One of the perpetual conundrums of law is when rights conflict, one has to give. Oftentimes, the relative rules are crafted by looking at a standalone right, extolling its virtues and then protecting it from encroachment. It’s a fine system, until the right being protected runs head first into someone else’s right. At that point, it’s usually left to the Supreme Court to do the dirty work of coming up with a test to determine which right prevails. For the most part, this has followed the rising or falling popularity of a right.
Since the 1960s with the passage of the Civil Rights Act of 1964 in general, and Title VII prohibiting employment discrimination in particular, religion has generally become a second-class right despite its free exercise being protected under the First Amendment. It wasn’t so much antagonism against religion as the rising concerns for other areas of discrimination that were considered far more at risk and in need of remedy.
So when religious accommodation was on the table in Trans World Airlines v. Hardison, a case involving an employee who refused to work on his sabbath, Saturday, the Court held that the “undue hardship” needed to overcome the need to make an accommodation merely required an employer to “bear more than a de minimis cost.” It was a fairly shocking holding in that it basically eliminated the “undue harship” such that no accommodation was needed if the employer could come up with any excuse why it was a burden. And the Court’s decision, with justices Brennan and Marshall dissenting, made this very clear in an exercise of sophistry.
To require TWA to bear more than a de minimis cost in order to give respondent Saturdays off would be an undue hardship, for, like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion.
To accommodate religion for one is to discriminate on the basis of religion against everyone else? Catch-22, anyone? But that was then.
There have been many attempts over many years to persuade Congress to amend the law, Title VII of the Civil Rights Act of 1964, to shift the balance explicitly in favor of religiously observant employees. Between 1994 and 2019, more than a dozen such bills were introduced. None emerged from Congress.
Of course, the same is true about legislative efforts to change sex discrimination to include sexual orientation, which failed annually until the Supreme Court decided Bostock. Now the Supremes, with a few personnel changes since 1977, are poised to revisit Hardison.
And so now, a very different court from the one that ruled 46 years ago is about to do the work itself.
That isn’t an idle prediction but rather the surely foreordained outcome of the new case the justices recently added to their calendar for decision during the current term. The appeal was brought by a conservative Christian litigating group, First Liberty Institute, on behalf of a former postal worker, Gerald Groff, described as a Christian who regards Sunday as a day for “worship and rest.”
Linda Greenhouse is likely right in her less-than-idle prediction given that the balancing of rights is largely a matter of weighing values, and the current majority values religion more than de minimis. That said, the nation has operated for the past 46 years under the de minimis burden standard, and changing that now will likely cause significant disruption, massive confusion as to just what an employer is required to do in any given circumstance, and renewed fear and outrage that the Supreme Court is now over-valuing religion to the detriment of other rights.
Unlike the Court’s misbegotten Dobbs reversal, overruling Hardison could give rise to business chaos and new conflicts with other rights will likely give rise to unintended consequences of placing businesses and employers in the untenable position of not know what their obligations under Title VII are. Is it worth it for the Supreme Court to create massive disruption of settled law? Does this feed into the belief that the Court is illegitimate as “captured” by the religious right? By elevating the value of religion in the scheme of rights, does the Court tread of the Free Exercise Clause and into the Establishment Clause?
It’s easy to say that religion deserves to be protected in a vacuum, but where should the “undue hardship” line be?
*Tuesday Talk rules apply.
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