Labor & Employment Law Daily Justices will not scrutinize Title VII precedent on ‘undue hardship’ test in religious accommodation
Thursday, April 8, 2021

Justices will not scrutinize Title VII precedent on ‘undue hardship’ test in religious accommodation

By Pamela Wolf, J.D.

Two dissenting Justices would have taken the opportunity to determine whether the High Court precedent was well decided and is currently out of step with the application of similar tests under other statutes.

The Supreme Court will not take up the opportunity to overrule Title VII precedent establishing that employers suffer an “undue hardship” in accommodating an employee’s religious exercise whenever doing so would require them “to bear more than a de minimis cost.” Justices Gorsuch and Alito dissented, saying, among other things, that under Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977), Title VII’s “undue hardship” test has become the “odd man out” among civil rights statutes.

Job change. Below, in Small v. Memphis Light, Gas and Water, The employee worked as an electrician for more than a decade before an on-the-job injury required that he change positions. Although he requested a job as a revenue inspector, he was offered a position as a service dispatcher. Concerned that the service dispatcher job would conflict with his religious practices of attending services on Wednesday evenings and Sundays and performing community work on Saturdays, he asked to be reassigned to a different position or to different shifts. Believing these accommodations would impose an undue hardship on it and that the union required that shifts be assigned based on seniority, Memphis Light denied his request. It originally suggested that he swap shifts with coworkers or use paid time off but later allowed him to swap his shifts with a coworker for an entire quarter.

Religious accommodation claim. Below, the Sixth Circuit affirmed the grant of summary judgment against the employee’s claim that his employer refused to accommodate his religion—Jehovah’s Witness—holding that the employer did not have to offer any accommodation that would have imposed an undue hardship on its business.

Failed to challenge “undue hardship.” The Sixth Circuit pointed out that here the company’s undue hardship was interpreted to mean “(apparently) anything more than a ‘de minimis cost.’” And according to Memphis Light, additional accommodations would have impeded its operations, burdened other employees, and violated its seniority system. Not only has the Sixth Circuit found similar costs to be more than de minimis, the court observed, the employee failed to challenge whether the accommodations would have imposed an undue hardship. Thus, summary judgment was affirmed against this claim.

Dissent from certiorari denial. Justice Gorsuch dissented from the High Court’s denial of certiorari, joined by Justice Alito, observing that, “At no point in the litigation did anyone suggest that [the employee’s] requested accommodation—reduced pay while he sought reassignment—would have imposed a significant hardship on his employer. Yet both the district court and Sixth Circuit rejected [the employee’s] claim all the same.”

Justice Gorsuch pointed to the district and appeals courts’ reliance on Hardison, which the courts had said tied their hands. As Justices Gorsuch and Alito see, it, the High Court in that case “dramatically revised—really, undid—Title VII’s undue hardship test.” Hardison held that an employer is not required to provide a religious accommodation that involves “more than a de minimiscost.” “Hardison’sde minimis cost test does not appear in the statute,” wrote Justice Gorsuch. “The Court announced that standard in a single sentence with little explanation or supporting analysis. Neither party before the Court had even argued for the rule.” In his dissent in the Hardison, Justice Marshall highlighted all these problems at the time, noting that the de minimis cost test “cannot be reconciled with the ‘plain words’ of Title VII, defies ‘simple English usage,’ and ‘effectively nullif[ies]’ the statute’s promise.”

Title VII’s “undue hardship” is “odd man out.” Justice Gorsuch also observed that in the intervening years, Congress has adopted additional civil rights laws using the “undue hardship” standard. When applying those laws, courts are far more demanding, Justice Gorsuch said, citing the ADA, USERRA, and the Affordable Care Act. “With these developments, Title VII’s right to religious exercise has become the odd man out,” according to Justice Gorsuch. “Alone among comparable statutorily protected civil rights, an employer may dispense with it nearly at whim. As this case illustrates, even subpar employees may wind up receiving more favorable treatment than highly performing employees who seek only to attend church. And the anomalies do not end there.”

In this case, Justice Gorsuch noted, the employee had insisted that his requested accommodation would not cause an undue hardship under Title VII, but both the district and appeals courts had rejected the argument relying expressly on Hardison. “There is no barrier to our review and no one else to blame,” wrote Justice Gorsuch. “The only mistake here is of the Court’s own making—and it is past time for the Court to correct it.”

The petition for certiorari is No. 19-1388.

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