This past Monday, the Supreme Court denied certiorari in Small v. Memphis Light, Gas & Water, Docket No. 19-1388, and by doing so batted back a challenge to the longstanding precedent regarding employers’ duties to accommodate religious practices of employees.
Title VII of the Civil Rights Act of 1964 requires accommodation of employees’ religious practices whenever doing so would not cause an “undue hardship.” In 1977, the Supreme Court interpreted “undue hardship” as anything “more than a de minimis cost” to the employer. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). In other words, employers do not have to accommodate an employee’s religious practice if it would cause more than a trivial burden.
The Plaintiff who sought to overturn this standard was disciplined by his employer when he attended religious services rather than working a scheduled shift. His challenge to the de minimis standard relied heavily on Justice Marshall’s dissent in Trans World Airlines, which stated that the de minimis rule “makes a mockery” of Title VII, flouts “simple English usage” and compels “thousands of Americans” to choose between staying true to their faith and staying employed.
In declining to grant certiorari, the Supreme Court will leave the de minimis standard for religious accommodations in place. For now, employers can rest assured that the de minimis standard will continue to apply, and that they need not part the waters in order to accommodate a religious employee. But the Court’s decision drew a strong dissent from Justices Alito and Gorsuch. This issue will bear watching in the coming years.