Ordinary Conscience and Pretend Offenses: Protecting Those Left Out of Title VII After Groff

Robin Fretwell Wilson & Michael J. Petersen*

Part I reviews America’s foundational commitment to fairness and transparency by government, as well as the deep respect the Founders believed should be accorded to conscience specifically.

Part II applauds the unanimous decision in Groff to walk back the Supreme Court’s grievous error in Trans World Airlines, Inc. v. Hardison. We canvas illustrative cases pre-Groff in which employees, notwithstanding Hardison’s “de minimis” burden standard, proceeded to trial, and instances in which employees did not. We also illustrate how, post-Groff, employees are, rightfully, having an easier time getting to trial.

Even as Groff makes actual Title VII’s accommodation of religion, a significant swath of the American workforce is left outside the benefits conferred by Congress. This is so not only for those working for small employers, but for those who seek not to perform a certain task for deeply felt moral reasons.

Part III takes up the plight of those left outside of Title VII. We put a human face on the need to protect people from ruination for pretend offenses at the hands of government employers. Not only have mundane requests to be staffed around been dismissed out-of-hand by government actors who could have easily accommodated them, but the government actors have pummeled employees publicly, causing further harm. Best practice, of course, is not to comment on ongoing employment disputes.

Part IV maps the special role of state governments in insulating people of ordinary conscience from loss of their livelihood for breaking with a government employer’s prevailing orthodoxy. It describes the elements of legal protection for ordinary conscience, protection that is more capacious than Title VII. It examines the need to regulate what government employers—a party in interest—are permitted to say after an employee asks to be accommodated. The publicity, as much as the denial, wreaks significant harm on employees, as the government defends its decisions.

Ultimately, as the zone between our private and public lives shrinks, not having to check our consciences at the workplace door is more important than ever. While this may be a big ask of private employers, it should be a given when one works for the government.

© 2024 Robin Fretwell Wilson and Michael J. Petersen.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review Reflection, and includes this provision in the copyright notice.

*Robin Fretwell Wilson is the Mildred Van Voorhis Jones Chair in Law at the University of Illinois College of Law; Michael J. Petersen is a member of the Utah House of Representatives, representing the Second District.  We are indebted to Cameron Samuel-Keys, Pamela Melton, Bryce Morris, Kimball Yeates, and the Notre Dame Law Review Editorial Board for their excellent work on this piece.