Supreme Court Punted on Protections for Religion in Workplace. Justice Gorsuch Wasn’t Having It.

Justice Neil Gorsuch

Sarah Parshall Perry: The U.S. Supreme Court on Monday released various opinions and orders, as it does in the flurry of activity in the spring season that precedes the court’s summer recess.

While most orders are released without commentary, among this week’s batch was a denial of a petition for writ of certiorari that included a strongly worded dissent from Justice Neil Gorsuch on why he disagreed with the court’s refusal to hear the case.

The dissent (joined by Justice Samuel Alito) is particularly noteworthy in our current culture, one driven toward more and more anti-religious animosity.

Denials of certiorari are quite common. After all, the Supreme Court grants only about 3% of the thousands of petitions it receives each year.

But Small v. Memphis Light, Gas & Water on its face looked to be perhaps the type of case Gorsuch was hoping for when he left the door open a crack to questions of how best to protect religious interests under Title VII of the Civil Rights Act of 1964 in his 2020 majority opinion in Bostock v. Clayton County, Georgia.

Perhaps it would have been a way to at least partially redeem himself from what many conservative legal scholars thought was a botched ruling in that case.

Jason Small, an electrician and longtime employee of Memphis Light, Gas & Water, had an on-the-job injury that forced him to take on a new role as a dispatcher. The new job came with a different schedule and mandatory overtime that sometimes conflicted with Small’s religious obligations, such as worship services on Sunday mornings.

In an effort to accommodate his religious faith when it conflicted with his professional duties, Small requested a reduction in pay while he looked for a schedule that better accommodated his religious obligations. Memphis Light, Gas & Water denied his request, and he was forced to take vacation days in order to attend church services.

That arrangement worked for both Small and his employer for a time, but when Small made a vacation time-off request in order to attend church services on a Good Friday, the company at first approved his request, but then backtracked and denied it.

Small went to church services anyway and was promptly suspended without pay. In response, he sued Memphis Light, Gas & Water for violating Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, and national origin, and requires employers to afford requested religious accommodations unless doing so would impose an “undue hardship” on them.

At no point during the litigation did either party claim that Small’s requested accommodation—reduced pay while he sought reassignment—would have imposed a significant hardship on his employer. In fact, Small had gone out of his way to take vacation time he had already earned just to attend church services.

But despite that, both the district court and the 6th U.S. Circuit Court of Appeals refused to even consider Small’s claim. Why? Because of a single Supreme Court case: Trans World Airlines v. Hardison (1977).

In that case, the court held that an employer does not need to provide a religious accommodation that involves “more than a de minimis cost.” It’s a case that clearly tips the scales in favor of an employer when an employee asks for a religious accommodation—causing a frustration that Gorsuch made no effort to hide.

In his dissent, Gorsuch stressed that Hardison undid Title VII’s “undue hardship” test, relying instead on anything “more than a de minimis cost” as reason enough to turn down an employee’s request for a religious accommodation.

Gorsuch claimed that Small’s requested accommodation might not actually have imposed a significant hardship on his employer after all, but that the court had denied him even the right to consider the question in the first place. And that was due, of course, to a problematic case that Gorsuch stressed ultimately needed to be overruled and relegated to history’s trash bin.

Perhaps the biggest problem of all with the Hardison case is that the “undue hardship” language it uses appears nowhere in Title VII’s statutory language. Small’s employer, Memphis Light, Gas & Water, had to concede in the lower court proceedings that the Hardison case “very likely is not the best possible gloss on Title VII’s language.”

Yes, even the defendant in Small had to admit that Hardison doesn’t do religious employees any favors under Title VII.

Gorsuch noted that two of the three judges on the 6th Circuit panel (including Judge Amul Thapar, the author of the recent federal court decision that prevented a professor at Shawnee State University from being forced to use a student’s “preferred pronouns”) had written separate opinions in Small’s case, arguing that “Hardison [rewrote the] statute” and leaves employers with a significant imbalance of power.

The decades-old Hardison case did for Title VII what the Supreme Court did for the free exercise clause of the Constitution in its 1990 opinion in Employment Division v. Smith, in which the court refused to recognize the “extraordinary right to ignore generally applicable laws that are not supported by ‘compelling governmental interest’ on the basis of religious belief.”

Both Hardison and Smith set a standard that accommodated employers over an employee’s sincerely held religious beliefs, and government action over the free exercise of religion, by neutering the law as written and leaving protections for religious belief in only the narrowest categories of cases.

Congress’ concerns about the impact of Smith were so great that the case prompted the near-unanimous passage in 1993 of the Religious Freedom Restoration Act that persists—and protects the faithful—to this day. (That is, of course, unless Congress passes the Equality Act, which cuts the Religious Freedom Restoration Act’s protections to the bone.)

Since the Hardison case, Congress has passed other civil rights laws that are clearly more protective of other important interests in the workplace, and which rely on the “undue hardship” standard for accommodations. Among them are the Americans with Disabilities Act, the Uniformed Services Employment and Reemployment Rights Act, and the accommodations for nursing mothers in the Affordable Care Act.

Gorsuch reminded the court in his Small dissent that because Hardison is still alive and well, “the company had no obligation to provide Mr. Small his requested religious accommodations because doing so would have cost the company something (anything) more than a trivial amount.”

That cannot be the right balance between an employee’s religious liberty and his employer’s interests. The Supreme Court had a chance to correct that imbalance—but declined.

That’s why a frustrated Gorsuch concluded his dissent in Small: “[T]oday, this Court refuses even to entertain the question. It’s a struggle to see why.”
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Sarah Parshall Perry @SarahPPerry is a legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.

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