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 work so he could observe the Sabbath, but the airline said no. Ruling on the side of the employer, the court said 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 said in an interview.
Mr. Hardison, 78, is now retired and residing in Puyallup, Washington.
At issue is Title VII of the 1964 Civil Rights Act, which bars hiring discrimination based on religion. Amended legislation in 1972 used language from the Equal Employment Opportunity Commission’s regulation implementing the law and codified the meaning of “religious accommodation.”
Neither the EEOC regulation nor the law was sufficient to protect Mr. Hardison.
In 1967, Mr. Hardison worked as a clerk for Trans World Airlines’ 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. He followed the practice of the Worldwide Church of God.
Supervisors initially put him on an overnight shift to accommodate his religion. After transferring to another TWA building so he could work day shifts, Mr. Hardison lost seniority and was told he would 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 and Aerospace Workers. 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, citing the labor pact, vetoed the move.
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 ruling was wrong because the “de minimus” burden “could be a penny, and that would be too much.”
In the decades since the Hardison case, employees and prospective hires have been fired or not hired because of religious observance needs. “The No. 1 religious freedom problem facing Americans today is choosing between their religion and their job,” lawyer Alan J. Reinach said last month.
Mr. Reinach has specialized in religious accommodation cases involving worship.
Orthodox Jewish attorney’s plea
In the 1977 case, the high court invited Nathan Lewin, an Orthodox Jewish lawyer 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” Mr. Hardison’s religious accommodation rights “any more than they could sell the Brooklyn Bridge.”
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 going to give away Hardison’s right … by signing a labor contract.’”
Mr. Lewin, who as a young lawyer in private practice played a role in drafting the Title VII amendment language, said he might have phrased it 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.
Mr. Lewin said the Supreme Court 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.”
No church leader, including Mr. Armstrong and his son, Garner Ted Armstrong, reached out to offer affirmation during the legal battle, he said.
Ironically, the Worldwide Church later dropped the mandatory observance of a Saturday Sabbath and repudiated most of its founder’s doctrines in the years immediately after Armstrong’s death in 1986. The church is now known as Grace Communion International.
Mr. Hardison said he still holds to the tenets that the group once espoused but operates as a “semi-independent” Christian after a 1990s schism split the Worldwide camp into several factions.
He said he appreciates the irony of the pending 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.”
Although his own case sparked the decades-long fight by Seventh-day Adventists and other religious groups to win accommodation in the workplace, Mr. Hardison said he is uncertain about the historical importance 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.”
• Mark A. Kellner can be reached at mkellner@washingtontimes.com.
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