While all eyes were on what the Supreme Court would do over the abortion pill mifepristone, the justices reviewed another case of considerable weight in that very same week that slipped under the radar for most of us — one having to do with religious liberty. The central question: How far must employers go to accommodate the religious views of their employees?
The components are simple enough. The U.S. Postal Service delivers packages on Sundays, mostly Amazon packages. Full-time career employees, called “regulars” in the business, are not required to deliver them. That task falls to part-time workers called rural carrier associates, or RCAs.
Regulars work five days a week. RCAs fill in on the days regulars have off, which could be any of the six days the post office delivers mail, Monday through Saturday. Most regulars pick Saturday as their off day, but it could be any day of the week. With the advent of online shopping, Sunday package delivery became part of the postal workweek.
Problem: What if you are a deeply religious person who doesn’t work on the Sabbath?
That’s the question at the heart of Groff v. DeJoy, a case that could potentially give religious conservatives unprecedented power to make demands from their employers and reshape workplace culture.
Gerald Groff, 45, is an evangelical Christian. In 2012 he went to work as an RCA for a small post office in rural Pennsylvania. In this three-person office, he probably filled in for one carrier on one day and the other carrier on a different day. He may have also done fill-in work at other offices in the region. That’s not uncommon for RCAs.
Initially, Groff had no problem since rural carriers were not required to work on Sundays. He said he loved the job and hoped to make a career out of it.
But, once the Postal Service signed a deal with Amazon in 2013, Groff was required to deliver Amazon packages, which included Sunday deliveries.
He refused. He was disciplined for it.
“I’m put into a situation where I have to choose to honor my earthly authority or do what I know is right to honor God,” he told The New York Times.
He chose God, he said. In 2019, he quit. Then he sued the Postal Service under the Civil Rights Act of 1964.
Lower courts held for the Postal Service, agreeing that granting Groff’s religious accommodation would cause “undue hardship” on the company and particularly on his co-workers. The co-workers would have to deliver the packages, costing the company excessive overtime wages. The Postal Service argued that even the accommodations it had made for Groff (allowing him some but not all Sundays off) “actually contributed to other employees quitting or transferring.”
There is some legal jargon to digest. A provision of Title VII of the Civil Rights Act requires employers to “reasonably accommodate” their workers’ religious beliefs and practices unless it presents an “undue hardship” on the employer’s business. In the 1977 case Trans World Airlines, Inc. v. Hardison, the Supreme Court defined “undue hardship” as any accommodation that imposed more than a small, or “de minimis,” cost on the employer. The Latin phrase “de minimis” refers to a burden so small or trifling that it’s unworthy of consideration.
In lay terms, if it’s burdensome enough to adversely affect the employer’s business, they are not required to accommodate the employee.
A decision is expected in June.
Is it me, or did the Supreme Court miss the elephant in the room?
Oral arguments got seriously wonky over exactly what “de minimis” means in the Groff case. Its framework has been debated in legal circles since it was first codified in the Hardison decision; it almost feels like the court took on this case to try to settle that debate.
But I would argue that this is a matter of contract law. That’s not quite right since no written contract exists between Groff and the post office. Instead, it revolves more around this question: Should an employee be required to do work that was added to his job after he became an employee?
You might say yes. Businesses must adapt to a competitive marketplace. When a company changes its business tactics, employees are expected to adapt. The Postal Service saw competitive advantages in agreeing to deliver Amazon packages. RCAs who joined the post office before that change agreed to perform Sunday deliveries.
But what if you go to work for an employer based on job expectations that accommodate your religious beliefs but changes in those job requirements after your hiring violate those beliefs?
Is it right to move the goal posts like that?
I say no.
Here’s why. When Groff began working for the Postal Service in 2012, Sunday deliveries didn’t exist. All mail carriers, including RCAs, had that day off. But a year later, the Postal Service signed a deal with Amazon to deliver those packages, including on Sundays.
That, to me, is a contractual violation. It’s an unwritten contract, yes, but an agreement with Amazon that the Postal Service made, I’m guessing, without thinking of the consequences it might have for some of its employees.
We’ve been down this road about religious accommodations before. Sort of.
In 2007, roughly three-quarters of the airport taxi drivers in Minneapolis-St. Paul were Somali in origin. I have no idea the proportions now, but the controversy back then is what’s relevant to us in the Groff case.
Many of those cabbies were Muslim. Many Muslims feel strongly about religious taboos. Two of those taboos would be alcohol and the saliva of dogs. Those are specific beliefs for some in the Muslim faith.
At that time, those particular cab drivers refused to carry passengers who had alcohol in their luggage or were accompanied by dogs. Local Muslim clerics issued a fatwa demanding that the drivers should be allowed to refuse such fares based on religious grounds.
Michael S. Williamson/The Washington Post via Getty Images
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About 100 people a month were being denied cab service at the airport. It became a significant customer service issue.
The question was obvious: Why should Minneapolis officials bend long-standing rules that give the public equal access to taxi cabs just to accommodate a given population with self-imposed religious restrictions?
To me, this is an entirely different question than the Groff case. If you apply for a job driving a cab — and I used to be a New York City cab driver — you already know what comes with the job. If you can’t meet those obligations, if you can’t meet the obligations of any particular job, you shouldn’t be applying for it.
Those Somali cab drivers knew what the job was when they applied. Instead of the employer moving the goal posts, as in the Groff case, the employees were trying to move the goal posts and change the job description to accommodate their beliefs. That is a non-starter. I have nothing against their beliefs, mind you. They are none of my business. But if your religion prohibits you from picking up passengers based on offending characteristics — no matter what that religion is, Islam or anything else — then you shouldn’t be working as a cab driver and you don’t apply for that job. Period.
The cabbies went to court; they lost. As they should have.
A similar dispute took place in 2009 involving the drug Plan B, the “morning after” pill that greatly reduces the chances of pregnancy if taken within 72 hours of unprotected sex.
Two pharmacists and an independent drugstore in Olympia, Washington, argued that they couldn’t sell the pill in good conscience because they considered its effect on potential pregnancies too similar to abortion. Legally, they argued that Washington state’s mandate that they sell it violated the free-exercise clause of the 14th Amendment.
Set aside the fact that the pharmacists didn’t seem to understand: that Plan B works by preventing pregnancy. You can’t have an abortion if you don’t get pregnant.
A U.S. district court agreed with the pharmacists, but a three-judge panel of the 9th U.S. Circuit Court of Appeals overruled that decision and kicked the case back down to the lower court for further review. Ultimately, the U.S. Supreme Court declined to hear the case, effectively ruling in Washington state’s favor: Pharmacists would have to sell the Plan B drug, like it or not.
Unlike the postal case, this is not about an employer greatly moving the goal posts. Long-standing state regulations required (and still do) Washington pharmacies to stock a “representative assortment of drugs in order to meet the pharmaceutical needs of its patients.” The pharmacists’ lawsuit was a response to a 2007 update that specified they must provide all drugs approved by the Food and Drug Administration, though it seems that clarification shouldn’t have changed how they did their jobs. Didn’t the pharmacists know of the state regulations before applying for their jobs? Didn’t the pharmacy owner know of them before opening the pharmacy?
Further, pharmacists take an oath, not unlike the Hippocratic oath taken by doctors, that includes, in one tenet, to use their abilities “to assure optimal outcomes for my patients.” Translation: It’s not about you, it’s about your patients.
So, like the Muslim cabbies, the personal beliefs of the pharmacists could have no bearing on the needs of their customers.
You look at either of these circumstances and say, “Hey, if I was hired to do a job and refused to do certain parts of it, ya know what I’d be? I wouldn’t be a self-righteous moralist using my conscience to tell others how to live their lives. I’d be fired.”
The moral of the story: If there is some aspect of your career choice that is morally repugnant or distasteful to you, then perhaps you should look into a new career. This is the same reason you don’t find any Amish electricians, Quaker soldiers, Jewish lobster fishers, or Muslim pig farmers.
If you have moral objections to certain facets of pharmacy work, take off the jacket and get another job, like at that counter where they drop off the film. (Do people still do that?)
Or here’s an idea: If you don’t want to do a portion of your job, how about you not get a portion of your pay? Fair enough?
The Groff case feels different, but not out of deference to any religious considerations.
I come from a unique position on all this. After many years in media, mostly as a radio broadcaster, I went to work for the Postal Service. Like Groff, I’m an RCA. Unlike Groff, I have a regular route, a smaller auxiliary route, so I’m not required to deliver packages on Sunday. Other RCAs in my office are. If any of them have raised a religious objection, I’m not aware of it, but I wouldn’t be sympathetic, either. They joined the agency after the Amazon contract was signed, so they knew they’d be expected to work on Sundays. Don’t wanna work Sundays? Don’t work for the post office.
But the Postal Service has its own problems. It has a near 50% attrition rate among new mail carrier hires, most of whom quit within a month. (What company would stand for that?) It trains them poorly, pays them minimally, and provides unrealistic goals for career advancement. Part-time employees like RCAs have very little skin in the game. It’s a hard job, enough to make many people quit, which is easier to do when there’s so little incentive to stick around.
The Postal Service could do something about that. Offer a bonus structure after six months of retention. Offer higher pay. You often hear the joke that you can make more working at McDonald’s than you can at the post office. Starbucks provides religious accommodations, benefits, matching 401(k) contributions, even tuition assistance. To part-time employees as well as full time. And probably all the free coffee you can drink. (Sorry, postal workers don’t get stamps for free.)
One could argue that the Groff case is a problem of the post office’s own making. That is, it’s caused its own undue hardship.
You’re correct: This hasn’t anything to do with the legal merits of the case before the court; it’s just for context. I can’t make a legal argument here. I only have an ethical one. Given the current makeup of the Supreme Court, many can cynically predict how the justices will rule. As Adam Liptak of The New York Times points out, the court has had “a remarkable run of decisions chipping away at the wall between church and state.”
But I almost see the Groff case as analogous to two neighbors resolving a minor dispute. This is the property line. This tree hangs over it into your yard. You’re welcome to trim those branches to accommodate your needs and desires for your property. See? Easy.
And Groff actually liked the job, a rare thing among new hires. Given how difficult it is for the post office to retain new hires, why would you look a gift horse in the mouth? Do you mean to tell me the post office couldn’t hire another RCA to address Sunday deliveries? I know. If you do it for Groff, does that lead to a slippery slope?
Tell you what I’d have done. I’d have told Groff, “Fine, we’ll work with your religious beliefs but if it becomes a problem in the office or a problem company-wide, we’re going to have to make some changes in our agreement, in which case, you may feel the need to resign.”
On the other hand, you could also have said to the post office, “Just a minute. You’re looking to sign this contract with Amazon. You are aware that some of the work is going to have to be done on a day of worship for people, yes? Are you going to accommodate them or did you not think about that before you signed the contract? If you did not think about that, why would you expect people to agree to the terms of your deal when you didn’t consider their religious convictions?”
I’m old enough to remember Sandy Koufax not pitching for the Los Angeles Dodgers in the opening game of the 1965 World Series because the game fell on Yom Kippur, the highest holy holiday in the Jewish calendar. Of course, they had other pitchers to fall back on, sort of like, maybe, the post office could have had other RCAs to fall back on? The Dodgers, the organization that broke baseball’s color barrier, graciously accommodated Koufax.
“I won’t let Sandy pitch on Yom Kippur under any circumstances,” Dodgers owner Walter O’Malley told the press. “I can’t let the boy do that to himself.”
And that was the end of that. No lawyers, no lawsuits. Just an agreement between two parties with a mutual understanding that led to a satisfactory conclusion. (The Dodgers won the series, by the way.)
Is it an employee’s fault that the company he works for cannot adequately staff its operation to the point where it unfairly, and perhaps illegally, imposes itself on him?
Let me add here, I am not a person of faith, which is putting it nicely. When it comes to religion, I’m right there with Christopher Hitchens and Sam Harris. But I have no problem with someone who chooses faith as part of life’s paths. If you find comfort in worship, go for it. I’ll defend your right to do so. Just leave me out of it. That’s about as religiously simpatico as I can get with Groff.
On legal grounds, I side with the post office. Religion is not the final arbiter in how we order our public affairs. With the current Supreme Court, it’s hard to say if the justices will agree.
Among the populace, however, with the notable exception of the religiously sanctimonious — some might say extremists — I imagine most would agree we don’t want religion, any religion, telling everyone else how to live or how society should function, no more than we would want the government to tell people how to worship. But dare I use that dirty word and suggest a compromise now and then, a compromise out of respect for a fellow human being? Is that really too much to ask?
Or maybe the country has gone beyond our ability to do that anymore. If we’ve ever been a country that used to do that, that’s a country I wouldn’t mind having back.
But if Groff prevails when the court renders its decision in June, I hope on one of those Sundays he’ll give some thought to how his victory will inequitably impact others who don’t share his religious convictions.