Hardison was decided saying they had expanded religious protections.

“There really is no Establishment Clause problem if you make accommodations for people’s religious belief,” noted Justice Roberts. “So, if you're going to look at this under current law, it’s not clear… that Hardison would come out the same way.”

Justices Elena Kagan and Ketanji Brown Jackson touched on the legal principle of stare decisis, a practice of adhering to previous court precedents.

“…we've said over and over that when there's a statute involved rather than the Constitution, stare decisis is at its peak,” stated Justice Kagan. “…for decades, this has been the rule. Congress has had the opportunity to change it. Congress has not done so. You can count on, like, a finger how many times we have overruled a statutory ruling in that context.”

The Supreme Court is expected to make a ruling in the case by this summer.

Liberty Counsel’s Founder and Chairman Mat Staver said, “This case is another opportunity for the High Court to protect the religious exercise of every American. The High Court should overrule the wrongly decided 1977

case with its anti-religious twist of the Civil Rights Act of 1964 and interpret the law according to its actual words. No one should have to choose between their faith and their job.”