Bloomberg Law
Feb. 2, 2023, 10:15 AM

Religious Minorities Look to Benefit From New Accommodation Test

Khorri Atkinson
Khorri Atkinson
Senior Labor & Employment Reporter

Workers of minority faiths stand to gain from the US Supreme Court’s review of a decades-old precedent that makes it relatively easy for employers to deny religious accommodation requests under federal anti-bias law.

A worker-friendly standard appears to be on the horizon as the justices recently agreed to rethink the court’s 1977 Trans World Airlines Inc. v. Hardison decision, several employment attorneys speculate. Hardison allows employers to refuse a religious accommodation under Title VII of the 1964 Civil Rights Act if the request would impose a minimal, undue burden or cost on the business.

The case involves a Christian letter carrier’s challenge to the US Postal Service’s denial of a religious objection to deliver packages for Inc. on Sundays.

But overturning Hardison has major implications for believers of minority faiths like Jews, Muslims, and Sikhs, who are disproportionately more likely to file religious bias charges related to denied accommodations with the US Equal Employment Opportunity Commission each year, legal observers said.

Christians make up about 76% of Americans as of 2020, while only 1.7% identify as Jewish and 1.1% as Muslim, according to the Pew Research Center.

Minority religious workers’ accommodation requests are more likely to face headwinds because their worship, grooming, and dress requirements aren’t always the norm and may conflict with company policy. Such rules may restrict religious head coverings and beards, and require women employees to wear pants.

Because the Hardison standard is so lax, an employer’s small cost or minor inconvenience could override any obligation to reasonably accommodate a worker under Title VII, said Amrith Kaur Aakre, legal director for the Sikh Coalition. “This triggers a lot of inequality in the workplace,” she said.

“We need to get to a place where we have an equitable playing field in order to have a really diverse workforce in this country,” Aakre added.

Hardison causes religious minority workers to choose between their faith and careers, said Steven T. Collis, a law and religion professor at University of Texas School of Law in Austin.

“Too many are being told they have no option and have to seek jobs else where,” said Collis, who co-authored an amicus brief in support of the justices taking the USPS worker’s case. “So the Supreme Court revising this standard will provide tremendous support and protections” and make it much easier for them to perform “the essential functions of their jobs and stay true to their faith.”

EEOC Involvement

Workers objecting to accommodation denials typically file charges with the EEOC. The agency has also intervened in cases, some of which resulted in monetary settlements and rulings requiring employers to update their anti-discrimination polices.

These include United Airlines’ recent $305,000 deal to settle a fight with a Buddhist pilot who refused to attend Christian-focused recovery meetings for people diagnosed with alcohol dependency, and JBS USA LLC’s $5.5 million pact to resolve claims that the meatpacker denied prayer breaks to and mistreated Somali Muslim employees at a Colorado plant.

It’s not immediately clear what position the EEOC has regarding whether Hardison needs to be overturned. The solicitor general’s office under the Trump administration urged the justices in 2019 and 2020 to set a high bar for employees when determining requests to accommodate workers’ religious practices.

The Supreme Court’s ultimate ruling in this case would be binding on the EEOC and inform how the agency approaches future cases.

More Litigation?

Along with the Sikh Coalition and civil rights group Muslim Advocates, a coalition of Jewish and other religious public interest groups filed amicus briefs with the Supreme Court calling for a higher standard. Hardison misinterprets Title VII and severely impairs employment opportunities for Americans who don’t observe a Sunday Sabbath, they said.

Some advocates are calling for a test akin to that of the Americans with Disabilities Act, which requires accommodations for disabled workers unless doing so presents an “undue hardship,” defined as an “action requiring significant difficulty or expense.” The law also provides factors for courts to consider.

But a higher standard promises to reshape the litigation landscape and invite a flood of Title VII religious bias claims against employers, said management-side attorney Dee Anna D. Hays of Ogletree, Deakins, Nash, Smoak & Stewart, PC.

“We will probably see an increase in EEOC charges and state agency charges, which will lead to more litigation,” she said.

“Certainly, I agree that an employer should make adjustments where they can and do what’s reasonable,” Hayes added. But Hardison allows employers to properly balance the competing interests at stake: a worker’s religious accommodation request and an employer’s desire to avoid operating costs it may incur, she said.

Aakre disagreed that a more worker-friendly standard would result in a flood of claims.

“If there is a standard that’s more inclusive for employees, we probably will see less lawsuits because employers will have clearly defined expectations for themselves,” Aakre said.

And if there’s more clarity and consistency “with what the Americans with Disabilities Act’s standard is, employees are going to fall in line,” she added. “And they know what the undue hardship standard is. They are already following it under the ADA.”

Collective Bargaining

Before the Supreme Court agreed to take up the case, the US Solicitor General said it wasn’t the right vehicle to revisit Hardison because granting the requested accommodation would’ve required USPS to violate its collective bargaining agreement with the union representing mail delivery workers.

That argument isn’t ripe for review because “what’s before the court is the interpretation of undue hardship,” said Gary M. Gilbert, principal of Gilbert Employment Law PC.

However, the role of union contracts will likely get teed up in future disputes if they lack an exception for certain religious accommodations, he said.

“I will call this chapter two. This is something we will see,” Gilbert said.

To contact the reporter on this story: Khorri Atkinson in Washington at

To contact the editor responsible for this story: Laura D. Francis at; Rebekah Mintzer at