Religious-liberty cases sometimes involve very tough choices. Yesterday, the Philadelphia-based U.S. Court of Appeals for the Third Circuit faced one of those: between a rural letter carrier who couldn’t work on Sundays because of his religious Sabbath observance, and the United States Postal Service, which repeatedly disciplined him after more than 20 occasions when it couldn’t find anybody to cover his shifts. Eventually, he quit. A divided panel, in Groff v. DeJoy, sided with the Postal Service. The opinion was written by Judge Patty Shwartz, an Obama appointee, and joined by Judge Julio Fuentes, a Clinton appointee. Judge Thomas Hardiman, a George W. Bush appointee, dissented.
The question is not an easy one. Nobody should have to violate his religious principles to keep his job, and the court was unanimous in agreeing that the Postal Service discriminated against Gerald Groff on the basis of his faith under Title VII of the Civil Rights Act. But that does not end the story: Title VII allows an employer to show that it “is unable to reasonably accommodate . . . an employee’s . . . religious observance or practice without undue hardship on the conduct of the employer’s business.” There is not an unlimited right to a job that you simply cannot do because of your religion: There’s no legal requirement that the Marines employ Quakers who won’t hold a gun, or that abortion clinics hire Catholics who won’t participate in abortions.
The majority quite reasonably noted that just finding substitutes for Groff every time his shift fell on a Sunday wasn’t working:
USPS attempted to facilitate shift swaps for Groff on each Sunday that he was scheduled to work. Between March 2017 and May 2018, Groff was scheduled to work on twenty-four Sundays. The Holtwood Postmaster testified that, for each week Groff was scheduled for Sunday work, he sent emails seeking volunteers from other offices. Despite these undisputed good-faith efforts, USPS was unsuccessful in finding someone to swap shifts on twenty-four Sundays over a sixty-week period. Because no coverage was secured and Groff failed to appear for work, he was disciplined. Thus, even though shift swapping can be a reasonable means of accommodating a conflicting religious practice, here it did not constitute an “accommodation” as contemplated by Title VII because it did not successfully eliminate the conflict.
Where the majority and the dissent disagreed was on whether it was reasonable for Groff to ask that the Postal Service instead just exempt him from Sunday work altogether. The majority thought not:
Groff’s proposed accommodation of being exempted from Sunday work would cause an undue hardship. Exempting Groff from working on Sundays caused more than a de minimis cost on USPS because it actually imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale at both the Holtwood Post Office and the Lancaster Annex hub. The Holtwood Post Office to which Groff was assigned had only a postmaster and three RCAs (including Groff) available for Sunday deliveries. Because Groff would not work on Sundays, only three individuals remained who could work on Sundays during the peak season…At the hub, Groff’s absences also had an impact on operations and morale. The hub supervisor testified that Groff’s absence made timely delivery more difficult, and carriers had to deliver more mail.
Judge Hardiman, however, argued that this got the legal standard wrong by confusing hardship on co-workers with hardship on the employer, and he concluded that the case should go back for more evidence:
In deciding Groff’s case, the District Court inferred an atextual rule from Title VII: “an accommodation that causes more than a de minimis impact on co-workers creates an undue hardship.” . . . The Majority gathers cases—all from other circuits—affirming that rule, but without an important correction to the District Court’s analysis. . . . Simply put, a burden on coworkers isn’t the same thing as a burden on the employer’s business. . . . Neither Supreme Court nor Third Circuit precedent establish a derivative rule that equates undue hardship on business with an impact—no matter how small—on coworkers. . . . Title VII requires USPS to show how Groff’s accommodation would harm its business, not merely how it would impact Groff’s coworkers. . . . The Majority renders any burden on employees sufficient to establish undue hardship, effectively subjecting Title VII religious accommodation to a heckler’s veto by disgruntled employees. (Citations omitted).