Hardison Info Central

Over 45 years ago, the Supreme Court stripped Title VII protections from religious employees 

In a little-known case from 1977 called Trans World Airlines v. Hardison, the Supreme Court gutted civil rights protections for people of faith. Although federal civil rights law says that employers must “reasonably accommodate” the religious practices of their employees unless doing so imposes an “undue hardship” on the company, the Supreme Court reinterpreted federal law to allow employers to deny religious accommodations to their employees if the accommodation would impose anything more than a negligible cost or burden on the company’s operations. As legal scholars have pointed out, Hardison was a direct result of outdated thinking about the Establishment Clause from Lemon v. Kurtzman, a ruling that was overturned in 2022. Hardison’s “de minimis test” was nevertheless used for decades by large companies to deny even the most basic of religious accommodations for their employees—especially employees with minority religious beliefs. In 2023, the Supreme Court finally clarified Hardison’s standard in Groff v. DeJoy, requiring employers to provide workplace religious accommodations unless doing so imposes a significant cost on their business. 

Becket takes up the fight 

Because of Hardison, businesses were able to discriminate against religious employees in ways that would be unthinkable for other protected classes (such as sex or disability). Members of minority faiths (and often people of color) were hit hardest by this Supreme Court decision, as their religious practices—including which holy days they celebrate, how they must dress, when they must pray, and what they can eat—are different from the religious practices that have predominated in this country for over two centuries. For example, Saturday Sabbath observers (like Seventh-day Adventists and Orthodox Jews) often faced discrimination or job loss when they told their employer that they could not work on Saturdays.  

Becket spearheaded the fight to get the Supreme Court to revisit Hardison. Becket’s efforts started with a friend-of-the-court brief filed in EEOC v. Abercrombie, a case involving Samantha Elauf, a Muslim woman who was fired from Abercrombie & Fitch because her district manager believed that her headscarf might conflict with the store’s dress code policy—even though the store had made exceptions for religious headwear in the past. Becket’s brief argued in favor of Title VII protections for Samantha, resulting in a win at the Supreme Court which strengthened protections for religious employees in the workplace, but that did not address Hardison.  

In September of 2019, Becket appealed to the Supreme Court in Patterson v. Walgreens, a case asking the Court to revisit Hardison. This case involved Darrell Patterson, a dedicated Walgreens employee and devout Seventh-day Adventist. Patterson had worked out an arrangement with his supervisor that allowed him to observe the Seventh-day Adventist Saturday Sabbath. But after Walgreens violated an Alabama pharmacy law, company executives set up an emergency training session on a Saturday. Patterson was not able to attend due to his religious observance, and Walgreens ultimately fired him. Forced to choose between his faith and feeding his family, Patterson took Walgreens to court for religious discrimination. The Supreme Court declined to hear the case. 

In 2020 Becket took on another case, Dalberiste v. GLE Associates. Mitche Dalberiste, also a practicing Seventh-day Adventist, who requested a scheduling accommodation from GLE Associates, his new employer. Instead of arranging for a schedule that respected his faith, they rescinded his job offer. Mr. Dalberiste sued GLE Associates under Title VII, but lower courts deferred to Hardison and refused to grant Mr. Dalberiste any relief. The Supreme Court again declined to take up the case. 

The Supreme Court fixes the Hardison standard  

Ever since Hardison was decided, the “de minimis” standard had been a subject of contention among the Justices. In Patterson v. Walgreen, for example, Justice Alito, joined by Justices Thomas and Gorsuch, explained that “review of the Hardison issue should be undertaken when a petition in an appropriate case comes before us.”  

In January 2023, the Supreme Court granted Groff v. DeJoy. Gerald Groff, a U.S. Postal Worker, requested a religious accommodation to protect his Sabbath worship when the Postal Service started to require its employees to deliver Amazon packages on Sundays. When the Postal Service denied Groff’s accommodation and increased disciplinary action when he missed his Sunday shifts, Groff left his job and filed a lawsuit.  

Becket filed a friend-of-the-court brief in the case, arguing that Hardison’s “de minimis” standard stemmed from the now-overturned Supreme Court decision in Lemon v. Kurtzman and constituted a sharp deviation from both the text and intent of religious workplace protections enshrined in federal civil rights law. Becket’s brief illustrated Lemon’s impact on Hardison and argued that because Lemon was overruled, the Court should replace the de minimis standard with a standard that better protects religious employees and is faithful to the law’s text and purpose. On June 29, 2023, the Supreme Court finally fixed its mistake in Hardison, ruling that employers must show more than a “de minimis” burden on their business to deny an employee’s religious accommodation. In its opinion, the Court clarified that there is “big difference” between what Title VII requires and the “de minimis” language from Hardison, which Justice Sotomayor called “loose language.” The Groff decision therefore makes clear that courts must interpret Title VII to require religious accommodations in the workplace absent a significant cost or truly “undue” hardship on the business. 

This decision is a significant victory for religious minorities and all those who wish to make a living without sacrificing their faith.