From the Society of Human Resource Management (SHRM):
"Gerald Groff, a former postal worker, sued the U.S. Postal Service (USPS) for failing to accommodate his religious practice. Groff is an evangelical Christian who observes a Sunday Sabbath, meaning he doesn't work on that day. Although the USPS does not deliver mail on Sundays, it does have a contract to deliver packages for Amazon, which includes Sunday deliveries. The USPS sought co-workers to voluntarily cover Groff's Sunday shifts and imposed progressive discipline for his absences. Eventually, Groff resigned."
He lost his lawsuit twice, with lower courts ruling that the Postal Service accommodating his Sunday off would cause undue hardship for his employer and co-workers. However, the Supreme Court had a different perspective.
Justice Alito wrote: "A hardship that is attributable to employee animosity towards a particular religion, to religion in general, or to the very notion of accommodating religious practice, cannot be considered undue. Bias or hostility towards a religious practice or accommodation cannot supply a defense."
Employers, take note: Your bar for religious accommodation may have just been raised significantly.
Delve into the intricate world of employment law with our guest, Jennifer Wasserman, an authority in the field, as we dissect landmark decisions and their profound implications for religious accommodation in the workplace. Ever wondered how the 1964 Civil Rights Act is interpreted in the context of religious accommodation? You're about to get the details.
In this insightful discussion, Jennifer and your affable, unique host Bob Sewell analyze the Supreme Court case of Groff v. United States Postal Service, revealing the layers of legal expectations for employers. We also highlight the role of seniority systems in shift changes and the concept of 'reasonable accommodation.'
From the Society of Human Resource Management (SHRM):
"Gerald Groff, a former postal worker, sued the U.S. Postal Service (USPS) for failing to accommodate his religious practice. Groff is an evangelical Christian who observes a Sunday Sabbath, meaning he doesn't work on that day. Although the USPS does not deliver mail on Sundays, it does have a contract to deliver packages for Amazon, which includes Sunday deliveries. The USPS sought co-workers to voluntarily cover Groff's Sunday shifts and imposed progressive discipline for his absences. Eventually, Groff resigned."
He lost his lawsuit twice, with lower courts ruling that the Postal Service accommodating his Sunday off would cause undue hardship for his employer and co-workers. However, the Supreme Court had a different perspective.
Justice Alito wrote: "A hardship that is attributable to employee animosity towards a particular religion, to religion in general, or to the very notion of accommodating religious practice, cannot be considered undue. Bias or hostility towards a religious practice or accommodation cannot supply a defense."
Employers, take note: Your bar for religious accommodation may have just been raised significantly.
Delve into the intricate world of employment law with our guest, Jennifer Wasserman, an authority in the field, as we dissect landmark decisions and their profound implications for religious accommodation in the workplace. Ever wondered how the 1964 Civil Rights Act is interpreted in the context of religious accommodation? You're about to get the details.
In this insightful discussion, Jennifer and your affable, unique host Bob Sewell analyze the Supreme Court case of Groff v. United States Postal Service, revealing the layers of legal expectations for employers. We also highlight the role of seniority systems in shift changes and the concept of 'reasonable accommodation.'
Attorney Bob Sewell:
It's a phrase from popular movies. It's also a question that comes up in our daily life. The question is is that even legal? We talk about the things that drive you crazy, the things you won't believe and the things you need to know and understand. I'm attorney Bob Sewell and this is the podcast. Is that Even Legal? Let's get started. Today on the show is Jennifer Wasserman. Jennifer, welcome to the show.
Attorney Jenn Wassermann:
Thank you for having me on, Bob.
Attorney Bob Sewell:
I wanted to have you on the show because of your unique background, your experience. You have advised numerous businesses in a general corporate setting as well as in a healthcare setting. Among the things you've done is employment law. You are presently active in advising businesses on a number of issues in the nursing home sector. Welcome to the show. I'm glad to have you on.
Attorney Jenn Wassermann:
Well, thank you. Have I offended anyone yet?
Attorney Bob Sewell:
No, but I will certainly do so soon. It's one of my talents. Everyone's got to have a talent, that's mine. All right, let me tell you a story.
Attorney Bob Sewell:
There's this guy named Gerald Groff. He's an evangelical Christian and he goes to work for a particular department in the United States Postal Service. He goes to work for a particular location and he works there for a number of years and he ends up becoming disillusioned with that location. And the reason why is the United States Post Office gets a contract with Amazon and Amazon then begins to require that the postal workers work on Sunday. Well, he is an evangelical Christian and he doesn't want to work on Sunday.
Attorney Bob Sewell:
That's his holy day. He is supposed to take the day off. And he goes to his boss and he can't get any traction with them, and so he changes locations to some place that doesn't have the Amazon contract. They get the Amazon contract and next thing, you know, he's having to work Sundays again and he says can you help me out? And they say not really. And he tries to switch around with other workers and they're like look, I really don't care about your holy day, and they're not interested in working with them either, to get his Sunday off and so he quits. He filed suit and he wins at the Supreme Court. And what's important here, and why I wanted to comment on that, this case is a lot of people have mistaken this case for something that's not. What is this case?
Attorney Jenn Wassermann:
This case was the Supreme Court's first opportunity to examine religious accommodation in the workplace for approximately over 40 years. It was 1977 when Supreme Court made a decision in the. It was involving Transworld Airlines and it was Transworld Airlines versus Hardison, and in that case they were relying upon EEOC guidance. And we have to take a few steps back to say OK, what is the EEOC charged with overseeing? They're charged with overseeing claims of discrimination in the workplace, among other things, and so they're charged with that based upon a statute that came into play back in 1964.
Attorney Jenn Wassermann:
And that's Title VII, Civil Rights Act, and so there's certain protections given to employees and classifications of employees Religion, religious discrimination is one of the things that Title VII addresses, and so the EEOC has guidelines to try to help employers interpret what the statute says and because usually the first stop if you got a problem with Title VII is the EEOC right.
Attorney Jenn Wassermann:
It is because you have to exhaust what's called your administrative remedies. So if you are an employee who feels that you're being discriminated against, or an applicant because it also applies to applicants then you need to make that complaint with the Federal Ego Opportunity Commission or with your state's equivalent. So for any employer that has more than 15 employees, Title VII applies, so they cannot discriminate against an applicant or employee based upon religion.
Attorney Bob Sewell:
OK, so let me stop you there. Ok, so this case is not about what all the hyperbolic's I've been talking about, which is the sky is falling. The Supreme Court is establishing religion. It's not about that. And it's not about the sky is falling because, rather, it's not about you know, celebrate because God is now in the law again. It's not about that either. It's about title seven.
Attorney Jenn Wassermann:
It's about interpretation. It's about an interpretation of a phrase that is in title seven, and that is that an employer has an obligation to do to basically reasonably accommodate an employee's request. Okay, okay, so. So then it goes back to what is reasonable accommodation, and that's going back to the transworld airlines, and I will eventually answer your question about what this case is about.
Attorney Jenn Wassermann:
So the the in the transworld airlines.
Attorney Jenn Wassermann:
When the Supreme Court examined that in 1977 and they were looking at the EEOC guidance and they were interpreting that guidance, they said that essentially, if there is more than a day minimus cost to the employer to make the accommodation requested, then the employer could argue that that was an undue hardship.
Attorney Jenn Wassermann:
And so this time passed between 1977 and now and the question in Groff's case was well, could possibly other employees working overtime and taking overtime pay, could that constitute an undue hardship in this situation? Or, you know, would essentially changing the terms of some of the seniority system in terms of who could swap shifts with him? Was that an undue hardship? And so the court went back and looked and said okay, we're going to essentially throw out this day minimus concept and we're going to instruct employers to engage in a an informal type of process to determine if someone makes a request based upon a religious accommodation, similar to disability discrimination under the ADA. Let's engage in an interactive process and determine if the request is reasonable, because just because someone might get protection, they might have a sincerely held religious belief, it doesn't mean that their request, that their request, is not an undue burden to the employer.
Attorney Bob Sewell:
Right, and it's there. The Supreme Court is saying, hey, let's actually look at the language that Congress gave us, and the language is undue hardship. Right and so, and this was a, this was a unanimous decision, or was it?
Attorney Jenn Wassermann:
This wasn't. This was a unanimous decision of the Supreme Court and it was issued at the end of June this year and there was a consenting opinion that was written. But essentially, you know all, all of the justices were aligned on this one.
Attorney Bob Sewell:
So okay, and so if I have a problem with the, with the holding, my problem is really with Congress. Is that what you're telling me? Complaint to Congress about the 1962 or 64 civil rights act, right?
Attorney Jenn Wassermann:
Well, you can try, but I'm not sure what your, what your complaint would be, because essentially, this is this. This it's not establishing any one particular religion. Okay, it's essentially saying that if, as an employee, you have a sincerely held religious belief and something that your employer is asking you to do whether it be working hours, certain days, or whether it be something else in the workplace that violates your religious belief you can make that request for an accommodation.
Attorney Bob Sewell:
Okay. So let me, let me get to some practicalities here. Okay, Because you're all about how this actually applies in the real world, right? I mean, this is not just about right. Right, so let's end it. Let's say, graf was working for a health co-organization and people get sick on Sundays. I know that's going to surprise you.
Attorney Jenn Wassermann:
Not at all.
Attorney Bob Sewell:
Does he get to say no, I don't work Sundays, making a combination for me.
Attorney Jenn Wassermann:
Well, as the Supreme Court has instructed us, it depends, because each case has to be evaluated on its own merits, and so it's a case-by-case determination. The Supreme Court did not give us any bright line rule with this decision, but they basically did say that the employer has to make a reasonable analysis, and so if that healthcare facility has a number of other staffing options for that day, they may have to make that accommodation. And it's not all just about days off. Like I said, there's other workplace type of situations that arise.
Attorney Bob Sewell:
Perhaps sacred clothing that I might need to wear for my religion.
Attorney Jenn Wassermann:
Exactly Beard things of that sort, and that has been addressed in the past and there may be accommodations where you might have to wear net over a beard, for example. It's been addressed by the EEOC previously. Healthcare setting we're talking about lately and I won't. This will probably offend some people when we bring up vaccinations and immunizations, but New Jersey, for example, changed their law in 2020 to require not COVID vaccinations but flu immunizations, and so there was a hospital system who changed their policy because they had a policy in effect, that would exempt someone who had either a religious or a medical reason not to get a flu immunization, and so they changed their policy to only make it a medical reason, consistent with the New Jersey statute. Eeoc got involved because there were approximately nine employees who challenged that and the EEOC took it on behalf of the employees, and there was a conciliation agreement between the EEOC and the hospital system which basically allowed the employees to object to receiving those immunizations based upon religious grounds.
Attorney Bob Sewell:
Okay, so, and that's an important distinction. So it has to be my sincerely held religious belief. It can't be my made up religious belief because I have some sort of scientific objection to it or a non-scientific objection to it. It has to be my religious exception to it.
Attorney Jenn Wassermann:
Exactly, it should be a religiously held or sincerely held religious belief. Okay.
Attorney Bob Sewell:
So let's get back to Grah for a second and the practicalities of that. So is this? Is this an argument for a diverse workforce? For example, some people have holy days on Friday, others on Saturday, others between Friday night and Saturday night, but people have it on Sunday and I'm certain there's some some other days of the week I'm missing. Should I have a litmus test and say, okay, all you have religious holy days on Friday? Raise your hand. Should I do that?
Attorney Jenn Wassermann:
No.
Attorney Bob Sewell:
Why not?
Attorney Jenn Wassermann:
You should not do that, bob, because, although having a large, diverse, religiously diverse workforce actually could be helpful in this type of a situation, because there may be more people who would want to volunteer for a different shift Um, really, religion religion, just like one of the other factors or characteristics addressed by title seven race, color, nationality is not a factor in making employment decisions. So the employer should not be using whatever religion that employee affiliates with as a determining factor in any of their employment roles. So, um, so let me ask you this litmus test. I would say no, because then you're going to essentially be discriminating in favor of perhaps one religion against another religion. You could be accused of that.
Attorney Bob Sewell:
Let me ask you this graph is a pain. He's a pain in the butt. I mean, I don't know why he needs to be to be, you know, getting Sunday off. I want my Sundays off to graph, and maybe I don't have a religious exception to working on Sunday. Um, maybe, maybe I, you know, decide to retaliate. Maybe I just sort of like, subtly retaliate, I say, okay, graph, you could have Sunday off, but none like every other worker who gets every other weekend off, you'll be working every Saturday. That's on. Thank you very much.
Attorney Jenn Wassermann:
Well then you then you just went and changed his the terms and conditions of his employment and he could go to the EEOC and make a claim against you, bob, because you know, jennifer, you know because I'm graph is pissing me off. That's I really want to get well and and graph pissed off some of his other, some of his coworkers.
Attorney Bob Sewell:
Okay, tell me about that, okay.
Attorney Jenn Wassermann:
So. So some of his coworkers were disgruntled, and that was one of the factors that the US Postal Service brought up in the lower court arguments to say that they couldn't get his other coworkers to cooperate, essentially with trying to pick up the Sunday slack, so to speak. So the Supreme Court quote actually says a hardship that is attributable to employee animosity to a particular religion, to religion in general or to the very notion of accommodating religious practice cannot be considered undo. Bias or hostility to a religious practice or accommodation cannot supply a defense. So all religions have to essentially be treated equally. All requests for accommodation have to be treated equally, it doesn't matter which Sabbath day is involved. And yeah, and the fact that the employer might have difficulty with forcing other people to work overtime, for example, or having to pay overtime for other people to accommodate shift that's taken off due to religious accommodation, may not constitute undue hardship. It's a case by case basis.
Attorney Bob Sewell:
So I'm in a small town, okay, and in my small town it is full of one or two types of Christian sex, that's it. And I tried to staff my mini hospital, my mini little hospital there. And all these people want Sunday off. They're all graphs Give me Sunday off. They say I'll be happy to work on Saturday. I need Sunday off. And because they're all religious folks this is a small town because they're all part of the same one or two or three congregations I got a problem as an employer. Am I required to give everyone Sunday off?
Attorney Jenn Wassermann:
If you are able to prove that that is a hardship in terms of staffing, then you're not required to give everybody Sunday off. And it's not surprising, because the majority of the vast majority of people who affiliate with a religion in the United States affiliate with Christianity. But just last year there was a Gallup poll that said 21 to 29% of individuals are not affiliated with any religion in the United States.
Attorney Bob Sewell:
So are you trying to say we should hire only that 21%?
Attorney Jenn Wassermann:
I'm not saying that. I'm not saying that.
Attorney Bob Sewell:
And.
Attorney Jenn Wassermann:
I also pulled up this other just factoid that the armed forces because they have chaplains in the armed forces, sure, the armed forces recognizes 221 different faiths. So in this, so they're not in your small town, but in your small town, if indeed that hospital has a job, a written job requirement and job descriptions are policies and procedures that obviously you need to operate 24, 7, 365 in a hospital setting, and if it is an undo hardship to be able to fully staff 24, 7, 365, then they can essentially refuse the requested accommodation for the Sabbath day off. Now, they do that. They must do that carefully.
Attorney Bob Sewell:
But does that get me off the hook? If I have a written job description and I say, hey, Graf, you're welcome to work here at my organization, our organization, just so you know, Sundays is a requirement. It's still arbitrary, right? I mean, do I have to accommodate Graf or it or?
Attorney Jenn Wassermann:
Graf hasn't started working with you yet.
Attorney Bob Sewell:
Correct.
Attorney Jenn Wassermann:
Well then, graf is in the same situation as another individual who applied to work for Mercy Health St Mary's and the applicant after requesting a reasonable accommodation for religious purposes, not for day off but due to going back again to vaccinations and immunizations. He made that, that request that he not be forced to have that immunization, and the EEOC has taken that case up on behalf of that individual. So the EEOC is looking at these religious accommodation cases very carefully. Usually they don't get involved with actually representing the individuals involved. They will try to negotiate some type of settlement between an employee and an employer, but they've been more active lately and taking on these religious discrimination cases.
Attorney Bob Sewell:
And so and this is what's interesting about, what's what happened with Graf, what's going on generally? And the reason why it's interesting to me is we go from one standard and that standard made it pretty much the employer gets to do whatever they want, right, more than the de minimis. More than the de minimis means, you know, I get to do whatever I want. I really could discriminate against you. And then the undue burden flips it, right? If I actually go to what the Congress said and intended an undue hardship that puts the burden on the employer. The employer has to be prepared to say something right. That's what we're dealing with now. That's what the landscape has changed, am I right?
Attorney Jenn Wassermann:
Exactly yes yes, it does put a larger burden on the employer who is faced with a reasonable accommodation request.
Attorney Bob Sewell:
Okay, I wanna finalize this conversation and. I want to get to. If you are advising health core organization or any organization, I guess I should say what am I going to do? What's going to be my test to make sure my managers aren't getting me crosswise with the EEOC? What am I gonna do? How am I gonna make sure that doesn't happen?
Attorney Jenn Wassermann:
Well, as I alluded to before, first you wanna have solid written job descriptions and you also want to have a written policy for considering any type of requests, so that there's a process which is followed consistently. One employee isn't treated differently from another. One religion isn't treated any differently from another. There's a consistent process. Some employers may try to put some type of mediation provision in, but that doesn't necessarily prevent the employee from going to the EEOC and making a complaint, for example, or the state organization.
Attorney Jenn Wassermann:
If it is indeed a 24 hour operation or seven days a week, that needs to be made clear in the job description prior to the applicant applying for the position. But again, the applicants are covered under Title VII. So if they make a request for an accommodation, that does not make them necessarily an ineligible applicant compared with someone else who does not request an application if all other factors being the same. So having those processes in place and being able to document what your costs are for staffing and being able to document what your other opportunities are to make those accommodations, whatever type of accommodation it is. Like I said, grof happened to do with time off. Other ones may have to do with immunizations, vaccinations, dress, attire in the workplace, things like that. As long as there is a management team that's attuned and sensitive to these type of issues, I think that goes a long way, because it helps management interface with the employee and avoid a conflict.
Attorney Bob Sewell:
All right, Jennifer, my religion requires me to wind the show up right now. Okay, so we're done.
Attorney Jenn Wassermann:
I can accommodate that. Thanks for having me on.
Attorney Bob Sewell:
Bob, thanks for listening to. Is that Even Legal? Remember this isn't legal advice. If you have a legal question for yourself, reach out to an attorney. Remember that we're fun, we're lovable and we are here to help you To my listeners in 62 countries across the world. If you have something you want to explore, email us at produceratevenlegalcom and don't be shy about leaving a review for this podcast on your favorite podcast forum. See you next time, thank you.
