Meet Gerald Groff.

Groff was a letter carrier with the U.S. Postal Service.

Quoting Exodus 20:8-10, Groff told the U.S. Supreme Court that “it is his sacred obligation to “(r)emember the Sabbath day, to keep it holy” and to follow the commandment “(s)ix days you shall labor, and do all your work, but the seventh day is a Sabbath to the Lord your God.”

Thus, Groff declined to work on Sundays.

Which was fine with the Postal Service until circumstances changed and the Postal Service said it would no longer accommodate Groff in this way.

Groff left the Postal Service and filed suit under Title VII of the Civil Rights Act of 1964.

Under Title VII, “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to (the individual’s) compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

Title VII further says, “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that (it) is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

So under Title VII’s text, the issue between Groff and the Postal Service is essentially this: Is accommodating Groff an undue hardship on the conduct of the Postal Service’s business?

Whatever the answer to this question might be, this question derives from the text of Title VII.

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Groff further frames the issue in this way: “On its face, the statute provides robust protections for religious employees. After all, ‘undue hardship’ suggests that an employer must incur significant difficulty or expense before it is excused from offering an accommodation.”

But this isn’t the framing of the issue under dictum – language unnecessary for the decision – in the 1977 U.S. Supreme Court opinion in Trans World Airlines v. Hardison.

Dictum in Trans World Airlines says that an “undue hardship” arises when accommodating an employee requires the employer “to bear more than a de minimis (that is, minimal) cost.”

Until Trans World Airlines, one issue was: Is accommodating an employee an undue hardship on the conduct of the employer’s business?

After Trans World Airlines, that issue became: Does accommodating an employee require the employer “to bear more than a de minimis cost”?

Trans World Airlines thereby watered down – maybe “gutted” is a better word – the protections of Title VII for challengers such as Groff.

Regardless of whether Groff should prevail, he has much less of a chance of prevailing under Trans World Airline’s misinterpretation of Title VII than under Title VII’s text.

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When the high court misinterprets the U.S. Constitution, that’s a hard problem to fix without going back to the court.

Yet Groff’s challenge doesn’t involve the U.S. Constitution. It involves a statute: A bill that Congress passed and the president signed.

Any Congress and any president since 1977 could have fixed the Trans World error by amending Title VII.

That, however, hasn’t happened.

In Groff’s challenge, the high court can fix the Trans World Airlines error that obviously departs from Title VII’s text.

A good place to start might be the Trans World Airlines dissent by Justice Thurgood Marshall, joined by Justice William Brennan, neither of whom was a textualist, much less an ardent textualist, yet both of whom saw the problem in Trans World Airlines.

The dissent rightly asks “whether simple English usage permits ‘undue hardship’ to be interpreted to mean ‘more than de minimis cost,'” and says the Trans World Airlines opinion “makes a mockery” of Title VII and “effectively nullif(ies)” part of it.

Marshall and Brennan were right.

Groff’s challenge presents the high court with an opportunity to fix the Trans World Airlines error and restore Title VII in this way.

A decision is expected by June.

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The airline commonly called TWA became part of American Airlines in 2001.

Yes, the bad Supreme Court dictum has outlasted the airline.

Dr. Randy Elf is among those who remember TWA.

COPYRIGHT ç 2023 BY RANDY ELF