Relentless Advocacy, 60 Years and Counting
Céleste Perrino-Walker May/June 2024The Church State Council has more than a milestone anniversary to celebrate this year. It’s also celebrating a legal sea change for people of faith in America’s workplaces and its role in making that happen.
(Photo: Students from Pacific Union College join staff from the Church State Council at the California State Capitol for one of the council’s regular lobby days.)
The Church State Council, as the oldest public policy organization in the southwestern United States, has navigated the often-turbulent legal waters of religious freedom since its foundation in 1964. The council began as a boots-on-the-ground manifestation of the Seventh-day Adventist Church’s commitment to the preservation of religious freedom. However, while the organization defends its own members, it has long prided itself on also representing members of any faith or no faith at all. This is an area that has grown exponentially, according to Alan J. Reinach, executive director and general counsel. “As our reputation has grown nationally, we’re getting more and more calls from people of many different faiths, and we’ve also developed a larger network of attorneys willing to assist in these cases,” he says.
Now celebrating 60 years, the council’s core mission remains unchanged: to preserve the rights of individuals to think and believe as their conscience dictates and to protect the integrity of the wall of separation between church and state, which is vital to maintaining those freedoms.
A Failure to Hire
From the start, the council developed expertise in representing people of faith who experience discrimination in employment—an area of practice where the challenges are always evolving. During the past decade the council has seen employment issues within the religious freedom space shifting from termination to failure to hire. “Securing the rights of Sabbath observers to obtain a job in the first place has been where we’ve invested an awful lot of energy,” says Reinach. “And these are tough cases.”
Their first case involved Teresa Brown, who applied to secure a position as a prison guard for the California Department of Corrections and Rehabilitation (CDCR) at a time when the prison was hiring 8,000 new officers. During the application process Brown answered questions about her ability to work weekend shifts, in an emergency situation as needed, or overtime and on-call hours as required. Brown duly indicated on a form that she was unable to meet this requirement, as she could not work from sundown on Friday to sundown on Saturday because of her religious beliefs regarding Sabbath. She further stated that she was willing to work any other times or shifts.
Soon after, the CDCR sent Brown a letter explaining that because of “her inability to meet this criteria, her name had been removed from the list of eligible candidates.”1
“Initially the judge really distorted the law to find a way to rule in favor of the Department of Corrections,” says Reinach. “In 2019 he was reversed on appeal. The appellate court said, ‘No, this is what the law is; this is how you have to apply the law.’ In the end, the judge ruled in favor of Ms. Brown, gave her a solid award, and ordered the Department of Corrections to put her back in the hiring process.”
To date, though, Brown has still not been hired, which means the Department of Corrections owes her several more years of back pay. “We’re going to have to brief this all over again,” says Reinach. “And then what are they going to do? Are they going to finally put her to work, or are they going to settle with her?
“Part of the uncertainty in failure-to-hire cases is that it’s difficult to know what your damages are going to be if you’re not hired. How long would you have stayed in the position? Is a jury or a judge going to believe that you would’ve stayed in that job for more than a few months? You could be fighting and expending hundreds of thousands of dollars in legal time for a relatively modest award for the client. So most attorneys are not willing to take on these cases.”
Hiring Regulations
The council lobbied for and achieved a significant victory in a regulation that was passed in California that should improve the hiring success of those with faith commitments, as well as medical- and disability-related limitations. The preemployment practices regulation protects job seekers from discrimination. While employers have a perfectly legitimate right to determine if an applicant can perform the requirements of a position, they are forbidden to ask questions that will allow them to discriminate against those who are unavailable to work, for example, specific hours or days because of a protected class or activity, such as religion or disability. Questions used to determine such things as work schedules must be couched in protective language, such as “Other than time off for reasons related to your religion, a disability, or a medical condition, are there any days or times when you are unavailable to work?”2
Additionally, the council successfully lobbied for a state regulation to define a “reasonable accommodation” as one that “eliminates the conflict between the religious practice and the job requirement.” This clarification was necessary to resolve the continual conflict between religious practice or belief and job duties.
“We call it the elimination test,” says Reinach. “For Adventists, it’s pretty obvious that if an employer thinks that reasonable accommodation means ‘I’ll meet you halfway and give you two Saturdays off a month,’ it’s not really an accommodation. That was an important thing to nail down in the regulations so that we could educate judges and opposing counsel that this is not something you can argue about. If you didn’t eliminate the conflict, you didn’t accommodate them.”
The De Minimis Problem
Reinach was able to see the successful resolution of a key issue that he recalls discussing from the beginning of his tenure with the Church State Council. It involved a legal standard that for five decades largely let employers off the hook when it came to accommodating the religious practices of their employees.
“I remember the first departmental meeting I attended when I came on board in 1994,” says Reinach. “I was sitting at breakfast with the other attorneys, talking about how we needed to get the law changed regarding undue hardship and the de minimis test. We’ve been working on that issue in some form or other for nearly 30 years, and we finally got it done.”
Under federal law, employees have a right to have their religious practices accommodated unless it would cause their employer “undue hardship.” Until recently, though, employers had little incentive to take requests for religious accommodation seriously. This stemmed back to a 1977 U.S. Supreme Court case. In Trans World Airlines v. Hardison an employee of TWA was fired for refusing to work on his Sabbath. The Court held that an employer need not provide religious accommodation if doing so would result in even minimal hardship, “de minimis.” And that’s how courts have understood “undue hardship” ever since.
After several decades of trying to get Congress to clarify that undue hardship means a real hardship, not just a minimal one, the interfaith community turned its attention to the courts. A case was needed that would prompt the Supreme Court to revisit the meaning of “undue hardship.” Gerald Groff provided just such a case. Groff, a postal worker who observed Sunday as Sabbath, was required to work Sundays when the USPS contracted with Amazon for Sunday deliveries. Groff was only partly successful in his many attempts to avoid Sundays by switching routes with coworkers and working Saturdays and holidays. For two years the Post Office subjected him to disciplinary action; he incurred hostility from supervisors. His pay was docked before he resigned in the face of imminent termination.
Groff was represented by the Church State Council, along with First Liberty Institute, the law firm Baker Botts LLP, and the Independence Law Center. His case was heard by the district court, which ruled in favor of the Post Office, declaring that a reasonable accommodation was not required to eliminate the conflict and that the Post Office would suffer undue hardship if it accommodated Groff. On appeal, the Third Circuit concurred, finding that exemption from Sunday deliveries would cause undue hardship for the Post Office.
“The Third Circuit had not previously adopted the elimination test,” says Reinach. “They hadn’t determined that a reasonable accommodation had to eliminate all Sundays in this case. That’s why the trial judge said, ‘Well, we don’t have the elimination test, so I think this is a reasonable accommodation.’ The Third Circuit said, ‘No, they didn’t eliminate all Sundays. They didn’t accommodate him.’ So that was an important win. But they also said, based on the de minimis hardship standard, the Post Office wins. And that set the issue up perfectly for the Supreme Court to decide, ‘Well, is that the right standard?’ ”
The Supreme Court granted certiorari, and oral argument was heard on April 18, 2023.
“In a particularly poignant moment of the oral argument,” Reinach remembers, “the solicitor general, Elizabeth Prelogar, contended that the courts were doing a good job with existing law and that there was no need to change it. Justice Alito responded, ‘I’m really struck by that, because we have amicus briefs here by many representatives of many minority religions—Muslims, Hindus, Orthodox Jews, Seventh-day Adventists—and they all say that that is just not true, and that Hardison has violated their right to religious liberty.’ ”
In June 2023, by unanimous decision, the Supreme Court gave Groff a hard-won victory. In their opinion, the Court wrote, “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. Adding the modifier ‘undue’ means that the requisite burden or adversity must rise to an ‘excessive’ or ‘unjustifiable’ level. Understood in this way, ‘undue hardship’ means something very different from a burden that is merely more than de minimis, i.e., ‘very small or trifling.’ ”3
On the day the decision was handed down, Kelly Shackelford, president, CEO, and chief counsel for First Liberty, called it “a landmark victory, not only for Gerald, but for every American.”
“No American should be forced to choose between their faith and their job,” he said. “The Court’s decision today restores religious freedom to every American in the workplace. This decision will positively help millions and millions of Americans—those who work now and their children and grandchildren.”
“The Groff case has been the highlight of my career,” says Reinach, “and certainly the most significant of the decade. Employers know that the days of being careless about religious accommodations are over; they really do have to accommodate.”
To the Future and Beyond
The council continues to engage in legislative advocacy, monitoring bills throughout a five-state region (Arizona, California, Hawaii, Nevada, and Utah), which amounts to hundreds of bills every year, supporting some and opposing others. Another vital aspect of the council’s work is providing education about religious freedom—in churches, at legal conferences and other events, and through publishing brochures on topics such as Christian nationalism, justice, and Sabbath accommodation. One exciting development is that Freedom’s Ring Radio, a national and internationally syndicated program, which Reinach hosted for 24 years, recently wrapped up production to be replaced by a half-hour podcast called Just Liberty, which Reinach will cohost with Liberty magazine editor Bettina Krause.
While the Church State Council may shift to meet the changing needs of people seeking accommodation for their religious beliefs or providing education on religious freedom to a country that has become increasingly polarized, its core focus has not changed. It remains centered on the need to work for justice as an expression of faith in God. To continue this important effort for another 60 years, the council needs lawyers with this same passion for justice.
“My next major goal,” says Reinach, “is to recruit those who can carry on the work after me and to train up another generation of lawyers who can pick up the mantle.”
1 Brown v. Cal. Dep’t of Corr. & Rehab., C089340 (Cal. Ct. App. Dec. 22, 2020).
2 § 11016. Pre-Employment Practices. Title VII.
3 Groff v. DeJoy, 143 S. Ct. 2279 (2023).