Failure to Accommodate: Assessing the Legacy of Trans World Airlines v. Hardison on Working-Class People of Faith

31 George Mason Law Review Forum 1

64 Pages Posted: 4 Jun 2023 Last revised: 26 Jun 2023

See all articles by J. Alex Touchet

J. Alex Touchet

Regent University, School of Law

Bradley J Lingo

Regent University School of Law

Date Written: 2023

Abstract

Abstract. Congress amended Title VII of the Civil Rights Act in 1972 to require employers to accommodate their employees’ religious practices absent the imposition of “undue hardship.” But reliance on Trans World Airlines, Inc. v. Hardison’s interpretation of “undue hardship” to mean anything “more than a de minimis cost” has prevented our nation from realizing Title VII’s promise of a workplace free of discrimination against religious Americans—particularly working-class employees.

More than 80% of religious accommodations cases involve working-class Americans, as shown by an analysis of Title VII religious accommodation cases that made it to the federal courts in between 2000 and 2023. Litigants in occupations that require only “little” or “some” preparation, like a high school diploma and up to a year of experience, represent more than 60% of the cases that made it to the federal courts between 2000 and 2023. Including occupations that require only “medium” preparation, like two years of experience and vocational school, on-the-job experience, or an associate’s degree, raises the proportion to over 80% of the cases.

This data supports Justice Marshall’s prediction that “[a]ll Americans will be a little poorer until [Hardison] is erased.” But the data also demonstrates that the American working class has suffered the most.

The Supreme Court granted certiorari in Groff v. DeJoy in early 2023 to consider whether it should disapprove Hardison’s “more-than-de-minimis-cost” test for refusing Title VII religious accommodations.” It should do so despite pleas to retain Hardison on stare decisis grounds—for Congress already took steps to protect religious liberty when it amended Title VII in 1972. Continued reliance on Congress to correct Hardison’s error will almost certainly leave countless working-class, minority faith employees as collateral damage in the religious liberty culture-wars. In Groff, the Court has the chance to restore Title VII’s full protection to working-class Americans of faith.

Keywords: Constitutional Law, Groff v. DeJoy, Trans World Airlines, Inc. v. Hardison, Title VII, Worker's Rights, Freedom of Religion, Religious Discrimination, Supreme Court, Stare Decisis, Reasonable Accommodations. De Minimis, Undue Hardship

JEL Classification: J82, J83, J71, J78, K31, K38

Suggested Citation

Touchet, J. Alex and Lingo, Bradley J, Failure to Accommodate: Assessing the Legacy of Trans World Airlines v. Hardison on Working-Class People of Faith ( 2023). 31 George Mason Law Review Forum 1, Available at SSRN: https://ssrn.com/abstract=4451392

J. Alex Touchet (Contact Author)

Regent University, School of Law ( email )

Virginia Beach, VA 23464
United States

Bradley J Lingo

Regent University School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States
757-352-4337 (Phone)

HOME PAGE: http://https://www.regent.edu/school-of-law/faculty/j-d-bradley-j-lingo/

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