by Rabbi Dov Fischer in The American Spectator
For so many decades, extending more than half a century, the United States Supreme Court inspired and led America’s moral decline, legalizing abortion on demand, subverting traditional marriage, and allowing “Affirmative Action” racial quotas to replace merit as the standard for college admissions. Yet now, in an America whose culture and morality have decayed and rotted even further in so many once-unimaginable ways, we behold the paradox that the court that Donald Trump and Mitch McConnell helped solidify today stands as the bulwark protecting what is left of our national core. This week, through the perilous fight to protect the values that made America great, we watched the court as our rampart, gallantly streaming.
The justices last year acted to protect the innocent lives of the unborn and to rectify a terrible historic wrong by dumping Roe v. Wade, which never should have been decided as it was in the first place. This week they looked at the Democrats’ obsession with bribing Black and Hispanic voters by imposing quotas in college admissions, and the court took a significant first step toward ending the injustice of dividing Americans by race and ethnicity, striking down the way Democrats buy votes by implementing DEI quotas to advantage underachievers at the expense of those who earn success through hard work. Still, the fight against “Affirmative Action” — i.e., racial quotas — has more steps ahead. Colleges now will cheat in new ways and circuitously will continue admitting underachievers based on race and other forbidden criteria, using applicants’ essays (e.g., “How My Skin Color Impacted My Summer Vacation”), requiring future Supreme Court cases to clamp down on the DEI Quota Enterprise for once and for all. But the court took a huge first step in this week’s Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.
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And now Sabbath keepers and Sabbath observers have received their day of relief and justice. In Groff v. DeJoy, the Supreme Court (hereinafter the “Groff Court”) looked more carefully at reining in another form of institutional cheating. Back in 1972, Congress amended Title VII of the Civil Rights Act of 1964 to protect the rights of religious and other Americans who rest from work on the Sabbath. The legislation provided that employers must reasonably accommodate the religious observances or practices of employees or prospective employees unless such an accommodation would result in “undue hardship” on the conduct of the employer’s business (42 U.S.C. § 2000e(j)). But how to define “undue hardship”? Five years later, in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977), the court essentially made a mess of the amended Title VII by employing language that lent itself to be misconstrued — outside its intended context — as defining the term “undue hardship” to mean anything “more than a de minimis” cost. “De minimis” means “very small or trifling.” In other words, if I apply for a job but explain that, as an Orthodox Jew, I cannot work on Fridays after sunset and on Saturdays until nightfall, the amended Title VII says the employer has to accommodate me reasonably. But then the Trans World Airlines case gave every employer an easy way around the law: “We would love to accommodate you, but that will be inconveniencing us insignificantly, but more than de minimis.” What a fraud!
That 1977 court ruling opened a door for employers easily to blow off Sabbath keepers and observers, and it deterred those who honor the Sabbath from even bothering to sue for justice. What is “more than de minimis” inconvenience? Everything. If your back hurts, it is more than de minimis inconvenience to stand up. If you have a pod for the coffee maker, it is more than de minimis inconvenience to need to refill the water reservoir. When the desktop screen freezes, it is more than de minimis inconvenience to have to restart the computer. What a joke!
In studying the issue before it, the Groff Court received a “bevy” of amicus curiae (“friend of the court”) supplemental legal briefs from religious associations, telling the court “ that the de minimis test has blessed the denial of even minor accommodation in many cases, making it harder for members of minority faiths to enter the job market.”
So along comes the United States Post Office. (That’s the “DeJoy” in the case name: Louis DeJoy, U.S. postmaster general.) It refused to accommodate a Christian, Gerald Groff, a letter carrier. Groff had been happily delivering the snail mail while having Sundays free to worship and honor the Day of Rest. Then the Post Office entered into a deal with Amazon that included Sunday deliveries. Groff did not want any confrontations, so he transferred to work at a rural station that still did not do Sunday deliveries. But eventually, Amazon got to them, too. When Groff respectfully continued asking to honor the Sabbah, the government agency punished him with “progressive discipline,” compelling him to resign. He sued.
And now, in Groff v. DeJoy, the Supreme Court unanimously has rectified the glaring injustice of the misunderstood Trans World Airlines case by redefining “undue hardship” to mean “substantial increased costs in relation to the conduct of its particular business.” Thus, it no longer will suffice for an employer to dodge its duty merely by saying that religious accommodations will pose “more than a de minimis inconvenience for us.” Instead, employers will have to demonstrate that the “inconvenience” will impose substantial increased costs.
In reaching its decision, the Groff Court looked at the explicit language of the legislation: “undue hardship.” It noted that a “hardship” is more severe than merely a “burden,” and the adjective “undue” means the contemplated severe “hardship” must be excessive. Thus, an employer cannot escape the requirement to accommodate an employee’s or prospective employee’s religious practice merely by claiming a “de minimis” inconvenience. Indeed, the Groff Court demonstrated in its opinion that even the Trans World Airlines v. Hardison case, which had been the source of the “more than de minimis” standard, has been quoted out of context for 46 years.
Bottom line: Now Gerald Groff may keep the Sabbath, true to his faith and belief — and that of so many scores of millions of other Americans.
In handing down its opinion, the Groff Court added more guidance. If an employer refuses to accommodate a religion-related employee need on grounds that the workplace has many employees who are anti-religious or oppose that particular religion, that excuse will not wash: “Bias or hostility to a religious practice or accommodation cannot supply a defense.”
From personal life experience, both from my own work history as an attorney and law professor and from my four decades’ experience as a rabbi consulted by and assisting Orthodox Jews and religious Christians who have encountered truly unfair and unreasonably obstinate anti-religious employers who would not budge the slightest on requests to observe the Jewish Shabbat or to keep the Christian Sunday Sabbath, I can share that Groff is a huge game-changing decision that will enhance countless lives and families who compose the heart and soul of Middle America.
Tomorrow, I hope to share a personal remembrance and insight into what an Orthodox Jew in America can encounter when seeking time off from work for a religious observance. As my readers may anticipate, that true story will have some color and punch.
Originally published in The American Spectator
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