By Darien C. Harris, Dawn Reddy Solowey, and Lynn A. Kappelman
Seyfarth Synopsis: A Third Circuit ruling against a former United States Postal Service employee’s Title VII religious discrimination claim is under review at the Supreme Court in Groff v. DeJoy. Petitioner’s brief urged the Court to overturn decades of precedent established by the seminal case, Trans World Airlines Inc., v. Hardison. The Postal Service has now filed its response to the petitioner’s brief. Nine amicus curiae have also thrown down the gauntlet in support of the Postal Service, including several postal worker unions and a coalition of 11 Democratic state attorneys general.
In February, Seyfarth Shaw wrote about how Hardison established the legal framework for analyzing employees’ requests for religious accommodations in the workplace, and how the Groff case invited SCOTUS to revisit that precedent. Last month, Seyfarth Shaw followed up with a post explaining that Republican elected officials and several religious coalitions filed amicus briefs in support of overturning Hardison. Specifically, the GOP lawmakers contended that the Court should adopt the American with Disabilities Act’s definition of “undue hardship,” replacing Hardison’s “more than a de minimis cost” standard with the “significant difficulty and expense” standard. The Republican state attorneys general, on the other hand, sought to soothe economic concerns that overturning Hardison would be financially burdensome for employers.
The U.S. Postal Service’s Arguments
The U.S. Postal Service has now responded with its arguments in favor of preserving Hardison. The Postal Service argues that rather than throw out Hardison altogether, the Court should simply clarify that Hardison affords substantial protection for religious observance – an interpretation favored by the EEOC. Despite admitting that some lower courts have misapplied Hardison’s de minimis standard, the Postal Service contends that the Petitioner has failed to show that Hardison is so unworkable that it should be overturned.
The Postal Service also asserts that the Third Circuit correctly held that burdens on other employees may inform Hardison’s undue-hardship analysis. “Some of the most critical aspects of managing and directing a business are supervising the individuals who compose the workforce, coordinating the distribution of labor, and overseeing the conduct of the workplace.” The Postal Service notes that the EEOC recognizes that undue hardship can exist where a requested accommodation “infringes on other employees’ job rights or benefits,” or “causes coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.”
Lastly, Postal Service concludes that the Supreme Court should affirm the Third Circuit because granting Petitioner’s accommodation request would have imposed an undue hardship on the conduct of the Postal Service’s business under any reasonable understanding of the statute.
Amicus Brief by 11 Democratic AGs
A coalition of 11 Democratic state attorneys general filed an amicus brief in support of the Postal Service, advocating for the Court to exercise restraint given that Hardison has been precedent for nearly 50 years.
First, the AGs reminds readers that states are large employers in their own right and have relied on Hardison for decades. The AGs emphasize that Hardison has been applied by every circuit to address Title VII’s undue hardship standard for religious accommodations, Congress has consistently rejected proposals to amend Title VII, and courts have had little difficulty in applying the Hardison standard.
Second, the AGs insist that “Petitioner’s arguments are more appropriately directed to Congress,” but like the Postal Service, the AGs argue that the Court should clarify, rather than overturn Hardison. According to the AGs, the Court should clarify that it is the employer’s burden to establish undue hardship, that employers must show actual hardship that is not merely speculative or hypothetical, and that whether a cost is more than de minimis is fact-specific because “one employer’s undue hardship can be another employer’s de minimis cost.”
Last, the AGs contend that Hardison allows states to explore the most effective methods to protect religious freedoms, noting that states can “adopt additional standards tailored to the realities of certain industries, or to certain types of more-frequent accommodation requests, allowing state legislatures to fine-tune religious protections in the context of a wide variety of competing policy interests.”
AFL-CIO Weighs In
Another supporter of the Postal Service is the American Federation of Labor and Congress of Industrial Organizations (“AFL-CIO”), a federation of 60 national and international labor organizations with a membership of over 12.5 million workers.
In its brief, the AFL-CIO focused on the question regarding the proper treatment of burdens on co-workers in the accommodation analysis. The AFL-CIO takes issue with Petitioner’s argument that considerations of other employees’ rights and interests are relevant to showing undue hardship only to the extent that they harm the business as a whole. As a rebuttal, the AFL-CIO points to the strong federal policy in favor of collective bargaining agreements and cites Supreme Court precedent holding that interference with employee expectations of fair, uniform treatment is relevant when considering accommodations under similar provisions of the Americans with Disabilities Act.
The AFL-CIO concludes that Petitioner’s proposed accommodation would impose an undue hardship on the conduct of the Postal Service’s business under any proposed reformulation of the undue hardship standard for three reasons.
First, the statutory language of Section 701(j) of Title VII requires a demonstration of an “undue hardship on the conduct of the employer’s business” not on the employer or the business itself. Here, the AFL-CIO defers to Webster’s New World Dictionary which defines conduct as the “process or way of managing or directing.”
Second, a proper interpretation of Title VII and the federal policy in favor of enforcing CBAs embodied in the National Labor Relations Act and Labor Management Relations Act requires that courts give considerable weight to the fact that a proposed accommodation would violate a CBA.
Last, the AFL-CIO argues that the Petitioner’s position that an employer cannot meet Title VII’s undue hardship standard by showing that the accommodation burdens the employee’s coworkers is at odds with the Supreme Court’s jurisprudence under the ADA. Alternatively, the AFL-CIO invites the Court to remand that question to the Third Circuit for further reconsideration.
TAKEAWAYS While there are strong arguments for the Court to reaffirm and clarify Hardison, the question remains whether such arguments will overcome the current makeup of the Court and its renewed interest in what was once settled law. Seyfarth Shaw recognizes the gravity of such potential changes to the legal landscape for employers and will continue provide updates as this case develops.