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Revisiting TWA v. Hardison

By Kevin Bizily (The Blake School)

In the history and legal tradition of the United States, freedom of religion is one of the most prominent and celebrated liberties. From the establishment of the Thirteen Colonies, religious groups persecuted in England flocked to the continent and colonial governments protected them when no other government would. This practice of religious freedom is enshrined in the First Amendment of the Bill of Rights as the nation was founded, securing “free exercise” of religion for all Americans. [1] Congress further protected religion by preventing employers from engaging in religious discrimination against their employees in the passage of Title VII as part of the Civil Rights Act of 1964. Title VII provides that “[i]t shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, and privileges of employment, because of such individual’s … religion.” [2]


In establishing a mode of enforcement for violations of Title VII, Congress also created the Equal Employment Opportunity Commission or EEOC and delegated responsibility for enforcement of Title VII and other employment discrimination laws. EEOC’s guidelines for enforcement of the Act require employers “to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer's business” in order to comply with its provisions. [3]


Title VII’s application to claims of employment discrimination is primarily governed by the Supreme Court precedent set in TWA v. Hardison. [4] In Hardison, an employee at Trans World Airlines’ stores department, Larry Hardison, was discharged for failing to report for work on Saturdays, which he observed as the Sabbath. TWA had previously allowed Hardison to work the night shift on Saturdays, thus accommodating his religious beliefs. However, the airline’s system for assigning shifts depended on seniority and when Hardison was moved to a different building in which he had no seniority, the airline workers’ union refused TWA’s attempt to accommodate him and demanded he work a Saturday day shift. When Hardison did not show up for this shift and TWA refused to let him cut his hours to 4 days per week, he was fired. Hardison filed suit and lost in the District Court, winning on appeal to the Eighth Circuit.

The Supreme Court granted the petition for certiorari and ruled in TWA’s favor, overruling the decision below. In deciding Hardison, Justice White’s opinion for the Court affirmed the requirement to accommodate employees’ religious needs, but found the extent to which such accommodation is required to be minimal. The Court found TWA had already attempted to make accommodation and had no obligation to go farther, even though the workers’ union had refused to deviate from the seniority system to make the necessary accommodations for Hardison. The Court added that such a variance from the usual system would “deprive another employee of his shift preference at least in part because he did not adhere to a religion that observed the Saturday Sabbath” and could not only pose its own problems under Title VII but would certainly be a hardship that “Title VII does not require.” [5] The Court further established a standard of de minimis cost for claims such as Hardison’s, deciding that “[t]o require [an employer] to bear more than a de minimis cost in order to give [an employee a religious accommodation] is an undue hardship” under the EEOC guidelines. [6] This conclusion was grounded in neither the text of Title VII nor the EEOC regulations, but rather pragmatic concerns about upending the contractually determined seniority system and a determination that because the general legislative purpose of the statue was to prevent discrimination, accommodations that would adversely affect other employees would qualify as such discrimination and therefore could be be required.


While the “undue hardship” standard grants employers exceptions from meeting accommodations in such instances where an extreme burden would be suffered, it clearly cannot imply employers are exempt unless the accommodation bears only de minimis cost. [7] By the principle verba cum effectu sunt accepienda, there word “undue” must be given effect as a qualifier for the “hardship.” [8] This implies that there must be some hardships which are not undue that employers could suffer as a result of accommodating employees’ religion. The word “hardship” further implies a cost or detrimental effect, greater than a de minimis impact. Therefore, exceptions for “undue hardship” cannot be equivalent to exceptions for anything but a miniscule or trivial de minimis cost because the EEOC’s language implies the existence of hardships not undue which employers are expected to take on.


In his dissent from the opinion in Hardison, Justice Thurgood Marshall remarked that “one of this Nation's pillars of strength–our hospitality to religious diversity–has been seriously eroded.” [9] The court’s decision in Hardison, however, is presently being challenged in Groff v. DeJoy, which was argued this April. The matter arose when Gerald Groff, a postal worker, was denied a request to take Sundays off work to observe a religious Sabbath. When the Postal Service began Sunday deliveries for Amazon at his post office, Groff was allowed to transfer locations but soon this office also began to deliver on Sunday. The postal service was unable to accommodate his religious beliefs because co-workers who did not observe a Sunday Sabbath were unwilling to cover Groff’s shift. Groff was assigned Sunday shifts, did not show and was disciplined as a result, and eventually resigned. Groff’s Title VII claim lost in the District Court and 3rd Circuit, and was granted certiorari by the Supreme Court. 


The Supreme Court is faced with two questions in Groff’s case: Can a hardship affecting co-workers qualify as a hardship suffered by the employer for the purposes of Title VII, and should the de minimis cost standard established in Hardison be rejected? While co-workers can certainly be affected by many religious accommodations, under the rules set by the EEOC the exception from accommodation is only granted if the employer itself suffers the injury. But as hardships suffered by other employees can affect the company as a whole, such circumstances would fall within the EEOC regulation. Nevertheless, the “more-than-de-minimis-cost” interpretation of “undue burden” is clearly illogical and under a textual analysis of the statute and regulatory provisions must be rejected.

[1] 30 U.S. (5 Pet.) at 3 (1831) (Citing a bill filed on behalf of the Cherokees).

[2] 118 U.S. 375 (1886).

[3] 118 U.S. 375 (1886).

[4] 118 U.S. 375 (1886).

[5] 118 U.S. 375 (1886).

[6] 118 U.S. 375 (1886).

[7] 118 U.S. 375 (1886).

[8] 118 U.S. 375 (1886).

[9] 118 U.S. 375 (1886).

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