When can we stop punishing those who keep the Sabbath?

The Supreme Court is poised to correct an old error that has hurt religious workers for decades by depriving them of their civil rights. More than 50 years ago, Congress protected religious employees in Title VII of the Civil Rights Act. It requires employers to give their employees reasonable accommodations for religious practices unless it would cause an “undue hardship” on the business. Like the rest of the Civil Rights Act, Congress’s aim in Title VII was to root out discrimination in American public life, especially against minority groups. Similar reasonable accommodation provisions protect workers who need them for other reasons, like disability or pregnancy. 

But the Supreme Court got the religious part of the law — and only the religious part — entirely wrong. In its 1977 ruling in TWA v. Hardison, the court said employers could satisfy the “undue hardship” standard — and thereby get out of accommodating their religious employees — any time they could show even a slight burden on the company. As Justices Thurgood Marshall and William Brennan observed at the time, this was a “fatal blow” to Congress’s effort to protect religious workers. It was preposterous, too: “Simple English usage” should have stopped the court from interpreting the term “undue hardship” to be such a low bar for employers. 

Why did the court get Hardison so terribly wrong? The court in the 1970s was badly confused about the Establishment Clause and thought that even accommodating minority religious practices would somehow be unconstitutional. 

The court’s reasoning came directly from its ruling six years prior in a case called Lemon v. Kurtzman, a decision that made religion increasingly unwelcome in the public square.  

Last summer, the Supreme Court finally put the Lemon ruling to rest, acknowledging that its old Establishment Clause approach was wrong. Unfortunately, Lemon’s corrosive effects have been felt all over the law, as courts and governments were led to believe they needed to essentially treat religion worse than disability or pregnancy to comply with the Constitution. That adds extra importance to the court’s upcoming hearing in another employment discrimination case, Groff v. DeJoy, that will allow it to fix the Hardison decision and continue the long task of correcting the errors created by the Lemon ruling.  

The public is sometimes skeptical of how Supreme Court decisions affect their real lives, but there should be no doubt: Millions of Americans have had their civil rights taken away — and their powerful employers favored — because the Supreme Court got it wrong over 45 years ago. My firm, the Becket Fund for Religious Liberty, has represented many clients who have had to forfeit their jobs and livelihoods for wanting to follow their faith, all the result of two bad rulings. Workers at huge corporations say they have lost their jobs simply because they cannot work a shift on a religious holy day — as if these huge corporations do not have a large or flexible enough operation to respect the religious diversity of their employees. 

That is why we recently filed a friend-of-the-court brief in the upcoming Groff suit,a case over a Pennsylvania postal carrier whose religious beliefs require him to observe the Sunday Sabbath — a day when the post offices are closed anyway. Even though he was initially granted an accommodation, the U.S. Postal Service changed its mind. Groff, who remained steadfast in keeping holy the Sabbath, ultimately resigned when he faced termination. His case is slated for argument at the Supreme Court on April 18, where we are hopeful that the Justices will replace Hardison with a standard that protects all religious Americans from discrimination in the workplace.  

In Groff’s case, the court can get the law right — and for good. As the Hardison case proves, Supreme Court errors can be costly and long-lasting. Fixing this mistake can help heal our legal system and reinstate civil rights protections for all people of faiths. 

Mark Rienzi is president and CEO of the Becket Fund for Religious Liberty and a professor at the Catholic University of America’s Columbus School of Law.