The Overlooked Meaning of “Undue Hardship” in Title VII
This is the second of two posts explaining my recent article, Ordinary Meaning as Last Resort: The Meaning of “Undue Hardship” in Title VII. In the first post I attempted to show that a comprehensive look at the Court’s statutory interpretation cases show that the presumption of ordinary meaning is a fallback after eliminating a statutory definition and the possibility of a technical term of art. And I argued that if the presumption of ordinary meaning is too powerful, it can cause one to miss non-ordinary meaning. This post explores the poster child for that concern: “undue hardship” in Title VII.
The term “undue hardship” was added to Title VII in a 1972 amendment that required employers to reasonably accommodate the religious observances or practices of employees or prospective employees, unless such accommodation would cause an “undue hardship on the conduct of the employer’s business.” Congress did not define the term. Five years later the Supreme Court took a stab in Trans World Airlines v. Hardison. There the majority determined that an “undue hardship” was anything “more than a de minimis cost.”
Criticism of that judicially created definition began in the case itself, with Justice Thurgood Marshall in dissent. He raised two lines of attack. One briefly focused on ordinary meaning, arguing that the Court’s definition violated “simple English usage.” The other attack, based on legislative history, contended that Congress had codified an EEOC regulation using the term and a “long line of [EEOC adjudicative] decisions” fleshing out its meaning.
In recent years, Hardison‘s de-minimis-plus standard has again been routinely denounced, but only along the lines of being inconsistent with the ordinary meaning of “undue hardship.” Thus, such criticisms have referred to the “ordinary parlance” and the “ordinary, contemporary meaning” of the term. There has been much less attention to the possible legal meaning that Justice Marshall noted. But applying the refined textualist methodology I outline in m
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