The Volokh Conspiracy

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Against a Broad Reading of Title VII's Religious Accommodation Provision


A very interesting item by Adam Unikowsky, defending the Court's relatively narrow reading in TWA v. Hardison (1977) of the Title VII duty to grant religious exemptions from generally applicable work rules. The Court is now considering reversing that decision in Groff v. DeJoy; James Phillips guest-blogged here last month in favor of such a reversal (and supporting Justice Marshall's dissent in that case, which was joined by Justice Brennan), and I'm glad to also present Unikowsky's largely contrary view. An excerpt, though the whole thing is much worth reading:

Under Title VII of the Civil Rights Act, it is illegal for an employer to "discriminate" against an individual "because of such individual's … religion." The term "religion" is defined to include "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business."

What does "undue hardship" mean? In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), the Supreme Court held that requiring an employer to "bear more than a de minimis cost" would constitute an undue hardship. Hardison has acquired a poor reputation among proponents of religious liberty, who view it as conferring insufficient protection to religious employees. The Supreme Court has recently granted certiorari in a new case, Groff v. DeJoy, in which the plaintiff asks the Court to overrule Hardison and replace it with a new standard in which the employer must accommodate the employee's religious practice unless it would impose a significant cost on the employer.

In this post, I will argue that Hardison should not be overruled. Clarified perhaps, but not overruled. In my view:

  • It is an "undue hardship" when employers are forced to inflict more than de minimis harm on non-religious co-workers to accommodate the religious practice of religious employees.
  • It is an "undue hardship" when employers are forced to pay more than a de minimis amount of cash, out of pocket, to accommodate the religious practice of religious employees.

Under this standard, Title VII would still offer important protection to religious employees. It would allow them to be exempted from generally applicable rules—for instance, an employer's no-beards policy could generally not be enforced against an employee whose religion requires him to wear a beard. It would require the employer to offer flexible scheduling and assignment of tasks. But the employer wouldn't have to inflict harm on co-workers, and wouldn't have to finance its employees' religious practice.

I advocate this standard for a simple reason. Title VII should be interpreted in line with the American tradition of religious liberty, and this standard embodies that tradition.