Mendes Hershman Winner Abstract: “Thou Shalt Not . . . Vaccinate? Evaluating Trans World Airlines v. Hardison’s ‘De Minimis’ Standard in the Wake of COVID-19 Vaccine Mandates”

The Mendes Hershman Student Writing Contest is a highly regarded legal writing competition that encourages and rewards law students for their outstanding writing on business law topics. Papers are judged on research and analysis, choice of topic, writing style, originality, and contribution to the literature available on the topic. The distinguished former Business Law Section Chair Mendes Hershman (1974–1975) lends his name to this legacy. Read the abstract of this year’s third-place winner, Matthew Shalna of University of Miami School of Law, Class of 2023, below.

Religious employees in the workplace are under-protected by Title VII. In 1977, the Supreme Court of the United States in Trans World Airlines v. Hardison established the standard for what constitutes the “reasonable accommodation” of an employee’s religious beliefs. Specifically, the Supreme Court established that, if the carrying out of a request for a religious accommodation would impose more than a de minimis burden on employers, that accommodation imposes an undue hardship and is therefore not reasonable. Consequently, this created an incredibly employer-friendly standard for religious discrimination claims.

With a recent influx of religious exemption requests regarding the COVID-19 vaccine, the reasonable accommodation standard is back in the spotlight. Additionally, multiple Supreme Court Justices—particularly, Justice Alito, Justice Thomas, and Justice Gorsuch—have expressed interest in replacing the “de minimis” standard with something that provides greater protection for religious interests. This creates an interesting prospect in employment discrimination: will the Court revisit the de minimis standard it attached to religious reasonable accommodation and expand religious protections for employees? And if so, is COVID-19 vaccine litigation the proper vehicle with which to revisit the standard?

This Note explores whether the de minimis standard is likely to change in the near future, and if so, what a new standard should like. Particularly, this Note uses religious challenges to recent workplace COVID-19 vaccine mandates as a means to evaluate the current strength of the de minimis standard. Ultimately, this Note argues that the de minimis standard needs to be altered, specifically in a manner that (1) requires that reasonableness be analyzed from the employee’s, not the employer’s, perspective, and (2) replaces the de minimis standard with one that requires employers to bear a greater cost to avoid liability. This Note further concludes, however, that although de minimis needs to be replaced, COVID-19 vaccine litigation is not the proper vehicle for such a change.