Kade Allred (BYU Law School) has posted Giving Hardison the Hook: Restoring Title VII’s Undue Hardship Standard (Brigham Young University Journal of Public Law, Vol. 36, No. 2, 2022) on SSRN. Here is the abstract:
In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), the Supreme Court severely stunted Title VII's religious accommodation undue hardship standard. Through one, almost-passing, sentence, the Court confusingly interpreted “undue hardship” to mean anything more than a de minimis cost to the employer. This created a toothless standard that flouts the text’s ordinary meaning and the statute’s purpose and corresponding legislative intent
Part I of this paper begins by briefly reviewing the winding road to Hardison to tee up how its de minimis standard was decided on faulty grounds. Part II argues how the Hardison Court completely contravened the text, purpose, and legislative intent of the 1972 amendment, thus stunting the statute’s full realization. Part III then highlights Hardison’s hobbling effects on religious accommodation claims, particularly claims brought by religious minorities. After reasoning that there are only two possible solutions that could truly give Hardison the hook, Part IV concludes by asserting that, although anything is better than Hardison’s unnatural de minimis standard, the ideal solution is the Court interpreting undue hardship to mean significant difficulty or expense. But to get there, the right vehicle has to reach the Court. Giving Hardison the hook will restore the undue hardship standard and promote pluralism in the workplace, fundamental to human dignity and equity.
