Supreme Court Refuses to Take Up Religious Accommodation Appeal

April 7, 2021 Updated: April 7, 2021

The Supreme Court refused to take up an appeal that could have resulted in a different standard for when employers must accommodate the religious beliefs of employees, but two justices objected to the decision in a strongly worded dissent.

The case is Small v. Memphis Light, Gas and Water, court file 19-1388. The Supreme Court denied Small’s petition for certiorari, or review, in an unsigned order April 5 without explaining why, as is its custom when refusing to hear cases.

Justice Neil Gorsuch wrote an opinion dissenting from the denial of certiorari, which Justice Samuel Alito joined.

Federal law requires companies to accommodate employees’ religious beliefs as long doing so does not cause “undue hardship,” the Supreme Court ruled in 1977 in Trans World Airlines v. Hardison. In that decision, the court construed “undue hardship” as anything that has a more than “de minimis,” or trivial, cost.

The petitioner, Jason Small, asked the court to reconsider the ruling.

For more than a decade, Small worked as an electrician at Memphis Light, Gas and Water. In 2013, an on-the-job injury forced him into a new role at the company as a service dispatcher.

The new job came with a different schedule and mandatory overtime duties, which made Small, a Jehovah’s Witness, worry that the new working hours would conflict with his religious obligations, such as attending worship services on Wednesdays and Sundays, and performing community work on Saturdays.

Small asked the company to place him on reduced pay temporarily while he sought reassignment to a different position with a more conducive schedule. Memphis Light had a history of offering this same accommodation to other employees, but it refused to do so with Small.

Small tried to make the dispatcher role work as best he could, according to Gorsuch.

For a while, things went smoothly enough. Small even used his vacation days when necessary to attend church. Eventually, though, a problem arose. Small asked to use some of his vacation time on Good Friday. At first, the company agreed. Then it backtracked, canceling his vacation request.

When Small went to church anyway, the company suspended him for two days without pay. In response, Small filed suit in 2017, seeking a ruling that the company’s conduct violated Title VII of the Civil Rights Act of 1964. That federal statute prohibits discrimination on the basis of religion, among other grounds.

A U.S. district court and the U.S. Court of Appeals for the 6th Circuit found that Small had not proved most of his claims, but in a concurring opinion, appeals court Judge Amul Thapar wrote that the legal standard in place since the Supreme Court’s 1977 ruling should be reconsidered.

Gorsuch agreed with Thapar’s suggestion. The justice noted that Memphis Light had granted religious accommodations for “subpar employees,” allowing them to receive more favorable treatment than better-performing workers if they sought only to attend church.

“There is no barrier to our review and no one else to blame,” Gorsuch wrote. “The only mistake here is of the court’s own making—and it is past time for the court to correct it.”

“At no point in the litigation did anyone suggest that Mr. Small’s requested accommodation—reduced pay while he sought reassignment—would have imposed a significant hardship on his employer. Yet both the district court and Sixth Circuit rejected Mr. Small’s claim all the same.”

The Hardison standard is outdated, Gorsuch suggested.

“Since that ruling, Congress has adopted additional civil rights laws using the ‘undue hardship’ standard. And when applying each of those laws, courts are far more demanding.”

Under the Americans with Disabilities Act, Uniformed Services Employment and Reemployment Rights Act, and Affordable Care Act, “an employer must provide an accommodation unless doing so would impose ‘significant difficulty or expense’ in light of the employer’s financial resources, the number of individuals it employs, and the nature of its operations and facilities.”

With these developments, Title VII’s right to religious exercise has become “the odd man out,” Gorsuch wrote. “Alone among comparable statutorily protected civil rights, an employer may dispense with it nearly at whim.”