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