I have an impressive-looking old stock certificate taped to my home office wall. It’s a worthless piece of paper (unless it becomes a collectible… hmmm), a reminder that all that’s shiny isn’t gold, that major companies can go belly up. The business whose document graces my wall is, or was, Pan American World Airways, or Pan Am, which went bankrupt decades ago, disappearing from the skies and all that lies beneath them.
But the ghost of another bankrupt airline, Trans World Airline, or TWA, haunts even today, in the form of the landmark 1977 Supreme Court decision carrying its name: TWA, Inc. v. Hardison. That ruling held that an employer can fire an employee who observes a weekly sabbath and that the employee is not protected by Title VII of the Civil Rights Act of 1964, which makes it unlawful for an employer to discriminate against a worker on the basis of his religion.
The Court ruled that employers are only required to accommodate their employees’ religious beliefs if doing so imposes no more than a minimal, or “de minimis,” cost to the employer.
The “Hardison” in that case was one Larry Hardison, whose church considers Saturdays to be days of rest. Required to work on Saturdays, he refused and was eventually fired. Though the Court sided with TWA, Justice Thurgood Marshall wrote in a dissenting opinion that “one of this Nation’s pillars of strength, our hospitality to religious diversity, has been seriously eroded.”
That erosion is set to be reassessed by the current High Court in a similar case, Groff v. DeJoy. Oral arguments are scheduled to begin on April 18.
Gerald E. Groff, the petitioner, is an Evangelical Christian whose beliefs require him to not work on Sundays. Knowing that the US Postal Service (USPS) didn’t deliver mail on Sundays, he took a position as a postman in Lancaster County, Pennsylvania.
Enter (as it seems to do so often in so many ways) Amazon. The e-commerce 400-pound gorilla made an offer the postal service couldn’t refuse: to have USPS deliver packages on its behalf on Sundays.
Mr. Groff, given Sunday duties, asked for a religious accommodation, agreed to work extra shifts during the week and even accepted a lower position to be able to honor his faith.
To make a long legal story fit this page, after initially honoring Mr. Groff’s religious needs, the USPS changed its position and insisted he work on Sundays. He resigned and sued the service. (The “DeJoy” is Postmaster general Louis DeJoy.)
Two lower courts ruled that the 1977 TWA decision absolved the USPS of a responsibility to accommodate Mr. Groff’s religious needs, that doing so would entail a more than a de minimis cost to the postal service. Hence the appeal to the nation’s highest court.
If the Court’s revisiting of the TWA case results in a more religious American-friendly standard of accommodation per Title VII of the 1964 Civil Rights Act, it will bode well for all Americans facing employment obstacles born of their sincere beliefs.
The current Supreme Court has been sensitive to religious liberty claims, and several justices have in the past stated their interest in revisiting the Hardison decision, giving supporters of Mr. Groff and of better protections for religious employees cause for optimism.
More than a dozen Jewish groups have filed or joined briefs in support of the plaintiff. They include not only Orthodox organizations like Agudath Israel of America, the Orthodox Union and the National Jewish Commission on Law and Public Affairs (COLPA), but also the American Jewish Committee, the Louis D. Brandeis Center for Human Rights and even the Anti-Defamation League.
But the business community is likely to file briefs in favor of the postal service, arguing that raising the bar of their religious accommodation responsibility will cost them inordinate amounts of money. And the current Court has demonstrated concern not only for the needs of religious Americans but also for those of American businesses.
So it’s not a sure shot that the case will be decided in a way that gives religious citizens a greater degree of workplace protection.
But I hope that the paper on which the 1977 TWA case’s decision was recorded might be able to join the Pan Am stock certificate on my Wall of Has-Beens.
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