[Justice Byron] White then rejected the notion that TWA should have to pay “premium wages” to a substitute, wrecking employment opportunities for many religiously observant employees. “To require TWA to bear more than a de minimis cost in order to give Mr. Hardison Saturdays off is an undue hardship,” he wrote. He justified this repudiation of respect for conscience by declaring that if TWA bore any cost whatever, it “would involve unequal treatment of employees on the basis of their religion.” Never mind that any accommodation by definition results in unequal treatment.
Accommodating religious observance usually requires more than “de minimis” cost and inconvenience. By defining religious accommodation as voluntary cost-free etiquette, Justice White empowered bosses to treat an employees’ religion as a mere inconvenience.
Justice Thurgood Marshall declared in dissent: “Today’s decision deals a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices.” He concluded that “one of this Nation’s pillars of strength—our hospitality to religious diversity—has been seriously eroded.”
In Patterson v. Walgreen, the drugstore chain claimed that it had accommodated Mr. Patterson’s religious observance by offering him a lower-paying position in which he could observe the sabbath and by allowing him to swap shifts with other employees who wouldn’t have to be paid extra. Justices Samuel Alito, Clarence Thomas and Neil Gorsuch said they were prepared to overrule White’s noxious Hardison declaration. But they believed there were too many technical hurdles in Patterson v. Walgreen to make it “a good vehicle for revisiting Hardison.”
I am an Orthodox Jew, and I’ve been blessed with accommodative employers for nearly all of my professional life. Read it all.
A blown opportunity for SCOTUS to come down strong on the side of religious liberty. https://t.co/Gvau1qo1ii
— Josh Hammer (@josh_hammer) March 5, 2020