Beadle v.City of Tampa
"UNDUE HARDSHIP" FOR PURPOSES OF TITLE VII SHOULD HAVE THE SAME MEANING "UNDUE HARDSHIP" HAS FOR PURPOSES OF THE ADA
Petitioner's brief, at 15-16, cites a string of cases demonstrating a judicial trend toward what petitioner correctly describes as the "emasculat[ion]" of Title VII's "reasonably high 'undue hardship' standard" in favor of "a much lower 'more than de minimis burden' standard." Agudath Israel concurs with petitioner that this trend of judicial emasculation, while purporting to be based on Hardison, in fact misapprehends Hardison. "Undue hardship," per Hardison, means identifiable economic costs that are more than de minimis -- "costs," in the words of the applicable EEOC regulations, "similar to the regular payment of premium wages of substitutes, which was at issue in Hardison." 29 C.F.R. §1605.2(e)(1). "Undue hardship" does not mean -- and certainly ought not mean, if Title VII's religious accommodation requirement is to have any force -- amorphous non-economic burdens an employer would have to bear in accommodating an employee's religion. For that reason alone, this case -- an egregious example of the trend toward unwarranted extension of Hardison -- is worthy of the Court's review.
More fundamentally, however, the time has come for this Court to reconsider its Hardison "more than a de minimis cost" understanding of the statutory phrase "undue hardship." Not only has the Hardison standard, especially as applied (or misapplied) in the lower courts, proven to be insufficiently
protective of religious workers; it is simply no longer tenable as a matter of statutory construction, and may even raise serious questions of constitutional propriety. That is because it conflicts directly with the standard Congress itself established in defining "undue hardship" in the analogous context of the Americans with Disabilities Act, 42 U.S.C. §12101, et seq. (ADA) -- thereby creating the constitutionally problematic dichotomy between the low level of statutory protection accorded religious workers who require employment accommodation and the considerably higher level of statutory protection accorded handicapped workers who require employment accommodation.
The ADA, enacted in 1990, makes it unlawful for employers and other "covered entities" to "discriminate" in employment on the basis of an employee's or prospective employee's disability. 42 U.S.C. §12112(a). In language reminiscent of Title VII, the ADA statute defines the term "discriminate" to include:
Unlike Title VII, however, the ADA statute explicitly defines the term "undue hardship". Under the statute, "undue hardship means an action requiring significant difficulty or expense" [emphasis added], when considered in light of certain statutorily enumerated factors relating to the type of accommodation necessary, the facility at which the accommodation is to be made, and the entity required to make the accommodation. 42 U.S.C. §12111(10).
The statutory "significant difficulty or expense" standard governing "undue hardship" defenses under the ADA, by its very terms, imposes on employers a greater obligation than does the Hardison "more than a de minimis cost" standard governing "undue hardship" defenses under Title VII. Indeed, the legislative history of the ADA makes clear that in enacting protection for disabled employees, Congress was fully cognizant of the Hardison standard, considered it inadequate, and expressly defined "undue hardship" as it did to preclude a Hardison-like reading of the ADA. Thus, in its report on the ADA, the House Public Works and Transportation Committee took pains to emphasize that:
The question is one of constitutional magnitude. Presumably the constitution would not mandate that private employers make any form of accommodation to employees' special needs. However, having independently decided to create its own legislative accommodation mandate through anti-discrimination statutes like Title VII and the ADA, Congress cannot give handicapped workers greater protection
than religious workers without implicating First Amendment free exercise concerns. Even Employment Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872 (1990), the controversial case in which the Court severely constricted the scope of constitutional free exercise, acknowledged that where government "has in place a system of individual exemptions, it may not refuse to extend that system to cases of 'religious hardship' without compelling reason." 494 U.S. at 884.
Continued adherence to Hardison's expansive reading of Title VII's "undue hardship" defense -- and its correspondingly niggardly reading of Title VII's reasonable accommodation requirement -- would thus raise serious constitutional concerns. It would also raise problems of statutory construction.
As a general rule, when two statutes have similar purposes -- as they do here; both Title VII and the ADA are designed to protect employees who require accommodations for their special needs in the workforce -- and employ similar language -- again, as they do here; both Title VII and the ADA mandate "reasonable accommodation" and permit an employer to avoid that mandate by showing "undue hardship" -- the two statutes are treated "in pari materia", and ambiguities in one are often resolved by reference to the other. See generally 2B Sutherland Statutory Construction §51.03 (5th Ed. 1992). As the Court has indicated in an analogous context:
To avoid these constitutional and interpretive problems, Agudath Israel submits, the Court should revisit the Title VII accommodation obligation, and bring it into line with that established by the ADA by requiring an employer claiming "undue hardship" to show that reasonably accommodating an employee's religion would entail "significant difficulty or expense".
Furthermore, just as the ADA instructs that "significant difficulty or expense" is to be determined in light
of factors specifically relevant to the disability context, as enumerated in 42 U.S.C. §12111(10)(B), so too would "significant difficulty or expense" be determined for purposes of Title VII in light of factors specifically relevant to the context of religious observance. These factors are already spelled out in existing EEOC guidelines, 29 CFR §1605.2(e), and include: "the identifiable cost [of the accommodation] in relation to the size and operating cost of the employer, and the number of individuals who will in fact need particular accommodation"; and the extent to which the accommodation would require "a variance from a bona fide seniority system" that "would deny another employee his or her job or shift preference guaranteed by that system."
Elevating the level of protection for religiously observant employees under Title VII as suggested herein would not, in Agudath Israel's view, create independent First Amendment establishment clause problems of the type the Court discerned in Estate of Thornton v. Caldor, 472 U.S. 703 (1985). The infirmity of the Connecticut law at issue there, which directed employers to permit any employee to take off from work on the employee's chosen day of Sabbath, was its "absolute and unqualified" nature. 472 U.S. at 709. For example, noted the Court, "there is no exception when honoring the dictates of Sabbath observers would cause the employer substantial economic burdens or when the employer's compliance would require the imposition of significant burdens on other employees required to work in place of the Sabbath observers." 472 U.S. at 709-10 [emphasis added; footnote omitted]. Under Title VII, in contrast, the employer's obligation to provide reasonable accommodation of an employee's religion is by no means
"absolute and unqualified" -- even if "undue hardship" is interpreted, as it is under the ADA, to require an employer who seeks to be excused from such accommodation to demonstrate "significant difficulty or expense."
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