Supreme Court to review 1977 decision on religious accommodation

Larry Hardison’s name was chiseled into American legal history 46 years ago, when the Supreme Court ruled against him in a landmark religious accommodation case.

The airline clerk had asked his employer for Saturdays off so that he could observe the Sabbath, but the airline said no. And the court backed the employer, ruling that accommodating Mr. Hardison’s religious observance would have caused the business undue hardship.

On April 18, the high court will hear arguments in a case that could overturn Mr. Hardison’s 1977 legal defeat.

“I believe it’s something that the court needs to relook at and decide on what should be a proper standard [for accommodations],” Mr. Hardison, 78, retired and residing in Puyallup, Washington, said in an interview.

At issue is Title VII of the 1964 Civil Right Act, which bars hiring discrimination based on religion. Amended legislation in 1972 used language from the Equal Employment Opportunity Commission’s regulations implementing the law and codified the meaning of “religious accommodation.”

But neither the EEOC regulations nor the law were sufficient to protect Mr. Hardison.

In 1967, Mr. Hardison worked for Trans World Airlines as a clerk at the carrier’s maintenance and overhaul facility in Kansas City, Missouri. One year later, he asked his employer to adjust his schedule so he could observe the Sabbath on Saturdays, following the practice of the Worldwide Church of God.

Supervisors initially put him on an overnight shift to accommodate his religion. But after transferring to another TWA building so he could work day shifts, Mr. Hardison lost seniority and was told he’d have to work on Saturdays. He was eventually fired for not showing up on his day of worship.

He found little solace when he approached his union, the International Association of Machinists. The union’s contract with TWA laid out a seniority system that specified who could “bid” for preferred shifts. The airline was willing to adjust schedules to keep Mr. Hardison, but the union vetoed the move, citing the labor pact.

The high court’s 7-2 decision said an employer does not have to adjust operations for an employee whose religion requires no work on a specific day if such an adjustment would cost the company even a minimal amount.

Mr. Hardison said he believes the court was wrong in that ruling, because the “de minimus” burden “could be a penny, and that would be too much.”

In the decades since the Hardison case, a number of employees and prospective hires have been fired or not hired owing to religious observance needs. “The No. 1 religious freedom problem facing Americans today is choosing between their religion and their job,” attorney Alan J. Reinach, who has specialized in religious accommodation cases involving worship, said last month.

Orthodox Jewish attorney’s plea

In the 1977 case, the high court invited Nathan Lewin, an Orthodox Jewish attorney who filed a brief supporting Mr. Hardison, to argue the chief issue in the case — that religious accommodation includes time off for a specific worship day.

Mr. Lewin, who had never met or represented Mr. Hardison, said that regardless of the union contract, TWA “couldn’t contract away” Larry Hardison’s religious accommodation rights “any more than they could sell the Brooklyn Bridge.”

The late Justice Thurgood Marshall replied that TWA didn’t own the bridge.

“That was exactly the point, I said,” Mr. Lewin, now 87 and still practicing law, said in a telephone interview. “TWA doesn’t own the Brooklyn Bridge. And TWA doesn’t own Hardison’s right to a religious accommodation. They can’t say, ‘We’re gonna give away Hardison’s right … by signing a labor contract.’”

Mr. Lewin, who as a young congressional staffer had played a role in drafting the Title VII amendment that became an issue in the Hardison case, said he might have phrased the language to be more specific about accommodations “if we were writing on a totally clean slate,” but circumstances at the time did not permit that.

“We were faced with a situation in which the Civil Rights Act of 1964 was being amended in various other ways to give more power to the EEOC,” he said.

The attorney said the Supreme Court had split on how religion is defined under Title VII and whether that statute includes a day of worship accommodation.

“I thought, hey, if we’re going to do something, we probably are best off simply taking the language of the EEOC regulation,” Mr. Lewin said. “That’s what I thought was best. Given the practicalities of the fact that we would be faced with the need to get a very simple amendment that we could propose in the Senate.”

Hardison’s church

The Worldwide Church of God, founded by Herbert W. Armstrong, a former advertising salesman turned radio evangelist, had minimal participation in the case. Mr. Hardison said the church filed a friend-of-the-court brief supporting him.

“But beyond that, they didn’t make a big thing of it because the church wasn’t looking for that kind of notoriety,” Mr. Hardison said.

No church leader, including the elder Armstrong and his son Garner Ted Armstrong, reached out to offer affirmation during the legal battle, he said.

Ironically, the Worldwide Church — today known as Grace Communion International — later dropped the mandatory observance of a Saturday Sabbath and repudiated most of its founder’s doctrines in the years immediately following Armstrong’s death in 1986.

However, Mr. Hardison said he still holds to the tenets the group once espoused but operates as a “semi-independent” Christian after a 1990s schism split the Worldwide camp into several factions.

The former TWA employee whose desire to have Saturdays off for worship led to the pending case said he appreciates the irony of today’s case: Gerald Groff, a former postal worker, is challenging the U.S. Postal Service over its requirement that he work on Sundays, which Mr. Groff says is his Sabbath.

“Oh, yeah, it’s ironic, but then you’ve got a large number of Muslims, and they keep Friday, I believe,” Mr. Hardison said. “Of course, the Jewish population, they keep the Sabbath as well. You’ve got the Sabbath keepers and even Sunday keepers.”

And while his own case sparked the decades-long fight by Seventh-day Adventists and other religious groups to win accommodation in the workplace, Mr. Hardison is uncertain of the historic import of his role.

“I don’t know how good of a history it is,” he said. “But history is history. It’s not for us to, you know, deny it’s there.”