\u201cMen, it has been well said, think in herds; it will be seen that they go mad in herds, while they only recover their senses slowly, and one by one.\u201d\u2014Charles Mackay, Extraordinary Popular Delusions and the Madness of Crowds <\/i>(1841).<\/p>\n
Once upon a time the suggestion that employers should seek commonsense ways to accommodate people of faith in the workplace wouldn\u2019t have seemed outrageous. It\u2019s a low bar for religious pluralism. Most workplaces can and should find ways to accommodate a Sikh whose faith means he must leave his hair and beard untrimmed; a Jew or Seventh-day Adventist who observes Sabbath from sundown Friday to sundown Saturday; a Hindu who celebrates specific holy days and fasts; or a Muslim woman who wears a hijab.<\/p>\n
A case currently before the Supreme Court, however, reminds us that discussions about religious freedom\u2014whether on the left or the right\u2014have been largely overtaken by the madness of crowds.<\/p>\n
The facts in Groff v. DeJoy<\/i> are straightforward enough. A postal worker in Pennsylvania, whose faith requires him to keep Sunday holy by refraining from work, was forced from his job after his postal district began Sunday deliveries for Amazon. His legal recourse, however, was limited by an almost 50-year-old Supreme Court precedent, laid down in TWA v. Hardison,<\/i> which focused on two words in Title VII of the Civil Rights Act of 1964\u2014\u201cundue hardship.\u201d<\/p>\n
Under Title VII employers must accommodate the religious practices of employees unless to do so would impose an \u201cundue hardship.\u201d What does \u201cundue hardship\u201d mean? The majority in Hardison<\/i> said that anything more than a de minimis (or trifling) burden on employers released them from their duty to accommodate the religious practices of employees.<\/p>\n
The long-term consequences of this ruling were entirely foreseeable. Since 1977, employers have had little legal incentive to take requests for religious accommodation seriously. In the decades since Hardison<\/i>, many, many thousands of Americans\u2014Jews, Christians, Hindus, Muslims, Sikhs, and others\u2014have been forced to choose between a job and their faith in situations in which a little effort or creativity could have easily found ways for them to keep both.<\/p>\n
Now, Groff is asking the Court to reconsider that de minimis standard and to embrace an approach to Title VII requiring employers to make a more substantial effort. He\u2019s not claiming that religious employees should be able to dictate terms or impose unreasonable burdens on their employer or on their coworkers. He\u2019s simply arguing that both the intent and the statutory language of Title VII impose a duty on employers to make more than a trifling effort to accommodate the sincere religious beliefs of their workers.<\/p>\n
It\u2019s not an outrageous proposition\u2014in fact, not too long ago both left and right in America embraced the idea. For more than a decade, from the late 1990s onward, a proposed Workplace Religious Freedom bill had strong bipartisan support in Congress. Democratic senator John Kerry introduced it repeatedly, and senators from both sides of the aisle, from Hillary Clinton to Rick Santorum, supported it. They all understood that the problems created by weak Title VII protection fell disproportionately on members of religious minorities and on those working blue-collar jobs.<\/p>\n
However, the Workplace Religious Freedom Act failed to pass. It was eventually scuttled as the madness of crowds began to recast religious freedom as a culture-war issue. Consequently, the question of workplace accommodation for religious practices was punted to the courts. The result? The Groff<\/i> case may be poised to provide a more robust level of Title VII protection for people of faith.<\/p>\n
The political left\u2014which was by and large responsible for abandoning efforts to find an acceptable legislative fix for workplace accommodation\u2014is now crying foul. In an extraordinary statement, the executive director of the First Amendment advocacy organization Americans United claims that a favorable ruling for Groff would weaponize religious freedom as a \u201clicense to harm others\u201d and would serve to \u201cshift the burden\u201d of an individual\u2019s religious practices onto other people. She calls the case a \u201cwolf in sheep\u2019s clothing,\u201d warning that a ruling favorable to Groff<\/i> will be used by Christian nationalists to secure privilege for conservative Christianity \u201cat the cost of everyone else\u2019s religious freedom.\u201d<\/p>\n
This is a DEFCON Level 3 response to what seems like a reasonable proposition for preventing unnecessary job-loss for religious minorities. (And keep in mind that Gerald Groff falls squarely within a religious minority. He may be a Sundaykeeping Christian, but his long-standing practice of observing his sabbath strictly by refraining from work means he belongs to a minority of Christian Sundaykeepers\u2014a mere 18 percent, according to a recent Pew survey.)<\/p>\n
The comments from Americans United, along with many other statements and news articles dissecting the Groff<\/i> case, are symptomatic of a far bigger problem in America today. That is, our understanding of religious freedom has been captured and distorted by ideological group think, and there seems no way to claw it back.<\/p>\n
All of us, to some degree, have become infected by this mass insanity. Whether on the left or the right, we\u2019ve lost our ability to engage thoughtfully with challenging questions without resorting to the clich\u00e9s of our political tribe. We\u2019ve lost the ability to have meaningful conversations about what pluralism in America should look like. We\u2019ve embraced equal opportunity intolerance, in which the idea of making space in the public square for anyone whose beliefs don\u2019t precisely align with ours has become anathema.<\/p>\n
The result? Foundational constitutional values, such as religious freedom, have become enmeshed in left-versus-right narratives, and we can\u2019t seem to free them from the tangle.<\/p>\n
So back to the Groff<\/i> case. Is the Supreme Court\u2019s review of undue hardship under Title VII likely to bring harm by shifting the burden for religious practice onto others? No\u2014at least not in those cases that have been traditionally brought under Title VII, which involve members of minority faiths. The heightened standard proposed in Groff<\/i> would merely require employers to take these accommodation requests more seriously.<\/p>\n
Yet the fears of the left are not wholly unjustified. It seems likely that a ruling favorable for religious freedom in Groff<\/i> will trigger a wave of litigation, raising challenging and novel questions about the types<\/i> of religious observance that must be accommodated under Title VII. And yes, culture-war issues may well be front and center in many of those cases.<\/p>\n
Could we have avoided some of this angst by agreeing on a more narrowly tailored, commonsense legislative fix to workplace accommodation years ago? Of course.<\/p>\n
Could we yet do so? Perhaps. But first we\u2019d need to shake off the collective insanity of our tribes, and \u201crecover our senses, one by one.\u201d We\u2019d need to learn to talk to one another; to acknowledge each other\u2019s humanity and equal right to live, work, and participate in society, regardless of our religious beliefs or lack thereof. Perhaps then we could begin to restore the reputation of religious freedom\u2014to see it once again as a bipartisan ideal, an essential constitutional pillar that has defined us historically as a nation and that is indispensable to our future.<\/p>\n","protected":false},"excerpt":{"rendered":"
\u201cMen, it has been well said, think in herds; it will be seen that they go mad in herds, while they only recover their senses slowly, and one by one.\u201d\u2014Charles Mackay, Extraordinary Popular Delusions and the Madness of Crowds (1841). Once upon a time the suggestion that employers should seek commonsense ways to accommodate people<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[353],"tags":[185],"class_list":["post-6661","post","type-post","status-publish","format-standard","hentry","category-may-june-2023","tag-may-june-2023"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6661","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/comments?post=6661"}],"version-history":[{"count":0,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6661\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/media?parent=6661"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/categories?post=6661"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/tags?post=6661"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}