A coalition of Orthodox organizations have asked the Supreme Court to take up the case of a Christian electrician who claims his employer engaged in discrimination by refusing to assign him a schedule that accommodated his religious obligations.
The support brief urges the court to overturn a 1977 decision that requires employers to offer only minimal accommodations for employees’ religious beliefs. Since the court’s opinion in that case, TWA v. Hardison, Jews and many others have faced significant challenges in demanding that employers accommodate Shabbos observance or other practices.
At issue in the case would be the court’s view of a section of the 1972 Civil Rights Act that requires “reasonable accommodation without undue hardship” of the religious needs of employees.
The Hardison ruling, agreed to by seven of the court’s then-justices and written by Justice Byron White, put severe limitations on the law by setting the bar for employers as “de minimis,” that is, minimal.
The brief submitted on behalf of the National Jewish Commission on Law and Public Affairs (COLPA) was authored by attorney Nathan Lewin, who both drafted the section of the civil rights legislation in question and argued before the court in Hardison.
“Hardison’s erroneous limitation of the term ‘undue hardship’ should now be explicitly overruled in this case … so that employees whose religious observance can be accommodated by their employers — even at some cost — will benefit from the protection granted by the Civil Rights Act,” says the brief.
The present case centers around the claims of Jason Small, who worked as an electrician for Memphis Light, Gas and Water for over 10 years. After suffering an on-the-job injury, he was not able to work in the same capacity and was offered a position as a dispatcher, though he had requested to work as a revenue inspector. With no other offer on the table, Mr. Small accepted the dispatcher job but raised the issue that it was likely to conflict with two evening prayer services and one community service session, all of which he attends each week. Memphis Light denied requests for accommodation, instead offering Mr. Small to work out his own shift switches with colleagues. Mr. Small maintains that his employer’s lack of flexibility remains an impediment to his religious observance, a point that Memphis Light disputes.
Two years ago, the Supreme Court declined to revisit Hardison when it denied petition to the case of a Seventh Day Adventist who said he had been fired over scheduling conflicts raised by his Sabbath observance.
The COLPA brief states that the Hardison court may have been influenced by concerns that “requiring accommodation to an employee’s religious observance could violate the Establishment Clause of the First Amendment because it would constitute prohibited governmental financial assistance to religion.” Yet it points out that more recent decisions, including the court’s ruling in Espinoza — this year’s decision, which largely cleared the way for state scholarships to religious schools — reject this understanding and embrace a far more flexible interpretation of what constitutes “establishment” of religion by government.
The key argument advanced by the brief is built upon the court’s decision in Boystock, a case ruled on last month, that radically expanded the range of discrimination claims that can be brought based on gender. Mr. Lewin’s present filing argues that just as no minimal standard was employed to the statutory language in question in that case, the same standard should be applied to religious accommodation as well, expanding it to include not only faith identity, but “all aspects of religious observance and practice.”
Rabbi Abba Cohen, vice president for Government Affairs and Washington director for Agudath Israel of America, one of the organizations that signed on to the brief, said that even as protections against religious discrimination have expanded, the Hardison decision continues to be an impediment for Orthodox Jews in the workplace, especially regarding accommodation of Shabbos observance. He said that the court was overdue to address the matter.
“The standard that Hardison set is so low that it’s almost impossible for an employer not to meet it and as a result the protection that the religious accommodation statute provides has become very weak,” said Rabbi Cohen. “Overturning this standard is something that has been needed for a very long time, and we are hoping the court will use this case to address it.”