As usual, the court punts on defining what a substantial burden in the overall context of the business means:
.... we do not write on a blank slate in determining what an employer must prove to defend a denial of a religious accommodation, but we think it reasonable to begin with Title VII’s text. .... Here, the key statutory term is “undue hardship.” In common parlance, a “hardship” is, at a minimum, “something hard to bear.” .... But under any definition, a hardship is more severe than a mere burden. So even if Title VII said only that an employer need not be made to suffer a “hardship,” an employer could not escape liability simply by showing that an accommodation would impose some sort of additional costs. Those costs would have to rise to the level of hardship, and adding the modifier “undue” means that the requisite burden, privation, or adversity must rise to an “excessive” or “unjustifiable” level.
Notice the circularity in the court's reasoning. One can imagine that a blast of lawsuits in the coming years will flesh out the meaning of undue hardship. The law itself, Title VII, specifies that an employer can reject an accommodation that rises above to the level of an undue hardship. This decision make sense in that regard. But Title VII itself does not define undue hardship, probably because it is undefinable. The lawsuits will continue.
This is an interesting decision that seems to pit brass knuckles capitalist dogma against Christian nationalist theocracy dogma. Also interesting is a separate concurrence the three Democrats wrote and signed. The Dems also tried to wrestle with the definition but they too could only deliver a goose egg:
To be sure, some effects on co-workers will not constitute “undue hardship” under Title VII. For example, animus toward a protected group is not a cognizable “hardship” under any antidiscrimination statute. Cf. ante, at 20. In addition, some hardships, such as the labor costs of coordinating voluntary shift swaps, are not “undue” because they are too insubstantial. See 29 CFR §§1605.2(d)(1)(i), (e)(1). Nevertheless, if there is an undue hardship on “the conduct of the employer’s business,” 42 U. S. C. §2000e(j), then such hardship is sufficient, even if it consists of hardship on employees
Just the facts ma'am
A quick description of the facts is helpful here. A postal worker wanted to have Sundays off for religious observances. The USPS signed a deal with Amazon to deliver packages on Sundays. That caused the worker to not show up on Sundays when he was scheduled. His absences on Sundays led co-workers to quit, transfer or cover for him. He eventually resigned because he felts he was being forced to chose between his work and his religious practice. He then sued the Postal Service for discrimination.
So here we get one example of what is not an undue hardship, i.e., other co-workers quitting, transferring or covering for one worker's religious accommodation. But at this point, it is clear to me that an employer of big enough size has to accommodate a worker's religion request, even if it causes other workers to quit. A big question therefore is, how big does an employer need to be before it is an an undue hardship when at least other employee quits? One can imagine how this is going to play out in the courts over a period of years.
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Affirmative action nuked: In Students for Fair Admissions Inc. v. President & Fellows of Harvard College, the Supreme Court nuked race based admissions for both public and private colleges. The decision was all six Republicans in favor and the three Dems opposed and dissenting. The Republicans held that Harvard’s and UNC’s admissions programs violated the Equal Protection Clause of the Fourteenth Amendment. The WaPo discusses the decision:
The Supreme Court on Thursday held that admissions programs at Harvard and the University of North Carolina that relied in part on racial considerations violate the Constitution’s guarantee of equal protection, a historic ruling that will force a dramatic change in how the nation’s private and public universities select their students.Roberts said the admissions programs at Harvard and UNC “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”
But he added that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
In her dissent on Thursday, Justice Sonia Sotomayor, the court’s lone Latina justice, wrote that it is “a disturbing feature of today’s decision that the Court does not even attempt to make the extraordinary showing required” to reverse precedent.
“Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits," Sotomayor wrote. "In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”
The probable upshot, ~95% likely in my opinion, is that Asian and White student enrollment will significantly increase, while Black and Latino enrollment will decrease by roughly the same amount.
Always looking for balance, one good thing about this that we should never again see the likes of an affirmative action failure like the disgrace called Clarence Thomas. He just voted his future self out of the running. Guess that's sort of a crappy silver lining. ☹️
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