Bloomberg Law
April 5, 2021, 1:36 PMUpdated: April 5, 2021, 3:20 PM

High Court Leaves In Place Test for Religious Work Requests (1)

Erin Mulvaney
Erin Mulvaney

The U.S. Supreme Court won’t consider the scope of an employer requirement to accommodate religious practices, leaving a standard in place that religious groups oppose.

The justices on Monday declined to review two cases that revolved around workers’ requests to observe their Sabbath, and could have allowed the high court to revisit its decades-old decision in Trans World Airlines v. Hardison, which considered when a religious accommodation poses an undue hardship on an employer.

In that 1977 ruling, the justices defined undue hardship as “more than de minimis cost,” essentially meaning employers don’t have to accommodate a worker if it would cause more than a trivial burden on them.

Religious rights groups say this ruling has been interpreted too broadly. The U.S. Solicitor General’s Office also previously urged the court to take up the issue. Earlier this year, three justices—Samuel Alito, Clarence Thomas, and Neil Gorsuch—called on that standard to be reconsidered in a case involving Walgreens that the court declined to take up last term.

Gorsuch, joined by Alito, said in a dissent Monday that the standard created in Hardison doesn’t appear in the language of Title VII of the 1964 Civil Rights Act, which protects against discrimination on the basis of sex, national origin, religion, and race. He said Congress has defined “undue hardship” in other statutes and courts have been far more demanding that employers show more than minimal harm or business disruption, but rather a “significant difficulty or expense.”

“With these developments, Title VII’s right to religious exercise has become the odd man out. Alone among comparable statutorily protected civil rights, an employer may dispense with it nearly at whim,” Gorsuch wrote.

One of the two cases denied review is an appeal of a U.S. Court of Appeals for the Sixth Circuit ruling in favor of Memphis Light, Gas & Water, which refused to allow electrician Jason Small to change shifts to accommodate his religious practices. The circuit court said the reassignments would be an undue hardship on its operations.

“As this case illustrates, even subpar employees may wind up receiving more favorable treatment than highly performing employees who seek only to attend church,” Gorsuch said.

As a Jehovah’s Witness, Small must attend services on Wednesday evenings and Sunday, and would sometimes be required to attend some services occasionally on Saturdays.

Sixth Circuit Judge Amul Thapar suggested in a concurrence to last year’s ruling that, although appeals courts are bound by Supreme Court precedent, a future litigant may want to challenge the undue hardship test used in religious accommodation cases, which is easier for employers to meet than the standard used in disability accommodation cases. The lesser standard most often hurts “religious minorities,” Thapar said.

The second case came from the Eleventh Circuit, which summarily upheld a federal judge’s decision that allowing Mitche Dalberiste, a Seventh-day Adventist, to observe his Sabbath from Friday sundown to Saturday sundown would pose an undue hardship on his employer. The company provided services on nights and weekends to a nuclear power plant.

Gorsuch said the religious protections are an anomaly among civil rights law. He said under the Americans with Disabilities Act, an employer may be required to alter the snack break schedule for a diabetic employee, but for a religious accommodation, at least one court ruled that it would represent an undue hardship to require an employer to shift a meal break for Muslim employees during Ramadan.

He said “uneven results like these have become increasingly commonplace.”

Schaerr Jaffe represents Dalberiste. Constangy, Brooks, Smith & Prophate represents GLE Associates.

Wilson Sonsini Goodrich & Rosati represent Small. Boyle Brasher represents Memphis Light.

The cases are Small vs. Memphis Light, Gas & Water, U.S., No. 19-1388, cert. denied 4/5/21 and Dalberiste v. GLE Associates, Inc., U.S., No. 19-1461, cert. denied 4/5/21.

(Updated Gorsuch dissent language is paragraphs 5, 6, 8 and 12.)

To contact the reporter on this story: Erin Mulvaney in Washington at

To contact the editors responsible for this story: Jay-Anne B. Casuga at; Karl Hardy at; Andrew Harris at; Travis Tritten at