Seyfarth Synopsis: As of February 28, 2023, diverse coalitions – including a host of Republican Congressmen and 22 state Attorneys General – have filed nearly thirty amicus briefs urging the United States Supreme Court to seize the opportunity to overturn the decades-old de minimis standard to religious accommodation claims.

Last month, Seyfarth Shaw blogged that the U.S. Supreme Court has agreed to reconsider its decision in Trans World Airlines, Inc., v. Hardison. Decided in 1977, Hardison is the seminal case establishing that an employer is not obligated to accommodate an employee’s religion if the accommodation would create more than a “de minimis” burden on the employer’s operations.

An appeal from the Third Circuit has now called Hardison into question, prompting over two dozen coalitions to add their two cents as to why the Court should overturn Hardison’s 45-year-old precedent.

Notably, several Republican U.S. Senators and House Representatives filed an amicus brief encouraging the Court to “overrule Hardison’s ‘more than a de minimis cost’ standard and replace it with ‘significant difficulty or expense.’” The GOP lawmakers contend that the Hardison standard is irreconcilable with the plain language of Title VII which states that an employer must accommodate an employee’s religious observance or practice unless the employer can demonstrate that the accommodation would cause an “undue hardship.” In their brief, the lawmakers emphasized that, although Congress did not define “undue hardship” when it drafted Title VII, it made sure to define that phrase when contemplating the Americans with Disabilities Act in an explicit attempt to distinguish its intent from the Court’s interpretation in Hardison. Under the ADA, “undue hardship,” means “a significant as opposed to a de minimis or insignificant, obligation on the part of employers.” This amicus lends support to speculation that the Court will use other civil rights legislation as guidance in crafting a new standard for religious accommodation claims. The lawmakers were also keen to persuade the Court not to bounce the issue back to Congress to amend Title VII, stating “[t]he watered-down definition in Hardison contradicts this intent and is this Court’s mistake … This Court thus has a duty to rectify its misinterpretation of the ‘undue hardship’ standard before it wreaks any more havoc on religious employees.”

Republican state attorneys general took a different approach. In their brief, the AGs dismissed economic concerns that overturning Hardison would be financially burdensome to the private and public sectors through the expense of accommodation or flooding the court system with costly litigation, stating “[r]eligious respect shouldn’t disappear over concerns of a few dollars and cents.” The AGs noted that many states already applied the stricter “significant cost and expense” standard when deciding religious discrimination claims under state law. Moreover, the AGs argue that robust accommodations for religious workers are in the states’ best interest because state governments are often the largest employers within their borders, but have struggled to find and retain skilled employees in recent years. “So States want it to be clear that religious adherents are welcome in government jobs.”

Finally, several faith-based organizations also seek the Court’s ear as it reconsiders Hardison, presenting both sociological and legal arguments. The Reiders Foundation, a non-profit organization dedicated to enhancing Jewish culture and the civil rights of the Jewish people, noted that the history of discrimination against Jews in the United States dates back to 1654, chronicling historical examples of marginalization of Jews in the American workforce. The Foundation encourages the Court adopt a new rule where “in providing a reasonable accommodation to an employee it is appropriate to consider hardship to the employer when the accommodation will involve significant costs, or violation of collective bargaining agreements or other contracts that are inconsistent with the ability of the employer to conduct the business. Where the employer is a government agency, the employer should be required, consistent with constitutional principles, to provide a compelling reason why it cannot or will not attempt to afford a reasonable accommodation.”

Other coalitions include The Council on American-Islamic Relations, which focused on the discrimination experienced by Muslim women who wear hijab, a traditional headscarf “designed to remove focus from the physical appearance and instead place it on the person’s character.” The Council argues that “[b]ecause of Hardison’s overly deferential de minimis standard, Muslim women have lost employment opportunities purely because the hijab is not contemplated by the employer’s ‘look’ policies.” In their brief, the Council recounts the overlooked biases in favor of mainstream Christian practices that absolve practicing Christians from even needing to request an accommodation from their employer, as well as pending litigation regarding hijabs. “Even if a plaintiff ends up prevailing, the plaintiff has lost her job, lost income, and was forced to sue a former employer – something prospective employers will discover. This toll has been exacted on scores of Muslim women.”

TAKEAWAYS In sum, the attention that this case has garnered is indicative of its significance and its potential to change the landscape of this area of law. The arguments presented in favor of heightening protections for religious observance are almost as diverse as the coalitions that are unified in the desire to see Hardison overturned. Seyfarth Shaw will continue to closely track and provide updates on all pivotal stages of this case as it develops.