The Volokh Conspiracy

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SCOTUS Grants Cert To Reconsider TWA v. Hardison

May the "de minimis" test go the way of Trans World Airlines.


Trans World Airlines v. Hardison (1977) provided a very narrow reading of Title VII's protections against religious discrimination. Under that decision, a private employer does not need to accommodate an employee's religious exercise if doing so would require the employer "to bear more than a de minimis cost." Yet, the language of Title VII requires employers to accommodate an employee's religious exercise unless it would suffer an "undue hardship." An "undue hardship," under any reading of the text, must be more than a "de minimis cost." But Hardison was decided in the bad-old days when textualism wasn't very important. For decades, Hardison has stood in tension with Title VII. Yet, the precedent has stood.

In 2021, the Supreme Court denied cert in two cases that sought reconsideration of Hardison. At the time, I speculated that there may have been some vehicle problems with those petitions.

Today, the Supreme Court granted review in Groff v. DeJoy. This case expressly asks the Court to reconsider the Hardison standard. There are two questions presented:

1. Whether this Court should disapprove the more-than-de-minimis-cost test for refusing Title VII religious accommodations stated in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). 

2. Whether an employer may demonstrate "undue hardship on the conduct of the employer's business" under Title VII merely by showing that the requested accommodation burdens the employee's co-workers rather than the business itself. 

Congratulations to the First Liberty Institute and Baker Botts for the grant. The case should be argued in April. May the "de minimis" test go the way of Trans World Airlines: defunct.