Judges Thapar and Kethledge Call for SCOTUS to Reconsider TWA v. Hardison (1977)

"The irony (and tragedy) of decisions like Hardison is that they most often harm religious minorities—people who seek to worship their own God, in their own way, and on their own time."


Last month, the Supreme Court denied cert in Patterson v. Walgreen. The petitioner in that case called on the Court to reconsider TWA v. Hardison (1977). Justice Alito concurred in the denial of cert, joined by Justices Thomas and Gorusch. He wrote:

I agree with the most important point made in that brief,namely, that we should reconsider the proposition, endorsed by the opinion in Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 84 (1977), that Title VII does not require an employer to make any accommodation for an employee's practice of religion if doing so would impose more than a de minimis burden. . . .

As the Solicitor General observes, Hardison's reading does not represent the most likely interpretation of the statutory term "undue hardship"; the parties' briefs in Hardison did not focus on the meaning of that term; no party in that case advanced the de minimis position; and the Courtdid not explain the basis for this interpretation. See Brief for United States as Amicus Curiae 19–21. I thus agreewith the Solicitor General that we should grant review inan appropriate case to consider whether Hardison's interpretation should be overruled.*

Yesterday, the Sixth Circuit decided Small v. Memphis Light, Gas, and Water. The per curiam opinion followed Hardison. But Judge Thapar, joined by Judge Kethledge, wrote a concurrence that called on the Court to reconsider Hardison. Judge Thapar sketches how Hardison made up the "de minimis" test. He also rejects any implicit argument that Hardison's holding was needed to avoid an Establishment Clause violation. Here is his argument, which relies on scholarship from Professors Michael McConnell and Mark Storslee:

As for the implicit reason—acknowledged only by the Hardison dissent—the majority may have construed Title VII so narrowly because it feared that a broader reading might run afoul of the Establishment Clause. See Hardison, 432 U.S. at 89–90 (Marshall, J., dissenting). Yet whatever doctrinal merit that concern once may have had, I seriously doubt that it remains valid. Even properly read, Title VII doesn't require employers to provide any and all accommodations; it requires them to provide only those accommodations that won't impose an "undue hardship" on the company—meaning significant costs. That seems more than fine under the Establishment Clause. See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 722–24 (2005); Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 711–12 (1985) (O'Connor, J., concurring); Michael W. McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 Geo. Wash. L. Rev. 685, 704 (1992); see generally Mark Storslee, Religious Accommodation, the Establishment Clause, and Third-Party Harm, 86 U. Chi. L. Rev. 871 (2019) (challenging the theory that religious accommodations violate the Establishment Clause whenever they impose more than de minimis costs).

In any event, the doctrine of constitutional avoidance doesn't give courts license to rewrite a statute. See, e.g., Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018). But the Hardison majority appears to have done exactly that. The only other explanation is that the majority stumbled through the looking glass and into "an Alice-in-Wonderland world where words have no meaning[.]" Welsh v. United States, 398 U.S. 333, 354 (1970) (Harlan, J., concurring in the judgment).

Of course, all this does not mean that employers must always accommodate their employees' religious beliefs and practices. The term "undue hardship" makes clear "that this is a field of degrees, not a matter for extremes" or "absolutes." E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307, 313 (4th Cir. 2008); cf. Barnett, 535 U.S. at 402. But Hardison itself adopted an "absolute" when it "effectively nullifi[ed]" the accommodation requirement. Hardison, 432 U.S. at 89 (Marshall, J., dissenting). And without any real reason.

The irony (and tragedy) of decisions like Hardison is that they most often harm religious minorities—people who seek to worship their own God, in their own way, and on their own time. See McConnell, supra, at 693, 721–22; Storslee, supra, at 873–74, 877. The American story is one of religious pluralism. The Founders wrote that story into our Constitution in its very first amendment. And almost two-hundred years later, a new generation of leaders sought to continue that legacy in Title VII. But the Supreme Court soon thwarted their best efforts. Even at the time, this "ultimate tragedy" was clear. Hardison, 432 U.S. at 97 (Marshall, J., dissenting) ("[O]ne of this Nation's pillars of strength our hospitality to religious diversity has been seriously eroded.").

This argument may soon garner four votes for cert, and give votes for reversal of Hardison.

NEXT: Today in Supreme Court History: March 13, 1963

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  1. I think that it was wrongly decided. While “undue burden” probably means something less than “undue hardship,” “undue” generally means more than “de minimus.”

    That said, I think the Supreme Court should be careful about overturning precedents willy-nilly whenever a passing majority of justices disagree about what a previous passing majority did, even if I also think it was wrong. Statutory interpretations can be changed by Congress. Long-standing statutory interpretations create settled expectations. For this reason, stare decisis may be at its apogee when long-standing statutory interpretations are involved.

    1. While I agree with your textual interpretation of “undue burden”, I think Hardison was correctly decided because the alternative would have been to declare Title VII (or at least that part of it) unconstitutional.

      Freedom of religion is a guarantee that we will be free of government interference and influence in religious practices. Consider the analogy of the First Amendment’s free speech clause which restricts government’s ability to censor but places no such bounds on Twitter, Facebook or Reason. Private companies can have whatever censorious policies they like. We, the public, then get to evaluate their policies and practices and can make our own decisions about which private entities we choose to associate with. Even in an employment situation, a private employer can tell you to stop talking about a topic on the job. And while it may be bad employee relations and a good reason to quit, you can’t then sue the private employer for violating your right to free speech.

      By the same token, private entities have the right to have policies about religious practices while on the job. They may be stupid, self-destructive and drive off good employees but the government shouldn’t get a say in that.

      1. I’m not sure what the First Amendment has to do with it. Isn’t Title VII just a garden variety economic regulation under the modern Commerce Clause?

        1. The problem is the Supreme Court’s “two much accommodation” line of cases beginning with Estate of Thornton v. Caldor. A law that makes it too attractive for people to practice a religion or gives them too many advantages over people who don’t can be construed as encouraging or incentivizing practice. In the case, the Supreme Court struck down a Connecticut law letting religious-sabbath observing employees to take off the sabbath of their choice. The Supreme Court ruled this gave employees who observe a sabbath too much of an advantage over those who don’t.

          But the amount of accommodation needed to trigger the “too much accommodation” rule is still more, perhaps a lot more, than just de minimus accommodation. There is wiggle room between the two.

          In addition, perhaps the justices who want to reconsider TWA v. Hardison would also want to reconsider and narrow Estate of Thornton v. Caldor and increase the wiggle room.

      2. “By the same token, private entities have the right to have policies about religious practices while on the job. They may be stupid, self-destructive and drive off good employees but the government shouldn’t get a say in that.”

        Shouldn’t that argument apply with equal strength to all other aspects of public accommodation/anti-discrimination law?

        1. The logic of public accommodation does not apply because an employee is not the public. There are lots of things that you can legally do to employees that you can’t do to your customers. Your argument is on stronger ground with the comparison to other anti-discrimination laws.

          And there, I will take the stronger (and admittedly controversial) position that anti-discrimination laws are potential violations of the right to freedom of association and that they tend to be bad policy – that letting bigots expose themselves and solving the discrimination through social pressure is the much better long-term solution than government mandates which just drive the bigotry underground.

    2. But Congress is cowardly on passing laws to begin with, and rely on courts to make changes. Having courts make such changes on the argument the will of the people has changed, when it hasn’t changed enough to convince the cowards in Congress, is not a positive feature of democracy.

      I have no problem with it (if it increases freedom) because freedom has primacy even over democracy, but they all do as they hold democracy up as primary.

      In short, longstanding is overturned on whim unsupported, so why is it a problem suddenly now?

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