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FEBRUARY 2 • 2023 | 7

The Court found in favor of 
TWA. In so doing, it famously 
provided the following gloss on 
how far employers were required 
to extend themselves when it 
came to religious accommoda-
tions: “To require TWA to bear 
more than a de minimis cost” 
— that is, a trivial or minor cost 
— “in order to give Hardison 
Saturdays off is an undue hard-
ship.
” Thus, even if TWA could 
have accommodated Hardison 
by, for example, paying overtime 
wages to another employee to 
cover the Saturday shifts, it was 
not required to do so. Such 
“additional costs” would consti-
tute more than the “de minimis” 
investment required by Title VII.
But a straightforward reading 
of “undue hardship” certainly 
seems to require that employers 
exert more than the barest mini-
mum effort, leading any number 
of critics to attack the court’s 
analysis in Hardison. In requir-
ing so little of employers, detrac-
tors argue, it has left employees 
seeking religious accommoda-
tions from federal law with lim-
ited legal protections.
For example, in rejecting 
Groff’s claims for religious 
accommodation, the federal 
court of appeals noted that 
everything from “negative 
impacts on the employer’s opera-
tions” to even “reduced employee 
morale” have served as sufficient 
justification for not providing a 
religious accommodation.

RELIGIOUS MINORITIES
Among the problems with this 
prevailing standard is that those 
left most exposed by the court’s 
stingy interpretation of Title VII 
have been religious minorities, 
whose practices often don’t 
track the prevailing rhythms 
of the workplace. According 
to one brief filed before the 
Supreme Court in 2020, nearly 
half of Title VII accommodation 
appeals are filed by religious 
minorities, even though those 
minorities only account for 15% 
of the population.
Unsurprisingly, American 
Jews have been at the forefront 

of attempts to enhance the 
protections afforded religious 
employees in the workplace, as 
diluting employers’ obligation to 
accommodate religious practices 
in the workplace continues to 
present a significant obstacle to 
Shabbat observance. 
Already back in 1977, a broad 
coalition of Jewish organizations 
filed amicus briefs before the 
Supreme Court supporting the 
plaintiff in Hardison, including 
the National Jewish Commission 
on Law and Public Affairs, the 
Central Conference of American 
Rabbis, the American Jewish 
Committee and the Anti-
Defamation League, among 
many others.
In subsequent decades, a 
diverse range of Jewish orga-
nizations have supported the 
Workplace Religious Freedom 
Act, an ultimately unsuccessful 
attempt since 1999 to expand the 
religious accommodation pro-
tections afforded employees in 
the workplace.
Even today, the idea that 
employers need not expend 
more than de minimis resources 
and efforts to accommodate reli-
gious employees has generated 
criticism from across the politi-
cal spectrum. It is one of the rare 
church-state issues where one 
can find at least some modicum 
of agreement in Fox News and 
Slate. It does, therefore, make 
one wonder why the court orig-
inally chose this interpretive 
route back in 1977.
Maybe the strongest expla-
nation for the court’s decision 

comes from Justice Thurgood 
Marshall’s dissenting opinion 
in TWA v. Hardison. The lurk-
ing concern (one that Marshall 
emphatically rejected) was that 
recognizing a right in Title VII 
to religious accommodation 
granted too much protection, 
and too much power, to religious 
employees. That sort of power 
granted to religious employees to 
make demands on their employ-
ers might have consequences for 
other employees and therefore 
might trigger First Amendment 
concerns over establishing reli-
gion.
But as Marshall noted 
at the time, these concerns 
seem wildly exaggerated. The 
Supreme Court, on any number 
of occasions, has upheld laws 
accommodating religion so long 
as they don’t privilege those 
accommodations unequivocally 
and unyieldingly over all other 
interest. By contrast, the court 
has been clear for some time 
that “appropriately balanced” 
accommodations don’t trigger 
First Amendment concerns — a 
conclusion that has been fur-
ther bolstered by more recent 
decisions that have further min-
imized the demands of separa-
tion of church and state.

A NEW STANDARD?
Critics more recently have won-
dered what standard should 
replace the existing standard. 
Sure, we should require more 
of employers, but how much 
more? Some have worried that a 
standard that grants employees 

an unfettered right to religious 
accommodations would gener-
ate its own parade of horribles, 
such as a police officer’s refusal 
to protect an abortion clinic or 
a social worker’s demand to use 
Bible readings, as opposed to 
mental health counseling, to heal 
prison inmates.
But, in other contexts, the 
law has already found a pretty 
successful middle ground. When 
it comes to the accommoda-
tions required pursuant to the 
Americans with Disabilities Act, 
for example, undue hardship is 
interpreted to mean “significant 
difficulty or expense.
” As a result, 
employers cannot satisfy their 
obligation by merely asserting 
that a requested accommodation 
imposes a “de minimis” burden; 
instead, they must extend them-
selves further in seeking to find 
an accommodation for those 
with disabilities, unless doing 
so will actually generate costs or 
difficulties that are significant.
This standard has proven 
workable when it comes to 
accommodations under the 
ADA, providing good reason to 
think it could work as well in the 
context of religious accommoda-
tions in the workplace.
Time will tell as to which path 
the court ultimately chooses. 
For now, the court’s decision 
to hear Groff v. DeJoy holds 
out the hope of remedying 
a longstanding wrong and 
providing people of faith in the 
workplace with more expanded 
protections. Properly balanced, 
these sorts of accommodations 
will hopefully provide a middle 
ground, ensuring that the cost of 
entering the workforce need not 
be the discarding of one’s faith 
commitments. 

Michael A. Helfand is an expert on 

religious law and religious liberty. He is 

the Brenden Mann Foundation Chair in 

Law and Religion at Pepperdine Caruso 

School of Law, Visiting Professor and 

Oscar M. Ruebhausen Distinguished 

Fellow at Yale Law School, and Senior 

Fellow at the Shalom Hartman Institute. 

Originally published on Forward.com.

The U.S. Supreme 
Court building in 
Washington, D.C.

