OPINION:
After 45 years, the U.S. Supreme Court has vindicated Justice Thurgood Marshall and restored religious liberty to the workplace.
Since 1977, religious employees have been subjected to the cruel choice between their faith and their livelihood. Where our nation once enjoyed a rich religious pluralism and worked together to accommodate an employee’s religious faith when needed, the justices in TWA v. Hardison gave employers the ultimate trump.
As Marshall observed, the Supreme Court’s decision in Hardison meant that employers “need not grant even the most minor special privileges to religious observers to enable them to follow their faith.”
He was right. Since the court concluded that Title VII’s obligation of an employer to accommodate religion could be excused upon the simple showing of a “de minimis” burden, the stalwart protections once available to employees of faith all but disappeared with the stroke of a pen in Hardison.
It was a decision hard to square with America’s commitment to religious liberty. What our nation enshrined in our First Amendment, warding off the power of the state to question the free exercise of religion by the people, we also extended throughout our society.
Religion is not something that can be cordoned off in the human experience. One does not cease to be Jewish, Muslim or Christian upon exiting one’s home and entering the workforce.
Hardison changed all of that. Where Congress intended Title VII to uphold what Marshall described as “one of this Nation’s pillars of strength — our hospitality to religious diversity,” the court in 1977 eroded at its foundation. This led Marshall to predict: “All Americans will be a little poorer until today’s decision is erased.”
He was right. Whenever a society shrinks its protections for religious liberty, the nation’s character weakens.
Over the course of more than four decades, employers emboldened under Hardison fired Seventh-day Adventists for refusing to compromise their convictions on the Sabbath, denied employment opportunities to Muslims for refusing to shed their religious clothing at work, refused to consider accommodations for Sikhs on the job, exposed Christians to adverse employment actions, and subjected Jewish employees to intolerant working conditions.
Such intolerance toward religion left all of us “a little poorer” — until now.
Because of the court’s recent decision in Groff v. DeJoy, an employer asked to accommodate a religious employee’s religion can no longer “escape liability simply by showing that an accommodation would impose some sort of additional costs.”
Rather, an employer must accommodate a religious employee unless it is shown that doing so would “result in substantial increased costs in relation to the conduct of its particular business.”
What is more, the court took particular pains to remind employers of our nation’s “hospitality to religious diversity” at work. Not only does “Title VII mean what it says,” the employer’s duty to its religious employees is to refrain from assessing “the reasonableness of a particular possible accommodation.”
In other words, tolerating an unpopular religious belief may be difficult and could inconvenience the employer and some co-workers. But the demand of Title VII is that everyone from the boardroom to the mailroom would be motivated to work together to find a solution that accommodates religious employees and works for the business as a whole.
In Groff, the Supreme Court has compelled employers to be active partners in finding a way for the entire business to prosper while respecting the religion of their employees and coworkers.
And, so, Justice Thurgood Marshall finds himself vindicated. No longer are we a poorer nation for having wrongly put employees to the choice of their job or their faith.
We are all the richer for having buttressed one of the key supports of our republic: our hospitality to diversity. We have restored religious liberty to the workplace.
• Jeremy Dys is senior counsel for the First Liberty Institute, a nonprofit law firm dedicated to defending religious freedom for all. First Liberty represents Groff. Learn more at FirstLiberty.org.
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