For more than 20 years, employers who are asked by an employee for a religious accommodation, in order to deny the request, literally need only demonstrate a de minimis burden on their operations. This standard was adopted by the United States Supreme Court in 1977 in its opinion in the matter of Trans World Airlines, Inc. v. Hardison. There, a Trans World Airline employee sued his employer under Title VII of the Civil Rights Act of 1964 (Title VII) after being terminated for refusing to work on Saturdays when he observed his Sabbath. The Supreme Court concluded that Trans World Airlines would only need to demonstrate a de minimis or trivial burden on its operations in order to deny the employee's religious accommodation request. Since the Hardison decision, employers faced with lawsuits premised on religious accommodation claims have found those claims to be relatively easy to defeat in court, needing only to demonstrate, for example, slight increases in workload burdens arising from an employee's request not to work certain days.
Recently, however, there have been some signals that the Supreme Court may revisit its holding in Hardison. A former Walgreens employee, Darrell Patterson, sued his employer under Title VII for refusing to accommodate his request not to work on Saturdays. The United States Court of Appeals for the Eleventh Circuit, citing the standard promulgated in Hardison, rejected Patterson's claims. Patterson then asked the Supreme Court to review the Eleventh Circuit's decision. In a potentially telling move, the Supreme Court has now invited the United States Department of Justice to opine on Patterson's review request and, more specifically, whether the Hardison standard still makes sense in today's workplace. Some commentators have suggested that a higher accommodation standard, such as the "significant difficulty" standard set out in the Americans with Disabilities Act, would provide more appropriate protections for modern employees.
There is no guarantee that the Supreme Court will take up Patterson's case, even in light of the Supreme Court's invitation for briefing from Department of Justice. There are also no assurances that the Supreme Court would change the Hardison standard if it did take Patterson's case. Even so, this recent activity from the Supreme Court signals that the Hardison standard has come under scrutiny and may be modified or completely upended in the near future. Employers would be well-advised to monitor the progress of the Patterson lawsuit and to seek legal advice regarding the impact on religious accommodation requirements resulting from any Supreme Court opinion issued in Patterson v. Walgreen Co.
