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Alison, Rebecca, and Liz discuss the pending Post Office case—Groff v. DeJoy—another high-stakes case in which the Supreme Court considers how much hardship a business must bear to accommodate the religious practices of employees. They explain how the case threatens to disrupt decades of case law interpreting Title VII of the Civil Rights Act and what the oral arguments may have signaled about the potential outcome.
Background
SCOTUS Blog – “Justices look for common ground in postal worker’s religious liberty case”
Time – “The Post Office Made a Christian Employee Work on Sundays. Now He’s at the Supreme Court”
New York Times – “Supreme Court Weighs Clash of Postal Worker’s Sabbath and Sunday Deliveries”
Cases
Rebecca Markert:
Welcome back to We Dissent, the podcast with secular women attorneys discussing religious liberty in federal and state courts and our work to keep Religion and government separate. I’m Rebecca Markert with the Freedom From Religion Foundation.
Alison Gill:
I’m Alison Gill with American Atheists
Liz Cavell:
And I’m Liz Cavell, also with FFRF.
Rebecca Markert:
We don’t have any guests today, <laugh>. So it’s just the three of us. It’s been one year since we dropped our first episode. We have been celebrating our anniversary. And if you have been a loyal listener, thank you for listening. We love to hear from you so please leave us a review and let us know how we’re doing. And if you haven’t already, please follow us on our social media accounts, Facebook and Twitter and online at we-dissent.org.
Liz Cavell:
In today’s episode, we are discussing another Supreme Court case. It’s called Groff v DeJoy and it is yet another case before the Supreme Court, this term that impacts the religious liberty rights for everyone. So we’re gonna jump in cuz there’s a lot to get through. Again, this case is pending this term, which means it’s been briefed and it’s been argued before the Supreme Court and we are sitting here waiting for a decision to come down in this case.
So let’s jump right into the background. So this case again, as the court has been doing so very often they are considering overturning some longstanding case law. This time it’s a case that interpreted a statute and it involves sort of employment law issues. So the statute is Title VII of the Civil Rights Act, which we’ve talked about here and there in this podcast before.
But just to remind you, Title VII is part of the Civil Rights Act that requires employers to reasonably accommodate their workers’ religious beliefs and practices unless doing so would lead to a quote, "undue hardship on the conduct of the employer’s business." So Title VII is a part of the Civil Rights Act that prevents or makes illegal discrimination in employment on the basis of several classes, including religion.
And this particular relevant language in Title VII is this reasonable accommodation language and it involves workers that need some sort of accommodation in the rules of their workplace in order to exercise their religion or engage in some sort of religious practice. So oftentimes this will involve stuff like needing to not work on your Sabbath or to attend church or prayer breaks or religious dress. What was that?
Alison Gill:
Dress code
Liz Cavell:
Yeah, dress codes is a really common way in which religious accommodations come up in the workplace. Workers that need to wear a hijab or need to wear their hair in a certain way for religious purposes and it would otherwise conflict with the rules of the workplace. These are the types of things that Title VII is trying to tell employers that they need to accommodate if it’s reasonable and if it does not lead to an undue hardship on the conduct of their business.
Rebecca Markert:
Usually how we’ve seen these types of cases come up is basically just religious garb, grooming, and holidays. This is just shorthand for everything that Liz just described.
Liz Cavell:
Right. By and large, those are the ways in which this comes up in the workplace. And of course the Civil Rights Act is from the 1960s and so this is nothing new, right? Employers have been complying with this law and courts have been deciding cases that interpret Title VII and of course the EEOC, the Equal Employment Opportunities Commission has been developing guidelines to help employers comply with Title VII and the Civil Rights Act.
Alison Gill:
But there’s nothing, just to be clear, there’s nothing limiting it to garb, grooming and I forget the third one, <laugh>, right. Accommodations can certainly be broader too and I’m sure we’ll discuss that in more detail. Yes. But it’s not, it’s not like a limiting factor.
Liz Cavell:
Right, exactly. That’s just kind of examples, but of course not exclusive. It can be anything. The language is just reasonably accommodate the religious needs of employees. So way back in 1977, a case came before the Supreme Court that involved interpreting the meaning of undue hardship on the conduct of business. This case is called Trans World Airlines v Hardison. It was a landmark case because it was the first time that the court had to really interpret Title VII and give meaning to what constitutes an undue hardship. So the court in that case infamously used the term de minimis to describe or to analyze what constitutes an undue hardship.
And in that particular case, it was using that construction to hold that an airline did not have to diverge from its seniority system in order to accommodate an employee who observed a Saturday Sabbath. In other words, the employee needed Saturdays off. And in order to accommodate that, the airline would have to potentially violate terms of collective bargaining agreement and violate the seniority system involved in scheduling to get other employees to cover all the Saturday shifts.
Alison Gill:
And this was a factory where they’re working, it’s not really a factory, but like an outfitting for airplane station where they were working 24 hours a day, seven days a week. So they had to have constant shifts because we’re talking about like a lot of planes and a lot of workflow. So it’s, these things are really critical to the way that this functions.
Liz Cavell:
So the question before the court in 1977, was all of these factual complexities involved in TWA being able to accommodate this employee n- never working on Saturday, did that all add up to an undue hardship that would relieve TWA of its obligation under Title VII to accommodate? So the de minimis language became the memorable feature of that opinion, but I think there’s, there’s an argument and we’ll get into this a little bit more, that it was sort of one of an entire opinion worth of language that was used to analyze this situation.
But since that decision, obviously it was 1977, so courts have applied the Title VII undue hardship standard in light of this case Hardison. And of course the EEOC has issued guidelines several times helping to instruct employers on how to conduct themselves in light of Hardison. And of course frequently employees seeking religious accommodations do prevail in Title VII cases. And of course there’s a body of case law in the lower courts that have applied this standard in Hardison. So let’s talk about who the parties are and what are some of the background facts that led to this current case coming to be.
Rebecca Markert:
Gerald Groff is an evangelical Christian who took a part-time mail carrier position with the postal service. He is actually part of the 18% of Christians who say that resting on the Sabbath is essential to his faith. I thought that was very interesting. There’s only 18% of Christians in the United States who actually think that observing the Sabbath is essential to their faith. He observes his Sabbath on Sundays. He was actually a rural carrier associate RCAs are non-career and non-union positions with the United States Postal Service.
And that position requires flexibility because they are the ones who are called in to cover shifts when career carriers have days off. And those are often holidays and weekends. So after the postal service began contracting with Amazon to do Sunday deliveries, Groff claimed that his religion required him to be off on Sundays. USPS initially accommodated those requests by arranging for coworkers to swap shifts or cover Sundays.
This became though increasingly difficult when Groff was working in a small rural post office location, which at one time only had two other employees who could cover on Sundays. This actually contributed to one employee transferring, one quitting, and one filing a union grievance. The postal service ultimately determined that continuing to accommodate Groff by reallocating his Sunday shifts was causing undue hardship. The other side of this case is obviously Postmaster DeJoy.
He actually, I was listening to another podcast about this case and they mentioned he is probably one of the few, if not the only postmasters that people will probably remember because he’s been in so many high profile situations in the last few years. He changed the rules on mail delivery, which impacted mail-in ballots a few years ago. And he’s also responsible for working with the Biden administration in getting covid tests to people’s homes.
We should also note that First Liberty Institute is representing Gerald Groff. Everybody is familiar with First Liberty Institute because we have talked about them many times before and they are very interested in expanding religious accommodations in employment as part of their project to enshrine Christian supremacy in every area of the law possible. And this is a court that is very concerned about privileging religion and getting it into every public space.
What was interesting, I don’t know if you guys had looked at this, but I went and looked at how First Liberty described this case on their website cuz it’s always interesting to see how they’re portraying things. And if you read the case description, they talk about this as Gerald Groff’s ideal job. He thought that he had found the perfect job. They don’t refer to it as Sunday throughout their description of the case, they talk about allowing him to honor the Lord’s Day.
The First Liberty talks about how this was his dream job where he’d be able to honor the Sabbath, get a permanent full-time position where he was not expected to work on Sundays. And the Amazon contract made that dream not realized, he wanted to reach his goals, but in order to do that, he would have to violate the Lord’s day to get his full-time employment wish or to honor God and trust him with the outcome. And it says here in big bold letters and it’s underlined, he chose to trust God. So now they’re up before the Supreme Court. Nice.
Alison Gill:
That’s amazing. I wonder, I mean if we should call them first and only Liberty really, cuz they seem to believe it should go above all of their rights. But you know, it’s interesting, we, in our, which I’m sure we’ll talk about a bit later talked about some of the history of Sunday delivery of mail and whether the post office should be open on Sundays.
And there’s actually a lot of fascinating history there. Because until like the early 1900s, it actually was open on Sundays and there was a lot of fighting between with religious groups that wanted to be closed on weekends because they wanted people to be at church as opposed to being out and about. And it sort of served as like a social gathering place, post offices for communities in some cases, especially even those it’s not, we’re not part of the church or we’re not able to go to church. So it’s really kind of fascinating that was sort of a community hub in conflict with religion a long time ago.
Liz Cavell:
Interesting.
Rebecca Markert:
Really interesting. Why did they change it?
Alison Gill:
Someone slipped it into a funding bill before Congress. There was no explanation. It just sort of got slipped in and that killed it until we had the recent Amazon deal. And now, you know, of course people are criticizing the Amazon deal saying, well it’s capitalism run amuck, but like, actually there’s a lot more history here than that. Right?
Liz Cavell:
Oh, it’s almost as if there’s a tradition and history in our country of Sunday mail delivery.
Alison Gill:
Yeah, almost <laugh>.
Liz Cavell:
Well I was very triggered by that description. Thank you Rebecca. But I always think it’s really interesting how it’s not surprising. We always expect to see First Liberty Institute and all of these other conservative Christian law firms in all of these cases, but just the breadth of types of cases and areas of law where you see them taking cases. The only unifying principle is expanding Christian rights and Christian exemptions from law. This is a case that involves, like we just said, a statutory interpretation.
The Civil Rights Act, it does sort of touch on the religion clauses, but you know, it’s not primarily a free exercise case. It’s an employment law case. But here they are representing the plaintiff and, and for the most part putting together this case, right? I’m sure they’re the engine that has been driving this case through the courts.
And here we are at the Supreme Court where they’re seeking to make a huge change in longstanding case law to expand the rights of evangelical Christians. So let’s talk about the road to the Supreme Court here. Gerald Groff. He sued under Title VII based on the case law from 1977 on, they analyzed the specific facts and circumstances that USPS had to go through in trying to accommodate this request and ultimately determined that it did amount to an undue hardship on the conduct of USPS business.
And then of course the 3rd Circuit Court of Appeals, which heard the appeal in this case, agreed that his, his chosen accommodation, which was never being scheduled to work on any part of any Sunday, placed an undue hardship on USPS, partly because of how burdensome it became for the other employees at Groff’s tiny rural station. Rebecca mentioned there were at one point only two other employees to cover all Sunday shifts.
There were times when the postmaster himself had to deliver mail, which is not typically part of the station postmaster’s job. And of course, like Rebecca mentioned, this led to a lot of turmoil within the station employees that transferred, that quit, that were filing grievances. And it became really hard in part because of the burdens on the rest of the staff. I just wanted to say one thing too before we talk about what the Supreme Court is considering. Groff’s chosen accommodation, it’s noteworthy that we’re not talking about church attendance on a Sunday. We’re talking about rest. Meaning one of the Groff’s chosen accommodation was he will never work any part of a shift on Sunday.
I think one of the accommodations that USPS tried to offer was maybe he could work like the second half of a Sunday and have the morning off in order to worship on the Sabbath and that that was not it. It was, there was stuff in the briefing about how like after he goes to church, he goes home and watches NASCAR <laugh>. That’s what there’s something like that. It’s like he had to have the whole day off, which okay, that’s fine. He gets to define what his religious needs are, but I think the point which is part of the–
Alison Gill:
That’s part of the problem, right. Part of the problem.
Liz Cavell:
Exactly. The employer is supposed to be making a good faith effort to offer accommodations even if it’s not the employee’s chosen accommodation. But in this case, the burden was increased by what the religious need was as defined by Gerald Groff.
Rebecca Markert:
I think it’s interesting too that he’s taking the day off to rest. While we’re taping this, our colleagues at our respective organizations are watching the Texas State House as they’re debating the Ten Commandments bill that would post Ten Commandments posters in every classroom in schools in Texas. And that bill moved out of committee on Sunday. And I just thought that was super funny that a bill that says you have to observe the Sabbath was moved out of committee on the Sabbath.
Alison Gill:
In violation of the Sabbath. Right,
Rebecca Markert:
Right, right. And no one’s resting or watching NASCAR, the Texas state legislature was working.
Alison Gill:
No, they gotta get those hateful bills through, right?.
Rebecca Markert:
Exactly. I love that. Sorry that was an aside,
Liz Cavell:
But no, I appreciate that. It’s important. So the Supreme Court agrees to hear this appeal and in the questions presented that it’s gonna consider one of them is whether the court should overrule the more than de minimis cost test, which is the language that was used in the Trans World Airlines versus Hardison case. And two, whether an employee may demonstrate undue hardship on the conduct of the employer’s business under Title VII, quote "merely by showing that the requested accommodation burdens the employees co-workers rather than the business itself.”
And I think the way that the Supreme Court framed these questions, or particularly, I mean to the more to the point, the way that the petitioner, the plaintiff, Groff and his lawyers are framing these questions kind of says a lot about the way that they see the balance between the religious rights of conservative Christians and the rest of the people that have to work with them and accommodate them.
So Groff the petitioner argued in briefing and his attorney argued at oral arguments that the court should overrule Hardison full stop. And what they’re pushing is for the court to adopt a rule that undue hardship requires the definition that Congress actually gave the same words undue hardship in other statutes. And notably they point to the Americans with Disabilities Act. And unlike Title VII, Congress defined the term undue hardship in the ADA to mean significant difficulty or expense.
Now mind you, the same congress, I mean the same branch of government did not define that term in Title VII. And they could have, and they could have any time between then and now and have not. But the lawyers for Groff are arguing that that is a more appropriate and common sense definition of the words undue hardship and that the court should just imbue those words with that meaning and overrule the de minimis framing that was discussed in Hardison.
Alison Gill:
I sort of like the hypocrisy of, of sort of fighting about the meaning of undue burden. And I know Casey, you know, is no longer good law like the Casey decision regarding abortion access. But basically, you know, in that case the court said, well the court, the states can’t impose harms on abortion that are undue, so undue burdens on abortion access. And it came to mean less and less and less. And now here we’re seeing when it comes to religious issues, it just means more and more and more, which is just, it’s just fascinating to sort of contrast those two things and what conservative justice might think undue burden actually means.
Liz Cavell:
Right? There’s all this sort of exasperation from the conservative justices like, well the Miriam Webster definition of undue hardship, it’s just the plain meaning of it. It’s something undue that’s necessarily means more than de minimis and significant and substantial. And it’s like, well yes, but at the same time the words and statutes mean what Congress says that they mean. Congress is in charge of what the, what the statute means.
And so to basically take this definition from another statute and say the Supreme Court should be the one to define this term in this broad expansive way that Congress has not done is everything you would never hear conservative justice argue to advance this court made standard in the reproductive cases, it’s infuriating. So the postal service is arguing that basically there’s no reason to overrule Hardison because the de minimis framing and language in the Hardison case is part of a broader discussion and analysis of what undue hardship means.
And that the cases that analyze whether or not a particular religious accommodation is gonna cause an undue hardship for a business is context specific and that courts are analyzing the full context of what the burdens involve. And that more importantly to overrule Hardison would be to disrupt a body of case law that has developed since 1977 in the lower courts to analyze these undue hardship claims under Title VII.
And so the solicitor general of the United States, Elizabeth Prelogar, her main focus at oral argument was that Hardison, for better or worse with the de minimis like those words, right, more than de minimis, whether you think that that’s a good dictionary definition of undue hardship or not, the analysis that courts have done under Hardison in the years since that case was decided, has offered meaningful protection to religious employees and that it’s an important body of case law that is guiding employers in how they deal with these issues in the workplace.
Alison Gill:
Actually, the Supreme Court just considered a similar case about religious accommodation just a few years ago in 2015. So these cases are, they are happening, accommodations are being offered. The idea that the de minimis is not appropriate or not working is false,
Rebecca Markert:
But also is it appropriate for this court to interpret that statute? I mean, Congress has had opportunity over the last, how many decades, four decades, to change it if they didn’t like it and to define it in a way that would be similar to these other statutes or to define it, to offer more protection to religious observance. And they have chosen not to do that.
Liz Cavell:
Right. That was one of several themes that arose at oral argument because of course the court, there’s different sort of principles that they use to figure out how to approach a case based on what it is they’re considering. So in this case it’s a case involving statutory interpretation. So there might be constitutional issues that, like I said, have some sort of tangential relation to the issue. But ultimately they’re being asked to interpret a statute and as was noted in oral arguments by some of the justices, stare decisis is at its apex, which is the principle of just following their past precedence when they’re considering whether or not to overturn a rule of statutory interpretation.
And in this particular case, it is really noteworthy that Congress has not only had time to amend their statute to adopt this broader definition of undue hardship, but there have been repeated attempts to do so. So there have been bills introduced in both houses of Congress like a dozen times over from the nineties through the aughts to amend Title VII to include a definition of undue hardship.
That’s exactly what the petitioner’s pressing in this case, that ADA language significant difficulty or expense. And Congress has repeatedly, as recently as I think 2015, they’ve declined to amend the statute to adopt this definition. So it seems like not the place of the court to step in and do that for them when it’s a case that only involves a statutory definition.
Alison Gill:
I mean, what principled reason would they have to step in besides they really like religion, right?
Liz Cavell:
Right. I mean principled is the key word. Let’s jump into oral arguments cuz I think oral arguments helped sort of set out some themes that we’re alluding to here. And a big one is, is the one we’re talking about right now, which is what is the argument that the court should step in and grant the relief that Groff is asking for when this is just a case of statutory interpretation. So there’s some interesting arguments being made by the petitioner and of course the conservative justices.
A big one is this, and this is where we really see an overlap with our pet area, which is the Establishment Clause. So I think Alito really kind of frame this in the most illustrative way in response to some of the more progressive justices that were raising these questions of whether or not it’s appropriate for the court to act where Congress has not acted and Alito jumped in to say, well
Isn’t it relevant that since Hardison was decided, the court’s interpretation of the Establishment Clause, which was previously thought to bar preferential treatment for religious employees only and not similarly situated secular employees, right? That’s how we used to think the Establishment Clause was interpreted. And clearly that is no longer the case says Alito because we eviscerated the Establishment Clause.
So therefore that’s something that has changed that maybe the Hardison court was saying the de minimis standard is appropriate and Congress then after the fact didn’t expand it because they all thought, oh the the Establishment Clause is an important consideration, so we can’t expand this definition of undue hardship. Of course there’s no reason to think that that is what the Hardison court’s decision was based on. I mean they did allude to those concerns, but it is not the basis on which they rested their opinion in Hardison.
There was a full, I think, reckoning with the specific contextual facts in that case. Like Alison was saying, this was a factory that was operating 24 hour schedule, there were seniority issues, collective bargaining issues, these are all the factual issues that are going into the analysis of whether or not an undue burden is being placed on the employer to accommodate.
That decision did not rest on the court’s concern that any other type of expansive decision would violate the Establishment Clause. And of course there’s zero reason to think that that’s why Congress hasn’t acted even now that they have eviscerated the Establishment Clause, Congress could act at any moment and has not. And there was a really great rejoinder from Justice Kagan to this point by Alito basically saying as much.
Rebecca Markert:
Well I think it’s really significant that this was his first question in this entirety of the oral argument.
Liz Cavell:
He was just, he was just waiting to explode.
Rebecca Markert:
Right? His very first question was about the Establishment Clause and how now that they have corrected course on the Establishment Clause, isn’t it necessary for us to revisit this standard? We have a clip of his very first question that illustrates this point.
Justice Samuel Alito:
Mr. Streett, do you think that a change in this Court’s understanding of the meaning of the religion clauses of the First Amendment is a relevant factor in determining whether the statutory interpretation in Hardison should be revisited? It’s really hard to understand the decision in Hardison except as an exercise in constitutional avoidance. Although the Court didn’t mention that concept in its opinion, that was very prominent in the briefs and in the oral arguments in Hardison.
Alison Gill:
And actually I just went back and looked at Hardison this morning. So this issue actually did come up in the case at the district court level. One of the claims they brought is saying, well, you know, this accommodation violates the Establishment Clause if we were required to give it. And the district court dismissed that. They said, no, that doesn’t, so we’re not gonna consider that. And then they appealed to the appellate court level and the appellate court also dismissed it.
And then there was no cert granted on that to the Supreme Court. They did not appeal it. And so therefore to the understanding that somehow the Establishment Clause is playing a role here is just on its face flatly wrong, right? Because they’ve, they dismiss that, that very claim. It’s not part of the reason why the case came out the way it did.
Liz Cavell:
Right. And I think actually this is well put I think by Justice Kagan, so let’s listen to what she had to say in Rejoinder.
[Recording plays]
Justice Elena Kagan:
Now we’re guessing as to what the Court may have thought in Hardison, which it never said in Hardison, or what Congress might have thought, even though it never said it? You know, that maybe everybody was motivated by an erroneous view of the Constitution, even though that erroneous view of the Constitution, you know, doesn’t appear in any part of Hardison and doesn’t appear in anything that we can point to in the Congressional Record? And that’s why we’re going to overrule a statutory precedent? Because it might be, using our sort of fortune teller apparatus, that, you know — or our, you know, soothsayer apparatus, that that might have been what was in people’s minds?
[Recording ends]
Liz Cavell:
So really the point is, listen to just assume or invent the idea that the Hardison court was somehow inspired by the wrongful interpretation of the Establishment Clause and so was Congress in not acting to this day is just totally imaginary, if not completely contradicted by the available evidence.
Alison Gill:
Liz, you don’t think Alito would manufacture false history to achieve a goal, do you?
Liz Cavell:
I know it’s like that doesn’t sound like him. Yeah, no, he was just chomping at the bit to really just pat himself on the back for how he’s like taken a wrecking ball to the wall of separation between church and state, while also turning that into his preferred outcome in this case, which is to give his own definition to undue hardship that would be as expansive as possible.
Rebecca Markert:
Well, and just to remind everybody that we don’t like the Establishment Clause, we got rid of it. And even though during these oral arguments we’re gonna talk a lot about business interests and employees’ rights and things like that. Just in case anybody forgot last year we eviscerated all of that stuff. Yeah, Christians are privileged, everybody else diminished.
Liz Cavell:
He’s proud of that one. Yeah. So I will say though, Justice Roberts gave a little nod to this idea. It was later on when the Solicitor General was giving her argument, but I did notice that the Chief Justice was sort of saying, "won’t lower courts have to take into account our religious jurisprudence as it exists today?"
That was a quote from him and I think he was alluding to this idea that somehow the Religion clauses jurisprudence has changed the way that courts are going to have to analyze undue hardship and religious accommodations. So I think there might be some support among other justices for this idea, but I definitely don’t think it got a lot of play even amongst some of the other conservative justices.
Rebecca Markert:
So normally we have Justices Gorsuch and Kavanaugh being the ones bringing up religion, especially in the Shurtleff case, the city of Boston case from last summer where it, it just involved free speech issues but you know, kind of had religion dancing around it because it was a Christian flag that they wanted to raise at Boston City Hall. And that’s where we drew those concurrences where they talked about how the Establishment Clause was misunderstood and misinterpreted. Did those justices come out and talk at all about the Establishment Clause here in this case?
Liz Cavell:
Right? No. So that, that was something that, I mean, I hate to say like encouraging because nothing’s encouraging about any of this, but compared to what you would expect, I do think it was notable that those justices particularly Kavanaugh and Gorsuch did not pick up on or riff on this with Alito. Whereas like you said in the Christian flag flying case and other cases, they’ve really been almost condescending about how all these government actors that think they have to do all this stuff because of the Establishment Clause, they’re so stupid and they don’t get it.
They’re violating people’s religious rights because they think they have to be all neutral towards religion. And that’s the problem here. We wouldn’t have any of these free speech violations if government actors understood the Establishment Clause. We get all that kind of argument from Kavanaugh and Gorsuch in some of the cases last term.
Neither one of them spent any of their questioning or time at oral argument riffing on those themes. One thing that was sort of interesting and weird, and I’m always suspicious cuz Gorsuch always seems like the guy that you didn’t suspect but he turned out to be the serial killer all along at the end of the movie, he’s all calmly being like, I just wanna find some common ground. So his line of questioning was this asking for what’s the common ground between the parties.
And to me it did kind of seem like, again, I don’t trust it, but it seemed like he was suggesting that there’s a lot of agreement between the parties in his words that de minimis is not the correct standard or the correct framing of the analysis. She said the court could clarify that the de minimis language doesn’t have to be taken literally, meaning it doesn’t have to be taken to mean that in dollars and cents anything above a trifle in her words would mean that an employer doesn’t have to accommodate. Right?
Like if they hate that language, that de minimis language, I think she saw and a lot of wa- court watchers saw kind of an opening there with Justice Gorsuch in that it seemed like he might be looking for sort of a compromise, a non maximalist solution.
Alison Gill:
And a textualist one. Exactly. He’s a, he’s a textualist and the text does not say anything about, you know, it being de minimis. So they could say, okay, undue burden means something reasonable and they could kick out a good decision potentially.
Liz Cavell:
Right, right.
Alison Gill:
Without a, or at least not a terrible one.
Liz Cavell:
Exactly. That’s an important correction. Thank you Alison. I do think that’s right. I think that was the vibe. He always says it in this calm way that just scares me. But he did seem like he was trying to stake out a decision that might do away with the de minimis definition, but, and I even think he might used these words, but remain silent as to some new definition being adopted such as what Groff is pushing for.
Alison Gill:
I wanted to talk about sort of a counter narrative arguments to the idea that the Establishment Clause is not implicated and we explore this in great detail in our amicus brief on this. And I know you, you folks were not explicit about it, but the things you talk about touched on it as as well if you wanna go into that. But basically the idea is the government, when it grants accommodations, it has the ability to do so when the government places burdens on, on people for example, that’s what the Religious Freedom Restoration Act does, right?
When the government is placed itself is causing burdens, placing burdens on religious exercise, well then it can craft accommodations for those exceptions with lots of flexibility. Here in the statute we’re talking about the government requiring third parties, or businesses I should say, to accommodate their religious employees and to do so it could potentially shift those burdens onto third parties that is themselves, the employers themselves or other coworkers.
And so our argument is, well there’s a limit to how much the government can do that based on the constitution based on the Establishment Clause. If the government were to shift a lot of burden onto third parties, then it’s preferencing some religious beliefs over others or preferencing religious beliefs over non-religious beliefs. And we think that the Establishment Clause at least it should prohibit that. And there is a line of cases which talks about this.
Unfortunately it has not received a lot of modern support, but there are some cases, especially I know Justice Ginsburg wrote a pretty famous one that we’ve mentioned before, for example, that talk about some of how you can’t shift burdens onto third parties in that way. So that’s one thing I wanna just flag and you know, I think it’s something that should be taken seriously. I don’t think it’s a winning argument before this court, which is probably why nobody focused on it and you know, I mean that just fed into Alitos whole shtick.
Right, right. It would’ve been, it would’ve been not helpful. And I think the AG is a very canny attorney and she knows what she’s doing. So I think there’s a reason they didn’t go down that road, but I do think it’s a good argument and one where we should bring the law back to that place. Right?
Liz Cavell:
Yeah, I think that’s right. You’re a hundred percent right and, and I’ll just add to shifting the burdens created by religious accommodations onto employers and coworkers. I’ll just add to that patrons, customers, people who receive services from not only businesses, corporate businesses, but public service employers like the USPS but also like hospitals and clinics and pharmacies and all of these places where people are customers and yet those are also employers who need to up- comply with Title VII.
I think that’s a really important point and I’m glad that your brief injected that into the argument cuz you’re right, of course that is not an argument that this Supreme Court is open to as Alito wanted to make sure everyone knew.
Alison Gill:
I mean what if they passed, what if they passed a federal law that said employers must give conservative Christians ten times, you might have to pay as all other employees.
Liz Cavell:
Right, exactly.
Alison Gill:
I mean you can just imagine ridiculous scenarios that there has to be a limit <laugh> right to the, to the what they’re granting to people of some religious belief over others or to just end up with this completely unbalanced place. Right, you’re right.
And with regard to Title VII itself, also this is about non-discrimination in religion. Well if we are, you know, privileging certain people based on their belief, this person doesn’t have to work on Sundays, aren’t we also discriminating against all the other employees that don’t have to work on Sundays? Like, okay I could have off this Sunday except for my religious beliefs, the religious beliefs that I do not hold, maybe because I have a different religion or I’m non-religious.
But maybe if you imagine a person in a shop where everybody has the religious belief except for them and they’re required to work because of that every weekend, that’s maybe a better example of how that might play out.
Liz Cavell:
Right. And I think, not that she in any way was making any type of argument anywhere near what we’re saying right now, but one of the things that sort of caught my attention in oral arguments was Justice Barrett referred to other employ, you know, this argument that or this problem of the fact that other coworkers have reasons and compelling reasons and sometimes conscience based reasons why they would want particular days of the week off, but they couldn’t be called religious requirements.
And one of the things she said more than once was other religious employees who also attend church, but they don’t feel that their religion compel, you know, they wouldn’t frame it as my religion requires me not to work on Sundays and therefore they have to skip church if they’re, if they’re scheduled to work on Sunday. So I mean I think there was, there was some grappling even on the part of the most conservative justices with the fact that there’s a lot of ways in which making religious accommodations to some employees burdens other employees in a way that implicates the rights of those employees.
And I think that was, it was good to hear that at least there was some lip service being paid to the fact that that is not just dismissed as not part of what an undue hardship would be on the employer. The other thing Barrett questioned the petitioner about repeatedly was well what level does it have to rise to for it to constitute an undue hardship?
In other words, does everyone have to quit? Because I think some of the things that the First Liberty Institute and all their allies like to do is sort of being really dismissive and condescending about the complaints of we non-religious people in society, right? So they would describe it as mere grumblings from other employees does not arise to the level of undue hardship. Just because other employees are mad about it doesn’t mean that it’s an undue hardship. And I think in this case you kind of have something in between.
Someone did quit and partially because of how chaotic the situation was, someone transferred, someone raised a grievance and Justice Barrett, at least for a little bit of the questioning seemed somewhat preoccupied with the idea of so does everyone have to quit? Like you can’t say or are you saying that morale of other employees has no part to play in this undue hardship analysis because do you have to let morale get to the point where everyone quits? Like obviously this is all on a spectrum in terms of the burden on other employees.
Rebecca Markert:
I wanted to point out the fact that there actually are only nine amicus briefs on the side of the postmaster general. Usually, we see in Supreme Court cases, especially when they involve religious liberty issues or religious liberty adjacent issues, an onslaught of amicus briefs from a whole host of organizations on both sides of the issue. But here there was the onslaught on the side of Groff but only nine on the side of the postmaster and the US United States Postal Service, that being–
Alison Gill:
And some of our more typical partners were actually on the opposite side.
Rebecca Markert:
Right? Right, exactly. You know, two of those nine briefs were ours. And so Liz was actually the primary author of our brief. Freedom from Religion Foundation’s brief before the US Supreme Court. And I will just have to give her some kudos here because this was her very first brief as counsel of record before the United States Supreme Court. She’s written lots of briefs for our organization but was not admitted until just this year to practice before the Supreme Court. So that was very exciting.
Alison Gill:
That’s awesome. Congratulations.
Liz Cavell:
Oh, thanks. It’s really cool. Yeah, it’s always fun when you finally pay the fee and get to put your own name on the thing. And so that was this time and it was a fun brief to write because I’m actually so glad you brought that up Rebecca, cuz that was actually something I wanted to touch on.
This was again, like the Shurtleff case where there were just some stranger bedfellows and the fault lines were a little bit different in this case than some of our other cases where there, there are a lot of groups sort of unexpectedly on the side of Groff in terms of they think that the de minimis standard should be undone or overturned or something like that. Like they’re standing on the side of greater religious accommodations for one reason or another. And I think it’s important to sort of talk about that and talk about why.
Alison Gill:
And some of these are religious minority groups, like I know for example the, I think the Muslim Coalition submitted brief, I think the Sikh Coalition did and other groups as well that normally would hopefully stand–
Rebecca Markert:
The Baptist Joint Committee I believe was also on the other side.
Alison Gill:
Ah, interesting, interesting.
Liz Cavell:
I’m laughing because in case you didn’t notice that Justice Alito was there to point it out for you. So one of his, one of his angry trolling questions of the solicitor General Elizabeth Prelogar, who for some reason he does not enjoy, he gets so mad when he’s questioning her and it is borderline uncomfortable to hear. But anyway, he pointed out because one of the arguments she was making is that there’s no reason to overrule Hardison in and throw out the body of case law that’s developed since then.
Because like we said earlier, this paradigm is providing meaningful protection to religious employees. Like we see religious employees winning these cases, we see employers making accommodations or being held accountable by the EEOC. So this is a solution in search of a problem basically. And he jumped in Justice Alito to say, well we have all these amicus briefs cited that would say you’re wrong.
And he’s like, we’ve got the Sikhs, we’ve got the Muslims, the Jews, like he’s just like listing off all the things, you know, champion of minority religions that he is, and they all say that this is just not true and that Hardison has violated their right to religious liberty. That’s a quote. And he’s just like, well so are you telling all of them that they’re wrong about how protected their religious rights are? It’s just the grossest, most exploitative, stupid, trolling Alito moment.
But it unfortunately is true that there were a lot of religious minority groups weighing in with amicus briefs in support of the position that the undue hardship standard should be given a more expansive definition. And it sucked so bad too to hear that our coalition partner organization, Americans United was held up by Justice Barrett as well. Even the church state separation people are on the side of overruling Hardison, which I don’t think was,
Alison Gill:
I think it was more nuanced than that honestly .
Liz Cavell:
Of course, of course. Which was not their position, but of course is seized upon immediately by these justices to bolster their position that like religious rights are being violated left and right and oh look, we’re standing shoulder to shoulder with these religious minorities in America. So I hated all of it.
Alison Gill:
Yeah, and I hate to say this, but you know, they’re trying to expand. I mean sometimes members of minority religions may face failure to get accommodation and then they’re trying to expand it for their constituents. I understand that. But there’s repercussions to third parties that are just not being taken into account and I don’t think it’s the right position. So I think we just have a disagreement on that and maybe it’s fair to say like the minimus is not the right place to come out. Right.
And maybe, maybe we should use the actual language from the statue and that’s, that’s what it should be. I have to go back and read all the amicus directly to know their exact position, but like I’ve heard some things, I was on a debate I dunno if it was a debate or like a webinar with a few of these religious minority groups maybe about a month ago.
And it was really interesting cuz this was a clear place of, of disagreement between normal partners and I feel like we just have some disagreements about the, the place of accommodation and whether this is the right way to get accommodations, should they be required under the law or should this be something that’s sort of negotiated and should this be imposed upon employers or this, should this be something worked out by these groups that are to everyone’s mutual benefit.
Liz Cavell:
Right. And I think what the solicitor general’s position was, and I found myself in really agreeing with this, is that kind of like you just said, Alison, like there’s this obsession over and I think the de minimis language, it has just been panned. And I think part of this, and I should say this because this is my podcast and this is where I get to vent everything I hate.
One of the important things, I can’t believe I didn’t mention this sooner is that back in 1977 when this case came out the way it did, there was a dissenting opinion and I can’t remember who joined it, but it was authored by Thurgood Marshall, like true champion of religious minorities and his focus was that the de minimis framing, he kind of invented this criticism that we shouldn’t give this de minimis framing to the plain language that is undue hardship because this is gonna come at the expense of religious minorities.
And that was his whole dissent was about protecting religious minorities better because the entire working week and the workplace and the whole society is ordered around the Christian majority. And so this decision was from the beginning panned by Thurgood Marshall and others who would be the types of amici that we are talking about, these religious minority groups that are trying to protect their constituencies from what are gonna be employers who may or may not be sympathetic to their specific religious needs. So I get that.
And what I agreed with that the solicitor general was saying is that listen, like since 1977 there has been this universal criticism of the de minimis language, but the reality is that the EEOC and employers are doing right by the undue hardship language in the statute. This is functioning to give religious employees accommodations whenever it’s reasonable and whenever it doesn’t cause massive burdens for employers which may include burdens on other employees and patrons, not just dollars and cents.
But that doesn’t mean that the entire way in which we analyze these cases needs to be upended and overruled just because that framing doesn’t seem to do justice to the needs of religious minorities. And so I agree with that and our brief didn’t focus on the Establishment Clause concerns, but we did try to really focus in on the fact that burdens on third parties, including patrons, customers, coworkers, is absolutely essential to any type of analysis of undue hardship on an employer. And some of the examples that we tried to put into our brief, and some of many of them are based on real life conflicts, involve minority religions.
And we tried to the ones that didn’t, we tried to frame that way to try and illustrate the point that these expansive religious accommodations that really, really have an effect on third parties or the conduct of business, especially people trying to get goods and services, are really things that I don’t think many people would wanna live with.
One that’s real is that it’s in the Twin Cities or somewhere in Minnesota, there has been a controversy over Muslim employees that refused, they’re employed by taxi service and a car service, that refused to carry passengers who have alcohol in their luggage or their grocery bags or anything. They provide rides from the airport, but you can’t really determine who has alcohol and who doesn’t. But if a Muslim employee objects to something that a passenger has on them because it violates their religious belief that is super problematic to the functioning of a business and it’s very burdensome to the patrons of that business, which is all part and parcel of the conduct of the business.
Alison Gill:
I liked your pro– I can never say that word. Proselytization examples and like harassment of employees and other coworker examples.
Liz Cavell:
Yes. And of course we’ve had this come up many times under the Title VII Hardison paradigm over the years. Other examples we tried to bring up is examples where the religious needs of the employee involves basically harassing other employees. So for example, a religious, in my example, it was a Scientologist in the real life example, it’s a conservative Christian naturally, but my example was a Scientologist that wants to write personal letters to all of her subordinate employees telling them that they should refrain from taking prescription meds for their mental health disorders because you know all the Scientology reasons why that is wrong and immoral.
And of course those letters cause distress among the employees that are affected. But does that rise to, it doesn’t really cause any extra cost. It’s not about dollars and cents. Is that something that an employer can consider when considering if this is an undue hardship or does the employer have to let that employee proselytize or foist their religious opinions on other employees? Like these are the types of things that have come up in real life cases that employers are trying to work out.
Rebecca Markert:
I just wanted to bring this up and I don’t actually know the answer to this. We’re talking about harassment of other employees and Groff according to the First Liberty website page when they’re describing his plight before the Supreme Court, that he was also harassed and mocked by other employees that he worked with because he needed off on Sunday. Do you know anything about that?
Liz Cavell:
I don’t, but I bet it’s true because he was probably not a popular guy. It’s funny because it’s like, well we’re not harassing him because of our religious needs. We’re harassing him because we hate him, he sucks and he’s making us all work all the time. And like there’s no, well–
Alison Gill:
Failure to prevent harassment based on someone’s religion is
Liz Cavell:
Oh, based on his religion, right?
Alison Gill:
I yeah, that, that, that would be discrimination under most, you know, definitions.
Liz Cavell:
But here’s the thing, you would expect that an employer can act in that situation and prevent those employees from harassing Groff, right? You would never say the employer can’t really tell them not to harass him because blah. Yeah. That this is my point. Their harassment is not immunized by their own religious needs.
Alison Gill:
It’d be funny if they said it was though, wasn’t it? They were
Liz Cavell:
Too bad, battle of the religious needs. My religion says, I have to call you a dork.
Rebecca Markert:
Yeah. So their website says, during that time Gerald was subjected to harsh and unfair treatment, mocked by his supervisor and docked pay without justification. After two years of progressive discipline, hostility from supervisors, and not knowing if any day he would be terminated, he resigned.
Liz Cavell:
We’ll call that spin. One case that, and maybe you know about this Alison, so chime in if this rings a bell, but there’s a really big case, and I can’t remember if it’s from the nineties or the aughts, a Hewlett Packard case that involved a similar thing to some of the examples in FFRF’S Amicus brief, it was an employee who was an evangelical Christian and part of their religious beliefs and practices and needs were to push back against the company’s inclusive LGBT positive culture.
Alison Gill:
And so, and to sort of lecture at employee other employees, coworkers
Liz Cavell:
Exactly.
Alison Gill:
And, also customers if they happened to be gay, that sort of thing.
Liz Cavell:
I think Hewlett Packard had an, an unusually, I think progressive and welcoming like campaign towards LGBTQ employees. I think they had queer people in leadership and so they were on trying to be sort of on the forefront of inclusion in their workplace. And this particular employee wanted to be allowed based for religious reasons to deface their posters and hang up signs that said you’re going to hell kind of thing.
And so it was this long protracted sort of back and forth with trying to accommodate quote unquote those needs, quote unquote while still being able to conduct their business and their business culture in a way that they wanted to and that they felt was best for all their other employees and their bottom line, this was the decision that they made for their own business best practices.
Alison Gill:
I think you put your finger on the heart of it, Liz, this is why the case is before the Supreme Court because of course they want people to be able to do that. If there’s those icky LGBTQ people in their workplace. Of course, I mean we’re not even considering that If the company were to allow that, then they would be possibly liable under, under Title VII as well. So that’s another aspect of this
Liz Cavell:
Whole thing, right? Right. Exactly. And that was another thing that we were trying to point out in our amicus is that these are absolutely considerations that employers should be able to rely on in their undue hardship analysis. Getting back to that question that the Supreme Court questions presented in this case on cert before the court, whether merely demonstrating burdens on other coworkers can ever rise to the level of undue hardship.
I think it’s really important to push back on that framing and say that burdens on other coworkers and not to mention patrons are inextricable from the conduct of business and not the least of which is because of potential claims of harassment or hostile work environment claims from other employees. It affects other employees by harassing them, placing them at risk, subjecting them to a hostile work environment. And then employers are considering their obligations to those employees as well. What are the possible outcomes? There’s a few ways that the court could go.
Alison Gill:
I’m really hoping they don’t take the maximal approach, but I could see it happening. But let’s just talk about that. So basically they overrule Hardison and basically for some reason adopt a really difficult rule to meet for undue hardship, right under Title VII for religious accommodations. So maybe it’s the ADA, Americans with Disabilities Acts, you know, significant difficulty or expense.
Maybe it’s something else we don’t know, but like a really maximal sort of difficult to meet burden here. And, and the reason that I think that’s so scary is cuz here we’re talking about like workplace like time off and like schedules, but Liz and we all discussed the beginning, some of the other ways this impacts the workplace and I made a list here.
So let’s, let’s just think about some of the ways that this could impact you know, workplaces or things you might want to claim accommodations for examples of one are types of tasks that you engage in. Two, who you will serve, right? So if an employee doesn’t wanna serve other people. Three, what kind of supervision do you want? Four, union membership. Five being subject to non-discrimination rules or apply obeying them; the qualifications you need to meet qualifications to get the job. Are you somehow immune from those because based on your religion?
What’s considered inappropriate behavior in the workplace, you know, posting things, that sort of thing. Safety issues, are you immune to wearing masks or other pro protective gear or are you immune to using them to protect other people because of your religion. Vaccination issues, harassment/proselytization restrictions, labor issues such as pay, dress codes. In addition to things like time off. So those are just a few examples, but there’s a whole bunch of things in the workplace that could potentially be affected if they’re demanding accommodation because unlike when it disability, when it comes to religion, there’s no principle limiting factor here.
Liz Cavell:
Right? That’s such a good list and a good point just to remember, there’s always the parade of horribles that are definitely gonna happen in a case like this where Title VII applies with a few exceptions. This applies to all employers, business, corporate, government, everybody. And so I think this was the SG’s argument. We have a system here that’s working, that’s giving meaningful protection to religious employees, that’s allowing employers the flexibility to honor the needs of other coworkers, and also to take into account all of the other factors that go into the mix when they’re analyzing how this will affect the conduct of their business.
I actually think there was a moment in the oral arguments where Justice Sotomayor jumped in at the end to kind of lay this point about how context-specific this issue is and how kind of useless any absolute rule the Supreme Court would try to make in this case. Let’s actually play that clip.
Justice Sonia Sotomayor:
What’s clear to me, after all this discussion, is that, as much as we — some people might want to provide absolute clarity, there is none we can give, is there? Because it’s all contextual. Yes. And to that end, there are going to be some cases where people are going to be unhappy with the court’s result and others where they are happy. The best we can do is do what Congress told us to do.
Liz Cavell:
I think that’s a really good point. I mean, a maximalist decision in this case where the court steps in and doesn’t just overrule de minimis language and Hardison, but steps in to give some rule or definition to undue hardship that requires employers to make this much greater showing if it wants to deny religious accommodations. I agree. That would be really, really disruptive. And I think it would be felt across industries and by everybody, whether you’re a coworker or a customer or a patient or whatever.
Alison Gill:
I mean, ultimately people will claim religion or to get out of working weekends. Like people will claim to be religious to get the things they want if that’s how it’s interpreted too. And then that’s one prediction. The other prediction is, you know, employers, if it’s gonna be that onerous for them, they’ll find ways to screen people out and not hire them too, which is something to keep in mind. It’s like if it’s sort of an unintended consequence potentially, like if they think, oh, this is gonna result in all sorts of problems in the workplace, then they’ll figure out ways to not have those people work for them.
Liz Cavell:
Exactly.
Rebecca Markert:
I agree that this maximalist interpretation would be the worst or the maximalist outcome would be the worst outcome to have where they overrule Hardison and there’s a whole new standard. But I don’t think that the justices are all on board with that. I no, I agree. I mean, I was just mapping it out. We know that Thomas, Alito and Gorsuch going into this case wanna overrule Hardison. They want something completely different. We know that Kagan, Jackson, and Sotomayor are not going to be with them on that path, but I’m not sure that we know where Kavanaugh and Barrett fall on this.
And so I could see us not not getting a six three decision, maybe a five four decision, but I feel like we’re gonna be going in some sort of compromise route where they overrule Hardison, maybe not directly, but they kind of take the teeth out and replace it with something else. But I’m not exactly sure what that something else is. And I don’t think the members of the court know what that is.
Liz Cavell:
I agree with that. I think based on oral arguments, there’s reason to believe that the Maximalist decision is not what is most likely. The vibe that I got based on oral arguments and the questioning is some sort of compromised decision that kind of agrees with this pro-religion gripe that de minimis just doesn’t do justice to religious rights under Title VII. But that the court in oral arguments seemed cautious about affirmatively putting a rule in place or a definition in place.
And you mentioned Justice Kavanaugh being sort of an unknown and I agree with that. I just wanna pipe in that he did have, do some questioning during oral arguments. And one of the points he raised was kind of something similar to that Sotomayor clip that we heard, which is he was sort of arguing that the particular language that the court announces as a test, whatever it may be, may not easily resolve that many disputes.
In other words, any standard that they would announce would pose a problem. A quote from him was, the hard thing is gonna be how to apply it, and I’m not sure we can give you a full manual of how it’s going to play out. There seemed to be an understanding that playing with live ammo here in a way that is really consequential for every corner of society, given how many people, businesses, governments, are employers in this country.
So I agree the most likely decision is one that doesn’t adopt a uniform test to replace de minimis, but does sort of give lip service to the idea that more than a minimal burden has to be shown to deny religious accommodation. And we’re gonna clear that up once and for all.
Rebecca Markert:
To be clear, we believe that Groff, the Evangelical Christian will win. Just don’t know how he’s going to win.
Alison Gill:
But it’s, and, and if that were the change, I mean what had happened, the courts would just spend years sort of debating this new standard and working. I mean, cuz like you said, saying, I mean just because they add new standard and language, it’s not clear that we’ll have any impact immediately. And ultimately we might be in the exact same place we are now with like, I don’t know, an appropriate level of accommodation, let’s say. I mean, most people would say it’s appropriate, some religious minorities may say it’s not enough. Right? Fine.
But you know, we’re gonna have to go through the whole you know, case law process basically. It’d have to percolate through the courts if they were to change the standard. And that could take, you know, years, it could take decades. There’s already 50 years of case law on the current standard.
Rebecca Markert:
Do you think that if we get this outcome where there’s sort of a compromised decision and there’s no uniform test, do you think Congress will finally step in and act?
Alison Gill:
No.
Liz Cavell:
No, because I think it’s one of those things where it’s like if they haven’t done it yet, there’s no will to do it. I think like the court, there’s probably an understanding that less is more in this situation. There has to be flexibility in the standard. Title VII appropriately sets a rule of law and sets an obligation on employers to not discriminate.
And here’s what it means in terms of providing religious accommodations. And the rest has to be somewhat flexible to allow for how different the context is gonna be every single time this comes up. And I think Congress recognizes that they would’ve stepped in or they would’ve just, their bills were there sitting in front of them, they would’ve passed one of them over the years.
Alison Gill:
But you’re right though, they’re not gonna act until there’s a problem and until employers bring it back to them. So this is gonna take some time for development. I mean, now if they go super far reaching the Supreme Court and they go off the wall, then yeah, this might affect employers right away. And they might go back to Congress and be like, Hey, this is not workable. And then we’ll see some action. But I don’t think that’s gonna be the case. I agree with both of you. We’re gonna see sort of a middle road outcome.
Liz Cavell:
So the most recent version of this attempt to amend Title VII it’s called the Workplace Religious Freedom Act. It was 2013 and some version of that bill was introduced in one or both chambers in 1994, 99, 2002, 2003, 2005, 2010, 2012. And that was the 2013 Act. And this is a thing with bipartisan support. It just, the will is not there for Congress to pass it. And I think that’s because there’s an acknowledgement of what the SG’s position is, which is that Title VII is actually functioning okay to achieve the spirit of Title VII. And so why disrupt that? Why disrupt 46 years of case law?
So again, we’ll find out what the court’s gonna do any day now. This decision is definitely gonna be coming down by the end of the term, which is the end of June. So possibly by the time you’re hearing this episode, the court may have issued its decision in Groff v. DeJoy. And if you check this feed, you will hear our breakdown of the opinion and we will explain what the court did.
Alison Gill:
And you can confirm our guesses and see if we’re right or not.
Liz Cavell:
Yeah, we probably are. All right, well that’s it for today’s episode. I’m Liz Cavell.
Alison Gill:
I’m Alison Gill.
Rebecca Markert:
And I’m Rebecca Markert. Thanks for tuning in.
We Dissent is a Joint production of the Freedom From, Religion Foundation and American Atheists. It is hosted by attorneys Liz Cavell, Alison Gill, and me, Rebecca Markert. Other production support comes from Greta Martens. Audio Engineering provided by Audio for the Arts based in Madison, Wisconsin. Thanks for listening
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