The Press-Dispatch
Issue link: https://www.ifoldsflip.com/i/1491960
Wednesday, Februar y 8, 2023 The Press-Dispatch C-6 OPINION Submit Letters to the Editor: Letters must be signed and received by noon on Mondays. Email: editor@pressdispatch.net Heritage Viewpoint By Sarah Parshall Perry Race for the Cure By Star Parker Supreme Court grants review in case on employees' religious rights In what is certain to be another high-profile addition to its dock- et this term, the Supreme Court has granted review in Groff v. DeJoy—a case in which the religious rights of employees will take cen- ter stage. The petitioner in the case, Gerald Groff, has asked the justices to deter- mine whether his employer, the U.S. Postal Service, is required to provide a religious accommoda- tion excusing him from work so that he may observe the Sabbath on Sundays. Groff argues that he firmly be- lieves he must, as Exodus 20:8 puts it, "[r]emember the Sabbath day, to keep it holy." When the Postal Service began delivering packag- es Sundays for Amazon, it initially accommodated Groff by exempting him from deliveries that day so that he could observe the Sabbath. But a few years later, the Postal Service withdrew Groff's religious accommodation and replaced it with an arrangement that regularly asked Groff to violate his conscience by working every Sunday when he could not find a replacement. Groff sued under Title VII of the Civil Rights Act, which prohibits discrimination "because of such individual's race, color, religion, sex, or national origin." Subsection ( j) of Title VII defines "religion" to includeall aspects of religious obser- vance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably ac- commodate to an employee's … re- ligious observance or practice with- out undue hardship on the conduct of the employer's business. A federal district court judge in Pennsylvania upheld the Postal Service's decision not to accommo- date Groff. He appealed to the U.S. Court of Appeals for the 3rd Circuit, arguing that the Postal Service vi- olated federal nondiscrimination law by scheduling Groff to work on multiple Sundays and failing to pro- vide him with a reasonable accom- modation. Although the 3rd Circuit agreed that the Postal Service had failed to provide Groff with a rea- sonable accommodation, it held that the service wasn't required to do so here be- cause this accommodation would have caused "undue hardship" to the employer. But just how much hardship is considered "undue"? In 1977, in Trans World Airlines Inc. v. Hardison, the Supreme Court concluded that an employer suffers "undue hardship" in accom- modating an employee's religious exercise whenever doing so would require the employer "to bear more than a de minimis cost." This "de minimus" language doesn't appear anywhere in Title VII, but in the Hardison case, the high court read it into the statute anyway. The plain language of "undue hardship," which is found in the stat- ute, has a clear and workable mean- ing. In fact, that precise language has been used in other statutory contexts, such as the Americans with Disabilities Act and the Uni- formed Services Employment and Reemployment Rights Act. These statutes never have been read to in- clude a "more than de minimis cost" standard, however. And the Hardi- son standard has heavily weighted the scales in favor of the employer— and against religious employees— for decades. Groff aims to change that. In the 3rd Circuit's ruling, the appeals court cited the statement in the Hardison decision that requiring an employer to provide a religious accommodation at more than a de minimis cost is an undue hardship that excuses the employer from hav- ing to accommodate the employee at all. But the court went even further, holding that the "undue hardship" standard is met if a religious accom- modation could have a potentially adverse impact on the business' other employees, rather than just on the business itself. That's an outcome that would weaponize employee relations, pit- ting employee against employee in unprecedented ways. Think, for ex- ample, of an employee assigned to work Sundays so that a religious col- league who wants to recognize the Sabbath can be accommodated. It wouldn't take much for the employ- ee who works Sundays to claim the cost to him or her was more than "de minimis." Groff has asked the Supreme Court to answer two questions. First, whether the more-than-de- minimis-cost test for refusing to provide religious accommodations properly interprets Title VII. And second, whether an employer can show "undue hardship on the con- duct of the employer's business" simply by showing that a religious accommodation allegedly would burden the employee's co-workers rather than the business itself. As Justice Thurgood Marshall noted in his Hardison dissent, the de minimis standard "effectively nullif[ied]" Title VII's promise of accommodation for religious em- ployees. Decades later, Justice Neil Gorsuch agreed, saying that Hardi- son "dramatically revised—really, undid—Title VII's undue hardship test … [and that] the company had no obligation to provide [the employ- ee] his requested accommodation because doing so would have cost the company something (anything) more than a trivial amount." The Supreme Court has a chance to get it right on the question of employees who request religious accommodations. Returning to the plain meaning of Title VII would en- sure that religious employees of all faiths are provided with meaningful accommodations in the workplace. Based on its recent willingness to revisit—and even overturn—in- correct and historically inaccurate precedent, the Supreme Court might be willing to do just that in this case. Sarah Parshall Perry is a senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. What does it take to ensure that policemen are human beings? Once again, the nation is trauma- tized by horrible video of police bru- tally beating to death a Black man. Need I note the victim was Black? Would we be less or more trau- matized if the victim were white? But the rule seems to be the victims are Black. Everyone sees there is a problem. Everyone wants to fix it. But how? The first question in the pursuit of a solution invariably is, "What is wrong with the system?" How about we start this time by asking a different question. What is wrong with the men who did it? The shocking video certainly doesn't give us the whole story. What were the circumstances that lead to the police apprehending this man, forcing him defenseless on the ground and beating him to death? Can we imagine any circumstance that would justify this behavior? Suppose somehow all this oc- curred under the radar. That these policemen beat this man to death, but no one found out about it. Could they live with themselves? Could they just go home to their families after doing a day's work without a second thought that their law enforcement work left a man dead with little justification why this happened? We in the pro-life movement ask how women can destroy the child in their womb and live with them- selves. Those who rationalize it say they don't see this unborn child as life. But can we say these police did not see Tyre Nichols as a liv- ing man? When these incidents get spun as racial, the answer comes forth that racists do not see those whom they hate as human. There was a histor- ic data point in this regard in our nation's history in the Dred Scott decision. But in this case, the police offi- cers were Black. How about if we ask if each of those policemen felt they live in a world with a Creator and that every human being is a creation made in that Creator's image? If they be- lieved this, could they have done what they did? Rep. Jim Jordan summed it up well saying, "I don't know there is anything you can do to stop the kind of evil we saw in that video." Something very bad has hap- pened in our country. This nation was founded as a free country under God, not as a "sys- tem." The Constitution is an operat- ing manual creating the basic struc- ture of government and to assure that it would be kept limited and not interfere with citizens taking per- sonal responsibility and living free. Yes, it began with the horrible reality of slavery. But this reflected the sin of man and not a systematic flaw in the country. George Washington said it, and I quote him all the time, that there is no freedom without religion. But today we are going in the opposite direction. We want to use courts and legislatures to produce systematic answers to our lives rath- er than turning to our parents and our pastors for eternal principles. The answer is not in the system; it is in ourselves. Regarding the police, they need more personal responsibility for their behavior. One path to this is getting rid of qualified immunity, which shields them from exposure to lawsuits. Qualified immunity allows police to violate constitutional rights of others without concern they will be sued. Per this judge-created doc- trine, as long as there is not anoth- er identical precedent, with all the same facts, police are immune from being sued. Unions protect policemen with a track record of infractions, and then qualified immunity protection al- lows them to go out and do it again. This is the most important tech- nical reform that can improve police behavior. But we must remember, good men will produce good results even in a bad system. But bad men, even in the most perfectly designed system, will pro- duce bad results. Star Parker is president of the Cen- ter for Urban Renewal and Education and host of the weekly television show "Cure America with Star Parker."