One of the perpetual conundrums of law is when rights conflict, one has to give. Oftentimes, the relative rules are crafted by looking at a standalone right, extolling its virtues and then protecting it from encroachment. It’s a fine system, until the right being protected runs head first into someone else’s right. At that point, it’s usually left to the Supreme Court to do the dirty work of coming up with a test to determine which right prevails. For the most part, this has followed the rising or falling popularity of a right.
Since the 1960s with the passage of the Civil Rights Act of 1964 in general, and Title VII prohibiting employment discrimination in particular, religion has generally become a second-class right despite its free exercise being protected under the First Amendment. It wasn’t so much antagonism against religion as the rising concerns for other areas of discrimination that were considered far more at risk and in need of remedy.
So when religious accommodation was on the table in Trans World Airlines v. Hardison, a case involving an employee who refused to work on his sabbath, Saturday, the Court held that the “undue hardship” needed to overcome the need to make an accommodation merely required an employer to “bear more than a de minimis cost.” It was a fairly shocking holding in that it basically eliminated the “undue harship” such that no accommodation was needed if the employer could come up with any excuse why it was a burden. And the Court’s decision, with justices Brennan and Marshall dissenting, made this very clear in an exercise of sophistry.
To require TWA to bear more than a de minimis cost in order to give respondent Saturdays off would be an undue hardship, for, like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion.
To accommodate religion for one is to discriminate on the basis of religion against everyone else? Catch-22, anyone? But that was then.
There have been many attempts over many years to persuade Congress to amend the law, Title VII of the Civil Rights Act of 1964, to shift the balance explicitly in favor of religiously observant employees. Between 1994 and 2019, more than a dozen such bills were introduced. None emerged from Congress.
Of course, the same is true about legislative efforts to change sex discrimination to include sexual orientation, which failed annually until the Supreme Court decided Bostock. Now the Supremes, with a few personnel changes since 1977, are poised to revisit Hardison.
And so now, a very different court from the one that ruled 46 years ago is about to do the work itself.
That isn’t an idle prediction but rather the surely foreordained outcome of the new case the justices recently added to their calendar for decision during the current term. The appeal was brought by a conservative Christian litigating group, First Liberty Institute, on behalf of a former postal worker, Gerald Groff, described as a Christian who regards Sunday as a day for “worship and rest.”
Linda Greenhouse is likely right in her less-than-idle prediction given that the balancing of rights is largely a matter of weighing values, and the current majority values religion more than de minimis. That said, the nation has operated for the past 46 years under the de minimis burden standard, and changing that now will likely cause significant disruption, massive confusion as to just what an employer is required to do in any given circumstance, and renewed fear and outrage that the Supreme Court is now over-valuing religion to the detriment of other rights.
Unlike the Court’s misbegotten Dobbs reversal, overruling Hardison could give rise to business chaos and new conflicts with other rights will likely give rise to unintended consequences of placing businesses and employers in the untenable position of not knowing what their obligations under Title VII are. Is it worth it for the Supreme Court to create massive disruption of settled law? Does this feed into the belief that the Court is illegitimate as “captured” by the religious right? By elevating the value of religion in the scheme of rights, does the Court tread off the Free Exercise Clause and onto the Establishment Clause?
It’s easy to say that religion deserves to be protected in a vacuum, but where should the “undue hardship” line be?
*Tuesday Talk rules apply.
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The de minimis line for undue hardship seems insulting to religion and it’s understandable why the religious would want to change it, but finding the right test so that religion is reasonably accommodated without cause huge disruption to business is going to prove very tricky. I have strong doubts this Supreme Court is up to the job.
They’ve already shown that they’re more than up to the task of overturning long-standing precedent no matter what the cost to the country.
The current Supreme Court is a loose canon.
That’s the very best kind of canon.
I beg to differ.
There’s no test that would work without huge disruption to business. Whatever the Supremes come up with isn’t going to be clear, and we’ll have to revisit it again and again in the coming years so they can muddle it up further. Best to leave it alone. I would say that, though, pessimism being my only deeply held belief.
If we’re going to overturn Hardison, isn’t it time to overturn the baseball anti-trust exemption too? Seems to be the same scenario– congressional acquiescence to a bad statutory interpretation.
The Supremes will never be able to please everyone. Of course Democrats would prefer that the “conservative” court appointed by the bad orange man respect precedent and do nothing to undo the excesses of the past. Likewise, if Hillary had won (like we all know she really did, just look at the popular vote!) and had appointed Ariana Grande, Elizabeth Warren and Bernie Sanders to the court, Republicans would be weeping and gnashing their teeth over their failure to respect precedent as they eviscerated free speech and jammed abortion even further down the throats of people who don’t want it, while Democrats cheered.
The uniparty is uniformly composed of liars and grifters. The grifters who cynically wrap themselves in the cloak of free speech while pretending to try and stop the other party from destroying it are only marginally better than those who openly hate free speech and undermine it at every opportunity. In this environment, the fact that a few of the more extreme restrictions on religious freedom are being rolled back is a rare feature in a bug-infested system.
As suggested by several amici, the clearest path forward is to overrule Hardison and have “undue burden” mean the same thing for religious accommodation as it does in the rest of the employment discrimination context, particularly the ADA. There’s already a large body of case law and administrative guidance built up around that definition not only in the disability context, but also under state laws providing more expansive protections for religious accommodation. Employers can’t even safely rely on Hardison’s de minimis test given the tendency of the EEOC to bring charges and courts to deny motions to dismiss based on an employer bringing an under burden defense even where there’s prior precedent supporting an employer’s claim that a particular accommodation would be an undue burden.
So if not de minimis, what test would that be? I notice you failed to actually say what test that “large body of law” provides.
“Significant difficulty and expense” in the context of the particular employer’s resources, which is the definition used in the ADA, 42 U. S. C. §12111(10)(A), USERRA, 38 U. S. C. §4303(16) [employment protection for service members] and ACA, 29 U. S. C. §207(r)(3) [break times for nursing mothers]. There are dozens of circuit court cases and thousands of district court cases analyzing proposed accommodations using that standard.
Other statutes, sure, but no Title VII examples? Could you be missing something?
Not to worry, should it pass. I’m sure the pendulum will swing back when Muslims or non-Abrahamic religions start using this cudgel to get what they want from employers.