Brianna Bolden-Hardge v. California State Controller

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIANNA BOLDEN-HARDGE, No. 21-15660

Plaintiff-Appellant,

D.C. No.

v. 2:20-cv-02081-

JAM-DB

OFFICE OF THE CALIFORNIA

STATE CONTROLLER; MALIA M.

COHEN, * in her official capacity as OPINION

California State Controller,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted November 17, 2022

San Jose, California

Filed April 3, 2023

Before: Mary M. Schroeder, Susan P. Graber, and

Michelle T. Friedland, Circuit Judges.

Opinion by Judge Friedland

*

Malia M. Cohen has been substituted for her predecessor, Betty T. Yee,

under Fed. R. App. P. 43(c)(2).

2 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER

SUMMARY **

Employment Discrimination / Free Exercise

Reversing the district court’s dismissal of Brianna

Bolden-Hardge’s complaint challenging a state employer’s

refusal to allow a religious addendum to the public-

employee loyalty oath set forth in the California

Constitution, and remanding, the panel held that Bolden-

Hardge stated claims under Title VII and the California Fair

Employment and Housing Act and was entitled to leave to

amend her claims under the Free Exercise Clauses of the

federal and state constitutions.

Bolden-Hardge, a devout Jehovah’s Witness, objected to

California’s loyalty oath because she believed it would

violate her religious beliefs by requiring her to pledge

primary allegiance to the federal and state governments and

to affirm her willingness to take up arms to defend them.

When she was offered a position at the California Office of

the State Controller, the Controller’s Office asked her to take

the loyalty oath. She requested an accommodation to sign

the oath with an addendum specifying that her allegiance

was first and foremost to God and that she would not take up

arms. The Controller’s Office rejected this proposal and

rescinded the job offer. Bolden-Hardge returned to a lower-

paying job at the California Franchise Tax Board, which then

required her to take the oath but permitted her to include an

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 3

addendum like the one that she had proposed to the

Controller’s Office.

Bolden-Hardge sued the Controller’s Office and the

California State Controller in her official capacity, alleging

violations of Title VII under both failure-to-accommodate

and disparate-impact theories. She also asserted a failure-to-

accommodate claim against the Controller’s Office under

the California Fair Employment and Housing Act

(“FEHA”), and she alleged that the refusal by both

defendants to accommodate her religious beliefs violated the

Free Exercise Clauses of the federal and state constitutions.

Bolden-Hardge sought declaratory relief for all of her

claims, and she sought damages for all of her claims except

the California free-exercise claim.

The panel held that, as currently pleaded, Bolden-

Hardge’s alleged injury was redressable only through a

claim for damages. The panel held that she lacked the actual

and imminent threat of future injury required to have

standing to seek prospective relief on any of her claims, but

she could attempt to cure this defect by amendment. The

panel held that Bolden-Hardge could seek damages from the

Controller’s Office on her claims under Title VII, which

abrogates states’ sovereign immunity, and FEHA, which

similarly subjects state employers to suits for damages. As

currently pleaded, she could not obtain damages for her free-

exercise claim under 42 U.S.C. § 1983, which does not

provide a cause of action to sue state entities or state officials

in their official capacities. The panel held, however, that the

district court abused its discretion in denying Bolden-Hardge

leave to amend to seek damages from the State Controller in

her individual capacity.

4 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER

The panel held that, because Bolden-Hardge had

standing to seek damages on her claims under Title VII and

FEHA, it had jurisdiction to consider the merits of those

claims. The panel held that Bolden-Hardge pleaded a prima

facie case of failure to accommodate religion under Title VII

and FEHA by alleging that she held a bona fide religious

belief that conflicted with the “faith and allegiance”

component of the loyalty oath, which was an employment

requirement. Assuming without deciding that

accommodating Bolden-Hardge would violate the California

Constitution, the panel held that the Controller’s Office

could not rebut Bolden-Hardge’s prima facie case by arguing

that violating state law would pose an undue hardship as a

matter of law. The panel explained that the presumption of

undue hardship applies only when accommodating an

employee’s religious beliefs would require a private

employer to violate federal or state law. Where the employer

is part of the very state government that is responsible for

creating and enforcing the law, and there is no indication that

violating that law would subject the public employer to an

enforcement action by another part of state government,

deeming accommodation a presumptive undue hardship at

the pleadings stage would permit states to legislate away

federal accommodation obligations. The panel noted that the

Third Circuit has similarly focused on the risk of

enforcement in assessing undue hardship.

The panel held that Bolden-Hardge pleaded a prima facie

case of disparate impact, which requires a plaintiff to (1)

show a significant disparate impact on a protected class or

group, (2) identify the specific employment practices or

selection criteria at issue, and (3) show a causal relationship

between the challenged practices or criteria and the disparate

impact. The panel held that to satisfy the first prong of a

BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 5

prima facie case, the plaintiff need not support her claim

with statistics where a disparate impact is obvious. The panel

further held that, at this stage of the case, the Controller’s

Office did not show that it was entitled to a business

necessity defense.

COUNSEL

James A. Sonne (argued) and Zeba A. Huq, Stanford Law

School Religious Liberty Clinic, Stanford, California;

Wendy E. Musell, Law Offices of Wendy Musell, Oakland,

California; Joshua C. McDaniel, Harvard Law School

Religious Freedom Clinic, Cambridge, Massachusetts; for

Plaintiff-Appellant.

Kelsey Linnett (argued), Supervising Deputy Attorney;

Christopher D. Beatty, Deputy Attorney General; Chris A.

Knudsen, Senior Assistant Attorney General; Rob Bonta,

Attorney General of California; Office of the California

Attorney General; Oakland, California; for Defendants-

Appellees.

Eugene Volokh; Aris Prince and Anastasia Thatcher,

Certified Law Students; UCLA School of Law First

Amendment Clinic; Los Angeles, California; for Amici

Curiae Professors Daniel Conkle, Richard Garnett, Douglas

Laycock, Michael McConnell, Gregory Sisk, and Nelson

Tebbe.

6 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER

OPINION

FRIEDLAND, Circuit Judge:

Brianna Bolden-Hardge challenges a state employer’s

refusal to allow a religious addendum to the public-

employee loyalty oath set forth in the California

Constitution. We reverse the district court’s dismissal of her

Complaint. Bolden-Hardge has stated claims under Title VII

and the California Fair Employment and Housing Act, and

she should have been granted leave to amend her claims

under the Free Exercise Clauses of the federal and state

constitutions. Although the state employer has asserted

defenses that might ultimately prevail, none of them can be

considered at the motion to dismiss stage.

I.

A.

The California Constitution requires all public

employees, except those “as may be by law exempted,” to

swear or affirm to “support and defend the Constitution of

the United States and the Constitution of the State of

California against all enemies, foreign and domestic” and to

“bear true faith and allegiance” to those constitutions. Cal.

Const. art. XX, § 3. Bolden-Hardge, a devout Jehovah’s

Witness, believes that her faith precludes her from “swearing

primary allegiance to any human government” over “the

Kingdom of God” or pledging to engage in military activity.

She objects to California’s loyalty oath because she believes

that it would require her to pledge primary allegiance to the

federal and state governments and to affirm her willingness

to take up arms to defend them, both of which she says would

violate her religious beliefs.

BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 7

In 2016, Bolden-Hardge began working for the

California Franchise Tax Board without first signing a

loyalty oath. The next year, however, she applied to the

California Office of the State Controller and was offered a

higher-paying position. The Controller’s Office asked her to

take California’s loyalty oath, and Bolden-Hardge requested

an accommodation to sign the oath with an addendum

specifying that her allegiance was first and foremost to God

and that she would not take up arms. Her proposed

addendum read:

I, Brianna Bolden-Hardge, vow to uphold the

Constitutions of the United States and of the

State of California while working in my role

as an employee of the State Controller’s

Office. I will be honest and fair in my

dealings and neither dishonor the Office by

word nor deed. By signing this oath, I

understand that I shall not be required to bear

arms, engage in violence, nor to participate in

political or military affairs. Additionally, I

understand that I am not giving up my right

to freely exercise my religion, nor am I

denouncing my religion by accepting this

position.

The Controller’s Office rejected this proposal. Because

Bolden-Hardge refused to sign the oath in its unmodified

form, the agency rescinded her job offer.

Bolden-Hardge subsequently returned to her lower-

paying job at the Tax Board, which then required her to take

the oath but permitted her to include an addendum like the

one that she had proposed to the Controller’s Office.

8 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER

Bolden-Hardge later obtained positions with two other state

agencies, neither of which required her to sign a loyalty oath.

B.

Bolden-Hardge filed this action in federal court against

the Controller’s Office and the California State Controller in

her official capacity, alleging that their refusal to allow

Bolden-Hardge’s proposed addendum to the loyalty oath

violated Title VII of the 1964 Civil Rights Act under both

failure-to-accommodate and disparate-impact theories. She

also asserted a failure-to-accommodate claim against the

Controller’s Office under the California Fair Employment

and Housing Act (“FEHA”). Finally, she alleged that the

refusal by both Defendants to accommodate her religious

beliefs violated the Free Exercise Clauses of the federal and

state constitutions.

Bolden-Hardge sought damages for the failure-to-

accommodate, disparate-impact, and federal free-exercise

claims, but not for the California free-exercise claim. For all

claims, she sought a declaratory judgment that the

Controller’s Office’s actions violated her rights and an

injunction barring the agency from refusing similar

accommodations. On her free-exercise claims she sought

relief from both Defendants, but on her Title VII and FEHA

claims she sought relief from only the Controller’s Office.

Defendants moved to dismiss Bolden-Hardge’s

Complaint for lack of subject matter jurisdiction and for

failure to state a claim. The district court granted the motion

in full. The court denied leave to amend, reasoning that

Bolden-Hardge could not plead any further facts to save any

of her claims because the case involved primarily legal

issues rather than factual ones.

BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 9

Bolden-Hardge timely appealed.

II.

We review de novo an order granting a motion to dismiss

for failure to state a claim, “accept[ing] the complaint’s well-

pleaded factual allegations as true, and constru[ing] all

inferences in the plaintiff’s favor.” Koala v. Khosla, 931

F.3d 887, 894 (9th Cir. 2019) (quoting Ariz. Students’ Ass’n

v. Ariz. Bd. of Regents, 824 F.3d 858, 864 (9th Cir. 2016)).

Jurisdictional questions, including issues of standing, also

are reviewed de novo. See Ctr. for Biological Diversity v.

Bernhardt, 946 F.3d 553, 559 (9th Cir. 2019). We review a

district court’s denial of leave to amend for abuse of

discretion. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th

Cir. 2000) (en banc). “Dismissal without leave to amend is

improper unless it is clear, upon de novo review, that the

complaint could not be saved by any amendment.” Krainski

v. Nevada ex rel. Bd. of Regents, 616 F.3d 963, 972 (9th Cir.

2010) (quoting Thinket Ink Info. Res., Inc. v. Sun

Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004)).

III.

We first consider whether Bolden-Hardge has standing

to pursue each of her claims. To have standing, a plaintiff

must show that she suffered an injury in fact that is fairly

traceable to the challenged conduct and likely to be

redressed by a favorable decision. Spokeo, Inc. v. Robins,

578 U.S. 330, 338 (2016). If a plaintiff seeks prospective

relief, she must show that the threat of future injury is “actual

and imminent, not conjectural or hypothetical.” Summers v.

Earth Island Inst., 555 U.S. 488, 493 (2009). Past wrongs

may serve as evidence of a “real and immediate threat of

repeated injury,” but they are insufficient on their own to

support standing for prospective relief. City of Los Angeles

10 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER

v. Lyons, 461 U.S. 95, 102-03 (1983) (quoting O’Shea v.

Littleton, 414 U.S. 488, 496 (1974)). With respect to

prospective relief related to employment specifically, a

plaintiff may have standing when she is in the process of

seeking work from, or reinstatement with, the employer

whose conduct she challenges, but lacks standing when there

is no indication of a continued wish to work for that

employer. See Walsh v. Nev. Dep’t of Hum. Res., 471 F.3d

1033, 1037 (9th Cir. 2006).

Defendants argue that Bolden-Hardge lacks standing to

seek prospective relief because she is no longer seeking

employment at the Controller’s Office. Defendants are

correct that the Complaint does not allege that Bolden-

Hardge wishes or intends to work for the Controller’s Office

in the future. Her Complaint indicates that, although she

experienced “prolonged underemployment” at the Tax

Board following the Controller’s Office’s rescission of her

job offer, she ultimately secured a satisfactory government

job. Her briefing before the district court, too, seemed to

concede that she is not seeking reinstatement of the job offer

with the Controller’s Office. Only in her opening brief on

appeal did Bolden-Hardge first mention the possibility of

reinstatement, noting parenthetically that, if given leave to

amend her Complaint, she might seek reinstatement as a

remedy. At oral argument before our court, counsel for

Bolden-Hardge stated that she is “open to exploring the

possibility” of returning to the Controller’s Office but did

not state that she is actively seeking work there.

Although Bolden-Hardge may sincerely desire to work

at the Controller’s Office, she did not allege this in her

Complaint, nor did she allege that she has taken any concrete

step to reapply to the Controller’s Office. She therefore

lacks the actual and imminent threat of future injury required

BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 11

to have standing to seek prospective relief on any of her

claims. Bolden-Hardge may, however, attempt to cure this

defect by amendment, as she has requested. See Northstar

Fin. Advisors Inc. v. Schwab Invs., 779 F.3d 1036, 1043-45

(9th Cir. 2015) (holding that plaintiffs may cure deficiencies

in standing allegations through supplemental pleadings).

As currently pleaded, then, Bolden-Hardge’s alleged

injury is redressable only through a claim for damages. It is

clear that she can seek damages from the Controller’s Office

on her Title VII claims because that statute abrogates states’

sovereign immunity. See Fitzpatrick v. Bitzer, 427 U.S. 445,

453 n.9 (1976). She also can seek retrospective damages

from the Controller’s Office under FEHA because state

employers are likewise subject to suits for damages under

that state law. See DeJung v. Superior Ct., 87 Cal. Rptr. 3d

99, 107-09 (Ct. App. 2008).

By contrast, as currently pleaded, Bolden-Hardge cannot

obtain damages for her free-exercise claim under 42 U.S.C.

§ 1983. She seeks damages on that claim both from the

Controller’s Office and from the State Controller in her

official capacity. But § 1983 does not provide a cause of

action to sue state entities or state officials in their official

capacities. Will v. Mich. Dep’t of State Police, 491 U.S. 58,

65-67, 71 (1989). To remedy this defect, Bolden-Hardge

sought leave from the district court to amend her Complaint

to seek damages from Betty Yee, the State Controller at the

time the job offer was rescinded, in her individual capacity.

See Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1990)

(permitting a § 1983 damages claim against state officials

sued in their individual capacities). Leave to amend should

be granted generously, after considering “bad faith, undue

delay, prejudice to the opposing party, futility of

amendment, and whether the plaintiff has previously

12 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER

amended the complaint.” United States v. Corinthian Colls.,

655 F.3d 984, 995 (9th Cir. 2011). There is no evidence in

this case of delay, prejudice, or bad faith; Bolden-Hardge has

not previously amended her Complaint; and it is not clear

that amendment would be futile. 1 Therefore, although the

district court was correct to dismiss the federal free-exercise

claim for lack of jurisdiction, it abused its discretion in

denying leave to amend on that claim.

Finally, Bolden-Hardge expressly did not seek damages

on her free-exercise claim under the California Constitution,

so she lacks standing to pursue that claim as currently

pleaded. She has not sought leave to amend her Complaint

specifically to add a claim for damages under the state

constitution, but she has made a general request for leave to

amend her Complaint to cure any defects. On remand, the

district court shall determine whether Bolden-Hardge is

seeking to amend this claim and, if so, whether leave to

amend should be granted.

Because Bolden-Hardge has standing to seek damages

on her claims under Title VII and FEHA, we have

jurisdiction to consider the merits of those claims.

IV.

A.

Title VII and FEHA forbid an employer from denying a

job to an applicant because of her religion. 42 U.S.C.

§ 2000e-2(a)(1); Cal. Gov’t Code § 12940(a). Both statutes

1

Given Bolden-Hardge’s lack of standing for her federal free-exercise

claim, we lack jurisdiction to reach that claim’s merits and cannot do

more than conclude that it is possible that she could state a claim by

amending.

BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 13

require employers to accommodate job applicants’ religious

beliefs unless doing so would impose an undue hardship. 42

U.S.C. § 2000e(j); Cal. Gov’t Code § 12940(l)(1). 2 Claims

under Title VII and FEHA for failure to accommodate

religion are accordingly analyzed under a burden-shifting

framework. See Heller v. EBB Auto Co., 8 F.3d 1433, 1440

(9th Cir. 1993) (Title VII); Merrick v. Hilton Worldwide,

Inc., 867 F.3d 1139, 1145 (9th Cir. 2017) (FEHA). 3 First,

the employee must plead a prima facie case of failure to

accommodate religion. Sutton v. Providence St. Joseph

Med. Ctr., 192 F.3d 826, 830 (9th Cir. 1999). Second, if the

employee is successful, the employer can show that it was

nonetheless justified in not accommodating the employee’s

religious beliefs or practices. Id.

1.

To plead a prima facie case of failure to accommodate

religion under Title VII and FEHA, a plaintiff must allege,

among other things, that she holds “a bona fide religious

belief” that conflicts with an employment requirement.

Heller, 8 F.3d at 1438 (Title VII); Friedman v. S. Cal.

2

Both laws apply to state employers such as the Controller’s Office. 42

U.S.C. § 2000e(f); Cal. Gov’t Code § 12926(d); see also Dothard v.

Rawlinson, 433 U.S. 321, 331 n.14 (1977) (Title VII); DeJung v.

Superior Ct., 87 Cal. Rptr. 3d 99, 107 (Ct. App. 2008) (FEHA).

3

“Because FEHA is interpreted consistently with Title VII,” Ambat v.

City & County of San Francisco, 757 F.3d 1017, 1023 n.2 (9th Cir.

2014), our analysis of the federal and state claims is the same. See Guz

v. Bechtel Nat’l Inc., 8 P.3d 1089, 1113 (Cal. 2000) (“Because of the

similarity between state and federal employment discrimination laws,

California courts look to pertinent federal precedent when applying our

own statutes.”); Soldinger v. Nw. Airlines, Inc., 58 Cal. Rptr. 2d 747, 762

n.11 (Ct. App. 1996) (noting that California courts look to federal cases

interpreting Title VII in evaluating failure-to-accommodate allegations).

14 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER

Permanente Med. Grp., 125 Cal. Rptr. 2d 663, 666 (Ct. App.

2002) (FEHA).

The parties contest whether Bolden-Hardge has

adequately pleaded a conflict between her job requirements

and religious beliefs. 4 Bolden-Hardge objects to the

component of the loyalty oath requiring its taker to swear or

affirm “true faith and allegiance” to the federal and state

constitutions. Cal. Const. art. XX, § 3. She contends that

her “sincerely held religious beliefs mandate that her

allegiance is first and foremost to the Kingdom of God” and

that she cannot “swear[] primary allegiance to any human

government.” The oath requirement conflicts with her faith,

4

The Controller’s Office briefly argues that both Title VII and FEHA

recognize conflicts only between religious beliefs and job duties and

therefore do not extend to the facts of this case, where the loyalty oath is

more a prerequisite than a duty. We are aware of no precedent, however,

that has so limited the scope of Title VII. General employment

prerequisites may be challenged in the disparate impact context, see

Griggs v. Duke Power Co., 401 U.S. 424, 433-34 (1971), and it would

be inconsistent with the purpose of Title VII to preclude disparate

treatment claims in which plaintiffs similarly allege conflicts with

employment prerequisites. See Albemarle Paper Co. v. Moody, 422 U.S.

405, 421 (1975) (describing one of Title VII’s “central statutory

purposes” as “eradicating discrimination throughout the economy”).

FEHA was likewise adopted with the “express purpose” of “preventing

and deterring unlawful discrimination in the workplace,” Harris v. City

of Santa Monica, 294 P.3d 49, 52 (Cal. 2013), and limiting that statute’s

reach to only job duties would be inconsistent with that purpose. Indeed,

the California Court of Appeal has rejected “too narrow a view of what

constitutes an employment ‘requirement,’” reasoning that “[a]ll

employees have two kinds of work requirements: those defined by the

particular duties of their position, and those defined by the general

policies of the employer,” both of which are actionable under FEHA. Ng

v. Jacobs Eng’g Grp., No. B185838, 2006 WL 2942739, at *6 (Cal. Ct.

App. Oct. 16, 2006) (unpublished).

BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 15

she argues, because it forces her to choose between her

religious beliefs and a government job. The Controller’s

Office, meanwhile, argues that the loyalty oath does not

require its takers to pledge loyalty to government over

religion, and it therefore poses no conflict with Bolden-

Hardge’s religious beliefs.

Bolden-Hardge insists that the Controller’s Office is

inviting us to opine impermissibly on whether her religious

views are reasonable. The Supreme Court has, albeit in the

free exercise context, cautioned against second-guessing the

reasonableness of an individual’s assertion that a

requirement burdens her religious beliefs, emphasizing that

a court’s “‘narrow function . . . in this context is to

determine’ whether the line drawn reflects ‘an honest

conviction.’” Burwell v. Hobby Lobby Stores, Inc., 573 U.S.

682, 725 (2014) (quoting Thomas v. Rev. Bd. of Ind. Emp.

Sec. Div., 450 U.S. 707, 716 (1981)). This principle does

not mean that courts must take plaintiffs’ conclusory

assertions of violations of their religious beliefs at face

value. See Oklevueha Native Am. Church of Haw., Inc. v.

Lynch, 828 F.3d 1012, 1016-17 (9th Cir. 2016) (deeming

inadequate plaintiffs’ assertion that a statute prohibiting

cannabis substantially burdened their religious beliefs

because they did not allege that cannabis served a religious

function and they conceded that their religious ceremonies

did not involve cannabis). Still, the burden to allege a

conflict with religious beliefs is fairly minimal. See Thomas,

450 U.S. at 715. With these principles in mind, we do not

interrogate the reasonableness of Bolden-Hardge’s beliefs

16 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER

and instead focus our inquiry on whether she has alleged an

actual conflict. We hold that she has done so. 5

The Controller’s Office correctly points out that the oath

does not expressly require a pledge of ultimate or primary

allegiance to the federal and state constitutions. But

construing all facts and inferences in Bolden-Hardge’s favor,

it is possible to understand the oath as requiring state

employees to place their allegiance to the federal and state

constitutions over their allegiance to God for the purposes of

their work. Indeed, California’s apparent rationale for the

oath requirement is to ensure that if an oath taker’s religion

ever comes into conflict with the federal or state

constitutions, religion must yield.

It is in fact this very rationale that the Controller’s Office

invokes in defending the oath requirement. The oath is

critical, the Controller’s Office urges, because the

government’s workforce must be “uniformly and

unreservedly” committed to supporting and defending the

federal and state constitutions and to “the proper functioning

of constitutional government.” The Controller’s Office

insists that a “vague ‘first loyalty to God’ qualification to the

5

We also observe that Bolden-Hardge is not alone in her stated

convictions. As Bolden-Hardge notes, Jehovah’s Witnesses have

repeatedly challenged similar oath requirements as inconsistent with

their religious beliefs. See, e.g., Lawson v. Washington, 296 F.3d 799,

802 (9th Cir. 2002); Bessard v. Cal. Cmty. Colls., 867 F. Supp. 1454,

1456 (E.D. Cal. 1994); EEOC Decision No. 85-13, 38 Fair Empl. Prac.

Case (BNA) 1884 (1985), 1985 WL 32782. Although these cases do not

address whether a loyalty oath requirement poses a conflict with

Jehovah’s Witnesses’ religious beliefs for the purposes of a failure-to-

accommodate claim, they do support the notion that Bolden-Hardge’s

beliefs reflect “an honest conviction.” Burwell, 573 U.S. at 725 (quoting

Thomas, 450 U.S at 716).

BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 17

oath would effectively nullify the oath.” And it contends

that, “without an unqualified commitment to the

Constitution, a promise to adhere to constitutional rules,

except when they conflict with personal and undefined

religious beliefs, is no promise at all.” Although these are

persuasive arguments supporting the oath’s importance, they

belie the Controller’s Office’s position that the oath poses no

conflict with Bolden-Hardge’s pleaded religious beliefs. If

an employee cannot claim “first loyalty to God,” she must,

by implication, owe first loyalty to something else―here,

the federal and state constitutions.

The California Court of Appeal recognized this

implication when faced with a similar request to modify the

loyalty oath. In Smith v. County Engineer, 72 Cal. Rptr. 501

(Ct. App. 1968), the court rejected a proposed addendum to

the oath that the court interpreted as allowing the plaintiff to

prioritize his commitment to God over that to the state and

nation. Id. at 508-09. Smith was decided before Title VII

was amended to apply to state employers, see Equal

Employment Opportunity Act of 1972, Pub. L. No. 92-261,

86 Stat. 103 (1972) (codified at 42 U.S.C. § 2000e et seq.),

so the court had no reason to consider whether the statute

required allowing such an addendum. But the court’s

characterization of the loyalty oath suggests that the

California Constitution requires public employees to swear

or affirm that “if [their] religious beliefs and the support and

defense of the constitution do not square,” it is the former,

and not the latter, that must yield. Smith, 72 Cal. Rptr. at

509.

We therefore hold that Bolden-Hardge has adequately

alleged that the “faith and allegiance” component of the

loyalty oath poses a conflict with her religious beliefs.

Because Bolden-Hardge has pleaded a conflict between her

18 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER

religious beliefs and this portion of the loyalty oath, we do

not consider her alternate arguments for a conflict, including

whether the portion of the oath requiring public employees

to “support and defend” the state and federal constitutions

conflicts with her religious objection to taking up arms. Cal.

Const. art. XX, § 3. The Controller’s Office does not

otherwise contest the sufficiency of Bolden-Hardge’s prima

facie case.

2.

We next consider whether the Controller’s Office can

rebut Bolden-Hardge’s prima facie case by demonstrating

that it was justified in not accommodating her religious

beliefs.

Once an employee establishes a prima facie case of

failure to accommodate religion, the burden shifts to the

employer to show “either that it initiated good faith efforts

to accommodate reasonably the employee’s religious

practices or that it could not reasonably accommodate the

employee without undue hardship.” Tiano v. Dillard Dep’t

Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998). Undue

hardship is an affirmative defense, see Tabura v. Kellogg

USA, 880 F.3d 544, 557 (10th Cir. 2018), and accordingly

dismissal on that ground is proper “only if the defendant

shows some obvious bar to securing relief on the face of the

complaint” or in “any judicially noticeable materials,”

ASARCO, LLC v. Union Pac. R.R. Co., 765 F.3d 999, 1004

(9th Cir. 2014).

The Controller’s Office argues that it is entitled to a

presumption of undue hardship as a matter of law because

accommodating Bolden-Hardge’s religious beliefs would

BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 19

require it to violate the California Constitution.6 In cases

involving private employers, we have held that “an employer

is not liable under Title VII [for failure to accommodate]

when accommodating an employee’s religious beliefs would

require the employer to violate federal or state law” because

“the existence of such a law establishes ‘undue hardship.’”

Sutton, 192 F.3d at 830; see also Bhatia v. Chevron U.S.A.,

Inc., 734 F.2d 1382, 1383-84 (9th Cir. 1984) (recognizing an

undue hardship where an accommodation would have

required the employer to risk liability for violating state law).

The Controller’s Office invites us to extend the Sutton

presumption to state employers, but we decline to do so.

In our cases applying the Sutton presumption, the

private-employer defendants faced potential liability for

violating the law and had no ability to create or enforce that

law. See Sutton, 192 F.3d at 837-38; Bhatia, 734 F.2d at

1383-84. We held that a private employer demonstrated an

undue hardship when the employer “established that if it

were to [accommodate the employee], it would risk liability

for violating” state law. Bhatia, 734 F.2d at 1384. Here, by

contrast, the Controller’s Office is part of the very state

government that is responsible for creating and enforcing the

oath requirement, and there is no indication that violating the

6

It is not clear that the California Constitution forbids addenda such as

the one that Bolden-Hardge proposed. See Smith, 72 Cal. Rptr. at 509

(deeming one particular modification of the loyalty oath unacceptable

but not holding that all modifications are barred as a matter of law). We

need not resolve that question of California law because, as we will

explain, even if the Controller’s Office would violate state law by

permitting Bolden-Hardge’s proposed addendum, the Controller’s

Office would not be entitled to a presumption of undue hardship. We

therefore assume without deciding that such an addendum would violate

California law.

20 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER

oath requirement would subject the Controller’s Office to an

enforcement action by some other part of the state

government. Notably, the oath provision in the California

Constitution contains no express enforcement mechanism.

And Bolden-Hardge has alleged that other state agencies

have accommodated her religious beliefs, yet the

Controller’s Office has not indicated that those agencies

faced enforcement.

Furthermore, to exempt the Controller’s Office from a

federal accommodation requirement solely because the

requested accommodation would violate state law would

essentially permit states to legislate away any federal

accommodation obligation, raising Supremacy Clause

concerns. See Malabed v. N. Slope Borough, 335 F.3d 864,

871 (9th Cir. 2003) (explaining that the preemption

provision in the Civil Rights Act of 1964 invalidates state

laws that are inconsistent with the Act’s purpose). Although

this concern is present in cases involving private employers

arguing per se undue hardship under state law, it is

heightened where the defendant is part of the very state

whose law would be violated. The state could otherwise

enact a law for the sole purpose of evading federal

accommodation requirements, even without any intent to

enforce the law or otherwise give it effect. Where there is

no indication of an actual threat of enforcement or liability

for violating that state law, the risk that the state is

attempting to evade federal accommodation requirements is

too high to allow for dismissal at the pleading stage because

of this sort of purported undue hardship. We therefore hold

BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 21

that the Controller’s Office is not entitled to a presumption

of undue hardship. 7

The Third Circuit has similarly focused on the risk of

enforcement in considering whether a public employer that

was sued for failing to accommodate religion faced an undue

hardship where such accommodation would violate state

law. In United States v. Board of Education, 911 F.2d 882

(3d Cir. 1990), the Department of Justice alleged that the

Board of Education for the School District of Philadelphia

violated Title VII by refusing to employ or accommodate

public school teachers who sought to wear religious garb. Id.

at 885. The Board refused such accommodations because a

state statute threatened school administrators with “criminal

prosecution, fines, and expulsion from the profession” if

they allowed teachers to wear religious garb. Id. at 885, 891.

In concluding that the Board established an undue hardship,

the Third Circuit emphasized that accommodating religious

employees would expose administrators to serious

consequences. Id. at 891. It noted that the Pennsylvania and

United States Supreme Courts had deemed the state statute

constitutional and, therefore, “there was no assurance that

the prosecutorial authorities in Pennsylvania would not

enforce the statute against school administrators who failed

to carry out the dictates of the statute.” Id. at 890.

Importantly, the Third Circuit expressly declined to consider

7

Tagore v. United States, 735 F.3d 324 (5th Cir. 2013), addressed a

different question, because there the Fifth Circuit considered a federal

government employer’s assertion that violating a federal statute would

pose an undue hardship. See id. at 329-30. Tagore did not raise the same

Supremacy Clause concerns as this case because the public employer

there was not a state employer and was asserting a federal law obligation,

not a state law obligation.

22 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER

the different situation in which “the chances of enforcement

are negligible.” Id. at 891.

Bolden-Harge’s case presents exactly the sort of

situation that the Third Circuit carved out in Board of

Education: Here, nothing suggests that the Controller’s

Office would face legal consequences for accommodating

Bolden-Hardge. If anything, the Complaint suggests that

enforcement is unlikely, given Bolden-Hardge’s allegations

that other state agencies have accommodated her.

The Controller’s Office may ultimately provide evidence

that it would in fact face liability for accommodating

Bolden-Hardge. It may also be able to demonstrate an undue

hardship under a different theory, given its stated interest in

ensuring that government employees are committed to

upholding the federal and state constitutions. See Cole v.

Richardson, 405 U.S. 676, 684-85 (1972) (upholding a

loyalty oath against freedom of speech and assembly

challenges and recognizing that legislatures enacted such

oaths “to assure that those in positions of public trust were

willing to commit themselves to live by the constitutional

processes of our system”); Am. Commc’ns Ass’n, C.I.O. v.

Douds, 339 U.S. 382, 415 (1950) (“Clearly the Constitution

permits the requirement of [loyalty] oaths . . . . Obviously

the Framers of the Constitution thought that the exaction of

an affirmation of minimal loyalty to the Government was

worth the price of whatever deprivation of individual

freedom of conscience was involved.”). Any such defense,

however, is not obvious from the face of Bolden-Hardge’s

Complaint. This is especially so because the Complaint

alleges that other California agencies hired Bolden-Hardge

without requiring the oath, calling into question the

likelihood of enforcement, as well as the importance of any

state interest we might otherwise infer from Supreme Court

BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 23

caselaw upholding the constitutionality of loyalty oaths in

other contexts. We therefore cannot consider the

Controller’s Office’s undue hardship defense at this stage in

the proceedings. 8 ASARCO, LLC, 765 F.3d at 1004.

B.

We now turn to whether Bolden-Hardge has stated a

claim of disparate impact under Title VII. Title VII bars an

employer from using a “particular employment practice that

causes a disparate impact on the basis of . . . religion” unless

the employer can show that the practice is job-related and

“consistent with business necessity.” 42 U.S.C. § 2000e-

2(k)(1)(A)(i).

1.

To plead a prima facie case of disparate impact, a

plaintiff must “(1) show a significant disparate impact on a

protected class or group; (2) identify the specific

employment practices or selection criteria at issue; and (3)

show a causal relationship between the challenged practices

or criteria and the disparate impact.” Hemmings v.

Tidyman’s Inc., 285 F.3d 1174, 1190 (9th Cir. 2002).

The parties dispute what is required to satisfy the first

prong of this prima facie case. The Controller’s Office

asserts that pleading a prima facie case of disparate impact

requires the plaintiff to support her claim with statistics,

whereas Bolden-Hardge contends that statistics are not

8

We also do not address whether the undue hardship analysis under

FEHA differs from the analysis under Title VII. The Controller’s Office

has not argued that the undue hardship defense succeeds under FEHA

even if it fails under Title VII. Nor does either party argue that the

analysis of Bolden-Hardge’s Title VII and FEHA claims diverges at the

undue-hardship stage.

24 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER

required where a disparate impact is obvious, as she argues

it is here. We agree with Bolden-Hardge.

It is true that plaintiffs often support their claims of

disparate impact with statistics. See, e.g., Stout v. Potter,

276 F.3d 1118, 1122 (9th Cir. 2002); Robinson v. Adams,

847 F.2d 1315, 1318 (9th Cir. 1987). Yet statistics are not

strictly necessary. See Sakellar v. Lockheed Missiles &

Space Co., 765 F.2d 1453, 1456-57 (9th Cir. 1985)

(suggesting that statistics would not have been the only way

to prove a disparate impact on older individuals). This is

particularly true where a disparate impact is obvious. For

example, in Hung Ping Wang v. Hoffman, 694 F.2d 1146

(9th Cir. 1982), we held that a plaintiff pleaded a prima facie

case because he observed that his employer’s language-skills

requirement would disproportionately affect minority

applicants. Id. at 1148-49. We reasoned that the

requirement “seem[ed] on its face to have a disparate impact

on minority applicants,” and we did not require the plaintiff

to demonstrate that impact with statistics to avoid dismissal.

Id. at 1149. Several of our sister circuits have likewise held

that Title VII plaintiffs are not limited to proving disparate

impact with statistics, even after discovery―suggesting that

statistics are certainly not always necessary at the pleading

stage. See, e.g., Lynch v. Freeman, 817 F.2d 380, 387-88

(6th Cir. 1987) (“While Title VII plaintiffs may be able to

prove some disparate impact cases by statistics, that is not

the only avenue available.”); Garcia v. Woman’s Hosp. of

Tex., 97 F.3d 810, 813 (5th Cir. 1996) (observing that if “all

or substantially all pregnant women” faced the same lifting

limitation, “they would certainly be disproportionately

affected” by an employer’s lifting requirement, making

“[s]tatistical evidence . . . unnecessary”).

BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 25

Bolden-Hardge alleges a disparate impact similarly

obvious to that in Hoffman. She contends that her religious

beliefs are “consistent with [those] of other Jehovah’s

Witnesses,” who also believe that their faith forbids them

from swearing primary allegiance to any human

government. See supra note 5. As discussed with respect to

Bolden-Hardge’s failure-to-accommodate claim, as pleaded

this belief is in tension with the loyalty oath requirement:

The oath implicitly requires that its takers place their

allegiance to the federal and state constitutions over that to

God, which is exactly what Bolden-Hardge alleges her faith

forbids her from doing. Accepting as true Bolden-Hardge’s

well-pleaded allegation that other Jehovah’s Witnesses share

this belief, we must presume that the oath requirement will

impact “all or substantially all” Jehovah’s Witnesses seeking

government employment by making them feel they must

choose between government employment and their religious

beliefs—a burden not all prospective employees face.

Garcia, 97 F.3d at 813. This is precisely the sort of obvious

impact that a plaintiff need not support with statistics to

plead a prima facie case. See id.; Hoffman, 694 F.2d at 1149.

Bolden-Hardge therefore has satisfied the first prong of the

prima facie case for disparate impact, and the Controller’s

Office does not contest that she satisfied the remaining

prongs.

2.

The Controller’s Office contends that, even if Bolden-

Hardge pleaded a prima facie case of disparate impact, the

loyalty oath is justified because it is consistent with business

necessity. The business necessity defense permits

employment practices that have a disparate impact on a

protected class if the practices have “a manifest relationship

to the employment in question.” Griggs v. Duke Power Co.,

26 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER

401 U.S. 424, 432 (1971). Like undue hardship, business

necessity is an affirmative defense, see Freyd v. Univ. of Or.,

990 F.3d 1211, 1224 (9th Cir. 2021), and therefore cannot

be considered at the motion-to-dismiss stage unless the

defense’s success is obvious from the face of the complaint

or from judicially noticeable materials, see ASARCO, LLC,

765 F.3d at 1004.

The loyalty oath is a business necessity, the Controller’s

Office argues, because public employees must be

“committed to working within and promoting the

fundamental rule of law while on the job.” The Controller’s

Office emphasizes that the oath is meant to ensure that public

servants are committed to upholding the rule of law,

supporting and defending the federal and state constitutions,

and promoting the proper functioning of constitutional

government. It asserts that allowing addenda that indicate

an oath-taker’s primary loyalty to God would render the oath

meaningless and undermine critical state interests. This

assertion may well prove true and, if so, the Controller’s

Office may be able to defeat Bolden-Hardge’s disparate

impact claim at a later stage of the litigation. But this is not

apparent from the face of her Complaint or any judicially

noticeable materials, particularly given the state’s alleged

practice of exempting some employees from the oath

requirement. As with the Controller’s Office’s defense of

undue hardship, we therefore cannot affirm dismissal at this

stage on business necessity grounds.

V.

For the foregoing reasons, we REVERSE the decision

of the district court and REMAND for further proceedings

consistent with this opinion.