In Reconsidering a 1977 Ruling, the Supreme Court Might Greatly Expand Protections for Sabbath Observers

January 7, 2021 | Nathan Lewin
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Over 40 years ago, Larry Hardison—a member of a church that observes the Sabbath on Saturday—lost his job at the now-defunct Trans World Airlines for refusing to work on his holy day. When Hardison challenged his firing in court, the airline argued that it should not be required to allow Harden to trade his shift with another worker, who by reason of seniority would receive greater pay. The Supreme Court at the time sided with the airline. At issue was a 1972 amendment to the Civil Rights Act, requiring employers to provide “reasonable accommodation” for an employee’s “religious observance and practice,” so long as doing so does not involve “undue hardship.” The American Jewish lawyer Nathan Lewin, who helped to argue Hardison’s case before the Supreme Court, outlines the question at hand:

The majority opinion by Justice Byron White held that TWA was not obliged “to carve out a special exception to its seniority system in order to help Hardison to meet his religious obligations.” White gratuitously went on to declare that TWA did not have to incentivize substitutes with “premium wages” because the 1972 “reasonable accommodation” amendment to the law required nothing more than the most minimal (“de-minimis”) adjustment.

This de-minimis gloss on the statutory language has, over the past four decades, buried scores of legal claims by . . . Sabbath-observers who were fired or demoted because they were unwilling to violate the tenets of their faith.

Now the Supreme Court has indicated that it might hear the case of a Seventh-Day Adventist seeking accommodation for his Sabbath observance. Lewin is optimistic that, if it does hear the case, it might overturn the Hardison ruling:

Today’s Supreme Court is more receptive to claims of religious minorities than the 1977 court. The justices who decided Hardison’s case sought to protect American society from religion; a majority of today’s court emphasizes the protection granted by the constitution for religion. Justice White formulated the de-minimis standard (which had not been proposed by any brief in the case) because the court majority in 1977 feared that requiring an employer to incur expense to accommodate religious observance would violate the First Amendment’s Establishment Clause. Chief Justice Burger and Associate Justices White, Powell, Rehnquist, and John Paul Stevens mistrusted religious observance. Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett respect it.

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