NEWSWEEK — An evangelical Christian mailman lost his job with the United States Postal Service because he would not report for work on Sunday shifts to deliver Amazon-ordered products. He filed a lawsuit contending that federal civil rights law requires employers (including the federal government) to make "reasonable accommodation" for an employee's "religious observance and practice." The underlying law provides, however, that an employer need not make the accommodation if doing so would impose an "undue hardship on the conduct of the employer's business."
The lower courts rejected the mailman's lawsuit because a 1977 opinion by Justice Byron White of the U.S. Supreme Court, Trans World Airlines, Inc. v. Hardison, declared that this statutory dispensation meant that only a minimal accommodation—"de minimis," in legalese—is required. Thirteen friend-of-the-court briefs were filed recently with the Supreme Court supporting the mailman's request that the Court hear his case.
The accommodation provision was first added to the 1964 Civil Rights Act in 1972 on the initiative of Sen. Jennings Randolph (D-WV). In a speech made on the floor of the Senate, Randolph explained that he was a Seventh Day Baptist whose religious observance required him to avoid weekday labor on Saturdays. With his amendment, he intended to ensure that employers would adjust work schedules to meet the needs of Sabbath observers. Randolph was universally respected, so his proposal was approved by a unanimous Senate. No one then suggested that an employer could avoid resolving a conflict between an employee's religious Sabbath observance and the employer's work schedule if an accommodation called for more than minimal cost or mere inconvenience.
In American legal contexts other than religious accommodation, an "undue burden" (synonymous with "undue hardship") means more than de minimis cost. For example, employers must incur substantial expense to accommodate employees' physical disabilities under the Americans With Disabilities Act, even though that federal law also statutorily exempts only "undue hardship."
In more than 250 officially reported rulings—frequently rejecting employment discrimination claims—federal judges have cited the de minimis standard of the Hardison opinion. Because the current Supreme Court is more sympathetic to religious liberty rights than it was 45 years ago (only Justices Brennan and Marshall dissented in Hardison), the Court has been asked repeatedly in recent terms to repudiate and overrule Hardison's de minimis accommodation standard.
One case that the Court turned down in February 2020 (Patterson v. Walgreen Co.) was brought by a Seventh Day Adventist employee of an Orlando pharmacy who lost his job because he would not conduct a training session on a Saturday. The Court invited the Justice Department, which speaks to the Supreme Court through the U.S. solicitor general, to express its opinion on the legal issue. (If the federal government is not a party to a case, the Court occasionally asks the solicitor general to offer the Justice Department's view.) President Donald Trump's solicitor general was Noel J. Francisco. His invited brief left little doubt where the Justice Department stood. Francisco declared that Hardison's "formulation is incorrect" and "does not naturally follow from the statutory text." He urged the Court to hear Patterson's case to revisit the Hardison standard, noting explicitly that Hardison was not a case in which precedent should be respected merely for being precedent.
Patterson's petition did not win the four votes needed to grant a writ of certiorari to put the case on the Court's calendar. But Justices Thomas, Alito, and Gorsuch voted to hear the case and said in their published dissent that the solicitor general had observed that "Hardison's reading does not represent the most likely interpretation of the statutory term 'undue hardship.'"
However, the Biden administration ushered in a seismic shift in the Justice Department's approach to legal claims made in the Supreme Court by the religiously observant. Maine state law denied tuition assistance for parents living in areas with no public high school who enrolled their children in "sectarian" schools. The parents' constitutional challenge made its way to the Supreme Court in 2021, in the case of Carson v. Makin. The Trump administration had agreed with the Maine parents that denying them such tuition assistance violated the Free Exercise Clause of the First Amendment. But that position was subsequently abandoned by Elizabeth Prelogar, the Biden administration's solicitor general.
The Biden Justice Department's Carson brief reported that the federal government had supported the Maine parents in the lower courts. It then added, "After the change in administration...the United States re-examined this case." The "re-examination" resulted in a total about-face. The Justice Department was now in Maine's corner, endorsing the state's rule that "sectarian" schools could be constitutionally disqualified from the tuition assistance program. A 6-3 Supreme Court majority decided to reject the "re-examined" view, siding with the parents. It invalidated the disqualification decreed by Maine law.
The solicitor general's response to the mailman's request for Supreme Court review—and to the 13 filed amicus briefs—is due October 26. The Justice Department could agree that it's time to re-examine the Hardison standard—as the Trump administration had urged—or it could oppose the Sabbath observer's petition and argue that the Hardison formulation should be retained. It will, of course, take only one other justice to agree with the three who dissented in Patterson to add the mailman's case to the Court's calendar. Let's hope one such justice emerges.
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Nathan Lewin is a Washington lawyer who has argued 28 cases in the Supreme Court and taught at Harvard, Georgetown, Columbia, and the University of Chicago Law Schools.
