Justices Alito, Gorusch, and (Thurgood) Marshall share the same views on … religious accommodations?!?


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I know, right? Shocking!

But it’s true, and I’ll explain why.

“More than a de minimis cost.”

On Monday, the Supreme Court decided not to review a case in which an employee claimed that his former employer failed to accommodate his religious beliefs by allowing him to attend church on Good Friday. The employee (turned plaintiff) alleged that the conduct of the defendant-employer conduct violated Title VII of the Civil Rights Act of 1964.

Title VII requires an employer to accommodate an individual’s sincerely held beliefs unless doing so would create an undue hardship for the employer.

Back in 1977, the U.S. Supreme Court, in a 7-2 decision in Trans World Airlines, Inc. v. Hardison, held that an employer does not need to provide a religious accommodation that involves “more than a de minimis cost.”

The “plain words” of Title VII say otherwise.

One of the two dissenting Justices in TWA was Justice Thurgood Marshall.

Justice Marshall argued that one couldn’t reconcile the de minimis cost test with the “plain words” of Title VII. The federal anti-discrimination statute requires religious accommodation “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.”

Justice Marshall lamented that the words “de minimis” don’t appear in Title VII, and reading them into the law defies “simple English usage” and “effectively nullif[ies]” the statute’s promise.

Justices Gorsuch and Alito are #TeamMarshall

If Justices Gorsuch and Alito had their way, the Supreme Court should have taken the opportunity to revisit the TWA decision and apply Justice Thurgood’s logic. However, on Monday, the Court passed on that opportunity.

Speaking of golden opportunities, don’t miss The Employer Handbook Zoom Office Hour on Friday, April 9, at Noon ET. Meyling “Mey” Ly Ortiz and I will be addressing the rise in discrimination against the Asian American and Pacific Islander community. We’re also going to address the power of the mentor/mentee relationship during this pandemicClick here to register.

In a blistering five-page dissent, Justice Gorsuch (joined by Justice Alito) felt the TWA decision did not age well, especially considering that courts have interpreted the ADA, USERRA, and ACA as requiring an employer to provide an accommodation unless doing so would impose “significant difficulty or expense” in light of the employer’s financial resources, the number of individuals it employs, and the nature of its operations and facilities.

Justice Gorsuch wasn’t done there:

With these developments, Title VII’s right to religious exercise has become the odd man out. Alone among comparable statutorily protected civil rights, an employer may dispense with it nearly at whim. As this case illustrates, even subpar employees may wind up receiving more favorable treatment than highly performing employees who seek only to attend church.

Maybe the most charitable explanation for the Court’s inaction has to do with issue preservation. But if that’s the worry, there is no reason for it…I cannot see what more we could reasonably require…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.

So, where does this leave you, fine readers? On a federal level, the bar remains low for demonstrating undue hardship for religious accommodations. That said, there are many pitfalls when employers summarily reject accommodation requests. To avoid those issues, I encourage you to read the EEOC’s recently-released religious discrimination guidance.

Don’t forget that state law may not be as forgiving to employers like the federal counterpart. So, depending on whether you do business, your mileage may vary.

Finally, just because a religious accommodation may create something more than a de minimis cost doesn’t mean that you have to deny it. Sometimes, doing what’s right (rather than just what’s legal) will not only get you a happy employee but also save you money and the risk of litigation later.

“Doing What’s Right – Not Just What’s Legal”
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