Professor Seth Oranburg discusses the recent Groff v. DeJoy decision and the impact it will have on employment law and religious freedom. Produced and Hosted by A. J. Kierstead
Watch "Religious Rights after Groff v. DeJoy: Legal Analysis and a Jewish Perspective on Religion & Work" on Professor Oranburg's YouTube channel: Religious Rights after Groff v. DeJoy: Legal Analysis and a Jewish Perspective on Religion & Work - YouTube
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Legal topics include religious freedom, employment, business, constitution, scotus, US Supreme Court
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A. J. Kierstead, Host:
This is the Legal Impact, a podcast presented by the University of New Hampshire, Franklin Pierce School of Law. Now accepting applications for JD and graduate programs. Learn more and apply law to unh.edu. Opinions discussed to solely the opinion of the faculty or host, and do not constitute legal advice or necessarily represent the official views of the University of New Hampshire, the UNH Franklin Pierce School of Law. I'm your host, A.J. Kierstead, and today I'm joined by Professor Seth Oranburg who teaches both in the residential programs and our hybrid JD program. You can learn more about our mostly online hybrid JD program by visiting law.unh.edu/hybridjd. Welcome back to the show.
Seth Oranburg:
It's great to see you A.J. Thanks for having me here.
A. J. Kierstead, Host:
So we're going to tack on even more cases that came down from the Supreme Court. Definitely be sure to check out law.unh.edu/podcast to get my Supreme Court wrap up with Professor John Rabey. That was a last month came out ulcer to other cases, but I think he might've mentioned this at the end, but we did not talk about this case in depth. And that is Groff v DeJoy. And you actually on your own personal YouTube channel that I'll put in the episode description did and had a conversation with a Manchester New Hampshire rabbi. That thought was fascinating and we can discuss some of your takeaways from that later on. But to set the baseline, what was this case about?
Seth Oranburg:
Groff v DeJoy is one of the new landmark cases in this very interesting and exciting Supreme Court time. So this 2023 term, which just recently closed, included this case of Groff, which regards whether or not an employer has to give an accommodation to a religious employee. And prior to this, the high court, Supreme Court decision regarding this was Trans World Airlines versus Hardison, 1977. So kind of going along with the historic record of overturning 50 year precedent, this case I believe at least overturns Hardison or maybe more specifically demands a reinterpretation of it. And the key takeaway is after this case, it is more difficult for employers to deny a religious accommodation.
A. J. Kierstead, Host:
Which the ruling on its face is not terribly surprising concerning the makeup of the court and some of the writings that the majority have written. But this was a unanimous decision. Were you surprised by that?
Seth Oranburg:
Nine zero decisions are not that common these days. I feel that we live in a pretty divided time. People are even discussing Supreme Court justices primarily as conservative or liberal, and that sort of partisanship has eroded some of people's confidence in the court. And then comes this nine zero decision where all of the justices agreed to the majority opinion. There was a concurrence, and we can get into what that is and how that might show that there is still some things to be decided about this case.
But it was surprising to me that this was basically a slam dunk in favor of the employee. It was just a hard turn away from prior precedent. And when we've seen that previously, we often would see at least one judge who is dissenting on the basis of stare decisis or something like that. I think that the reason that the needle got threaded here is that on its face, you could read Groff as not overturning, but explaining Hardison. But I think the better reading is that it does overturn it and change the standard. So the strength of the decision, the clarity with which it got rid of a lower standard test. Yeah, that surprised me. It's just a surprising time when we see unanimity.
A. J. Kierstead, Host:
So what does the results of this case mean for employers? That's probably the most important thing that lawyers in the field right now are going to need to know some of these more cases as a follow-up from this cofruition and business owners out there that need to take consideration of employees in this way. What does it mean?
Seth Oranburg:
Well A.J., it depends. The law school answer. There's a lack of clarity with regards to specifically answering that because effectively, well, here's what we do know. Let me start with what we do know and then maybe that will lead up to what we don't know. So what we do know is that under the prior test of Hardison, courts generally and employers generally believed rightly or wrongly, but they believe based on its language that employers who are subject to Title VII of the Civil Rights Act of 1964, which by the way is not all employers, but I believe it's employers of 15 or more employees, plus there's a bunch of carve outs and probably some carve ins, but we could think of it as large employers, maybe not your two person pizza shop.
So all of those large employers seem to believe that they did not have to grant a religious accommodation that imposed more than a de minimis cost on the employer's business. So what is di minimis? Di minimis is something very small or minimal. And what we know is that that requirement has been heightened. How much so? That's I think where things get interesting. So the way I see it, we have three steps here, and can I give a little bit of the Civil Rights Act history?
A. J. Kierstead, Host:
Please do.
Seth Oranburg:
Very, very brief. Not my key area, but the Civil Rights Act of 1964 was enacted in 1964, and at the time it included Title VII, which pretty explicitly says that an employer has to grant a religious accommodation unless it imposes an undue hardship. Okay, what does that mean? What is an undue hardship? Well-
A. J. Kierstead, Host:
I just want to jump in and say quick that this entire case basically is a great wrap of you want to understand why language is so important and what exactly these terms mean in a legal sense versus how everyday people who aren't lawyers have to think about these words.
Seth Oranburg:
So true, A.J. I mean, lawyers have to be so precise with their words, but I think I can explain to the listeners how we can at least see three different levels or three different kind of bands, conceptual bands. So the law said that you have to grant the accommodation. So letting somebody not work on the Sabbath would be an accommodation. And the law seems to say by its terms that the employer has to give somebody their religious holidays off unless that creates an undue hardship. But undue hardship is kind of a vague term, right? Well, for one thing, we have to establish what is a hardship, and then we have to establish what is undo.
So the way I reason it is an undue hardship means something more than just a hardship. And a hardship is more than di minimus. The TWA case Transport Airlines, TWA Hardison case is often quoted as having this di minimis standard, which is weird in a way. If you just look at the language of the statute, I don't know how you can read de minimus into hardship, much less undue hardship. Undue hardship sounds like something a lot more than de minimus.
Basically, what the case did then is it reverted us back to the language of the statute. Basically the court said, "No, no, no, no, no, whatever you thought TWA said, that statute does not mean a de minimus burden is enough to deny an accommodation because undue hardship is more than de minimus." And the question I'm interested in answering is how much more?
A. J. Kierstead, Host:
Yeah, and this is unlike, we talked about Masterpiece Cake Shop, that was the first episode of the Legal Impact was talking about Masterpiece cake shop. And that's one thing that was just sent back to a previous ruling where it's Colorado Civil Rights Commission had to make changes and such, and it continued to be litigated forever. This is one saying no, the courts will need to narrow this down over time and with people suing directly related to this. It's very interesting in that way to me.
Seth Oranburg:
Yeah, there's a lot of people who are interested in that too. So man, I should have had the exact count, but my memory, if my memory serves, there were 61 amicus briefs. So an amicus brief or an amicus meaning friend, an amicus QA brief. So a friend of the court brief is when some interested third party, so in this case, the Union of Orthodox rabbis filed an amicus brief, right? Maybe not surprising. There's an interest there around congregants observing Shabbat. The AFLCIO, A big union filed an amicus brief, and there is a tension here, an important tension between different kinds of rights because what came up in this case and what has come up in some other cases is unions often give seniority rights. And so somebody's right to take a particular day off or to select their schedule is granted to them by a type of contract, typically a collective bargaining agreement.
So there are workers out there who have rights to certain holidays. It could be a Tuesday if they feel like taking off a Tuesday, it could be a Sunday because they want to go to church, or it could be a Thursday afternoon to go to their daughter's dance recital. It doesn't matter from that perspective. If you have a contractual right and you get priority, then the union would say, "Okay, Seth, you have priority over A.J., and so he'll have to work that shift." Depending on how the CBA is structured. So then comes a person who says, "Well, I'm lower on the totem pole, but I need a religious accommodation. I can't work that Sunday because of, well, let's say a higher reason." And here we get into a conflict because there are employees who are going to be burdened by this. That's part of, maybe part of the hardship.
So TWA basically looked at the case and said here's a person who took a job where he's working with an airline. It's a time critical job where it has to run 24/7. He became religious after taking the job and doesn't have seniority in the union. And so when he asks for the Sabbath rest, that is not as important or doesn't carry as much weight as someone who has been in the union longer and has earned that through their work.
So there's kind of an inherent conflict here between unions, which are generally not religious institutions and religious institutions. And so there is a lot of filings in this brief. People who are interested in secular humanism, people who are concerned about the imposition of church onto state. So we saw a lot of amicus briefing, and a lot of them were arguing either to uphold TWA and maintain a de minimus standard or for some specific reading of what undue hardship should mean. And one particular subcategory of that was some believe undue hardship should include a hardship to other employees, whereas others believe it should only include hardship to the employer itself.
A. J. Kierstead, Host:
How did the opinions come out on this? I'm especially interested to hear what the opinions of the more liberal justices had in this.
Seth Oranburg:
All the justices signed the majority and the majority effectively, or the unanimity I suppose. So all the justice, conservative and liberal all seemed to agree that we need to read the statute authentically based on its language, and there's no plausible way to read undue hardship as equivalent to de minimis. So they all agreed that was a mistake, but the concurrence written by one of the liberal justices, and I believe there was at least one who signed on to the concurrence as well. So I think it was two of the liberal justices on the concurrence effectively said we should count hardship to employees as part of that burden. And that may in fact be a way to square the circles, so to speak, between these conflicting rights of different types of employees. If we count hardship to employees as part of the burden, that would make it essentially easier.
I mean, if you put more on a scale, if more things can go on a scale, it's easier for that side of the scale to be weightier. So if we can count the hardship of employees who would otherwise merit days off and don't get the privileges guaranteed by collective bargaining agreements such as selecting holidays, that may simply make it easier for employer to show the undue hardship test is met. But they did all seem to agree that that is the test. I think that's the key takeaway is that it almost for sure, I'm going to go like 90 plus percent here, and I never do that with law stuff, but I feel pretty confident, very confident that we need to use at least different language for the test. And that test requires putting more on the side of the scale regarding the burden to the employer before we can deny the accommodation to the employee.
A. J. Kierstead, Host:
I talked about at the beginning that you had a conversation with a rabbi based out of Manchester on this and some of the history of this being a problem, especially for the Orthodox Jews. Definitely this is a problem. Many Muslims, there's many religious holidays that are very, very important. They are not supposed to be working during that. So it was fascinating to hear an in-depth conversation on that. What are some takeaways from that for you?
Seth Oranburg:
Well, first off, it was an Orthodox Rabbi, Chabad Rabbi, which represents a particular denomination of the Jewish religion. And so part of what I took away from that was his absolute belief in the critical sanctity of the Sabbath from a religious perspective, that it was an unassailable obligation of all Jews to not work on the Jewish Sabbath, which is sundown Friday to just after sundown on Saturday.
And his passion for this obligation, this commandment, was I think what came away the strongest that this really for him was, it's hard to say what is the most important thing, but this must've been on the top three list of most important tenants. And so he was thrilled by the decision and felt that it was a step towards people feeling more free to exercise their religious obligations and to get closer to God. So for him, there was nothing bad in it. It was a step for him toward people being able to do what in his rabbinical opinion, God mandates.
A. J. Kierstead, Host:
How did we end up with so many USPS watch suits around this? I have to ask. That's another thing that I took away from the interview is like, oh my God, this has happened a lot of times. It's been an issue with this organization, let's put it that way,
Seth Oranburg:
A.J., when I went to the synagogue to interview that rabbi, I was setting up the camera. Someone asked me what I was doing, and I told them and he said, "Oh, that happened to me. I was a USPS mail carrier and I was required to deliver mail on Saturday." And that was really interesting that, I mean, I guess a couple of things. One is there are a lot of post offices. Two is that the USPS has a critical commitment to delivering the mail. What's the expression? Rain, sleet, or snow.
A. J. Kierstead, Host:
Rain, sleet, or freezing rain or something like that.
Seth Oranburg:
Rain, more rain, freezing rain, snow, lots of snow, A New Hampshire amount of snow. And I think that this got aggravated because the USPS is under a lot of fiscal distress. I mean, I'm quoting the rabbi here, but I don't know if you use the term miracle, but it is kind of amazing that you can send a letter from New Hampshire to San Diego for what is it, 60 some cents or whatever. I have those forever stamps, so less than a dollar and I can get a physical object to someone's hands in San Diego. That isn't done at a significant profit.
And the USPS has been beleaguered for years with attempts to make them profitable and threats from senators to shut them down. And they've responded by trying to come up with some value add services. One of those which prompted some additional concerns, which prompted this case, this particular case was their partnership with, you may have heard of this company, Amazon.
So the USPS delivers mail for Amazon and they deliver on Sundays for Amazon. So this previously was not a conflict for an entire religious group, which is religious Christians that worship on Sundays. So the Sabbath generally is a very rough rule of thumb, but Muslims critical religious day is Friday, Jews is Saturday, and Christians is Sunday. So we have different conflicts based on different religious concerns. And of course, there are other holidays that punctuate the calendar, which if I may add on the side here, are particularly complicated for Jews and Muslims because they are not following a Gregorian calendar. The Muslim calendar is a lunar calendar. So important holidays like Ramadan can occur at any time of the year. So there's fewer lunar cycles than there are, or the pace of lunar cycles and the pace of the solar year don't map. And so the Muslim holidays move around the calendar.
The Jewish calendar is a modified lunar calendar where there's a leap month periodically to kind of get things to catch back up, but they're never perfectly in sync. So there'll be some years where the Jewish Festival of Rosh Hashanah, Yom Kippur and [inaudible 00:19:39] fall all on weekdays, and suddenly you have someone who in a very brief period of time, like in September and October needs six weekdays off. Or it might fall on weekends. It varies. So it can be even harder to explain that when you're a religious minority and your holidays don't necessarily map up to what people think of as sort of the major holidays like Christmas, where traditionally businesses are closed. That said, the post office works all the time. They're delivering the mail throughout the holiday season. Someone needs to get Santa's presents to you, and sometimes the reindeer are busy, so the USPS need to help them out.
And as a result, it has a culture of working in that way. And I think it's such a large institution. It has been so long-established as a union shop. I think those are a couple of reasons. The financial pressures and then the private public partnership with Amazon was just the icing on a very unsatisfying cake for a certain Mr. Groff who found himself a religious Christian who took this job to avoid violating God's law of not working on his Sabbath, the Sunday, found himself unable to do so while maintaining his work.
A. J. Kierstead, Host:
Thanks so much for joining me, professor Seth Oranburg. Fascinating case, a fascinating conversation.
Seth Oranburg:
The next thing to look out for is what does undue hardship mean? This case is getting remanded to lower courts to decide if that happened here. So there is more on this case, and I hope that we can talk again soon about its continued evolution.
A. J. Kierstead, Host:
Definitely will. All right. Thanks for listening to The Legal Impact presented by UNH Franklin Pierce School of Law. To help spread a word about the show, please be sure to subscribe and comment on your favorite podcast platform, including Apple Podcast, Google Podcasts, and Spotify. Get the back episodes of the show and podcast links at law.unh.edu/podcast.
