Thursday, June 25, 2020
As many readers know, Title VII's provision requiring employers to make "reasonable accommodation" of their employees' religious practices, when they conflict with the employer's workplace rules, suffered a major blow early on from the Supreme Court's 1977 decision in TWA v. Hardison. There the Court indicated that an employer can show "undue hardship," the statutory phrase that allows denial of accommodation, merely by showing that the accommodation would cause it something more than a "de minimis" burden. Although the statement in Hardison was dicta strictly speaking on the statute's interpretation, lower courts have followed it for more than 40 years. As a matter of ordinary language, "anything more than de minimis" is an indefensible reading of the phrase "undue hardship." And Hardison, as so interpreted, has undermined protection for employees' religious practices, at the very least in cases involving conflicts between work rules and Sabbath observance--the precise conflict that prompted enactment of the accommodation language in 1972. Attempts to correct Hardison by new legislation have failed.
Recently, however, several justices have shown interest in revisiting Hardison. Earlier this year, when the Court denied certiorari in Patterson v. Walgreen Co., Justice Alito, joined by Thomas and Gorsuch, wrote in support of reconsidering the "de minimis" rule in a case cleanly presenting the issue. The Solicitor General had also supported reconsidering the de minimis rule in Patterson itself. Finally, the simple textualist point against Hardison--that "undue hardship" is quite different in meaning from "anything more than de minimis"--has taken on new force because the Court resolved the Title VII issues in the LGBT-rights cases, Bostock etc., on simple textualist grounds.
So the issue is teed up for two new petitions filed in recent days, which present solely the "de minimis" rule uncomplicated by any other interpretive matters. Small v. Memphis Light, Gas & Water involves a Jehovah's Witness elder whose employer's rigid mandatory-overtime rule prevented him from attending both Sunday services and Wednesday meetings. Dalberiste v. GLE Associates involves a Seventh-Day Adventist employee whose offer of employment was rescinded when the company found he could not work throughout the weekends; the petition recounts that the employer gave no consideration to any of several alternatives for staffing.
Among their arguments, both petitions emphasize how minority religious faiths raise accommodation claims far out of the proportion to their share of the population and thus suffer the most from an anemic standard. Both petitions cite a statistical analysis that my St. Thomas Religious Liberty Clinic students and I presented in our amicus brief in Patterson (filed for the Christian Legal Society and other Christian and Muslim groups). From that brief (pp. 23-25):
These disproportionate effects appear, for example, in the cases listed in the appendix to the petition: reported religious accommodation cases decided on summary judgment motions concerning “undue hardship” from 2000 to the present....
Muslims, a classic religious minority, constitute 18.6 percent of this large set of accommodation decisions (19 of 102), even though, according to a comprehensive 2014 study, they constitute only 0.9 percent of the population. [Citing Pew Research Center, America’s Changing Religious Landscape (2015).] Overall, claims by members of non-Christian faiths (Muslims, idiosyncratic faiths, Jews, Hebrew Israelites, Rastafarians, Sikhs, and African religions) make up 34.3 percent of the accommodation cases (35 of 102), even though non-Christian faiths made up only 5.9 percent of the population in 2014 (and significantly less than that in earlier years). The percentage of cases in the appendix involving religious minorities climbs to 62 percent when one combines the various non-Christians (34.3 percent of the cases) with sects that follow the minority practice of Saturday Sabbath observance: Seventh-day Adventists (22 of 102, or 21.6 percent of 25 the cases) and other small Saturday-observing sects (6 of 102, or 5.9 percent of the cases).
Steffen Johnson and Michael McConnell at Wilson Sonsini and Jim Sonne at the Stanford Religious Liberty Clinic represent Mr. Small; Gene Schaerr and Schaerr Jaffe, Mark Rienzi and the Becket Fund, and Todd McFarland of the Seventh-Day Adventists represent Mr. Dalberiste.