Trans World Airlines, Inc. v. Hardison

Facts

Section 703(a)(1) of the Civil Rights Act of 1964 “makes it an unlawful employment practice for an employer to discriminate against an employee or a prospective employee on the basis of his or her religion.” (Trans World Airlines, Inc. v. Hardison (1977) 432 U.S. 63, 66.) At the time of the relevant events, an EEOC guideline “required, as the Act itself now does, 42 U.S.C. § 2000e (j) . . . , that an employer, short of ‘undue hardship,’ make ‘reasonable accommodations’ to the religious needs of its employees.” (Ibid.) Congress codified that duty in 1972 by defining “religion” to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable . . . reasonably [to] accommodate . . . without undue hardship on the conduct of the employer’s business.” (Id. at pp. 73–74; 42 U.S.C. § 2000e(j).) Neither the guidelines nor the statute “suggest[ed] what sort of accommodations are ‘reasonable’ or when hardship to an employer becomes ‘undue.’” (Hardison, supra, 432 U.S. at p. 72.)

Trans World Airlines (TWA) operated a large maintenance and overhaul base in Kansas City. (Hardison, supra, 432 U.S. at p. 66.) Because of its essential role, the Stores Department in which Larry Hardison worked “must operate 24 hours per day, 365 days per year,” and whenever a job went unfilled, “an employee must be shifted from another department, or a supervisor must cover the job, even if the work in other areas may suffer.” (Id. at pp. 66–67.) Hardison and other employees were subject to a seniority system in a collective-bargaining agreement between TWA and the International Association of Machinists and Aerospace Workers (IAM): “[t]he most senior employees have first choice for job and shift assignments, and the most junior employees are required to work when the union steward is unable to find enough people willing to work at a particular time or in a particular job to fill TWA’s needs.” (Id. at p. 67.)

In 1968 Hardison began to study the Worldwide Church of God, one tenet of which “is that one must observe the Sabbath by refraining from performing any work from sunset on Friday until sunset on Saturday.” (Hardison, supra, 432 U.S. at p. 67.) The conflict “was temporarily solved when Hardison transferred to the 11 p.m.–7 a.m. shift,” which permitted him to observe his Sabbath. (Ibid.) “The problem soon reappeared,” however, when Hardison bid for and received a transfer from Building 1 to Building 2, where the buildings “had entirely separate seniority lists” and he stood “second from the bottom on the Building 2 seniority list.” (Id. at pp. 67–68.) When he was asked to work Saturdays to cover a vacationing co-worker, “TWA agreed to permit the union to seek a change of work assignments for Hardison, but the union was not willing to violate the seniority provisions set out in the collective-bargaining contract, and Hardison had insufficient seniority to bid for a shift having Saturdays off.” (Id. at p. 68.)

“A proposal that Hardison work only four days a week was rejected by the company.” (Hardison, supra, 432 U.S. at p. 68.) Because his job was essential and he was the only available person on his shift on weekends, leaving the position empty “would have impaired supply shop functions, which were critical to airline operations”; filling it with a supervisor or an employee from another area “would simply have undermanned another operation”; and using “someone not regularly assigned to work Saturdays would have required TWA to pay premium wages.” (Id. at pp. 68–69.) When no accommodation was reached, Hardison refused to report on Saturdays and, after a hearing, “was discharged on grounds of insubordination for refusing to work during his designated shift.” (Id. at p. 69.)

Procedural history

Having first invoked Title VII’s administrative remedy, Hardison sued TWA and IAM for injunctive relief, claiming his discharge “constituted religious discrimination in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1),” and charging the union with failing to represent him. (Hardison, supra, 432 U.S. at p. 69.) After a bench trial, the District Court ruled for both defendants, holding that the union’s duty to accommodate “did not require it to ignore its seniority system” and that “TWA had satisfied its ‘reasonable accommodations’ obligation, and any further accommodation would have worked an undue hardship on the company.” (Id. at pp. 69–70.)

The Court of Appeals for the Eighth Circuit “reversed the judgment for TWA.” (Hardison, supra, 432 U.S. at p. 70; see Hardison v. Trans World Airlines, Inc. (8th Cir. 1975) 527 F.2d 33.) Agreeing with the District Court’s constitutional ruling but not its accommodation analysis, the panel held that “TWA had rejected three reasonable alternatives, any one of which would have satisfied its obligation without undue hardship”: permitting Hardison to work a four-day week using a supervisor or another worker; filling his Saturday shift “from other available personnel,” even at premium overtime pay; or arranging a “swap” with another employee, even though that would have involved a breach of the seniority system. (Hardison, supra, 432 U.S. at pp. 70–71, 76.) Because Hardison had not directly attacked the judgment for the union, the panel affirmed that judgment “without ruling on its substantive merits.” (Id. at p. 70.) The Supreme Court granted both petitions for certiorari and reversed. (Id. at p. 70.)

Issue

The Court framed the question as “the extent of the employer’s obligation under Title VII to accommodate an employee whose religious beliefs prohibit him from working on Saturdays.” (Hardison, supra, 432 U.S. at p. 66.) Two sub-questions controlled the result: first, whether the duty to make “reasonable accommodations” short of “undue hardship” required TWA to override a bona fide seniority system embedded in a collective-bargaining agreement; and second, whether requiring TWA to incur costs — lost efficiency or premium wages — to relieve Hardison of Saturday work was an “undue hardship” within the meaning of the statute. (Id. at pp. 75–76, 79, 84.)

Holding

Reasoning

The statutory baseline: accommodation, but no precise yardstick. The Court accepted the EEOC guideline “as a defensible construction” of the pre-1972 statute, imposing on TWA “the duty of ‘reasonable accommodation’ in the absence of ‘undue hardship.’” (Hardison, supra, 432 U.S. at p. 76, fn. 11.) But it stressed that neither Congress nor the EEOC had defined the contours of that duty: “the employer’s statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship, is clear, but the reach of that obligation has never been spelled out by Congress or by EEOC guidelines.” (Id. at pp. 75–76.) That gap framed everything that followed — the Court was construing an undefined standard, and it read it in light of Title VII’s “paramount concern” with “eliminating discrimination in employment.” (Id. at p. 71.)

The seniority system was itself an accommodation, and a neutral one. The Court’s first substantive move was to reframe the seniority system not as the obstacle to accommodation but as a form of it. The system, it held, “represented a significant accommodation to the needs, both religious and secular, of all of TWA’s employees,” serving as “a neutral way of minimizing the number of occasions when an employee must work on a day that he would prefer to have off.” (Hardison, supra, 432 U.S. at pp. 78.) TWA had gone further, “reducing its work force to a bare minimum” on unpopular weekend days. (Ibid.) On the record, “TWA itself cannot be faulted for having failed to work out a shift or job swap for Hardison,” because both TWA and the union had agreed to the seniority system, “the union was unwilling to entertain a variance over the objections of men senior to Hardison,” and a unilateral swap by TWA “would have amounted to a breach of the collective-bargaining agreement.” (Id. at pp. 78–79.)

Title VII does not require overriding a bona fide seniority system. The heart of the opinion rejected the argument, pressed by Hardison and the EEOC, that “the statutory obligation to accommodate religious needs takes precedence over both the collective-bargaining contract and the seniority rights of TWA’s other employees.” (Hardison, supra, 432 U.S. at p. 79.) While “neither a collective-bargaining contract nor a seniority system may be employed to violate the statute,” the Court would not read the duty to accommodate to require “steps inconsistent with the otherwise valid agreement.” (Ibid.) Collective bargaining “lies at the core of our national labor policy,” and without “a clear and express indication from Congress,” the Court “cannot agree . . . that an agreed-upon seniority system must give way when necessary to accommodate religious observances.” (Id. at pp. 79–80.) To order a senior employee to replace Hardison would “den[y] the latter his shift preference” and “depriv[e]” him “of his contractual rights.” (Id. at p. 80.) It “would be anomalous to conclude that by ‘reasonable accommodation’ Congress meant that an employer must deny the shift and job preference of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others,” and “Title VII does not require an employer to go that far.” (Id. at p. 81.)

Section 703(h) independently protected the seniority system. The Court anchored that conclusion in the text of Title VII itself. Section 703(h) provides that it is not an unlawful employment practice “to apply different . . . terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system,” provided the differences are not the product of an intent to discriminate. (Hardison, supra, 432 U.S. at pp. 81–82; 42 U.S.C. § 2000e-2(h).) Reading § 703(h) as a “definitional provision” that “delineates which employment practices are illegal . . . and which are not,” the Court held that “absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences.” (Hardison, supra, 432 U.S. at p. 82.) There being “no suggestion of discriminatory intent,” the Eighth Circuit’s ruling was “in substance nothing more than a ruling that operation of the seniority system was itself an unlawful employment practice” — a result “plainly inconsistent with the dictates of § 703(h).” (Ibid.) TWA was therefore “not required by Title VII to carve out a special exception to its seniority system” for Hardison. (Id. at p. 83.)

“More than a de minimis cost” is an undue hardship. The Court then disposed of the two cost-based alternatives — a four-day week staffed by replacements, or premium-wage substitutes on Saturdays. Both “would involve costs to TWA, either in the form of lost efficiency in other jobs or higher wages.” (Hardison, supra, 432 U.S. at p. 84.) In the line that would govern the lower courts for nearly half a century, the Court declared: “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” (Ibid.) The rationale tracked the seniority analysis: “[l]ike abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion.” (Ibid.) Forcing the employer to finance “an additional Saturday off” and then allocate it “according to religious beliefs” was, in the Court’s view, a result Congress did not intend. (Ibid.) Because Title VII’s “paramount concern” was the elimination of employment discrimination, the Court “[would] not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath.” (Id. at pp. 84–85.) The judgment was “[r]eversed.” (Id. at p. 85.)

The dissent: the Court read the statute out of existence. Justice Marshall, joined by Justice Brennan, dissented in sharp terms, charging that the decision “deals a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices.” (Hardison, supra, 432 U.S. at p. 86 (dis. opn. of Marshall, J.).) The majority, he wrote, holds “in essence” that “the regulation and Act do not really mean what they say,” so that “[a]n employer . . . need not grant even the most minor special privilege to religious observers to enable them to follow their faith.” (Id. at pp. 86–87.) That outcome forced “adherents of minority religions to make the cruel choice of surrendering their religion or their job,” and “adopt[ed] the very position that Congress expressly rejected in 1972.” (Id. at p. 87.) Marshall’s structural objection was that the accommodation duty, “by definition[,] arises only when a neutral rule of general applicability conflicts with the religious practices of a particular employee,” so that an accommodation will “always result in a privilege being ‘allocated according to religious beliefs’”; treating that feature as fatal “makes a mockery of the statute.” (Id. at pp. 87–88.)

The dissent’s factual quarrel: a near-costless accommodation was available. Marshall further contended that TWA had not carried its burden of proving that every reasonable accommodation would impose undue hardship. (Hardison, supra, 432 U.S. at p. 95 (dis. opn. of Marshall, J.).) The record, he argued, did not support the majority’s premise that “[t]here were no volunteers to relieve Hardison on Saturdays,” because the department manager “testified that he had made no effort to find volunteers.” (Id. at p. 93.) He identified options the majority ignored — a voluntary shift trade, paying overtime and passing the cost to Hardison, or a transfer back to his prior department — and noted that the documented overtime cost was modest: “the price is far from staggering: $150 for three months.” (Id. at p. 92, fn. 6.) On the legal standard, he “seriously question[ed] whether simple English usage permits ‘undue hardship’ to be interpreted to mean ‘more than de minimis cost.’” (Ibid.) Marshall closed: “The ultimate tragedy is that despite Congress’ best efforts, one of this Nation’s pillars of strength — our hospitality to religious diversity — has been seriously eroded. All Americans will be a little poorer until today’s decision is erased.” (Id. at p. 97.)

Significance

For nearly half a century, Hardison was the controlling word on Title VII religious accommodation, and its influence ran in two channels. The first, and most durable in the lower courts, was the “more than a de minimis cost” formulation. (Hardison, supra, 432 U.S. at p. 84.) Though the phrase appeared late in the opinion and largely in answer to the dissent, courts of appeals seized on it as the operative test for “undue hardship,” with the practical effect that almost any administrative cost, premium pay, or inconvenience could defeat an accommodation claim. The decision thereby set a low bar for employers and a correspondingly high one for employees seeking Sabbath time off, religious dress and grooming exceptions, or leave for religious observance — precisely the outcome Justice Marshall predicted when he wrote that the majority left religious observers exposed to “the cruel choice of surrendering their religion or their job.” (Id. at p. 87 (dis. opn. of Marshall, J.).)

The second channel — less quoted but never disturbed — is the seniority holding. Hardison establishes that Title VII does not require an employer to override a bona fide, nondiscriminatory seniority system, particularly one embedded in a collective-bargaining agreement, to accommodate an employee’s religion. (Hardison, supra, 432 U.S. at pp. 79–83.) That holding rests independently on § 703(h) and on the Court’s reluctance to subordinate “contractual rights” of senior employees to the religious needs of a junior one absent “a clear and express indication from Congress.” (Id. at pp. 80, 82.) It remains good law and continues to shield seniority systems from accommodation-based challenges.

In 2023, the Supreme Court returned to the de minimis gloss and substantially raised the bar. In Groff v. DeJoy (2023) 600 U.S. 447, a unanimous Court held that the phrase, “as that phrase is used in common parlance, does not suffice to establish ‘undue hardship’ under Title VII,” and that an employer must instead “show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” (Id. at pp. 468, 470.) Critically, Groff did not overrule Hardison; it “clarified” it, observing that the de minimis line was “fleeting” next to the seniority discussion and was “undercut by conflicting language” in which Hardison itself spoke of “substantial” costs. (Id. at pp. 464–465, 468.) Groff expressly preserved Hardison’s seniority holding. (Id. at p. 462, fn. 10.) For practitioners, the result is a bifurcated legacy: Hardison’s cost standard has been displaced by Groff’s “substantial increased costs” test, while its seniority holding survives intact. Although Hardison construes federal law, it bears on California practice only as persuasive authority; California’s Fair Employment and Housing Act independently requires religious accommodation absent “undue hardship,” defined by reference to the more demanding “significant difficulty or expense” standard. (Gov. Code, §§ 12940, subd. (l), 12926, subd. (u).)

Key quotes

“To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” (Hardison, supra, 432 U.S. at p. 84.)

“Without a clear and express indication from Congress, we cannot agree with Hardison and the EEOC that an agreed-upon seniority system must give way when necessary to accommodate religious observances.” (Id. at pp. 79–80.)

“In the absence of clear statutory language or legislative history to the contrary, we will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath.” (Id. at pp. 84–85.)

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Practice pointer

Open questions

The Court expressly declined to define how much cost crosses into “undue hardship,” resting instead on the conclusion that “more than a de minimis cost” sufficed and leaving the upper boundary unaddressed. (Hardison, supra, 432 U.S. at p. 84.) That reservation is precisely what Groff later filled, replacing the de minimis floor with a “substantial increased costs” standard while leaving the fact-specific application “to the lower courts in the first instance.” (Groff v. DeJoy (2023) 600 U.S. 447, 470–473.) Because the Court “agree[d] with petitioners that their conduct was not a violation of Title VII,” it “need not reach the other questions presented” — including the petitioners’ contention that requiring further accommodation would create an unconstitutional establishment of religion. (Hardison, supra, 432 U.S. at pp. 70–71.) The Establishment Clause question that animated the courts below was thus reserved; Justice Marshall, addressing it in dissent, found no serious constitutional difficulty in requiring accommodation. (Id. at pp. 89–91 (dis. opn. of Marshall, J.).) The Court also did not decide whether the statutory duty to accommodate “stopped short of transgressing seniority rules” in a case lacking the contractual and § 703(h) protections present here, nor whether an employer’s allocation of the burden of proving that no reasonable accommodation was possible — the burden Marshall would have held TWA failed to carry — must be discharged by an affirmative search for volunteers. (Id. at pp. 76–77; id. at pp. 93, 95 (dis. opn. of Marshall, J.).) After Groff, the live questions concern how courts measure “substantial” cost against an employer’s “size and operating cost,” a calculus Hardison never had to perform. (Groff, supra, 600 U.S. at pp. 470–471.)