The Overlooked Meaning of "Undue Hardship" in Title VII

This is the second of two posts explaining my recent article, Ordinary Meaning as Last Resort: The Meaning of "Undue Hardship" in Title VII. In the first post I attempted to show that a comprehensive look at the Court's statutory interpretation cases show that the presumption of ordinary meaning is a fallback after eliminating a statutory definition and the possibility of a technical term of art. And I argued that if the presumption of ordinary meaning is too powerful, it can cause one to miss non-ordinary meaning. This post explores the poster child for that concern: "undue hardship" in Title VII.

The term "undue hardship" was added to Title VII in a 1972 amendment that required employers to reasonably accommodate the religious observances or practices of employees or prospective employees, unless such accommodation would cause an "undue hardship on the conduct of the employer's business." Congress did not define the term. Five years later the Supreme Court took a stab in Trans World Airlines v. Hardison. There the majority determined that an "undue hardship" was anything "more than a de minimis cost."

Criticism of that judicially created definition began in the case itself, with Justice Thurgood Marshall in dissent. He raised two lines of attack. One briefly focused on ordinary meaning, arguing that the Court's definition violated "simple English usage." The other attack, based on legislative history, contended that Congress had codified an EEOC regulation using the term and a "long line of [EEOC adjudicative] decisions" fleshing out its meaning.

In recent years, Hardison's de-minimis-plus standard has again been routinely denounced, but only along the lines of being inconsistent with the ordinary meaning of "undue hardship." Thus, such criticisms have referred to the "ordinary parlance" and the "ordinary, contemporary meaning" of the term. There has been much less attention to the possible legal meaning that Justice Marshall noted. But applying the refined textualist methodology I outline in my article, that should be the next step after confirming the term is undefined.

So that is what I did. I searched for the term in federal and state case law, federal and state statutes, federal regulations, and the Congressional record prior to 1967 when the EEOC adopted its related regulation. And for good measure, I simultaneously looked for evidence of whether it was an ordinary term by searching the Corpus of Historical American English. As the chart below details, I found that "undue hardship" is rarely used in "ordinary" American English—and when it is used it is usually invoked in a legal context—but the term is ubiquitous in the law. In fact, I found nearly 1,000 times more instances of "undue hardship" in legal materials than in ordinary materials, with it first appearing in an 1834 court opinion and proliferating ever since.

This is strong evidence that "undue hardship" is a legal term, not an ordinary one.

I then explored the instances of "undue hardship" in legal materials. I found that it occurs across disparate areas of the law: from civil procedure to tax to criminal law, from administrative law to bankruptcy to anti-trust, from constitutional law to property to workers compensation. And the list goes on. Unfortunately, the term is never defined but similar to other equitable-like terms, such as "reasonable" or "good cause," is very much dependent on the facts of a particular situation.

The challenge with a term this common across so many areas of the law is determining the relevant context. In applying the canon of legal meaning, the Court has developed two principles. First, the legal meaning must be "widely accepted," "longstanding," "well settled," or "robust." Second, the legal meaning must be from a relevant context. Fortunately, as Justice Marshall noted, a relevant context exists.

In 1966 the EEOC adopted a regulation related to Title VII's prohibition on religious discrimination in employment. That regulation required employers to provide religious accommodations unless it caused a "serious inconvenience" to the employer's business. But in less than a year the EEOC abandoned this standard for a more protective one—the same "undue hardship" standard Congress would adopt in 1972. And in a series of ten adjudications from 1969-1971, the EEOC applied and developed in common law fashion the meaning of the term in the specific context of employees needing a religious accommodation at work.

The decisions primarily involved religious minorities, such as Seventh-Day Adventists and other Sabbatarians, an "Old Catholic, an Orthodox Jew, and a woman who said she belong to the "Black Muslim" faith. The accommodations they sought included taking a Sabbath off (often on a Saturday), leaving work early on Friday to get home before sundown, attending a mandatory annual two-week religious convention, or wearing religious clothing and head garb. In eight of the ten decisions the EEOC sided with the employee.

From these decisions one can glean the meaning of "undue hardship" in this particular context. It was a practical impossibility, chaotic personnel problems, shutting down one's operations (and suffering exorbitant costs), and undermining a policy truly necessary to the safe and efficient operations of one's business. The cases also shed light on what was not an undue hardship. For example, suffering considerable expense was not considered an undue hardship. Neither was having to give religious employees so-called "preferential treatment" or experiencing mere employee discontent. Likewise, having to train another employee to take over a shift or work a double shift was not an undue hardship. Nor was requiring other employees to switch a workday or work an extra day. Additionally, an employer experiencing seasonal, short absences by a non-supervised employee was not an undue hardship. And because the EEOC rejected a serious inconvenience standard for a more protective undue hardship standard, neither is a serious inconvenience standard an undue hardship.

This is the understanding Congress codified in adopting the very same standard in the very same legal context with the 1972 amendment to Title VII. It was this EEOC legal soil that Congress transplanted into Title VII. And this matters for two reasons. First, from a textualist perspective it is the correct meaning of the statutory term. Second, this meaning—what could be characterized as an immense or extreme cost or harm to an employer's business—is more protective of religious civil rights in the workplace than the ordinary meaning many have put forth.

As for Groff v. DeJoy, a postal worker sought to not work Sundays—his Sabbath—and was willing to work other days instead. The USPS initially trained and required others to work in his stead on Sundays, before eventually denying him an accommodation. Based on this newly uncovered meaning of the statutory term, it is hard to see how this inconvenience rises to the level of an "undue hardship." Should the Court adopt this meaning, Mr. Groff should prevail.

In sum, the presumption of ordinary meaning must be applied in its proper place in an interpretive inquiry. Triggered too soon or too strongly, it can blind the search for a statute's original public meaning as it did with "undue hardship," where many missed what was sitting in rather plain sight the last half century.