[dc]Y[/dc]esterday, the U.S. Supreme Court announced that it would not be hearing two major workplace religious accommodation cases.

The petitioners were asking the Court to review its 1977 decision in Trans World Airlines v. Hardison, in which the Court interpreted the “undue hardship” standard in Title VII to mean that an employer could refuse to accommodate an employee’s religious practices if the accommodation would require anything more than a de minimis cost or expense.

As Justice Gorsuch, joined by Justice Alito noted in their dissent from the denial of certiorari in Small v. Memphis Light, Gas & Water, the term “undue hardship” when applied in other parts of Title VII requires much more of employers. For instance, the Americans with Disability Act, the Affordable Care Act, and the Uniformed Services Employment and Reemployment Rights Acts require much more of employers.  Under all three of those laws, an employer must provide an accommodation unless doing so would impose “significant difficulty or expense” in light of the size of the employer and the type of business they are involved in.

Justice Gorsuch wrote, “Title VII’s right to religious exercise” has become the odd man out. Alone among comparable statutorily protected civil rights, an employer may dispense with it nearly at whim. As this case illustrates, even subpart employees may wind up receiving more favorable treatment than highly performing employees who seek only to attend church.”

Small v. Memphis Gas, Light & Water involved a Jehovah’s Witness employee who had requested religious accommodation to attend church services. Dalberiste v. GLE Associates involved a Seventh-day Adventist who sought religious accommodation for Sabbath observance.

Founders’ First Freedom submitted an amicus brief asking the Court to hear the Dalberiste case. A similar case, Patterson v. Walgreen, was denied certiorari last year.


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