DETROIT JEWISH NEWS 32255 Northwestern Hwy. Suite 205, Farmington Hills, MI 48334 248-354-6060 thejewishnews.com FEBRUARY 2 • 2023 | 7 The Court found in favor of TWA. In so doing, it famously provided the following gloss on how far employers were required to extend themselves when it came to religious accommoda- tions: “To require TWA to bear more than a de minimis cost” — that is, a trivial or minor cost — “in order to give Hardison Saturdays off is an undue hard- ship. ” Thus, even if TWA could have accommodated Hardison by, for example, paying overtime wages to another employee to cover the Saturday shifts, it was not required to do so. Such “additional costs” would consti- tute more than the “de minimis” investment required by Title VII. But a straightforward reading of “undue hardship” certainly seems to require that employers exert more than the barest mini- mum effort, leading any number of critics to attack the court’s analysis in Hardison. In requir- ing so little of employers, detrac- tors argue, it has left employees seeking religious accommoda- tions from federal law with lim- ited legal protections. For example, in rejecting Groff’s claims for religious accommodation, the federal court of appeals noted that everything from “negative impacts on the employer’s opera- tions” to even “reduced employee morale” have served as sufficient justification for not providing a religious accommodation. RELIGIOUS MINORITIES Among the problems with this prevailing standard is that those left most exposed by the court’s stingy interpretation of Title VII have been religious minorities, whose practices often don’t track the prevailing rhythms of the workplace. According to one brief filed before the Supreme Court in 2020, nearly half of Title VII accommodation appeals are filed by religious minorities, even though those minorities only account for 15% of the population. Unsurprisingly, American Jews have been at the forefront of attempts to enhance the protections afforded religious employees in the workplace, as diluting employers’ obligation to accommodate religious practices in the workplace continues to present a significant obstacle to Shabbat observance. Already back in 1977, a broad coalition of Jewish organizations filed amicus briefs before the Supreme Court supporting the plaintiff in Hardison, including the National Jewish Commission on Law and Public Affairs, the Central Conference of American Rabbis, the American Jewish Committee and the Anti- Defamation League, among many others. In subsequent decades, a diverse range of Jewish orga- nizations have supported the Workplace Religious Freedom Act, an ultimately unsuccessful attempt since 1999 to expand the religious accommodation pro- tections afforded employees in the workplace. Even today, the idea that employers need not expend more than de minimis resources and efforts to accommodate reli- gious employees has generated criticism from across the politi- cal spectrum. It is one of the rare church-state issues where one can find at least some modicum of agreement in Fox News and Slate. It does, therefore, make one wonder why the court orig- inally chose this interpretive route back in 1977. Maybe the strongest expla- nation for the court’s decision comes from Justice Thurgood Marshall’s dissenting opinion in TWA v. Hardison. The lurk- ing concern (one that Marshall emphatically rejected) was that recognizing a right in Title VII to religious accommodation granted too much protection, and too much power, to religious employees. That sort of power granted to religious employees to make demands on their employ- ers might have consequences for other employees and therefore might trigger First Amendment concerns over establishing reli- gion. But as Marshall noted at the time, these concerns seem wildly exaggerated. The Supreme Court, on any number of occasions, has upheld laws accommodating religion so long as they don’t privilege those accommodations unequivocally and unyieldingly over all other interest. By contrast, the court has been clear for some time that “appropriately balanced” accommodations don’t trigger First Amendment concerns — a conclusion that has been fur- ther bolstered by more recent decisions that have further min- imized the demands of separa- tion of church and state. A NEW STANDARD? Critics more recently have won- dered what standard should replace the existing standard. Sure, we should require more of employers, but how much more? Some have worried that a standard that grants employees an unfettered right to religious accommodations would gener- ate its own parade of horribles, such as a police officer’s refusal to protect an abortion clinic or a social worker’s demand to use Bible readings, as opposed to mental health counseling, to heal prison inmates. But, in other contexts, the law has already found a pretty successful middle ground. When it comes to the accommoda- tions required pursuant to the Americans with Disabilities Act, for example, undue hardship is interpreted to mean “significant difficulty or expense. ” As a result, employers cannot satisfy their obligation by merely asserting that a requested accommodation imposes a “de minimis” burden; instead, they must extend them- selves further in seeking to find an accommodation for those with disabilities, unless doing so will actually generate costs or difficulties that are significant. This standard has proven workable when it comes to accommodations under the ADA, providing good reason to think it could work as well in the context of religious accommoda- tions in the workplace. Time will tell as to which path the court ultimately chooses. For now, the court’s decision to hear Groff v. DeJoy holds out the hope of remedying a longstanding wrong and providing people of faith in the workplace with more expanded protections. Properly balanced, these sorts of accommodations will hopefully provide a middle ground, ensuring that the cost of entering the workforce need not be the discarding of one’s faith commitments. Michael A. Helfand is an expert on religious law and religious liberty. He is the Brenden Mann Foundation Chair in Law and Religion at Pepperdine Caruso School of Law, Visiting Professor and Oscar M. Ruebhausen Distinguished Fellow at Yale Law School, and Senior Fellow at the Shalom Hartman Institute. Originally published on Forward.com. The U.S. Supreme Court building in Washington, D.C.