In 1964, almost 60 years ago, the 88th U.S. Congress passed an ambitious Civil Rights Act. Title VII of the act was supposed to protect employees from discrimination based on race, religion, national origin, color or sex. It does not apply to employers with less than 15 employees unless the employer is the federal government. However, that doesn’t mean small employers have the right to discriminate against U.S. citizens. State and local laws may apply even if Title VII doesn’t.
In 1972, the U.S. Congress decided the only reason not to accommodate additional religious practices was when it would cause employers undue hardship, and they amended Title VII accordingly. In 1977, the Supreme Court ruled about what employers were expected to do when accommodating an employee’s religious beliefs. The answer: not much.
The case was named Trans World Airlines, Inc. v. Hardison. It centered around a conflict between Larry Hardison, who observed the Sabbath on Saturdays, and Trans World Airlines (TWA). He had seniority for a night shift in one building but was transferred to work a day shift in another. The transfer cost him his seniority. As a result, he could not use his seniority to negotiate for having Saturdays off.
Seven supreme court justices sided with TWA instead of Larry Hardison. According to the majority opinion written by Justice Byron R. White, accommodating Larry Hardison would have meant either bypassing the seniority system or paying overtime to other employees so that his shift would be covered. Waiving the seniority system would have created additional problems for TWA because it was something TWA had negotiated with the union.
The majority opinion contained an important phrase: “de minimis cost.” It means “too small to be meaningful.” The Supreme Court, other courts and many employers began using it as the standard even though those words aren’t in Title VII.
Since the Supreme Court thought anything more than a “de minimis cost” was unreasonable, all employers had to do was prove that accommodation wasn’t trivial for them. But “too small” and “trivial” are subjective words. Employers could effectively justify not granting any accommodations that cost anything at all.
Justice Thurgood Marshall and Justice William J. Brennan Jr. disagreed with the majority opinion. They referred to previous cases where the Court gave exemptions to state employees; they thought private employers could make similar exemptions. Also, Justice Marshall thought TWA could have done more for Hardison, such as allowing him to recruit replacements and pay their overtime or transferring him back to his original situation, reclaiming his lost seniority. He observed that in 1972, Congress had no problem with situations where accommodating religious practices meant preferential treatment.
Over time, the legal world decided that the “de minimis” standard in the 1977 case was wrong. But changing it, and vindicating the minority opinion of Justices Marshall and Brennan, meant the Supreme Court had to find another case to overturn it.
That happened June 29, 2023, when the Supreme Court ruled about Groff v. DeJoy. Gerald Groff, a rural carrier and an evangelical Christian, didn’t want to work on Sundays. He started working for the USPS in 2012. The USPS agreed with Amazon to begin delivering on Sunday at his location. He transferred, but the problem followed him; the new location began delivering on Sunday, too. He was disciplined, eventually resigned, and then sued the USPS. His case eventually ended up in front of the Supreme Court after the U.S. District Court and the 3rd U.S. Circuit Court of Appeals had dismissed it.
When the Supreme Court heard the case, it unanimously rejected the “de minimis” standard. Balancing the rights of the minority and the majority is complex, but accommodating someone’s religious rights does not automatically qualify as “an undue establishment of religion.”
In Justice Samuel Alito’s opinion, which he wrote for the full Supreme Court, he said “undue hardship” more sensibly meant “something hard to bear.” Forcing someone to work overtime didn’t qualify, but he pointed out that employers had other potential solutions, too. For example, they could also reasonably ask for voluntary shift swapping.
Justice Sonia Sotomayor and Justice Ketanji Brown Jackson wrote a concurring opinion. They said statutes should be applied as written and that “undue hardship” should be applied to employees and employers.
It’s good that employers can no longer use “de minimis cost” as the standard, but it’s also likely that the legal discussion will continue.
