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

Congress amended Title VII 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