Small v. Memphis Gas, Light & Water ( 2021 )

Cite as: 593 U. S. ____ (2021) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
JASON SMALL v. MEMPHIS LIGHT, GAS & WATER
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 19–1388. Decided April 5, 2021
The petition for a writ of certiorari is denied.
JUSTICE GORSUCH, with whom JUSTICE ALITO joins, dis-
senting from the denial of certiorari.
For over a decade, Jason Small worked as an electrician
at Memphis Light, Gas & Water. Then an on-the-job injury
forced him into a new role as a dispatcher. This job came
with a different schedule and mandatory overtime duties.
Sometimes the new hours conflicted with Mr. Small’s reli-
gious obligations, like worship services on Sunday morn-
ings. So Mr. Small asked his employer to place him on re-
duced pay temporarily while he sought reassignment to a
different position with a more conducive schedule. The
company had a history of offering this same accommodation
to other employees, including those removed from their po-
sitions for unsatisfactory job performance. But when it
came to Mr. Small, the company balked.
That left Mr. Small to make the dispatcher role work as
best he could. For a period, things went smoothly enough.
Mr. Small even used his vacation days when necessary to
attend church. Eventually, though, a problem arose. Mr.
Small asked to use some of his vacation time on Good Fri-
day. At first, the company agreed. Then it backtracked,
canceling his vacation request. When Mr. Small went to
church anyway, the company suspended him for two days
without pay.
In response, Mr. Small filed suit seeking a ruling that the
company’s conduct violated Title VII. That federal statute
prohibits discrimination on the basis of race, color, religion,
2 SMALL v. MEMPHIS LIGHT, GAS & WATER
GORSUCH, J., dissenting
sex, and national origin, and requires employers to afford
requested religious accommodations unless doing so would
impose an “undue hardship” on them. 78 Stat. 253, 255, 42
U. S. C. §§2000e(j), 2000e–2(a). At no point in the litigation
did anyone suggest that Mr. Small’s requested accommoda-
tion—reduced pay while he sought reassignment—would
have imposed a significant hardship on his employer. Yet
both the district court and Sixth Circuit rejected Mr.
Small’s claim all the same.
The courts explained that Trans World Airlines, Inc. v.
Hardison, 432 U. S. 63 (1977), tied their hands. There, this
Court dramatically revised—really, undid—Title VII’s un-
due hardship test. Hardison held that an employer does
not need to provide a religious accommodation that involves
“more than a de minimis cost.” Id., at 84. So Mr. Small’s
requested accommodation might not have imposed a signif-
icant hardship on his employer. The company may extend
poorly performing employees the very same relief Mr. Small
sought. But the company had no obligation to provide Mr.
Small his requested accommodation because doing so would
have cost the company something (anything) more than a
trivial amount. See Small v. Memphis Light, Gas & Water,
952 F. 3d 821, 825 (CA6 2020) (per curiam).
Now, Mr. Small asks us to hear his case and I would grant
his petition for review. Hardison’s de minimis cost test does
not appear in the statute. The Court announced that stand-
ard in a single sentence with little explanation or support-
ing analysis. Neither party before the Court had even ar-
gued for the rule. Patterson v. Walgreen Co., 589 U. S. ___,
___ (2020) (ALITO, J., concurring in denial of certiorari).
Justice Marshall highlighted all these problems at the time,
noting in dissent that the de minimis cost test cannot be
reconciled with the “plain words” of Title VII, defies “simple
English usage,” and “effectively nullif[ies]” the statute’s
promise. Hardison, 432 U. S., at 88, 89, 93, n. 6 (Marshall,
J., dissenting).
Cite as: 593 U. S. ____ (2021) 3
GORSUCH, J., dissenting
Nor has time been kind to Hardison. In the intervening
years, Congress has adopted additional civil rights laws us-
ing the “undue hardship” standard. And when applying
each of those laws, courts are far more demanding. The
Americans with Disabilities Act of 1990 (ADA) requires a
covered employer to accommodate an employee’s “known
physical or mental limitations” unless doing so would im-
pose an “undue hardship.” 104 Stat. 332, 42 U. S. C.
§12112(b)(5)(A). The Uniformed Services Employment and
Reemployment Rights Act (USERRA) obliges an employer
to restore a returning United States service member to his
prior role unless doing so would cause an “undue hardship.”
38 U. S. C. §§4303(10), 4313(a)(1)(B), (a)(2)(B). And the Af-
fordable Care Act (ACA) provides that a covered employer
must provide a nursing mother with work breaks unless do-
ing so would impose an “undue hardship.” 124 Stat. 577,
29 U. S. C. §207(r)(3). Under all three statutes, an em-
ployer must provide an accommodation unless doing so
would impose “significant difficulty or expense” in light of
the employer’s financial resources, the number of individu-
als it employs, and the nature of its operations and facili-
ties. See ADA, 42 U. S. C. §12111(10)(A) (added 1990);
USERRA, 38 U. S. C. §4303(15) (added 1994); ACA, 29
U. S. C. §207(r)(3) (added 2010); cf. 11 U. S. C. §523(a)(8);
28 U. S. C. §1869(j).
With these developments, Title VII’s right to religious ex-
ercise has become the odd man out. Alone among compara-
ble statutorily protected civil rights, an employer may dis-
pense with it nearly at whim. As this case illustrates, even
subpar employees may wind up receiving more favorable
treatment than highly performing employees who seek only
to attend church. And the anomalies do not end there. Un-
der the ADA, an employer may be required to alter the
snack break schedule for a diabetic employee because doing
so would not pose an undue hardship. Spiteri v. AT & T
Holdings, Inc., 40 F. Supp. 3d 869, 878 (E. D. Mich. 2014).
4 SMALL v. MEMPHIS LIGHT, GAS & WATER
GORSUCH, J., dissenting
Yet, thanks to Hardison, at least one court has held that it
would be an undue hardship to require an employer to shift
a meal break for Muslim employees during Ramadan.
EEOC v. JBS USA, LLC, 339 F. Supp. 3d 1135, 1181 (D.
Colo. 2018). With Hardison, uneven results like these have
become increasingly commonplace. See Brief for Muslim
Advocates et al. as Amici Curiae 21–22 (collecting exam-
ples).
Not even Mr. Small’s employer tries to defend this state
of affairs. The company candidly acknowledges that Har-
dison “very likely is not the best possible gloss” on Title
VII’s language. Brief in Opposition 23. Two of the three
judges on the panel below agreed, writing separately to ex-
plain their view that Hardison “rewr[o]te [the] statute.”
Small, 952 F. 3d, at 826–829 (Thapar, J., joined by Keth-
ledge, J., concurring). Yet, today, this Court refuses even
to entertain the question. It’s a struggle to see why.
Maybe the most charitable explanation for the Court’s in-
action has to do with issue preservation. But if that’s the
worry, there is no reason for it. Both the district court and
the court of appeals expressly passed on the question
whether Mr. Small’s employer violated Title VII by denying
his requested accommodation. That is all our precedent de-
mands. United States v. Williams, 504 U. S. 36, 41–43
(1992). The district court ruled that “placing Mr. Small
back in the reassignment pool on reduced pay to wait for a
job with hours more in line with [his] religious obligations
would . . . place more than a de minimis burden on” the
company. App. to Pet. for Cert. 35a. For that reason, the
court said, the company “sufficiently satisfied its obligation
to demonstrate . . . [an] undue hardship.” Ibid. While two
members of the Sixth Circuit panel assigned to Mr. Small’s
case doubted Hardison, none doubted what it required. Be-
cause his requested accommodation involved “more than [a]
de minimis” cost, the court held, the company didn’t have
to provide it. Small, 952 F. 3d, at 825 (per curiam) (citing
Cite as: 593 U. S. ____ (2021) 5
GORSUCH, J., dissenting
circuit precedent following Hardison).
I cannot see what more we could reasonably require. Mr.
Small insisted that his requested accommodation would not
cause an undue hardship under Title VII. Both the district
court and court of appeals rejected the argument relying ex-
pressly on 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.