Tuesday, Feb 20, 2024

Supreme Court Weighs Protection for ‘Sabbath Observers’

Recent Rulings Side with Religious Freedom

 

Jewish groups and other religious liberty advocates hailed the Supreme Court’s recent decision to take up Groff v. DeJoy—a case that highlights the issue of religious freedom in the workplace. The court is scheduled to hear oral arguments on April 18.

The case is not about a Jewish plaintiff but an evangelical Christian, Gerald Groff, who worked for the U.S. Postal Service. Groff sought to be released from his postal duties on Sunday, his “day of rest,” but ran into stiff opposition from the management.

This was in spite of his efforts to make arrangements with the Postal Service by offering to work make-up shifts and even by switching post offices. USPS rejected these accommodations and penalized Groff for not submitting to authority.

Facing hostility and termination, Groff chose to resign.

He then sued USPS for failing to accommodate his religious beliefs. Both the district court and the Third Circuit Court of Appeals were unsympathetic to his arguments. They ruled against him on the basis that his absence on Sunday caused an “undue burden” to USPS.

The 3rd Circuit Court of Appeals said that efforts to grant the postal employee an exemption from work on Sundays had “strained USPS resources” and forced his co-workers to take on additional shifts and responsibilities. This caused “undue hardship” to USPS.

The courts’ ruling is based on an earlier Supreme Court ruling in TWA Airlines v. Hardison, in which the Court set the bar for “undue hardship” extremely low. For employers to be justified in rejecting a request for religious accommodation, they were only required to prove the burden on the company was “more than trivial.”

But what qualifies as “more than trivial?” The court left this ambiguous term open to an employer’s interpretation. As a result, the years since the ruling came out have seen a steady erosion of religious accommodation in the workplace, as employers feel empowered to cite “undue hardship” to justify refusing any request for accommodation.

“So essentially, if it costs the employer anything at all to accommodate, the employer can refuse,” Mark Rienzi of Becket, a religious liberty law firm that has filed a friend-of-the-court brief in the case, said of the previous ruling.

“The whole point of the law was to protect the employees unless it imposed some real hardship on the employer. And instead of requiring hardship, what the court said was it doesn’t actually have to be a hardship.”

Rabbi Chaim Dovid Zwiebel, Agudah’s executive vice president, said in a statement that “Due to Hardison, countless people have given up or even lost employment opportunities for jobs for which they were eminently qualified. Most of these cases were not even litigated because of the high bar set by Hardison.”

 

‘Fatal Blow’ to Title VII

In the 1977 Hardison case, Justices Marshall and Brennan dissented with the majority’s opinion, arguing that the Court was dealing “a fatal blow” to the accomplishments of Title VII with its strong religious protections. In his dissent, Justice Marshall wrote that as a result of the Hardison ruling, “thousands of Americans could be forced to live on welfare as the price they must pay for worshipping their G-d.”

“The ultimate tragedy is that despite Congress’ best efforts, one of this nation’s pillars of strength, our hospitality to religious diversity, has been seriously eroded,” Judge Marshall added.

Religious liberty advocates say the Hardison ruling undid all the progress achieved by the amendment to Title VII, perpetrating injustice on Americans who observe Sunday or Saturday as a religiously ordained day of rest.

The Orthodox Union, the National Jewish Commission on Law and Public Affairs (COLPA) joined by Agudath Israel of America, and the Jewish Coalition for Religious Liberty (JCRL) each filed amicus curiae briefs urging the high court to consider Groff v. DeJoy.

 

Denied Jobs or Promotions Over Shabbos Adherence

Prominent constitutional attorney Nathan Lewin, who wrote the amicus curiae for COLPA, said he “cannot overstate the importance of this case.”

In a talk with Jewish Insider, he noted that he regularly receives calls from Orthodox Jews who say they have been denied jobs or promotions because their employers have rejected Sabbath accommodations for them.

“I’ve seen lots of cases in which Orthodox Jewish individuals have had their careers curtailed because of Hardison,” he said.

“That’s not what Congress intended,” Lewin told Jewish Insider. “The Equal Employment Opportunity Commission made it clear that the language in Title VII meant you should accommodate employees’ religious observances.”

A brief by the American Jewish Committee (AJC) calls on the Supreme Court to reverse the judgment of the appellate court and overrule the “undue hardship” clause.  It asks the court to reevaluate the case using a yardstick more sensitive to the needs of religious employees.

“For too long the chilling effect of the 1977 Hardison decision on victims of religious discrimination [have been ignored],” the brief said. The decision “has allowed employers to escape liability and to discourage employees from bringing claims” under Title VII.

The AJC brief noted that, contrary to established law, religious discrimination remains a feature of the American workplace, and that American Jews observing Shabbos “have accounted for half of all victims of religious discrimination cases.”

By agreeing to hear Groff v. DeJoy, “the Supreme Court has taken one step forward to rectifying this situation and protecting the religious liberties of all Americans in the workforce,” Rabbi Zwiebel said.

 

Recent Religious Liberty Victories

Legal experts watching the case have pointed to multiple indications that presage a favorable ruling for Groff, noted the Eagle Tribune.

In recent cases, several Supreme Court justices have ruled in favor of a religious liberty plaintiff. Justice Samuel Alito ruled in favor of allowing local governments to set up Biblical scenes during a Christian holiday season. Justice Neil Gorsuch sided with a Washington state high school football coach insisting on a right to pray on the field immediately after games. And Chief Justice John Roberts ruled that Maine must subsidize tuition at some religious schools.

These recent rulings ran counter to previous Court decisions relating to the Establishment Clause (separation of church and state). Experts say the rulings signal the court may be poised to reverse what they see as a wrong turn taken in the 1977 Hardison case.

Two recent cases showcase the legal divide over how the Establishment Clause should be applied.

In one litigation, Marie Jean Pierre, a devout Christian who refused to work on Sundays, was fired from her job as a hotel dishwasher in 2016. This week, the Florida woman was awarded $21 million after suing her former employer citing religious discrimination.

Pierre worked as a dishwasher for The Conrad Hotel from 2006-2016, the Miami-Herald reports. Her employers were aware of her membership in a church that prevented her from working Sundays. Still, in 2015, bosses scheduled her to work Sundays anyway.

After weeks of trading shifts with co-workers, Pierre’s employer demanded she come in for her scheduled shift. When she refused for six consecutive weeks, she was fired.

Pierre then filed a complaint with the Equal Employment Opportunity Commission, suing The Conrad Hotel. The lawsuit claimed the “Defendant retaliated against Plaintiff by, among other things, creating a hostile work environment for Plaintiff, reprimanding Plaintiff for her religious beliefs, and terminating Plaintiff.”

A federal jury has now ordered the hotel to pay Pierre $36,000 for lost wages, $500,000 for emotional anguish and $21 million in punitive damages.

 

Ohio Religious Liberty Case

In another surprising outcome to a religious liberty case that concluded in late February, an Ohio woman who claimed she was fired for being Jewishly observant has been awarded $1.1 million in damages after a federal jury accepted her claim. The jury found she was fired for wanting to “observe the Jewish holidays.”

Kimberly Edelstein was working as a judge in Butler County, Ohio, when she asked her judge supervisor for eight days off during the Tishrei holidays in 2017, the Times of Israel reported.

The lawsuit states that Judge Greg Stephens slapped down her request in an insulting manner. “Holy cow, eight days?!” he allegedly yelled, pouring scorn on the request. Edelstein was fired four days later. According to her lawsuit, the judge and two prosecutors identified by name belittled her in front of other employers. They also made it difficult for her to find another job, the brief alleges.

Edelstein’s claim was handled in the same court system where she once worked. The judges rejected some of her claims, but allowed her religious discrimination claim to proceed against the judge. The trial against the judge began January 23 and included the testimony of a rabbi.

The jury issued a verdict last week, finding that Edelstein had been illegally terminated from her position solely due to her desire to observe the Jewish holidays.

“The jury’s findings are an important reminder that the law provides protections for those who wish to observe religious customs,” said Rabbi Ari Balban, director of the Council of Jewish Communities in Cincinnati. “Employers and government institutions are not allowed to retaliate against Jews (or other religious minorities) for seeking to exercise their protected religious rights.”

 

Civil Right Acts of 1964

Virtually every religious liberty case over the past sixty years cites Title VII of the Civil Rights Act enacted in 1964. With this law, Congress prohibited discrimination in housing and employment on the base of race, religion, gender or country of origin.

An amendment added in 1972 extended these protections to the workplace, specifically reinforcing the rights of Sabbath observers, whether Jewish or members of other minority faiths.

The new law was a game-changer that cleared a path for new economic and educational opportunities for religious Jews in America. Yet, just five years later, the law was greatly weakened by the above-mentioned ruling in the Hardison case, which allowed employers to wiggle out of having to grant accommodations that impose anything beyond a “de minimis cost” (minimal expense)  on the employer.

“Since [Hardison] has come out, pretty much anything the employer calls ‘a hardship’ is sufficient, and they don’t have to provide any evidence,” Howard Slugh, JCRL’s general counsel, told JI. “The courts have taken this very far, even implying that any hypothetical hardship is sufficient [to reject requests for religious accommodations].”

“Americans shouldn’t be forced to choose between following their most deeply held convictions and keeping their job,” Groff’s lawyers argued in their brief. “There’s a balancing that should occur so that employers respect employees in reasonable ways. But an old Supreme Court decision has stripped away the protection for employees, and we’re asking the Court for an appropriate balance.”

“It’s time for the Supreme Court to reconsider a decades old case that favors corporations and the government over the religious rights of employees,” said Kelly Shackelford, chief counsel for First Liberty, the firm that represents Groff.

 

The Pendulum Swings

A NY Times article noted that the pendulum in the nation’s highest court appears to be swinging back to a position of greater support for religious freedom.

“The Supreme Court has become the most pro-religion it’s been since at least the 1950s, and it appears to include the six most pro-religion justices since at least World War II,” the article said. “Since John Roberts became chief justice in 2005, the court has ruled in favor of religious organizations in orally argued cases 83 percent of the time. That is far more than any court in the past seven decades.”

When the interests of governments and religious groups clash, the Roberts court tends to side with the religious groups, the NY Times article said.

In a recent case that highlighted this emerging trend, a Maine school program allowed rural residents who lived far from a public school attend a private school using taxpayer dollars, so long as that school was “nonsectarian.” Families who wanted to send their children to Christian schools challenged the program, arguing that excluding religious schools violated their right to exercise their faith.

The Supreme Court sided with them, saying the Maine program amounted to unconstitutional “discrimination against religion.” Roberts wrote for the majority.

 

A Football Coach’s Prayers

In another landmark case, a football coach in Washington State won his case against the school district when the Supreme Court allowed his silent prayers on the playing field after a football victory.

Joseph Kennedy had often knelt in prayer following football games at Bremerton High School. After a complaint, the school district suspended him from his coaching position for violating the First Amendment’s prohibition against government establishment of religion.

Kennedy, represented by the First Liberty Institute, filed suit against the school district, alleging violations of the free speech and free-exercise-of-religion clauses of the First Amendment. Last June, the Supreme Court ruled 6-3 in Kennedy’s favor.

Justice Neil M. Gorsuch, writing for the majority, said Kennedy’s right to pray on the football field was protected by the First Amendment and that the school district had erred in firing him.

“Respect for religious expressions is indispensable in a free and diverse republic — whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head,” he wrote.

In dissent, Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, argued that Kennedy effectively “coerced” students into praying with him because “students look up to their teachers and coaches as role models and seek their approval.”

“Kennedy consistently invited others to join his prayers and for years led student-athletes in prayer,” Sotomayer wrote. She included photographs showing Mr. Kennedy kneeling with players and others.

Justice Gorsuch countered this argument, asserting that Kennedy was not representing the school when he prayed. “He was not instructing players, discussing strategy or engaged in any other job-related speech,” Justice Gorsuch wrote. “He merely took a moment to pray while others checked their text messages or greeted friends.”

Gorsuch added that serving as a role model does not equal coercion and that he rejected “the view that the only acceptable government role models for students are those who refrain from any visible religious expression.”

Following the Supreme Court’s ruling, Kennedy was reinstated to his former position as of March 2023,” according to a CBS report.

Legal observers say this ruling clashes with earlier Supreme Court decisions regarding prayer in public school. Over the last 60 years, the Supreme Court has rejected prayer in public schools that form part of an official ceremony such as a high school graduation or special assembly.

As recently as 2000, the court ruled that organized prayers led by students at high school football games violated the First Amendment’s prohibition of government establishment of religion.

Justice Gorsuch wrote that those precedents did not apply to Mr. Kennedy’s conduct.

“The prayers for which Mr. Kennedy was disciplined were not publicly broadcast or recited to a captive audience,” he wrote. “Students were not required or expected to participate.”

“The Constitution and the best of our traditions,” he added, “counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”

*****

Unsung Heroes of a Bygone Era

Groff v. DeJoy evokes an earlier time in American Jewish history when religious freedom in the workplace was an almost revolutionary idea. The history of this period cannot be told authentically without highlighting the struggle for Shabbos observance in a culture that forced a great many shomer Shabbos Jews into unemployment and severe poverty.

Imagine living in an America where a six-day workweek is an unquestioned fact of life, and businesses closed only on Sundays. People who can’t or won’t accommodate that system find themselves jobless, unable to put food on the table or pay rent.

This is the situation that confronted Orthodox Jews in America in the late 1800s and early1900s.  The so-called “blue laws,” barring most businesses from opening on Sundays, exerted tremendous economic pressure on Jewish storeowners to do business on Shabbos in order to stay afloat.

In addition, the dominant social trend at the time extolled the rush to the “melting pot” along with the shedding of the religious lifestyle that was seen as an obstacle to becoming a true American. Discrimination against Jews in employment and housing increased the pressure to assimilate.

During the period of mass immigration of Eastern European Jews to America, the garment industry with its infamous sweatshops was under­going rapid expansion, and New York City was central to this development.

Tens of thousands of immigrant Jews worked 12-hour shifts in overcrowded factories for abysmally low wages, in New York garment factories that operated six days a week. A large percentage of these factories were owned by assimilated Jews who made no allowance for Shabbos observance. A religious Jew who failed to complete his shift due to Shabbos could be expected to be immediately fired.

Rare indeed were the individuals who possessed the spiritual strength to stand up to the crushing pressures to abandon Shabbos and other fundamentals of a Torah life.

In flight from grinding poverty and the threat of pogroms in the old country, European Jews had come to a new world wholly unprepared for some of its most painful elements. There was no central kashrus supervision, no network of yeshivas or chadorim—scarcely any of the infrastructure needed to sustain Orthodox Jewish life.

It took decades of backbreaking toil by rabbonim, askonim and trailblazing leaders for this infrastructure to be built. In the interim, generations of Jews were tragically lost in America’s melting pot.

Groff’s petition to the Supreme Court to uphold his right to freedom of religion in the workplace, conjures up the bleak landscape of that earlier day, and the heavy price a nucleus of stalwart Jews was willing to pay to hold fast to its beliefs.

Those courageous men and women who persevered and whose children carried on their legacy are the unsung heroes of that bygone era.

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