Hardison Info Central
Becket Takes on Religious Employment Discrimination
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 As legal scholars have pointed out, Hardison was a direct result of outdated thinking about the Establishment Clause from Lemon v. Kurtzman, a ruling that was overturned in 2022.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” has been used by large companies to deny even the most basic of religious accommodations for their employees—especially employees with minority religious beliefs.
Becket takes up the fight
Because of Hardison, businesses have been 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) are hit hardest by this Supreme Court decision, as their religious exercise—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 or Orthodox Jews) often face discrimination or job loss when they tell their employer that they cannot work on Saturdays; while, even today, it is common for many employers to close or offer Sunday Sabbath accommodations.
Becket has spearheaded the fight to get the Supreme Court to revisit Hardison. First, Becket 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 to reconsider Hardison
Several Justices have indicated that Hardison should be reconsidered. In February 2020, concurring in the denial of certiorari in Patterson v. Walgreen, Justice Alito, joined by Justices Thomas and Gorsuch, stated that “review of the Hardison issue should be undertaken when a petition in an appropriate case comes before us.” And again, on April 5, 2021, after having considered for several weeks another certiorari petition challenging Hardison, the Supreme Court decided not to review the case, citing a procedural defect in the petition. But Justice Gorsuch indicated that he strongly favored revisiting Hardison, explaining: “There is no barrier to our review and no one else to blame. The only mistake here is of the Court’s own making—and it is past time for the Court to correct it.”
In January 2023, the Supreme Court granted Groff v. DeJoy, a case that could ensure that religious employees are protected in the workplace. 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. The Postal Service argues that covering Groff’s shift would have been an “undue hardship” and therefore, was not required to provide an accommodation.
Becket filed a friend-of-the-court brief in the case, arguing that the Hardison decision was the result of the now-overturned decision in Lemon v. Kurtzman and a sharp deviation from the intent of religious workplace protections in federal civil rights law. The brief illustrates Lemon’s impact on Hardison and argued that because Lemon is now gone, the court should replace Hardison with a better standard. Becket argues that standard should be guided by American Disabilities Act, a law with similar language that requires employers to accommodate a person’s disability unless the burden on business is very high. Applying this same rule to Hardison would fix the law and protect many religious Americans, particularly those of minority faiths.