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Litigation Update: Groff v. DeJoy: Religious Liberty in the Workplace? — Transcript

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0:01[Music]
0:03welcome to today's Federalist Society
0:05virtual event today February 7th 2023 we
0:09are excited to present a litigation
0:10update in Graf V de joy and the topic of
0:13religious liberty in the workplace my
0:15name is Jack capizzi and I'm an
0:16assistant director of practice groups at
0:18the Federalist society as always please
0:20note that all expressions of opinion are
0:22those of the experts on today's call
0:24today we are joined by Stephanie Taub a
0:27senior counsel at first Liberty
0:29Institute Blaine Hutchison a staff
0:31attorney at the national Right to Work
0:33legal defense fund and Professor Bruce
0:35Cameron who is a professor of employment
0:37discrimination at Regent law he is also
0:39an attorney at the national Right to
0:40Work legal defense fund this is his 47th
0:43year with the foundation and his 16th
0:45year teaching at Regent law after our
0:47speakers have given their remarks we
0:48will turn to you the audience for
0:50questions if you do have a question
0:52please type it into the Q a feature at
0:55the bottom of your screen at any point
0:56and we will handle the questions as we
0:58can towards the end of today's program
1:00with that thank you all for being with
1:02us Stephanie the floor is yours
1:04all right wonderful thank you to the
1:07Federalist Society for hosting and to
1:09our friends Blaine and Bruce at National
1:11right to work for putting this webinar
1:12together so today we're talking about
1:15graph V de Joy a case that the Supreme
1:18Court is has recently taken up and it
1:21has the potential to restore religious
1:23liberty protections in the workplace so
1:26this case provides an opportunity for
1:28the court to restore title VII's
1:31protections for religious employees to
1:34what Congress intended before the courts
1:36watered it down and we're essentially
1:38asking the Supreme Court to clarify the
1:40legal standard that applies when
1:43employees ask for religious
1:45accommodations
1:47and so in short we're asking the court
1:50to apply the law as written and require
1:52employers to give meaningful religious
1:54accommodations to people of Faith right
1:57now I'm going to go over a very
1:58briefcase background history questions
2:01presented then I'll turn the floor over
2:03to Blaine to really dive into the legal
2:05issue here of what the undue hardship
2:07standard means and what the arguments
2:09are in the case
2:11so the lead Council for Groff is um
2:14Aaron Street at Baker Bots my firm first
2:17Liberty Institute along with Baker Bots
2:20joined the case at the third circuit and
2:23also on the team are Alan rynok of the
2:25church State Council and Randy Wanger of
2:28the independence Law Center who've been
2:29with the case from the very beginning so
2:32I'm also working on Amicus coordination
2:34so if anyone has questions about
2:36participating as an amicus you can email
2:38us at Amicus firstliberty.org
2:42all right so a really brief background
2:44of turning to the facts of the case
2:46Gerald Groff is a former post office
2:49employee he's a he was a mail carrier
2:52who wanted to stay faithful to God by
2:55observing the Lord's Day the Sabbath on
2:58Sundays and that's originally why he
3:01joined the United States Postal Service
3:03because they were traditionally closed
3:06on Sundays and he thought this was an
3:08opportunity for him to have a great
3:10career and also stay true to his
3:12religious convictions
3:13and that all worked out well until USPS
3:17started a contract with Amazon to
3:21deliver packages on Sundays and so for a
3:24time it it worked until Gerald's uh post
3:29office began delivering on Saturdays so
3:32he figured out a solution to be able to
3:34transfer to a post that had not yet
3:36started delivering on Sundays and then
3:38that worked and then they started
3:41delivering on Sundays and then he
3:43figured out another solution to get
3:45someone to swap his shifts he was
3:47willing to work additional shifts
3:48throughout the week he was willing to
3:50work non-sunday holidays
3:52um and yeah he even switched posts to be
3:55able to stay faithful to his religious
3:57beliefs
3:58But ultimately though the post office
4:01wasn't willing to provide him with an
4:03effective accommodation even though it
4:06had accommodation options available the
4:08simplest being swapping shifts in a way
4:11that would skip him in the Sunday
4:12rotation which they did for a time
4:14without a problem and we even have post
4:16office officials conceding that
4:19scheduling an extra mail carrier to take
4:21Graf's place on Sundays would not harm
4:25the post office
4:26and so that's where
4:29um that's where this case really gets a
4:31really good started so after that he was
4:34essentially forced out of his position
4:36and filed a lawsuit in 2019.
4:41The District Court sided with the post
4:42office and concluded that it would be an
4:45undue hardship
4:47um for the post office to
4:50um to accommodate Gerald Groff which we
4:53argue of course is um was erroneous and
4:57so then the third circuit affirmed on
5:00the basis of undue hardship
5:03and then we brought the case before the
5:06United States Supreme Court and so
5:09specifically
5:10are two questions presented are whether
5:14the court should disapprove the more
5:16than de minimis cost for refusing
5:19um Title VII religious accommodations
5:24um and that standard was first stated in
5:26a case called TWA V Hardison from 1977.
5:32and so we're arguing that the court
5:34should disapprove the standards for
5:37reasons that
5:38um my friends here will will get into in
5:40the next section and then whether the
5:43the second question presented is whether
5:45the employer May demonstrate undue
5:48hardship on the conduct of the
5:50employee's business under Title VII by
5:53merely showing co-worker impacts rather
5:56than business impacts so our argument is
5:59essentially focusing
6:01on the harm to the business as a whole
6:04is the proper standard it puts the uh
6:07the burden on the business to find a
6:10solution that works for everyone
6:11co-workers and people requesting the
6:13religious accommodation alike so that's
6:16a
6:17um that's a
6:1950 000 foot view of the case happy to
6:23jump right into it so I'm going to turn
6:25the floor over to Blaine to talk about
6:28the particular the first legal issue
6:30which is under twab Hardison well thanks
6:34so much Stephanie we really appreciate
6:35it and thanks for joining as well
6:37Stephanie was uh willing to join at the
6:39last minute so we appreciate that the uh
6:42the first question presented we're
6:43really hopeful uh maybe even for a
6:46unanimous court on this issue because uh
6:48Title VII is very clear what it says is
6:51that employers and unions must
6:54accommodate employees religious beliefs
6:57and practices unless it would impose an
6:59undue hardship on the cost or the
7:02conduct of the employer's business and
7:04so that phrase the conduct of the
7:05employer's business that's the focus as
7:07Stephanie pointed out and it's an undue
7:10hardship and so uh you know undo
7:12hardship most of us understand what a
7:14hardship is uh you know basic English a
7:17hardship is something difficult and the
7:18dictionaries if you look at the 1970s
7:21they're the same as today hardship has
7:22the same meaning it's some suffering
7:24something difficult to endure some sort
7:27of challenge but that's not enough it's
7:30not enough that the accommodation is
7:32simply challenging Congress requires
7:35something more it required it to be an
7:37undue hardship and so undo that's
7:40something that's excessive or
7:42inappropriate and so you can clearly see
7:45when the court said and Transworld
7:46Airlines versus Hardison it just sort of
7:48says in the middle of the opinion uh
7:51without any explanation it simply says
7:53that there's no need to accommodate in
7:55the case and that undue hardship means
7:58anything more than a de minimis cost and
8:01so this completely guts the statute
8:04Marshall noted in his descent it made a
8:07mockery of Title VII he says hello it
8:09sounds with uh fire and fury and all of
8:11these great protections for religious
8:13employees the majority Waters it down to
8:16essentially mean almost nothing and so
8:18uh you know there's a few things I want
8:19to point out that have been said about
8:21it I mean we can all understand his
8:23lawyers basic statutory interpretation
8:25English language undue hardship it
8:28doesn't mean something more than the
8:29fractional part of a penny right it
8:31doesn't mean a de minimis cost they say
8:33I think we know that and there's a
8:35there's a lot that's been said about it
8:37so the first time the court has you know
8:39really mentioned you know recently this
8:41growing tide to revisit transport
8:43Airlines versus artisan and this undue
8:46hardship a de minimis standard in
8:48Kennedy versus Bremerton the first time
8:50the court remanded the case to the ninth
8:52circuit there were four justices Alito
8:54Thomas Gorsuch and Kavanaugh and as they
8:57closed their opinion they noted that the
8:59parties didn't ask to revisit Employment
9:01Division versus Smith and Transworld
9:04Airlines versus Hardison and so that was
9:06a glimmer of hope that the court might
9:08restore these really critical
9:09protections for religious employees that
9:11they rely on uh to practice their faith
9:13and to keep their job and so the next
9:16case that followed Bremerton is
9:19Patterson so this was a case that
9:21directly implicated asking the court to
9:23revisit Hardison and there was a lot of
9:25Hope the court would take that case in
9:27fact the court asked the United States
9:28views and the solicitor general said yes
9:31you should take this case partisan does
9:34not properly interpret the undue
9:36hardship statutory test it's it uh it
9:39conflicts with Title VII and it takes
9:42away these important rights that
9:43employees rely on but nonetheless
9:45despite the U.S agreeing there was some
9:48dispute about which questions the court
9:50should take so the court decided we'll
9:51take none of them but there was a
9:53concurrence a concurrence that was
9:55written by Alito and it was also joined
9:58by Thomas and Gorsuch and so in the
10:00concurrence they agreed with the U.S and
10:03they said a couple of important things
10:04they said first uh Hardison doesn't
10:07represent a likely interpretation of the
10:09statute and I think that's an
10:10understatement it's a it isn't a proper
10:13interpretation but they also pointed out
10:15not only is it not in the briefs not
10:18only does it not come from the parties
10:19in the case that all assumed of course
10:21undue hardship means much more than a de
10:24minimis standard they point out they
10:26point out the court gave no explanation
10:28no analysis whatsoever for it's
10:30basically offhanded remark that undue
10:32hardship means anything more than de
10:34minimis and so unfortunately the court
10:37didn't take the case but there's an
10:39important concurrence then there's two
10:41cases Right to Work we've been involved
10:43as in mikas and trying to push back and
10:46protect employees specifically in this
10:48sphere so we're involved in Amicus and
10:49Patterson we're as involved as an amicus
10:52and dalberries the court didn't comment
10:54about not taking dalberries but at the
10:55same time small versus Memphis gas and
10:58light went up to the court and justices
11:01this time instead of concurring and not
11:03taking the case this time there was a
11:05spirit of descent so written by Gorsuch
11:07and Gorsuch showed great displeasure the
11:09court didn't take the case and in his
11:11words he says Hardison undid Title VII
11:14and so he had a lot to say that was very
11:17helpful and was showed some frustration
11:20the court didn't take it also notably in
11:22small
11:24um as well as in this case there is a
11:26great uh concurrence actually written by
11:28the court below the court of appeals and
11:30small uh just judge State par and also
11:33judge kethlidge they wrote even though
11:35that they were Bound by Hardison they
11:38stated Hardison rewrote the statute and
11:40pointed out many problems with Hardison
11:43itself there's also in this case uh an
11:46argument below by judge Hardiman who
11:48pointed out especially on issue two some
11:50real conflicts with the statute that are
11:52brought about by Hardison and so
11:55um there's a lot that's been said on it
11:56there's been a growing consensus and
11:58push for the court to take this case
11:59that undue hardship has to mean more
12:03than something that's de minimis and
12:05I'll say something as well just about
12:07this before we dive into why the court
12:09said what it said and some of the
12:10reasoning from Hardison but in Hardison
12:12itself even though the court says
12:15there's no duty to com accommodate if
12:18the cost is more than de minimis Justice
12:20Marshall pointed out the cost would have
12:22been de minimis and hardest to actually
12:24accommodate Larry Hardison he noted in
12:27The Descent transport Airlines is one of
12:30the largest employers and airlines in
12:31the world at the time and The Descent
12:34reads that it would have been a hundred
12:35and fifty dollars for three months so I
12:37don't know if it's 150 total If someone
12:40knows they can correct me or if it's 150
12:42each of those months but his point was
12:44this is a de minimis cost this isn't
12:47even the fractional part of a penny for
12:49this huge employer but the court made no
12:52effort to explain it made no effort to
12:54elaborate it simply said out of hand
12:56this is a de minimis cost there's no
12:59requirement to accommodate and so it
13:01said you can fire this employee who
13:03simply like Roth in this case wants to
13:06practice his religious beliefs and so
13:08can I just jump in in a minute there's
13:11there's another fact in the Hardison
13:12case and that is that Hardison got in
13:15trouble because another employee went on
13:18vacation for two weeks so theoretically
13:21the record doesn't reflect it reflect
13:23Justice Marshall says but theoretically
13:27TWA would have only been on the hook for
13:30overtime for two weeks it's unbelievable
13:33I mean when you think about such a huge
13:36air carrier what would be a hardship on
13:39it a loss of a million dollars a loss of
13:41a hundred million dollars now what would
13:44it take to rock the stock of TWA and a
13:47statute says not hardship but undue
13:49hardship it's ludicrous yeah there's
13:52also uh that's a great Point Bruce
13:54there's also some analysis I'm thinking
13:57about
13:57um Professor Michael McConnell and
14:00Douglas lay clock that point out in this
14:01period of time if you look carefully at
14:03the religion cases there's not a lot of
14:05nice things said about the religious
14:07individuals
14:08before
14:11the course to really puzzle and look
14:12hard to find anything that's really said
14:14about his religion and there's almost
14:16this effort in hardestness you point out
14:18to even blame it on the individual they
14:20said well he was being competent he
14:22transferred as if as if this was his
14:24fault
14:25um but you really puzzle and scratch
14:27your head when you hear
14:29um sort of this Top Line holding that
14:31undue hardship means more than de
14:32minimis and there are really two reasons
14:34behind it and uh judge the Paris
14:37concurrence in the sixth circuit he lays
14:39this out very nicely says there's the
14:41stated reason and the unstated reason
14:43um I think this is a really helpful way
14:45to understand everything the court
14:47didn't Hardison in some ways Hardison
14:49it's like the old joke the mosquito and
14:51the nudist colony you know there's so
14:53much wrong with it where do you start
14:54well it's it's really all connected and
14:57it's connected to these two ideas and so
14:59one is the philosophy of formal
15:01neutrality and it's an utter and
15:03complete rejection of accommodation what
15:05Hardison would not and did not accept is
15:08that Title VII the law requires
15:10accommodation to protect religious
15:11employees and so um contrary to an
15:15accommodation approach which would
15:16require something like lifting burdens
15:18to protect religious employees and
15:21that's and that's doing so based on a
15:23protected class formal neutrality that's
15:25the idea
15:26um that you should treat everyone the
15:28same so all and there should be no
15:31differential treatment that's based on
15:32protected class and so what does that
15:34mean well a rule is formally neutral if
15:36you say everyone works seven days of the
15:39week why is it formally neutral well it
15:42doesn't matter that some religious
15:43individuals can't exercise their faith
15:45that doesn't matter the rule itself
15:47applies to every protected class and it
15:51doesn't use a protected class as a
15:52category so it doesn't say only
15:54religious people or only women have to
15:57work seven days a week it doesn't apply
15:59based on protected class it doesn't use
16:01protected class and so it's formally
16:03neutral and really the theory for formal
16:06neutralities that protected class is
16:08largely irrelevant and so the best way
16:10to protect protected class so religious
16:13individuals women immigrants is simply
16:17to prohibit employers from making
16:20decisions based on those protected
16:22classes and so if an employer doesn't
16:24make a decision based on a protected
16:25class in general the presumption is that
16:28something that's acceptable and there's
16:30this there's this underlying Theory this
16:32idea that immutable characteristics
16:34something that a person can't change
16:36those should not be a basis for losing a
16:39job or some sort of discrimination so
16:41there's a distinction between what an
16:44individual chooses to do an employer May
16:46discriminate against on some personal
16:48choices and immutable characteristics
16:50things like things like race and things
16:53like sex those those things that make a
16:55person who they are that they can't
16:56change and so Title VII is based and
16:58grounded on this uh really canonical
17:01anti-discrimination idea formal
17:03neutrality and to some extent Congress
17:07has decided it works and it's acceptable
17:09but there's a real problem for religion
17:11the problem problem is unlike other
17:14protected classes at least Congress is
17:16determined unlike other protected
17:17classes religion uniquely involves
17:20conduct and so it involves not just what
17:22a person believes but what a person
17:24practices in fact if you think about
17:26this it'd be quite odd if you met
17:28someone that said I'm an orthodox Jew
17:29but I don't do any of the things an
17:32orthodox Juve does you'd puzzle a little
17:35bit and the law recognizes the law has a
17:37sincerity requirement sincerity is
17:38because you look in general well what
17:41does a person do and that shows and
17:43matches up sincerity so religion it has
17:45to involve belief and conduct and the
17:47problem with formal neutrality it only
17:49really protects religious belief because
17:51what it means is a person they can
17:54believe so religious status is protected
17:57but not their choices not their conduct
17:59and it's it's Hollow so a person like
18:01graph they can believe what they want to
18:04believe but if they try to practice it
18:06they lose their job and so that's a very
18:08difficult place for employees to be in
18:10and Congress recognized this difficult
18:12in fact that's why it amended Title VII
18:15and so there are two cases in particular
18:17that motivated Congress to amend Title
18:19VII Dewey and Riley and I think they
18:21nicely illustrate the theory of formal
18:24neutrality and how it absolutely
18:26conflicts and repudiates the philosophy
18:29or approach of accommodation which is
18:32protecting individuals based on
18:34protected class
18:35so um both of those cases just like
18:38Hardison they involved sabbatarians
18:41individuals that they wanted to observe
18:43their sat their Sabbath and they had a
18:45conflict with their work roles and in
18:47both cases the Court held that just like
18:49Hardison no discrimination occurred at
18:52all and the reason there's no
18:53discrimination even though minority
18:55individual is this religious individual
18:57was fired for trying to practice his
19:00religious beliefs they said well the
19:02rules are neutral why because the rules
19:04don't mention religion the rules that
19:06say when you're supposed to work and and
19:08what you're supposed to do at work and
19:09they apply to everyone so they're
19:11formally neutral and there's this really
19:13great line um there's there's two great
19:15lines to point out in each of these
19:17cases and one Riley says basically that
19:20religious employees they must either
19:22conform to the workplace or seek other
19:24employment so in essence religious
19:26choice is their personal choices and
19:28it's totally okay to force religious
19:30employees to compromise their faith and
19:32compromise their religious beliefs and
19:34then do he follows and basically applies
19:37the same reason the same logic similar
19:39statements but goes a step further and
19:41says a combinations discrimination and
19:44it says it would be discriminating
19:45against other employees to accommodate
19:47and then it goes another step and it
19:49would say it would constitute unequal
19:51administration of the collective
19:53bargaining agreement to accommodate the
19:55religious individual and that's really
19:57important because the collective
19:58bargaining agreement is essential it's
20:00an important partisan an important part
20:02potentially in this case but sometimes
20:04it's forgotten that Dewey had a
20:06collective bargaining agreement it was a
20:07central part of the Court's reasoning
20:09for discrimination and formal neutrality
20:11it said yeah there's another neutral
20:12rule here
20:14um Congress completely repudiated
20:15rejected those decisions Congress said
20:17really she needs something more and so
20:20they required a combination under
20:22Section 701-j in 1972 and that Amendment
20:26states it's a definitional section so it
20:29defines religion it states that religion
20:31includes not only religious belief but
20:33also religious conduct religious
20:35observance religious practice and so it
20:37bakes that in to the Discrimination
20:40provision and so what that means is an
20:43employer discriminates when they refuse
20:46to accommodate and so there's no more
20:48formal neutrality it's not only
20:50repudiated but the idea of conduct and
20:54status is the separate idea between
20:56belief and practice that's completely
20:57gone Congress eviscerated that and it
21:00completely collapses distinction
21:02Hardison
21:04um despite Congress despite the
21:06legislative history they included Dewey
21:08and Riley in the amendment to show that
21:10these are decisions we wanted to reject
21:12despite the specific amendment to
21:14require accommodation the court
21:17nonetheless basically applies Dewey and
21:19Riley wholesale so the court said
21:21there's no unlawful discrimination
21:23because uh Hardison was treated the same
21:26though all protected groups were treated
21:27equally even though again a sabbatarian
21:30here one of the few in his Workforce and
21:32perhaps the only one was fired for his
21:34religious beliefs the court said this
21:36isn't discrimination and there's really
21:38an amazing statement just as the
21:40statement above about undue hardship and
21:41de minimis is difficult to understand
21:43the court goes so far as to say that the
21:47work rule the seniority provision that
21:50caused Hardison to lose his job was
21:52itself a significant accommodation yeah
21:55and so it's hard to understand how he
21:58should do the thing that fires him as an
22:00accommodation but the court explained
22:01that well this is a wonderful thing
22:03because it's neutral we're treating
22:05everyone the same way and so this is all
22:08good and fine and I reread Hardison you
22:11know for the panel and it's striking uh
22:13I think at least three times Hardison
22:15says the focus of Title VII is treat
22:19treating similarly situated employees
22:21the same way in other words reframing
22:23form of trouty we should treat people
22:25the same way we shouldn't treat people
22:27differently based on protected class and
22:29it utterly rejected accommodation and as
22:33it closed it continued to say things
22:34throughout like this but I think most
22:37starkly in its final paragraph it says
22:39that to accommodate here would actually
22:42be discriminating because you would be
22:44violating formal neutrality you'd be
22:46treating people differently based on
22:49protected class and that's what Title
22:51VII forbids that's not what Title VII is
22:53about so I think this lens is really
22:55helpful because number one Congress has
22:57said you have to accommodate it requires
22:59an accommodationist approach it requires
23:01an accommodation of philosophy and logic
23:03partisan utterly rejected that in all
23:06ways and even the uh the de minimis
23:09standard it's really trying to repeat uh
23:11this neutrality view it's any effect
23:13which we're going to talk about on
23:14co-workers or on the business basically
23:17anything that deviates from neutrality
23:19we're going to reject that
23:22so I'm next blame yeah the question then
23:27is why did the Supreme Court in Hardison
23:29do what they did are they all fools and
23:32incompetence you know the The Descent
23:35said the reason why Hardison ruled the
23:38way it did was because they were
23:40concerned about The Establishment Clause
23:42the problem was the majority was simply
23:44too polite to mention it the dissent
23:47however mentioned it and said well this
23:50is what's going on and the S the
23:53majority should have considered the uh
23:56The Establishment Clause because
23:58and The Descent cites a number of cases
24:00they say Title VII and its accommodation
24:03requirements are constitutional now this
24:06was actually a big issue back then
24:08because for a while in every Federal
24:11District Court to have considered an
24:14accommodation case had ruled Title VII
24:17to be an unconstitutional establishment
24:19of religion and every circuit court on
24:23appeal said no it's not an establishment
24:25a problem but not too long after
24:29Hardison about eight years later the
24:31Supreme Court decided a case called uh
24:34Thornton recaller which was a
24:36Connecticut case involving uh absolute
24:39requirement of accommodation for
24:41sabbatarians and the U.S Supreme Court
24:43said that is an establishment violation
24:46and so the you know these issues were
24:49out there uh then however
24:53shortly after Calder that is in in
24:561987 two years later the U.S Supreme
24:59Court decided a case called uh
25:01Corporation and presiding Bishop versus
25:04Amos it was a case involving a clash
25:08between the religious beliefs of the
25:10Latter-Day Saints Church the Mormon
25:13church and its employees and the the
25:17Supreme Court said it is right for us to
25:20make an exception for religion and it's
25:23right for us to make an exception for
25:25the religious faith and practice of the
25:27church when it's in conflict with the
25:30religious practice of its employees and
25:35so in in in Hardison we had a clash
25:38between what the the faith of the
25:40employee and the rights of other
25:42employees to go fishing you know on on
25:44Saturday but in Amos it was a clash with
25:49religion on both sides and the Supreme
25:51Court said this is not an establishment
25:54of religion and so I think it's very
25:58clear today that Title VII and its
26:00accommodation Provisions are not
26:03unconstitutional so the question then
26:06becomes is there some sort of exemption
26:09for the collective bargaining agreement
26:12now this is a serious issue in its uh
26:16cert response the government argued that
26:20it would be a violation of the mou
26:23memorandum of understanding it's another
26:26name for a collective bargaining
26:27agreement it's the Union contract it
26:29would be a violation of the Union
26:30contract to accommodate graph because it
26:36would violate the uh the seniority uh
26:39provision and the government said that
26:42it had specifically preserved this issue
26:45below and so there's no question in my
26:47mind I mean obviously the government has
26:49not filed its brief yet in graph but
26:51there's no question in my mind that they
26:53are going to argue that and so this
26:55collective bargaining agreement and the
26:57seniority provision I think our front
27:00and center so the question is this
27:04Hardison suggests that if an
27:07accommodation would violate a collective
27:09bargaining agreement there is
27:11essentially a presumption that that is
27:14an undue hardship we're just going to
27:16say if it violates the collective
27:18bargaining agreement the employer is
27:19released from accommodating but it seems
27:22to me that makes no sense because what
27:25after all is a collective bargaining
27:26agreement a collective bargaining
27:28agreement is a decision between the
27:32employer and the employees to have a
27:34certain rule so if an employer alone
27:37creates a rule and it is required to
27:40accommodate or at least attempt an
27:42accommodation then why is an agreement
27:46of the employees sacrosanct you know why
27:49why should that that change things it
27:52seems to me that that in fact there is a
27:55serious problem when you're looking at
27:59this issue of whether or not you should
28:03uh protect give special protection for
28:06seniority agreement what after all is a
28:10seniority agreement
28:11isn't an agreement that employees have
28:14to get in line I mean isn't that really
28:17what this boils down to you get in line
28:19and we have get in line rules all the
28:23time in society and it's a very weak
28:26reason to give someone a reward anyone
28:29who's fallen on the airline knows that
28:31you get in line but they let people with
28:34small children people with disabilities
28:37people in the military people who have
28:39flown on their plane before a number of
28:42times they all get to go ahead of you so
28:45how is this a a strong reason you go to
28:48a restaurant you get in line
28:50they determine when you actually get see
28:53it based on the number of people in your
28:54in your party right I mean so when you
28:57look at how how Society deals with this
29:00the idea of getting in line as the basis
29:03for a reward is is is is is pretty weak
29:07there's some other problems with the
29:09idea of basing this on getting in in uh
29:13in line
29:15what about employment decisions
29:17themselves if you had a get in line rule
29:21the senior employee would always be
29:24promoted will that be pretty good for me
29:26because I've been 47 years with the
29:29national Right to Work legal defense
29:30Foundation but it doesn't make any sense
29:33from a merit point of view I mean it's
29:36it's ridiculous and so
29:39it seems to me that not only is there an
29:42obvious problem with a get in line rule
29:45but a get in line we will also tends to
29:48hold down wages just like non-compete
29:51agreements for low-level employees
29:53because what does it say to an employee
29:56it says that if you decide to go to
29:58another employer to increase your wages
30:01that you now what you've lost your place
30:05in line in the new employer and you've
30:08lost your place in line in the old
30:10employer and so this this really is a
30:13way to uh hold down down wages even in
30:17collective bargaining agreements they
30:19don't carefully uh protect the seniority
30:23agreement
30:24um
30:25there's something known in most
30:27collective bargaining agreements as
30:29super seniority which means that Union
30:32shop stewards I get to cut in line when
30:36it comes to reductions in force they get
30:39to go to the back of the line so they're
30:41not reduced what's the reason for that
30:43they somehow think it's a benefit to the
30:45union to have their shop stewards around
30:47so that's an exception to the get in
30:50line there's another exception to get in
30:52line it typically in in collective
30:54bargaining agreements and that is the
30:56reduction in force agreements when
30:58you're deciding how to reduce employees
31:01they generally have in that agreement a
31:04bumping rule that the senior employee
31:06can bump the junior employee and keep
31:09the senior employees job but it requires
31:13that the senior employee have a level of
31:15competence in that job and so I I think
31:19that um
31:21the idea and the abstract this is a
31:24practical matter the seniority
31:25agreements should be protected is a very
31:29weak when you look at both the
31:31Collective Agreement
31:34scenario and in society as as a as a as
31:38a rule the real evil though the real
31:42problem with the seniority agreement and
31:45the collective party agreement is that
31:47it comes from exclusive representation
31:51that is Congress government has created
31:55a rule which says that every employee in
31:58the bargaining unit is divested of their
32:02right to represent themselves and
32:04instead a union a union that the
32:07individual employees did not all choose
32:09gets to represent them instead now this
32:13is completely antithetical to common law
32:16and this is a violation of the
32:18anti-monopoly provisions because this is
32:20a monopoly in in the the workplace
32:24and so this is the Genesis for this idea
32:28that collective bargaining agreements
32:31somehow give passes to Union and
32:36employer rules and the Supreme Court in
32:38in our case Janice versus afscme uh said
32:42that exclusive representation is quote a
32:45significant impingement on associational
32:48freedoms that would not be tolerated in
32:51other contexts end quote that's uh the
32:54court at page 24
32:5778. I think Title VII is such a context
33:02and why is that
33:05what's the reason for Title VII the
33:08purpose of Title VII was to
33:11protect minority rights
33:14what is the purpose of a collective the
33:18exclusive representative it is to
33:20represent majority rights and by its
33:24nature exclude minority rights I mean if
33:27the majority is acting up you have the
33:29minority they have failed in in their
33:32task so instead as Hardison suggests
33:35that there should be a presumption
33:38protecting a collective bargaining
33:40agreement it seems to me that there
33:42should be a presumption that if a rule
33:44is collectively bargained it's hostile
33:47the Title VII as host of The Minority
33:49Rights and so there should be a
33:51presumption that these are invalid as
33:54opposed to being uh valid and
33:57if you've been around as long as I have
34:00uh you know the dark history of
34:02organized labor and discrimination
34:05against women and African-Americans it's
34:08really rather outrageous what has
34:10happened in the past in in the name of
34:12the the majority so I say that instead
34:17of the collective bargaining agreement
34:19automatically giving a pass to employers
34:22on accommodating that the collective
34:24bargaining agreement should be presumed
34:27to be a violation of Title VII because
34:30it is a majoritarian rule which is
34:32antithetical to the purpose of Title VII
34:36all right what about co-worker
34:38exemptions
34:40um
34:43just to clarify a little bit of the
34:45party's argument here with respect to
34:48the collective bargaining agreement so
34:50we're arguing that the court really
34:51doesn't need to get into this um the
34:55collective bargaining agreement and its
34:57application here because the third
34:59circuit below didn't address it at all
35:02it was not the basis for their finding
35:04undue hardship and it actually and it
35:07makes sense because the way that Gerald
35:09Groff's um his position was structured
35:12is that it didn't have it didn't assign
35:15Sunday shifts based on seniority at all
35:17it was a um just a random selection so
35:21seniority doesn't come into issue here
35:23so we argue even if you do address it it
35:25didn't violate the collective bargaining
35:27agreement and that might be why the
35:29third circuit didn't address it didn't
35:31rely on it and so the court really the
35:33normal course of action here is to we're
35:36asking the Supreme Court it's a very
35:37modest ask to clarify what the proper
35:41interpretation of undue hardship is and
35:44then they can remand back down to figure
35:47out how that applies in every any
35:49particular or in this particular factual
35:51context
35:53um and so the question is what how do
35:56you interpret undo hard ship and we're
35:58really saying so we've spent most of the
36:00time saying what it's not which undue
36:03hardship does not mean minimal hardship
36:05undue hardship we're arguing should mean
36:07significant difficulty or expense which
36:11is how it's been interpreted in several
36:13other statutes that require employee
36:16accommodations such as the Americans
36:19with Disabilities Act they Define it in
36:21that term so just as a matter of plain
36:23statutory interpretation undue hardship
36:26should mean the same thing in the these
36:29different similar contexts and so we're
36:32arguing that it should be given the same
36:33interpretation that it's given in many
36:36other employment accommodation contexts
36:38we've seen it even as recently in in
36:40bills that have been introduced about on
36:42pregnancy accommodations or nursing
36:45mother accommodations so this is um
36:48so that's focusing on the hardest in
36:51standard and then remanding back down is
36:53is what we're um what we're advocating
36:55for you know I I've had this discussion
36:57Stephanie with with uh Baker and Bots uh
37:00lawyers and I think they're wrong and
37:03and and the reason why I think they're
37:05wrong is if you look at the opinion the
37:07opinion actually talks about rotational
37:10basis for assigning Sunday work that
37:14rotational basis is part of the
37:16collective bargaining agreement that is
37:18it it was agreed upon by the union and
37:22if you look at the government's petition
37:23the government specifically argues that
37:27it is the collective bargaining
37:29agreement that that saves uh the the
37:33government from having to to accommodate
37:35so I guess you know well it's a matter
37:38of predicting the the future but my
37:41prediction for the future is based on
37:42what the government said in the cert
37:45petition and I think that's a pretty
37:48good indicator what they're going to say
37:50on on the merits so I think the
37:52collective Barney agreement is going to
37:54be front and center clearly in Hardison
37:57the collective bargaining agreement was
37:59given special uh Privileges and so we'll
38:02see I mean would it be easier for you
38:05not to have to break the collective
38:07bargaining agreement absolutely go for
38:10it I don't think the force is on the
38:13other side are going to let you get away
38:15with that
38:16well they've made statements below if
38:19you look at the record where they're
38:20saying that they previously took the
38:22position that it didn't violate the
38:23collective bargaining agreement and the
38:25third circuit didn't even address it so
38:27we think there's a very good um so that
38:29we're arguing that the court really
38:31doesn't need to get into all of this
38:34um and really just clarifying what um
38:36that undue hardship means the same thing
38:38in the religious context as it does in
38:40any other
38:42um any other context when you need
38:43employment accommodations in order to
38:45have equal opportunities in the
38:47workplace
38:48um but I think that is a good segue for
38:50turning into issue two which is the
38:52impact on co-workers argument yeah all
38:56right I just want to want to say one
38:57thing too as well
38:59um you know in some ways I'm really
39:01hopeful the court will get rid of all of
39:03Hardison and not retain any of it
39:04because it all harms employees so we're
39:07so hopeful that you know you'll win on
39:08issue one in on issue two
39:10um but really it's two sides you know My
39:13Views is two sides of the same coin it's
39:16really you know the coin is this formal
39:18neutrality dispute The Establishment
39:20Clause right it says that
39:22um you know it has to be de minimis
39:24because we can't deviate from neutrality
39:25so an accommodations of CBA and
39:28accommodation is anything another
39:29employee can get but any sort of special
39:32treatment anything different than that
39:33we're going to forbid we're going to
39:34rely on neutral rules even though
39:36accommodation says you need an exception
39:38for neutral rules and then it turns
39:40around and tries to defend its decision
39:42in Hardison well a CB is a super neutral
39:45rule so we're going to sort of double
39:46down on our wrong approach that
39:48conflicts with accommodation and so it
39:51really hurts employees and you know as
39:53Bruce mentioned you know there's this
39:54larger point about what does Title VII
39:56do it also everyone's pass for the
39:59precise point because uh some workplaces
40:02don't want to accommodate and prefer to
40:05discriminate that's the precise reason
40:08Congress stepped in and said we're going
40:10to invade the private sphere to require
40:13a certain level of treatment for
40:15employees and so to turn around and say
40:18well all the employees want to fire the
40:20African African-American employees in
40:221964. that would not have been an
40:24allowed defense or all the employees
40:26they don't want to hire women so we're
40:28not going to hire women but Hardison
40:30allows because it says it's
40:32discriminatory and you have this
40:33neutrality lens of comparing protected
40:36classes they say well we can basically
40:39say if all the employees don't want to
40:40accommodate want to fire growth that's
40:43fine or if all the employees want to
40:45fire Hardison that's no problem at all a
40:47collective bargaining agreement simply
40:48takes these discriminatory preferences
40:50and it adds another layer essentially of
40:53discrimination so uh you know it's it's
40:55the same lens and I think that kind of
40:57moves us you know thinking about issue
40:59two you know there really shouldn't be
41:01any exception uh you know as as uh you
41:05know we're arguing here for co-workers
41:06discriminatory preferences especially
41:08when they're written down I mean what
41:09difference does it make whether they're
41:11just you know they vote on firing their
41:13religious employee or they write it down
41:15with the employer yeah blank and I had a
41:18point about this idea of the popularity
41:21of Title VII when in 64 when they passed
41:25Title VII a senator put into the bill
41:28protection for women it did not have
41:30that in the in the draft and he did it
41:34as a poison pill he thought it was so
41:37unpopular that they would give equal
41:39rights to women that that would
41:40certainly cause Title VII to be lost and
41:43so that gives you an idea what the you
41:46know general population the thought at
41:49the at the time and so Title VII was
41:52clearly contrary to majoritarian
41:56interests and the idea as as you've
41:59stayed before Blaine of giving employees
42:01a heckler's veto is precisely contrary
42:06to Title VII
42:09absolutely and judge hardiman's dissent
42:11in the third circuit goes into that in
42:14in really good detail so if anyone's
42:16looking for more on that argument point
42:19you in that direction
42:20well you know I I don't let me give what
42:23I think is perhaps the most compelling
42:25argument about concern about co-workers
42:28and American society
42:31since the Civil War the United States
42:34has recognized exemptions for religious
42:38objectives to combat and when you look
42:41at the the Welsh and Seeger case you see
42:44that religion is very very broadly
42:46defined and what is the res the effect
42:50on co-workers co-workers what is the
42:53effect on others of giving a religious
42:56exemption to combat
42:58it is that the other people face being
43:02killed or maimed or face a lifelong
43:06disability
43:07and so you know when you talk about the
43:10the co-worker downside of accommodating
43:13uh Mr Groff
43:16maybe they can't go fishing that Sunday
43:18you know or or maybe they're going to
43:20miss a family picnic or something it
43:24pales in comparison to the historic
43:26concern that the United States has had
43:28you know since at least the the Civil
43:31War to protect religious belief and the
43:35military context
43:41well I think we're getting close to the
43:43end here
43:45um for questions I'm skimming through it
43:46looks like we have a handful of
43:48questions
43:49um Stephanie is there anything you want
43:50to add about issue two
43:53yeah so I think just a good way to look
43:56at it is to remember who who really has
43:58the power to make these accommodations
44:01and figure out what's the best way to to
44:05make this work it's it's the employer
44:06especially if we're talking about big
44:08employers like big corporations and um
44:11big government agencies a lot of times
44:13they have the ability to make
44:14accommodations that may not occur to the
44:17um the particular employee that's
44:19requesting the accommodation so some
44:21things like transferring to different
44:23positions that are um that are available
44:25or maybe rearranging the schedule in a
44:29way that um that will really be a
44:31win-win for everyone and so allowing
44:33people to point only to co-worker impact
44:36as um as kind of a get out of jail free
44:39card
44:40um that can let employers get off the
44:42hook Without Really Trying to Find a
44:45good solution so the what we're
44:47advocating for is this significant
44:49difficulty or expense on the business
44:51standard isn't putting the burden back
44:53on the employer to try to make it work
44:56for their business and if it really
44:57can't then it really can't but if if you
45:00can make it work if you can provide
45:02these equal opportunities to everybody
45:03providing these religious accommodations
45:05and then that really could be a win-win
45:07scenario
45:08um so that's
45:10um yeah that's that's what I had to say
45:11about question two and this is a really
45:13important case that has the potential to
45:15impact employees of Faith across the
45:18country
45:19and just restore these religious liberty
45:21protections so we're very excited about
45:23this opportunity
45:25moral argument's going to be April April
45:2818th yeah Stephanie can can I can I uh
45:31uh a pine on this uh the significant
45:34difficulty standard that that you
45:36mentioned comes from the Ada and I think
45:40that's a bad standard to argue because
45:43what are you trading you're trading
45:45undue hardship for significant
45:48difficulty is a difficulty as bad or as
45:53high a mountain to climb as hardship I
45:57don't think so is this undue hardship is
46:00is that as just a matter of you know
46:03English usage is is that a lower
46:06standard than significant difficulty I
46:09say and in fact the last question in our
46:12group is you know what should the
46:13Supreme Court do how should they draw
46:15the line I think undue hardship
46:18understood appropriately you know and
46:21consistently with the English language
46:23is the correct standard because
46:26you say to the company you have to show
46:29a hardship and more than that you have
46:33to show that the hardship is undue now
46:36you know you can't require an absolute
46:38accommodation but it seems to me that it
46:41has to be a significant a significant it
46:45has to be a a an obligation that creates
46:49a hardship for the employer
46:51plus and that would be the undue
46:54hardship and so I think the the current
46:57language works I don't think the Ada
46:59substitution uh helps if anything in the
47:02hands of a creative judge who is hostile
47:05to religion it will diminish the rights
47:08of employees of faith
47:11I appreciate where you're coming from I
47:13think when we're arguing that the
47:15significant difficulty or expense is
47:17getting at that it's getting at what
47:18undue hardship means do hardship
47:20certainly doesn't mean minimal hardship
47:23it means a significant difficulty or
47:26expense considering the factors on the
47:28business and so I mean well respectfully
47:32disagree about about what the proper
47:33interpretation is but we do it seems
47:35like we do agree that it needs to be a
47:37very robust standard to implement what
47:40Congress had intended and it needs to be
47:42given some sort of a definition because
47:44right now without a replacement
47:45definition courts might fall back on
47:48this de minimis standard which is which
47:50has gutted religious protections for
47:53people of all faiths for decades so I
47:56agree with you completely I mean the
47:58diminished de minimis interpretation of
48:00undue hardship is is is ludicrous I mean
48:03as I mentioned before if you're looking
48:06at transuel Airlines either the largest
48:08or second largest Air carry at the time
48:10what would what loss would be a hardship
48:14clearly not a million dollars I mean you
48:17know and you you might even look at the
48:19accounting rules when you're doing an
48:21audit where accountants say well you
48:23know we don't even have to look at this
48:24area because because this amount of
48:27money doesn't make any difference to the
48:29accuracy of our our final review so I
48:33would say that in the TWA versus
48:36Hardison anything under a million
48:39dollars would not be an undue hardship
48:42for Transworld Airlines and they should
48:44have they should have been required to
48:46accommodate this guy at a hundred and
48:49fifty dollars
48:52or light more likely because it's not
48:55reflecting the record the two-week
48:57overtime I mean this is this is a
49:00rounding error right yeah it's pwa it's
49:04actually similar here because the main
49:07time period that we're looking at is the
49:10time period around the Christmas holiday
49:12around the December holiday is
49:15um and so this is the time when there's
49:17a if he's scheduled on a couple of those
49:19Sundays they might have trouble but that
49:21there are several different ways that
49:23the post office could fix this problem
49:25and um we're and we're arguing that they
49:28simply just didn't want to because they
49:30had this idea of the formal neutrality
49:32that you were talking about earlier
49:34um and that that because they have this
49:36idea they couldn't see that some people
49:38need these religious accommodations in
49:40order to have access to these these jobs
49:44otherwise they could be barred from
49:45large sections of the workforce if
49:48they're not given meaningful religious
49:50accommodations
49:51you raise a very important Point here
49:53this is a big issue for sagittarians who
49:57are in the delivery business this is the
49:59Sturgill case that came out of the
50:01eighth circuit where a guy had his
50:04Sabbath from Sundown Saturday the sun
50:06down uh excuse me Sundown Friday the sun
50:09on Saturday it was The Seventh-Day
50:10Adventist and and they were doing
50:14deliveries around the holidays so you
50:17not only have a shortened day you know
50:20from Sundown to sundown but you have a
50:24high volume and so this is a specific
50:27problem for sabbatarians
50:30yeah Abercrombie is something we haven't
50:32talked about as well but Abercrombie
50:34really puts uh you know it says that
50:36Hardison's reasoning is wrong and
50:38Abercrombie does approach it from the
50:40perspective of formal neutrality but it
50:42says that accommodation special
50:44treatment so there's certainly a way as
50:46Stephanie talked about
50:47um I you know special treatment or
50:49favored treatment is nice language but I
50:52actually prefer to go back to if you
50:54look at Sherbert versus Werner Justice
50:56Brennan says accommodation is nothing
50:58more than neutrality in the face of
51:01religious differences and even in
51:03Hardison the United States Mikus grief
51:05said look all these protections are
51:07trying to allow ultimately religious
51:09employees to join the workforce like
51:12every other protected class and so Groff
51:14simply wants to be able to work like
51:16every other protected class and in
51:19Hardison what did he want he wanted to
51:21work the same way women could work the
51:22same way African Americans and
51:24immigrants and simply wanted to do that
51:25and practice his faith and that's what
51:28this case is really about it's about
51:29these critical protect actions so uh you
51:31know just a couple quick notes I was
51:34looking through the chat a couple people
51:35have asked and we've talked about
51:37um you know could they avoid overruling
51:39partisan given maybe there's a de
51:41minimis standard and I apologize for
51:44that
51:45um but really what's gone on here from
51:47Hardison is the de minimis standard has
51:49allowed any cost whatsoever as a per se
51:52rule in the lower courts to reject these
51:54critical protections for religious
51:56employees so you know 150 even any cost
51:59a lot of times it's rejected by
52:01employers it's rejected by others so
52:04um you know I I think that it's likely
52:07that we get a large or perhaps consensus
52:09an issue one it's been so harmful and it
52:12deviates so sharply from Title VII
52:15yeah one of our questions is uh whether
52:18or not the chief is going to assign the
52:20opinion to Justice K again to forge five
52:24votes uh we've been seeing a series of
52:27victories in favor of religion and
52:30sometimes the five vote sometimes more
52:33and so I don't think that is a
52:37significant uh risk that uh that uh
52:41Kagan is going to be writing this
52:42opinion
52:44um instead I think that there's going to
52:46be uh well since we have it seems four
52:49justices have already indicated a desire
52:52to re-look at Hardison I think we're
52:55going to have uh more than five on our
52:58side
52:59but we were very optimistic about that
53:01even the other side doesn't seem to be
53:03really defending Hardison because as you
53:05mentioned this list your general has
53:07filed a brief uh criticizing Hardison in
53:10the past and on this at the search stage
53:12they weren't arguing a defensive
53:13Hardison they were just questioning they
53:16were just saying don't take this one to
53:18overworldson and take maybe another one
53:20so that's um there's not really a lot of
53:22Defenders of hardness in these days I
53:24think they were in a little bit of a box
53:26because the solicitor General's office
53:29during President Trump said yes take
53:33this and so you know he's small in the
53:36brief in opposition they in fact admit I
53:38think their language is we admit
53:40partisan is not the best gloss on titles
53:43and they're supposed to be defending it
53:46so uh you know even the Defenders aren't
53:48defending hard to send it and that's why
53:50you know potentially they rely on this
53:52co-worker impact some of these other
53:53theories that as Stephanie points out
53:55another comment from Abercrombie
53:57Abercrombie says you can't add words to
53:58the tech next to the statute to make it
54:00do what you want to do the text says
54:03here undo hardship on the conduct of the
54:06employer's business it doesn't say a
54:08hardship on a union or a CBA or
54:11co-workers or anything else it requires
54:14accommodation unless so it you know
54:15impose some great expense on the
54:18business
54:24there's another question here says was
54:26the proposed swapping voluntary on the
54:28part of the employee would then be
54:30required to work on Sunday instead of
54:32the the plaintiff the swaps were
54:34voluntary right Stephanie that's my
54:36understanding of the of the record and
54:38that's part of the problem because a
54:40person who had voluntarily swap fell ill
54:44and could no longer swap yeah so this
54:47this whole time period took place over
54:49the course of about four years
54:52um so there were voluntary swaps and
54:54there were times when people were when
54:55they uh Graf was skipped in the rotation
54:58um so there's a there's several options
55:01that were available and the times when
55:03he was swapped in the rotation
55:06um they were asked the corporate
55:07representative was asked during the
55:09deposition if this caused harm to USPS
55:12by scheduling someone else especially
55:14during those times and they said no it
55:17didn't cause harm so that should
55:19um that should resolve the function
55:22hardship question but there are the main
55:25simple fact of the matter is there were
55:26several ways to accommodate him without
55:28causing significant difficulty or
55:30expense or undue hardship as even as you
55:33I mean as you define it under your more
55:35even more rigorous standard then it says
55:39um so it's absolutely time for the court
55:41to readdress the the standard return us
55:45to the original meaning and then um and
55:48and then we hope that this case will be
55:50resolved
55:51maybe just one final note
55:54um someone asked about people making
55:57insincere claims and this is sometimes a
55:59point of pushback when it comes to
56:01accommodating protecting religious
56:02employees the argument as well it would
56:04cause Mayhem there's sort of these
56:06arguments in free exercise Smith world
56:07or here well what about all of these
56:10people that might come up with these you
56:12know quirky ideas but two things one
56:14religion often imposes great difficulty
56:17and expense on the actual adherent
56:19surreal you know sabbatarians know this
56:21and they've said this for a long time
56:24um you know they don't believe that they
56:25have the choice to pick what day of the
56:26week is convenient for them it's
56:28inflexible and then secondly we do have
56:30a sincerity test which is interesting
56:32because the camp that's often hostile
56:34towards religion and basically on one
56:36hand says there's no relationship
56:38between uh what you believe and what you
56:40do they on the other hand turn around
56:41and love to say what does the religious
56:43person do here so there is a sincerity
56:45test there is an ability to figure out
56:48whether a person's sincere and at least
56:50under uh free exercise and similar
56:53statutes uh our Lupa for example courts
56:56have been readily able to distinguish
56:57between sincere religious beliefs you
57:00know prisoners come up with great ideas
57:01like my religion requires filet mignon
57:03at every meal you know courts are
57:05readily able they've they've noticed a
57:08kitten cat food
57:11my uh ceremonial dagger in prison I mean
57:13there's all sorts of these courts are
57:15equipped to handle it
57:17um you know but I think as we're all you
57:18know saying this is such a critical case
57:20to protect employees allow them to
57:22exercise their religion in the workforce
57:24and so uh we're all optimistic that we
57:26will have a great success on issue one
57:28and two yeah blame do we want to look at
57:32this the very first question on this
57:34someone who raises the respect for a
57:37marriage act and says could Groff have
57:39an impact on that the answer is
57:41absolutely because the respect for
57:43Marriage Act may very well create
57:45problems for employees of faith in the
57:47workplace and and therefore it seems to
57:50me that by restoring the true statutory
57:54standard for minority rights religious
57:57minority rights is going to help
57:59employees in all sorts of contexts
58:01including that one
58:03yeah my understanding is that particular
58:05act might not affect Title VII statutes
58:08but there are different contexts and it
58:11certainly is not just a sabbatarian
58:13issue there are other other
58:16um like people of various faiths have
58:19have
58:20um sincere religious needs that need to
58:21be accommodated Abercrombie is a great
58:23example that had to do with an employee
58:26at Abercrombie who was required to wear
58:29a hijab
58:30um but she was discriminated against
58:32because Abercrombie had this supposedly
58:34Mutual policy where you couldn't wear
58:36any head coverings any hats and they
58:39weren't willing to make even the minor
58:41religious accommodation and so there's
58:43great language in Ambercrombie that
58:46about how it's important to provide
58:48religious accommodations for for
58:50employees of Faith right Abercrombie and
58:53Hardison cannot reside in the same box
58:56right maybe just one uh one final note
58:59and give a little bit of uh you know CBA
59:01Right to Work Work plug here you know
59:03the person asked about
59:05um would Groff affect the
59:07constitutionality of this statute
59:08religious accommodations they don't
59:10affect future work rules so Abercrombie
59:12clarifies you can have a no Hardware
59:14policy you can do a lot of these things
59:16you want to do you can have even cbas
59:18what we've learned in Bruce and I
59:20represent individuals with religious
59:22objections to compelled Union support
59:24that the CBA doesn't Trump Title VII you
59:27can still have your CBA but Title VII
59:29does what free exercise relate all the
59:31accommodation for religion does is it
59:33allows religious employees to Simply
59:35exercise their faith on the same basis
59:38as other protected classes or live in
59:40society like other individuals do and
59:42maintain their sincere religious beliefs
59:47well I think that that's uh definitely a
59:49good point to end if none of you have
59:51anything else to to say we might wrap up
59:56thank you so much for hosting the
59:59federal Society Absolutely I'll say on
1:00:01behalf be happy thank you all for
1:00:03joining us today and providing provide
1:00:04expertise
1:00:06um as always we do welcome feedback at
1:00:08info fed Dash sock dot org and please
1:00:12keep an eye on our website and your
1:00:14emails for upcoming events that'll be
1:00:16all for today thank you guys for joining
1:00:18us we are adjourned
1:00:23[Music]
1:00:25foreign
1:00:25[Music]

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