The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Say you're working for a private employer, and you have a religious objection to a religion-neutral work rule: You might feel a religious obligation not to work Friday sundown to Saturday down, while the employer may require you to Saturdays or Friday nights. You might feel a religious obligation to wear a beard or a turban or a yarmulke or a headscarf, which may conflict with an employer dress and grooming code banning headgear or facial hair. You might feel a religious obligation not to get vaccinated, which may conflict with an employer requirement of vaccination.
One can debate on libertarian, egalitarian, or utilitarian grounds whether employers should have to give you an exemption from such rules. But in 1972, Congress said, as a matter of federal law, that they must indeed do so, unless they show that they're "unable to reasonably accommodate to an employee's … religious observance or practice without undue hardship on the conduct of the … business." How high a bar, though, should "undue hardship" be?
In TWA v. Hardison (1977), the Supreme Court held that "To require [an employer] to bear more than a de minimis cost in order to [accommodate the employee] is an undue hardship." The two most liberal members of the Court, Justices Marshall and Brennan objected, reasoning (among other things),
As a matter of law, I seriously question whether simple English usage permits "undue hardship" to be interpreted to mean "more than de minimis cost," especially when the examples the [1967 EEOC guidelines, which the dissent viewed as probative of the meaning of the 1972 amendments] give of possible undue hardship is the absence of a qualified substitute.
But the more centrist and conservative Justices in the majority disagreed.
What a difference the last 45 years have made! As with the question whether the Free Exercise Clause entitles religious objectors to exemptions from religion-neutral laws, it looks like the ideological polarity of this issue has flipped. Justices Thomas, Alito, and Gorsuch have called for reconsidering the TWA v. Hardison decision (and Justice Kavanaugh has hinted that he might agree):
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 Court did not explain the basis for this interpretation.
And today the Court agreed to rehear the issue, in Groff v. DeJoy. The particular fact question here is when employees can get religious days off, but the holding will likely extend much further than that.
What would that holding likely be? It's not clear where Justice Barrett and Chief Justice Roberts would come out on the matter—maybe they will disagree with their fellow conservatives (certainly the conservative Justices sometimes disagree on a wide range of matters). On the other hand, it's possible that Justices Kagan, Sotomayor, and Jackson might decide to come out on the side of employees, as Justices Marshall and Brennan had urged back in 1977.
My guess is that the Court will indeed read "undue hardship" as a more demanding standard than just "more than de minimis cost," and thus make things easier for employees seeking religious exemptions (and harder for employers who want to apply their religion-neutral work rules). But just how the line will be drawn is anyone's guess.