Joel Dillard & Associates

Representing Working People

The Future of Religious Accommodation and Discrimination

Last time we talked about the current law on religious discrimination. Today we'll dig deeper on religious accommodation.

In 1964, Congress outlawed discrimination based on religion in the workplace. Congress also required the employer to accommodate the religious practices of its employees, unless doing so would be an undue burden.

But early on, in 1977, the Supreme Court heard a case about how much burden was due, and said that the employer was not required to do anything that was more than de minimis - latin for itty-bitty. Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 84 (1977). This means that if it was even mildly inconvenient for the employer, the employer was not required to accommodate the religious practice. It completely eviscerated the statute.

That may be changing. The government has asked the Supreme Court to take up the issue and expand this protection, so that the term undue burden means something real. Although the Supreme Court has not yet taken up the issue, Justices Alito, Thomas and Gorsuch have written a short opinion indicating that, when the right case comes along, they intend to take the issue up and will support expanding the protections of the law.

I think it likely that the liberals on the Court would also support this. (Marshall and Brennan dissented in Hardison.) Practically, this means that there is a good chance that, in the right case, the Court will unanimously or near-unanimously expand the protections against religious discrimination in Title VII. I look forward to it.


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