Aaron Streett of Baker Botts recently argued a pro bono religious liberty case before the U.S. Supreme Court, and The Texas Lawbook wanted to know details.
In Groff v. DeJoy, Streett represents Gerald Groff, a devout Christian and former Pennsylvania-based Postal Service mail carrier who was disciplined by USPS for skipping Sunday shifts to observe the Sabbath instead of delivering Amazon packages.
At the April 18 oral arguments, the justices considered whether they should (or shouldn’t) clarify a long-standing rule for when U.S. employers must accommodate the religious practices of employees — namely, whether inconvenience to coworkers is an “undue burden” under Title VII of the Civil Rights Act of 1964 and excuses an employer from accommodating an employee’s request for religious exercise. A decision by the nation’s high court is expected by the end of June.
In the Q&A below, Streett discusses details of the April 18 oral arguments, the importance and broader implications at play in this case, how Baker Botts got the case, background on the case law at issue and details on preparation, including mock oral arguments.
Texas Lawbook: How do you think oral argument went?
Aaron Streett: It’s always a privilege to argue before the High Court, and we were pleased with the argument. Unsurprisingly, the justices were all prepared with thoughtful questions. Under the Court’s new argument format, hearings are much longer than they used to be. Ours was nearly two hours. However, the time flew by.
Lawbook: How did you get the case, when did you get on it and why was it important that you took it?
Streett: We were brought into the case by First Liberty Institute, a top-notch public-interest firm that focuses exclusively on religious-liberty litigation. First Liberty partners with outside attorneys who typically serve as lead counsel in litigation. Baker Botts has had a relationship with First Liberty for more than 20 years, dating back to when then-partner Van Beckwith was one of First Liberty’s first volunteer attorneys. Van is now the general counsel at Halliburton, and First Liberty now collaborates with the majority of the AmLaw 100 firms in cases across the country. We at Baker Botts have handled many cases with First Liberty, including representing historic African American churches in Houston’s Fifth Ward, synagogues fighting onerous zoning restrictions in Dallas and veterans organizations defending religiously themed war memorials before the U.S. Supreme Court.
We joined the Groff case in mid-2021 after the district court entered summary judgment against our client, Gerald Groff, a mail carrier who has a religious belief that Sunday should be a Sabbath day of rest. After initially accommodating Mr. Groff by scheduling him on Saturdays and holidays, but not Sundays, the USPS discontinued his accommodation and then disciplined him when he stood by his conscience and refused to work on scheduled Sundays.
It’s an important case because a 1977 Supreme Court decision called TWA v. Hardison contained language that lower courts have read to strictly limit an employer’s duty to provide religious accommodations that Congress enacted in a 1972 amendment to the Civil Rights Act. Under Hardison, the employer can refuse an accommodation so long as it would impose a “more than de minimis cost” on the employer. As Justice Thurgood Marshall said in his Hardison dissent, the de minimis test is an egregious misinterpretation of the statutory language, which requires reasonable accommodations absent “undue hardship.” Under the de minimis test, employers regularly deny religious accommodations, including those that would impose very little cost, such as allowing religious attire or adjusting weekly scheduling to allow synagogue, mosque or church attendance. The burdens of the de minimis test fall most heavily on religious minorities and blue-collar workers.
Lawbook: How many pro bono hours did you and the firm devote to this case?
Streett: Over 1,000 since we took on the case in the Third Circuit Court of Appeals.
Lawbook: What will the broader impact be if the court rules in your client’s favor? What will the impact be if they rule against your client?
Streett: An opinion rejecting the de minimis test and replacing it with something more faithful to the textual language of “undue hardship” will mean that fewer employees have to choose between their faith and their job. As a practical matter, employers and employees will be incentivized to sit down together and reach a reasonable accommodation that will work for both parties.
A ruling against our client would continue the status quo, where religious accommodations are treated much less favorably than accommodations for disability and pregnancy, even though the Americans with Disabilities Act and the Pregnant Workers Fairness Act use the same “undue hardship” language. These should all be treated the same.
Lawbook: Does it make a difference that the defendant is the federal government versus a private company? Would it legally matter if you were going against FedEx instead?
Streett: No. The same religious-accommodation requirement applies to both public and private employers.
Lawbook: How would your arguments differ if your client were instead a nurse or emergency room doctor seeking exemption from Sunday work at a federal public hospital? Is it only because in this instance it’s nonemergency?
Streett: “Undue hardship” is a flexible test that necessarily depends on context and the nature of the job. So even if we prevail, the nature of accommodations will differ in emergency settings or for smaller businesses.
Lawbook: When you’re arguing a case like this, how fact-specific does it end up getting?
Streett: It’s an interesting balance. The Court is, of course, interested in setting a national precedent that can sensibly be applied to all types of fact patterns. But at the end of the day, it’s still a case with a factual record and a real-life plaintiff and defendant. We tried to highlight some of the important facts of Mr. Groff’s case in the argument, and some of the justices asked questions about his particular circumstances.
Lawbook: Have you taken it as a good sign that SCOTUS even accepted the case after your client losing in both lower courts?
Streett: As a statistical matter, the court tends to reverse more often than it affirms lower-court judgments. Here, moreover, we are asking the court to disapprove the de minimis test that’s been used by lower courts since Hardison. Thus, it’s unlikely that the court would have taken the case if it were wholly satisfied with the current state of affairs. That said, it only takes four votes to grant review, and even if the court may be discontented with the status quo, it must still address the question of what should replace the de minimis test.
Lawbook: Did you do a mock argument for this case? If so, where, and how did it go?
Streett: I did four mock arguments. The first was with Texas-based attorneys who previously clerked for the Supreme Court. The next two were with organizations interested in religious-liberty issues. The final one took place at Georgetown’s Supreme Court Institute, a longstanding organization that moots nearly every single case heard by the Court. Every moot was helpful in its own way. We were blessed to have a mix of Supreme Court litigators, recent law clerks and subject-matter experts. Each moot provided valuable insights and contributed to my preparedness for nearly every question that the justices ultimately asked.