Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: Last term, it was a high school football coach who
Speaker 1: wanted to pray on the fifty yard line right after games.
Speaker 1: This term, it was a part time postal worker in
Speaker 1: rural Pennsylvania who didn't want to work on Sundays. I
Speaker 1: told them I'm not going to be able to work
Speaker 1: on the Lord's Day at all.
Speaker 2: I didn't really think I should have to quit.
Speaker 1: I really expected the post office to find a way
Speaker 1: to accommodate me. And the Supreme Court agreed with Gerald
Speaker 1: Groff in a unanimous decision expanding an employer's obligation to
Speaker 1: accommodate the religious practices of its employees without clear guidelines,
Speaker 1: under what circumstances can an employer force coworkers to carry
Speaker 1: the burden of an employee's religious practices or beliefs, or
Speaker 1: even their religious expression. Joining me is Debbie Kamener, a
Speaker 1: professor at Peru College at the City University of New York,
Speaker 1: tell us a little about this case of the fill
Speaker 1: in postal worker who refused to fill in on Sundays.
Speaker 2: So basically what happened is that there was a postal
Speaker 2: worker in rural Pennsylvania, and he was a sabbatarian, and
Speaker 2: he eventually ended up quitting his job and sued his
Speaker 2: employer because he had been subject to progressive discipline for
Speaker 2: refusing to work on his Sunday shifts. And the postal
Speaker 2: Service simply was unable to find coverage in the small
Speaker 2: rural postal office.
Speaker 1: And what did the Supreme Court find the broad ruling.
Speaker 2: The big issue in this case is that there is
Speaker 2: a law, a civil rights law, Title seven of the
Speaker 2: Civil Rights Actor of nineteen sixty four, and it mandates
Speaker 2: religious accommodation in the workplace unless it would cause an
Speaker 2: undue hardship. The big issue in this case is what
Speaker 2: does undue hardship mean? Now? The Supreme Court had previously
Speaker 2: said in an earlier case from about forty seven years
Speaker 2: ago that undue hardship means more than a diminimus or
Speaker 2: minimal cost. In this case, the Court changed its ruining
Speaker 2: and said that undue hardship in fact means a substantial cost.
Speaker 2: So what this means is that now additional accommodation is
Speaker 2: going to be needed of religious employees in the workplace.
Speaker 2: In terms of graph himself, the case was sent back
Speaker 2: down to the lower court to decide whether or not
Speaker 2: accommodation is possible under this new substantial cost standard. So
Speaker 2: in terms of Grass, we still don't know whether or
Speaker 2: not accommodation of him as required. In terms of employees
Speaker 2: throughout the United States, this is really a pretty drastic
Speaker 2: change in the rules of the workplace.
Speaker 1: It sounded in this case like the post Office did
Speaker 1: meet the standard of substantial costs. I mean, this was
Speaker 1: a rural post office and officials initial tried to get
Speaker 1: substitutes for grath shifts. They couldn't always accommodate him, and
Speaker 1: they said his absences created a tense environment and contributed
Speaker 1: to morale problems. I believe some employees even transferred out right.
Speaker 2: And the Supreme Court even acknowledged that. The Supreme Court said,
Speaker 2: in this specific case, it might be a substantial cost.
Speaker 2: We just don't know. We're sending it back down with
Speaker 2: this new rule meaning that you have to accommodate unless
Speaker 2: there's a substantial cost, just so that you the lower
Speaker 2: court knows more accommodation is needed, and the Supreme Court actually,
Speaker 2: you know, agreed with that in this specific case. I
Speaker 2: think the really big issue in this case is it's
Speaker 2: changing the way rights are balanced. So it's changing the
Speaker 2: balance of religious rights against other fundamental rights in the workplace.
Speaker 2: Whether that's the right to be free from discrimination, is
Speaker 2: the right to public health, you know, or whatever it
Speaker 2: might be. It's a real sea change in terms of
Speaker 2: of how the workplace is going to run in the future.
Speaker 1: So explain the additional question about when an accommodation burdens
Speaker 1: the colleagues or the co workers of the religious employee.
Speaker 2: What's interesting to me is the Roberts Court is both
Speaker 2: pro business and also pro religion. So they come down
Speaker 2: with this decision which requires additional religious accommodation in the workplace,
Speaker 2: but they do it in a way that leaves the
Speaker 2: door open for employers to shift the cost of accommodation
Speaker 2: to coworkers. So, to give you an example, you have
Speaker 2: an employee who needs time off for religious reasons, he's
Speaker 2: a sabbatarian. The employer could pay employees premium wages or
Speaker 2: over time, the employer could hire additional employees. All of
Speaker 2: that would be a cost on the employer. What employers
Speaker 2: may end up doing instead is saying to co workers, sorry,
Speaker 2: you have no choice. This is what the law is now,
Speaker 2: and you need to work the religious employees on desirable shifts.
Speaker 2: So I think that is the way that we may
Speaker 2: end up seeing this burden being shifted to coworkers as
Speaker 2: opposed to the actual businesses being willing to pay the
Speaker 2: additional cost.
Speaker 1: So what did the court mean when it said that
Speaker 1: the impact on coworkers must quote have ramifications for the
Speaker 1: conduct of the employer's business.
Speaker 2: I have. I have no idea, and I think that's
Speaker 2: what the problem is. It's not that I have no idea,
Speaker 2: but that nobody has any idea. But the decision focused
Speaker 2: primarily on the definition of underhartship, and the idea is
Speaker 2: a substantial cost, not more than a deminamous cost, and
Speaker 2: they want to turn to the issue of burden on coworkers.
Speaker 2: You know, it was about a page and a half.
Speaker 2: It just included this kind of throwaway line about the
Speaker 2: conduct of the employer's business without really explaining what that means.
Speaker 2: So does that mean that if employees are very very
Speaker 2: upset and complete and it harms morale and productivity, it
Speaker 2: would be an undue hardship. But if you have employees
Speaker 2: who are scared about losing their jobs, and making ways,
Speaker 2: so they just quietly do the religious employees' share of
Speaker 2: undesirable work. It's not an undue hardship. I just don't know.
Speaker 2: You know, in the past, most of the federal appellate
Speaker 2: courts that considered this issue said that a burden on
Speaker 2: a coworker alone could be an undue hardship. So just
Speaker 2: making a coworker work or religious employees undesirable shifts, that
Speaker 2: would be an undue hardship, regardless of the impact on
Speaker 2: the business itself. And it's unclear at this point if
Speaker 2: that's the law.
Speaker 1: Looking at the implications of this decision, why do you
Speaker 1: think the three liberal justices agreed.
Speaker 2: It was a unanimous decision, which I think is really
Speaker 2: really quite shocking. And I think the reason why the
Speaker 2: liberal justices probably agreed with this is because it was
Speaker 2: a compromise that kept the court from going even further.
Speaker 2: That's my guess. I think the problem with the liberal
Speaker 2: justices going along with this is that by virtue of
Speaker 2: the fact it's the unanimous decision, the unanimity alone sort
Speaker 2: of makes it feel like it is a reasonable decision
Speaker 2: and it's not such a big decision. And I think
Speaker 2: that on top of all of the blockbuster decisions that
Speaker 2: came at at the end of the term on affirmative
Speaker 2: action and on student loans and on public accommodation looks.
Speaker 2: I think all of those decisions sort of took the
Speaker 2: focus away from graph which is also a crucially important decision,
Speaker 2: and the fact it was this unanimous decision, a lot
Speaker 2: of people, a lot of commentators sort of felt like
Speaker 2: it just wasn't that big deal. I think it is
Speaker 2: a huge, huge deal, huge change in the workplace.
Speaker 1: And it just slipped by. So do you think that
Speaker 1: this is going to lead to a lot more litigation
Speaker 1: rather than less just trying to figure out what the
Speaker 1: Supreme Court actually meant.
Speaker 2: Yes, I think it's going to lead to a lot
Speaker 2: more litigation for a few reasons. I think one is
Speaker 2: trying to figure out what the Supreme Court meant, and
Speaker 2: I think the second is religious rights activists sort of
Speaker 2: trying to test exactly what it means how much accommodation
Speaker 2: can be required. I do think that this is really
Speaker 2: part of a broad trend of the Supreme Court favoring
Speaker 2: religious rights over other rights in cases where it's balancing
Speaker 2: religious rights against other really important fundamental rights, and I
Speaker 2: think this is going to end up leading to an
Speaker 2: enormous amount of litigation.
Speaker 1: And in this case, as you mentioned, it's a pro
Speaker 1: business court and a pro religion court, and they're ruling
Speaker 1: basically against business because it seems as if religious rights
Speaker 1: trump every other right that comes before this court.
Speaker 2: I agree with that. I agree that religion trump's other rights.
Speaker 2: And I think also the way the decision is drafted,
Speaker 2: allowing employers to shift the cost to the coworkers in
Speaker 2: a way, it does allow the court to still come
Speaker 2: down with a decision which it's not pro business, is
Speaker 2: not anti business, it's you know, really anti coworkers who
Speaker 2: are not requesting religious accommodation.
Speaker 1: So you write that it's ironic, you said scary. I
Speaker 1: say ironic that lower courts may now require permitting expression
Speaker 1: that demeans LGBTQ plus individuals under a civil rights law
Speaker 1: aimed at prohibiting employment discrimination and providing equality in the workplace.
Speaker 1: I mean, you can't pick that up, but no.
Speaker 2: It's insane. It's absolutely crazy that this is what is
Speaker 2: now going on, and particularly because that stay in civil
Speaker 2: rights law a few years ago in the bow Stock
Speaker 2: case was interpreted to cover and include as a protected
Speaker 2: class LGBTQ plus individual. The one thing I feel like
Speaker 2: is sometimes a little bit lost is that you know,
Speaker 2: there are many cases where religious accommodation really is possible
Speaker 2: without it being an unfair burden on co workers. Like
Speaker 2: if you have a business that work, you know, runs
Speaker 2: seven days a week, three hundred and sixty five days
Speaker 2: a year, and you have a Saturday sabatarian, you could
Speaker 2: probably arrange a shift swop where that person gets their
Speaker 2: Saturday off and works Sunday and someone else gets Sunday
Speaker 2: off and works Saturday. So you know, there really are
Speaker 2: a lot of times, in a lot of ways and
Speaker 2: cases where religious accommodation is possible. And I feel like
Speaker 2: sometimes the response to these types of cases almost comes
Speaker 2: out is being anti religious. It's not that it's anti religious,
Speaker 2: it's that you need to balance, you know, in society,
Speaker 2: religious rights are important, but there are other countervailing rights
Speaker 2: which are also very very important.
Speaker 1: Do you think the court also is being pushed because
Speaker 1: they're taking these cases. You have these Christian legal organizations
Speaker 1: that are specifically bringing these cases to push the envelope.
Speaker 1: For example, the case involving the Colorado Web designer who
Speaker 1: hadn't designed any wedding websites yet and hadn't been asked
Speaker 1: by a gay couple to design their wedding website yet,
Speaker 1: took her case to the Supreme Court, and the Supreme
Speaker 1: Court said, you didn't have to design wedding websites for
Speaker 1: gay couples.
Speaker 2: I one hundred percent agree with that, but the Court
Speaker 2: doesn't have to grant start or agree to hear these cases.
Speaker 2: One of the things which is really interesting in the
Speaker 2: Graph case is over the last few years, there were
Speaker 2: four times, including in the Graph case, where parties asked
Speaker 2: the Supreme Court to hear a case interpreting the religious
Speaker 2: accommodation requirement under Title seven and to increase the accommodation
Speaker 2: requirement in the prior three cases. For sort of technical reasons.
Speaker 2: The Court refused to hear the cases. But what the
Speaker 2: conservative justices did a number of them real concurring opinions
Speaker 2: where they said, we agree, we're not going to hear
Speaker 2: this specific case, but we want to hear an appropriate
Speaker 2: case where we can reinterpret the religious accommodation requirement of
Speaker 2: Title seven. So I think it really is a court
Speaker 2: looking for these kinds of cases.
Speaker 1: Is the addition of Amy Cony Barrett a reason why
Speaker 1: they're moving the way they are.
Speaker 2: I think it is a big issue. I think that
Speaker 2: since she has joined the court, it has really changed
Speaker 2: the balance when it comes to religious right, not just
Speaker 2: in the workplace, but in society as a whole, because
Speaker 2: this was part of the bigger trend. Like you mentioned,
Speaker 2: the three h three creative case. You know, Dobbs wasn't
Speaker 2: broad is a religion case, but it really was a
Speaker 2: case of favored religious conservatives and overturning Roe v Ways
Speaker 2: right for an individual to have an abortion. There was
Speaker 2: the case last term Kennedy versus Bremerton that said that
Speaker 2: the First Amendment gives a high school football coach the
Speaker 2: right to neil and pray at midfield after football games.
Speaker 2: So I think this really falls within this general context.
Speaker 1: And I can't think of a recent case involving a
Speaker 1: non Christian religion, for example, someone who's a Muslim or
Speaker 1: an atheist.
Speaker 2: You know. Interestingly, there was, and I'm trying to remember
Speaker 2: the exact data, it was sometime around twenty sixteen twenty
Speaker 2: sixteen Abercarambi, which involved a Muslim woman and her right
Speaker 2: to where he in the workplace Right that interpreted this
Speaker 2: same statute. But in general it is Christian conservatives who
Speaker 2: will bring in these cases.
Speaker 1: I really appreciate your insights, Debbie. That's Debbie Kamener, a
Speaker 1: professor at Peru College at the City University of New York.
Speaker 1: And that's it for this edition of The Bloomberg Law Show.
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