The Supreme Court deciding not to hear a case is a regular occurrence. Getting SCOTUS to hear a case is exceedingly hard, and as Chief Justice, John Roberts has shrunk the Court docket to 1960s numbers. But what seems like a quiet little denial of certiorari yesterday is actually a not-so-cryptic message from the right side of the Court to overturn a decades long precedent seen as an important ruling in employment discrimination law and the separation of Church and State required by the Establishment Clause of the First Amendment to the US Constitution.
The case is called Small v. Memphis Gas Light & Water, and nothing about it is particularly ground-breaking. Mr. Small is a Jehovah’s Witness who cannot work on Wednesday nights and Sundays due to his religious observances. Whenever mandatory overtime arose on those dates, he would take a vacation day. But when he asked to be allowed to use a vacation day for Good Friday, the company refused. Small pushed back and simply did not show up for work. His employer docked him two days pay and he sued in Federal Court arguing religious discrimination under Title VII (The Civil Rights Act). Title VII requires employers to provide reasonable accommodation for religious observances provided it does not produce an “undue hardship” to the employer’s operations – which is what the employer claimed here.
The employer was relying on a long-established rule from a case from 1977 called Transworld Airlines v. Hardison, that defined “undue hardship” as anything that imposed more than a “de minimus” cost on the employer. So while undue hardship sounds like a big deal, it really isn’t that hard for an employer to meet that burden. Which is why Hardison was decided 7-2 with the pro-business side of the Court in the majority and the liberal wing of the Court – Justices Brennan and Marshall – siding with the individual plaintiff. Byron “Whizzer” White wrote the majority opinion saying:
“The paramount concern of Congress in enacting Title VII was the elimination of discrimination in employment . . . 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.”
Marshall, however, saw it another way saying the decision was:
“deeply troubling, [because] a society that truly values religious pluralism cannot compel adherents of minority religions to make the cruel choice of surrendering their religion or their job.”
In ruling that Mr. Hardison had to work on a Saturday (his day of religious observance) the Hardison court was worried about an Establishment of religion prohibited by the First Amendment.
Fast forward now to where the roles are reversed – and the conservative majority now values protection of religion even over its other God – the corporation. In fact, in recent decisions and dissents, members of the conservative wing have called for a re-interpretation and weakening of the Establishment Clause to better allow religion to play a role in the everyday lives of Americans.
So when the Smalls case came up for review, two justices could not resist the temptation to send a signal to future litigants and the foundations supporting those litigants. Gorsuch, joined by Alito, filed a dissent to the denial of certiorari saying that the appeal had merit since (referring to Hardison)
There is no barrier to our review and no one else to blame. The only mistake here is of the court’s own making – – and it is past time for the court to correct it.
This message was presaged by another message delivered by Alito a little earlier this year. In another employment case seeking certiorari the Hardison issue was not as clearly defined. So Alito (joined by Gorsuch and Thomas) wrote a concurrence agreeing with the decision not to review the case (even rarer than a dissent on ceritorari) and outright calling for a better case to attack Hardison saying:
[T]his case does not present a good vehicle for revisiting Hardison. But . . . the review of the Hardison issue should be undertaken when a petition in an appropriate case comes before us.”
Subtle, right? I mean, he is actively calling for like-minded folks to bring a case that will allow him and the right wing of the Court to overturn a 44 year old precedent that has been setting the standard for employers. Judicial activism much?
And before you argue that the activism was back in 1977, Title VII had no definition of “undue hardship” in its language so it was left to the Court to define – and it did. That was its job. Congress then had bills put forth to try and come up with a different definition of “undue hardship” no less than eight times from 1994-2010 – and decided not to pass them and instead retained the Hardison definition.
When a SCOTUS decision defines an element of a statute and Congress offers no comment or new language, a term of art called Congressional Silence- applies. It means that people can assume that Congress agrees to live with the Court’s definition. Congress has done just that for 44 years on Hardison.
Of course this willingness to overturn established precedent that has worked well for over 40 years means that these justices see anything as fair game. Normally stare decisis requires courts to follow their established precedent unless and except there are exceptional circumstances as in Plessy v. Ferguson and Dred Scott. Upending Hardison will change the landscape of employment law and the Establishment Clause. It will make it harder for an employer to have a secular workplace where those who do not follow a religion will have to work to accommodate their co-workers’ religious observances even if it is disruptive to the workplace. Years of litigation will follow, attacking and assessing the Court’s new definition of “undue hardship” – whatever that will be.
So the next time someone mentions that they want strict constructionist judges who don’t engage in judicial activism, tell them to take a look at what’s happening in this arena in a not-so-quiet fashion. You would be hard-pressed to find a better example of outright activism from the bench.
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