{"id":51849,"date":"2023-05-21T16:21:23","date_gmt":"2023-05-21T23:21:23","guid":{"rendered":"https:\/\/www.politicsplus.org\/blog\/?p=51849"},"modified":"2023-05-21T16:21:23","modified_gmt":"2023-05-21T23:21:23","slug":"everyday-erinyes-371","status":"publish","type":"post","link":"https:\/\/www.politicsplus.org\/blog\/2023\/05\/21\/everyday-erinyes-371\/","title":{"rendered":"Everyday Erinyes #371"},"content":{"rendered":"

Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage. These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that. As a reminder, though no one really knows how many there were supposed to be, the three names we have are Alecto<\/span><\/strong>, Megaera<\/strong><\/span>, and Tisiphone<\/span><\/strong>. These roughly translate as “unceasing,” “grudging,” and “vengeful destruction.”<\/p>\n

Back in the day, when i was doing shift work, I cconsidered it a matter of principle to volunteer to work holiday shifts so the at least one person with children would not have to. I would have been very unhappy, to put it mildly, if an employer had wanted to impose that on me. But a case currently in oral arguments a SCOTUS is apparently considering permiting exactly that.
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Co-workers<\/span> could bear costs of accommodating religious employees in the workplace if Supreme Court tosses out 46-year<\/span>-old precedent<\/h1>\n
The Supreme Court may require employers to be more accommodating to religious requests in the workplace.
\nVictor Plop\/500px via Getty Images<\/a><\/span><\/figcaption><\/figure>\n

Debbie Kaminer<\/a>, Baruch College, CUNY<\/a><\/em><\/p>\n

The Supreme Court may soon transform the role of faith in the workplace, which could have the effect of elevating the rights of religious workers at the expense of co-workers.<\/p>\n

On April 18, 2023, the court heard oral arguments<\/a> in Groff v. DeJoy, a case addressing an employer\u2019s obligation<\/a> to accommodate religious employees\u2019 requests under federal law. The dispute involves a Christian postal worker who quit his job and sued the U.S. Postal Service after he was unable to find coverage for his Sunday shifts. Current law requires employers to make accommodations for workers\u2019 religious requests only if doing so doesn\u2019t impose more than a minimal cost on their business, known as the \u201cde minimis\u201d standard.<\/p>\n

After listening to the oral arguments in the case, I believe it\u2019s very likely the court will overturn the de minimis standard and require employers to accommodate more religious requests. As Justice Gorsuch stated<\/a>, \u201cI think there\u2019s common ground that de minimis can\u2019t be the test, in isolation at least, because Congress doesn\u2019t pass civil rights legislation to have de minimis effect, right?\u201d<\/p>\n

In my view, as a scholar of employment discrimination<\/a>, the only questions are how far the justices will go \u2013 and who will ultimately pay the price.<\/p>\n

Religious rights in the workplace<\/h2>\n

Employers are required to accommodate the religious needs of employees under Title VII of the Civil Rights Act of 1964<\/a>, so long as they can do so without imposing an \u201cundue hardship.\u201d<\/p>\n

Congress didn\u2019t define what that term meant, and it took another dozen years for the U.S. Supreme Court to do so in Trans World Airlines v. Haridson<\/a>. The court determined that Title VII does not require employers to bear more than a \u201cde minimis\u201d or minimal cost in accommodating religious employees.<\/p>\n

Relying on this narrow decision, employees requesting religious accommodation in the workplace have generally fared poorly in the courts<\/a>. Supporters of more religious accommodation in the workplace have tried many times to amend Title VII to redefine undue hardship as a \u201csignificant difficulty or expense.\u201d<\/p>\n

From 1994 to 2013, over a dozen bills attempting to codify this definition<\/a> were introduced in Congress, with none coming close to passage. After failing to persuade Congress to amend Title VII, religious advocates turned to the Supreme Court. However, the court\u2019s decision to hear this case is highly unusual, since it suggests it is considering overturning its own long-standing precedent.<\/p>\n

The other key issue in the case is whether or not a religious accommodation that imposes on co-workers can count as an undue hardship on the employer.<\/p>\n

Since Trans World Airlines v. Haridson, most federal appellate courts<\/a> have determined that accommodations affecting religious employees\u2019 co-workers \u2013 such as those requiring them to take over undesirable weekend shifts \u2013 can be an undue hardship, even if the business is not directly harmed. In practice, that has made it easier for an employer to avoid accommodating a religious request.<\/p>\n

Business interests vs. religious rights<\/h2>\n

Ultimately, the Groff case pits business interests against religious rights. That presents a unique dilemma for the current court led by Chief Justice John Roberts, which is both the most pro-business<\/a> and the most pro-religion court<\/a> in recent memory.<\/p>\n

One way to resolve these two apparently competing interests would be to overturn the de minimis standard and require employers to provide greater accommodation to religious employees while allowing employers to sometimes shift this cost to co-workers.<\/p>\n

Based on what the justices said at the hearing<\/a> and their discussion about accommodations that affect worker morale, I believe it\u2019s likely that that\u2019s exactly what the Supreme Court is going to do. That would have the effect of dramatically limiting employee rights.<\/p>\n

Take, for example, one common type of accommodation request<\/a>, which is time off from work for religious observance.<\/p>\n

In those cases, either co-workers can bear the cost of accommodation, by covering for the religious employee without necessarily earning more income, or the employer can bear the cost of accommodation, by hiring additional workers, paying premium wages or suffering a loss of productivity. If the Supreme Court determines that a cost to co-workers alone can never be an undue hardship under Title VII, employers would likely shift the cost of accommodation onto co-workers \u2013 for example, requiring them to work an undesirable weekend shift.<\/p>\n

Unless an accommodation also leads to a significant difficulty or expense on the business itself \u2013 such as through a loss of productivity or efficiency – harm to co-workers would never be a justification for denying an accommodation, as it has been in most federal appellate courts.<\/p>\n

\"rainbow
The court could promote employees\u2019 religious rights at the expense of their LGBTQ colleagues.<\/span>
\nAP Photo\/Susan Walsh<\/a><\/span><\/figcaption><\/figure>\n

Co-workers bearing the brunt<\/h2>\n

Co-workers could also be harmed in cases involving accommodation of religious expression. This is of particular concern in cases in which religious expression demeans LGBTQ+ people.<\/p>\n

In 2004, the 9th Circuit determined<\/a> that it would pose an undue hardship and be demeaning to co-workers for a religious employee to post in his cubicle the Bible verse \u201cIf a man also lie with mankind \u2026 both of them have committed an abomination; they shall surely be put to death.\u201d<\/p>\n

Yet if the Supreme Court broadens the definition of undue hardship and determines costs to co-workers alone never create an undue hardship, employers might be required \u2013 by a civil rights law originally aimed at prohibiting employment discrimination \u2013 to accommodate religious expression that demeans LGBTQ+ employees.<\/p>\n

Assuming the Supreme Court decides this case as expected<\/a>, the losers would be co-workers who will bear the brunt of the increased religious accommodation requirement. And the Roberts court would maintain its status as one of the most pro-business and pro-religion courts in modern times.\"The<\/p>\n

Debbie Kaminer<\/a>, Professor of Law, Baruch College, CUNY<\/a><\/em><\/p>\n

This article is republished from The Conversation<\/a> under a Creative Commons license. Read the original article<\/a>.<\/p>\n

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\nAlecto<\/span><\/strong>, Megaera<\/strong><\/span>, and Tisiphone<\/span><\/strong>, at this point, it is quite premature to try to predict what the court eill do. But the author of this article was concerned enough to write it as a caution, and it would not hurt to consider thr possibilities.<\/p>\n

The Furies and I will be back.<\/p>\n","protected":false},"excerpt":{"rendered":"

Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage. These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that. As a reminder, […]<\/a><\/p>\n","protected":false},"author":8,"featured_media":50367,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[3729],"class_list":["post-51849","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-politics","tag-furies","category-5-id","post-seq-1","post-parity-odd","meta-position-corners","fix"],"_links":{"self":[{"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/posts\/51849","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/comments?post=51849"}],"version-history":[{"count":0,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/posts\/51849\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/media\/50367"}],"wp:attachment":[{"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/media?parent=51849"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/categories?post=51849"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/tags?post=51849"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}