Ordinary Meaning as Last Resort: The Overlooked Meaning of 'Undue Hardship' in Title VII

Abstract

Perhaps no principle of modern textualism is more canonical than the presumption of ordinary meaning. Applying it has been called “Statutory Interpretation 101” and scholars have referred to its “primacy” and noted it is the “linchpin of statutory interpretation.” But the presumption of ordinary meaning is problematic in its current overly muscular form as it causes jurists, attorneys, and scholars alike to miss technical and specialized meaning—which non-ordinary meaning also carries with it arguably conflicting presumptions under current doctrine. And this blind spot created by the too robust presumption of ordinary meaning undermines textualism itself. That’s because textualism is at its heart an empirical theory, one that is agnostic at to which type of meaning the law has, only demanding that statutes be read according to their original public meaning, be that ordinary, legal, or something else.

A case in point of the ordinary meaning presumption’s problem is “undue hardship” in Title VII of the 1964 Civil Rights Act, which the Court will grapple with this term in Groff v. DeJoy. Added to the Act in a 1972 amendment, smart jurists and attorneys for nearly half a century—ever since the Supreme Court in Trans World Airlines v. Hardison gutted the term’s protection in 1977—have critiqued Hardison’s de minimis-plus standard as inconsistent with the plain or ordinary meaning of “undue hardship.” But that has been a mistake. As this article shows, “undue hardship” has a deep and widespread legal pedigree, appearing in cases, statutes, and regulations stretching back nearly two centuries in American law and occurring across numerous areas of the law. What is more, the term is rarely used in ordinary American English, and is instead used nearly 10,000 times more in legal American English for the century and a half preceding the 1972 amendment.

In short, “undue hardship” is a legal term of art, not a term that should be given ordinary meaning. And that matters because the legal meaning of “undue hardship”—drawn from the relevant context of a 1967 EEOC regulation and “a long line of [agency] decisions” applying the term—is more protective of religious liberty than its ordinary meaning or importing the meaning of later-enacted statutes (an odd move under textualism), such as the American with Disabilities Act. Ironically, then, at least from a textualist perspective, Justice Thurgood Marshall (joined by Justice Brennan) was correct in arguing in his Hardison dissent that with the 1972 amendment Congress was codifying this EEOC meaning of “undue hardship” and that the majority’s de minimis-plus interpretation was wrong. But one does not have to rely on legislative history, as he did, to so conclude.

The article’s contributions are fivefold. First, it brings clarity to textualist theory by combining the various strands of ordinary meaning presumption and technical meaning presumption doctrines into one whole. Second, flowing from this doctrinal amalgamation the article proposes a new methodological ordering to a statutory interpretive inquiry that makes ordinary meaning last instead of first: the last resort of ordinary meaning. Next, it applies this theoretical clarification and methodological refinement to "undue burden" in Title VII, showing that most have missed the term's actual meaning as a legal term of art, instead assuming that the undefined term should simply be given its ordinary meaning. Fourth, the article puts forth the most likely meaning of the term that Congress adopted in the 1972 amendment. Finally, based on this newly uncovered meaning, the article opines how the Court should rule in Groff,and examines the Court's ultimate interpretive methodology in the case in light of the article.

Keywords: undue hardship, statutory interpretation, ordinary meaning, Supreme Court