High Court May Toughen Employers’ Legal Duty To Accommodate Religion
The Supreme Court last week agreed to hear Groff v. DeJoy, a case on how stringently employers should be obliged to accommodate workers’ religious practice and belief under Title VII of the Civil Rights Act of 1964. It will revisit the statutory interpretation standard it announced in 1977 in Trans World Airlines v. Hardison, in which employers can turn down religious accommodation requests that subject them to more than de minimis costs. The Court also agreed to revisit the question of whether the employer can justify a refusal of accommodation by pointing to costs inflicted on co‐workers, as opposed to on itself.
It’s been on the table for a while that a significant number of Justices want to revisit and toughen the TWA v. Hardison standard. Concurring in a 2020 case called Patterson v. Walgreen, Justice Samuel Alito, joined by Neil Gorsuch and Clarence Thomas, indicated as much. As I wrote then, citing my Cato Supreme Court Review article on the 2015 hijab case, EEOC v. Abercrombie & Fitch:
basically, Hardison let employers off easy, at the semantic cost of defining a term of art, “undue hardship,” in a way almost comically opposite to the way it has since come to be used in, say, ADA cases. One result is that religious discrimination complaints in the workplace, while growing, have not emerged as a massive headache for management, nor have they blown up as a series of regular culture war showdowns.
Just as with the better‐known issue of RFRAs, or Religious Freedom Restoration Acts, the ideological polarities reversed over this period, with liberal forces, at first the strongest proponents of accommodation rights, turning into their strongest critics. Alito’s concurrence makes clear that more battles are likely to lie ahead – unless Congress chooses to change or clarify matters, as it could do quite simply any time by choosing to update the statute.
In 2021, on the topic of religious vaccine objections, I wrote:
The ideological background of the objections is perhaps not surprising at this point: it is mostly “conservative” groups that are mobilizing to promote litigation based on the more liberal interpretations of employers’ obligations. That’s not a stance friendly toward the values of private ordering, free association, or contract or property rights in the workplace setting. But it is, perhaps, a sign of the times.
It will surprise no one if right‐of‐center legal groups come to court once again in Groff v. DeJoy with the intent of constricting employers’ liberty of contract.