Amicus Curiae Brief — Darrell Patterson, Petitioner v. Walgreen Co.

No. 18-349

In the Supreme Court of the United States

DARRELL PATTERSON, PETITIONER

v.

WALGREEN CO.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SHARON FAST GUSTAFSON

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Senior Attorney

U.S. Equal Employment

Opportunity Commission

Washington, D.C. 20507

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

ERIC S. DREIBAND

Assistant Attorney General

JEFFREY B. WALL

Deputy Solicitor General

ELLIOTT M. DAVIS

Acting Principal Deputy

Assistant Attorney General

SOPAN JOSHI

Assistant to the Solicitor

General

TOVAH R. CALDERON

KATHERINE LAMM

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether an employer has “reasonably accommodate[d]” an employee’s religious practice, 42 U.S.C.

2000e( j), if the accommodation does not eliminate all

conflicts between the employee’s religious practice and

work.

2. Whether an employer can show that accommodating an employee’s religious practice would impose an

“undue hardship,” 42 U.S.C. 2000e( j), based on speculative future hardships.

3. Whether the statement in Trans World Airlines,

Inc. v. Hardison, 432 U.S. 63 (1977), that requiring an

employer “to bear more than a de minimis cost” to accommodate an employee’s religious practice “is an undue hardship,” id. at 84, should be revisited.

(I)

TABLE OF CONTENTS

Page

Statement ...................................................................................... 1

Discussion ...................................................................................... 7

A. The question whether a reasonable

accommodation must eliminate the religious

conflict does not warrant review .................................... 8

B. The question whether an employer may rely on

speculative hardships does not warrant review ......... 17

C. The question whether to revisit Hardison’s de

minimis standard warrants review............................. 19

Conclusion ................................................................................... 23

TABLE OF AUTHORITIES

Cases:

Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60

(1986) .................................................................. 2, 8, 9, 10, 13

Baker v. The Home Depot, 445 F.3d 541

(2d Cir. 2006) ....................................................................... 16

Benton v. Carded Graphics, Inc., 28 F.3d 1208, 1994

WL 249221 (4th Cir. Mar. 9, 1994) .................................... 18

Brown v. General Motors Corp., 601 F.2d 956

(8th Cir. 1979) ...................................................................... 18

EEOC v. Abercromie & Fitch Stores, Inc.,

135 S. Ct. 2028 (2015) ......................................................... 22

EEOC v. Firestone Fibers & Textiles Co.,

515 F.3d 307 (4th Cir. 2008) ............................................... 15

EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569

(7th Cir. 1997) ................................................................ 12, 16

EEOC v. Universal Mfg. Corp., 914 F.2d 71

(5th Cir. 1990) ...................................................................... 15

Estate of Thornton v. Caldor, Inc., 472 U.S. 703

(1985) .................................................................................... 11

(III)

IV

Cases—Continued:

Page

Janus v. American Fed’n of State, County, & Mun.

Emps., 138 S. Ct. 2448 (2018) ............................................ 22

Johnson v. Transportation Agency, 480 U.S. 616

(1987) .................................................................................... 21

Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401

(2015) .................................................................................... 22

Knight v. Connecticut Dep’t of Public Health,

275 F.3d 156 (2d Cir. 2001) .......................................... 12, 16

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights

Comm’n, 138 S. Ct. 1719 (2018) ......................................... 20

Monell v. Department of Social Servs.,

436 U.S. 658 (1978).............................................................. 21

Opuku-Boateng v. California, 95 F.3d 1461

(9th Cir. 1996), cert. denied, 520 U.S. 1228 (1997)........... 16

Payne v. Tennessee, 501 U.S. 808 (1991) ............................ 22

Sánchez-Rodríguez v. AT & T Mobility Puerto Rico,

Inc., 673 F.3d 1 (1st Cir. 2012) .......................................... 15

Sandifer v. United States Steel Corp., 571 U.S. 220

(2014) ...................................................................................... 9

Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024

(8th Cir. 2008) ................................................................ 15, 16

Tabura v. Kellogg USA, 880 F.3d 544

(10th Cir. 2018) .............................................................. 15, 16

Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481

(10th Cir. 1989), cert. denied, 495 U.S. 948 (1990)........... 18

Tooley v. Martin-Marietta Corp., 648 F.2d 1239

(9th Cir.), cert. denied, 454 U.S. 1098 (1981) ................... 18

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) ............................................2, 7, 19, 21, 22

US Airways, Inc. v. Barnett, 535 U.S. 391

(2002) .................................................................................... 10

Virts v. Consolidated Freightways Corp.,

285 F.3d 508 (6th Cir. 2002) ............................................... 17

V

Case—Continued:

Page

Weber v. Roadway Express, Inc., 199 F.3d 270

(5th Cir. 2000) ...................................................................... 17

Constitution, statutes, and regulations:

U.S. Const. Amend. I (Establishment Clause) ................... 21

Americans with Disabilities Act of 1990,

Pub. L. No. 101-336, 104 Stat. 327

(42 U.S.C. 12101 et seq.) ....................................................... 9

42 U.S.C. 12111(10)(A) .................................................... 21

42 U.S.C. 12111(10)(B) .................................................... 21

42 U.S.C. 12112(b)(5) ........................................................ 9

Civil Rights Act of 1964, Tit. VII,

Pub. L. No. 88-352, 78 Stat. 253-266 ........................ passim

§ 703(a)(1), 78 Stat. 255 (42 U.S.C. 2000e-2(a)(1)) ...... 1, 8

§ 703(a)(2), 78 Stat. 255 (42 U.S.C. 2000e-2(a)(2)) ...... 1, 8

Equal Employment Opportunity Act of 1972,

Pub. L. No. 92-261, § 2(7), 86 Stat. 103

(42 U.S.C. 2000e( j)) ................................................ 2, 7, 9, 10

29 C.F.R.:

Section 1605.2(b)(1) ........................................................ 2, 10

Section 1605.2(d)(1)(i) ......................................................... 13

Section 1605.2(d)(1)(ii) ........................................................ 13

Section 1605.2(d)(1)(iii) ....................................................... 13

Section 1605.2(e)(1) ......................................................... 2, 20

Miscellaneous:

American Heritage Dictionary of the English

Language (1969) ............................................................. 9, 19

Black’s Law Dictionary (Rev. 4th ed. 1968)....................... 19

EEOC Compliance Manual (2008) ................... 10, 13, 17, 20

VI

Miscellaneous—Continued:

Page

Oxford English Dictionary (2d ed. 1989):

Vol. 1 ................................................................................... 9

Vol. 18 ............................................................................... 19

In the Supreme Court of the United States

No. 18-349

DARRELL PATTERSON, PETITIONER

v.

WALGREEN CO.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s order inviting the Solicitor General to express the views

of the United States. In the view of the United States,

the petition for a writ of certiorari should be granted,

limited to the third question presented.

STATEMENT

1. Title VII of the Civil Rights Act of 1964, Pub. L.

No. 88-352, 78 Stat. 253-266, generally prohibits employment discrimination against an individual “because

of such individual’s * * * religion.” § 703(a)(1) and (2),

78 Stat. 255 (42 U.S.C. 2000e-2(a)(1) and (2)). In 1972,

Congress clarified that “ ‘religion’ includes all aspects of

religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective

employee’s religious observance or practice without un-

(1)

2

due hardship on the conduct of the employer’s business.” Equal Employment Opportunity Act of 1972,

Pub. L. No. 92-261, § 2(7), 86 Stat. 103 (42 U.S.C.

2000e( j)). Together, those provisions require an employer “to reasonably accommodate the religious practices of an employee or prospective employee, unless

the employer demonstrates that accommodation would

result in undue hardship.” 29 C.F.R. 1605.2(b)(1).

Title VII does not define “undue hardship.” In

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63

(1977), this Court stated that an accommodation imposes an “undue hardship” if it requires an employer “to

bear more than a de minimis cost.” Id. at 84; see Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 67 (1986)

(explaining that “an accommodation causes ‘undue

hardship’ whenever that accommodation results in

‘more than a de minimis cost’ to the employer”) (citation omitted); see also 29 C.F.R. 1605.2(e)(1).

2. a. Petitioner was a “training instructor” at a Walgreens call center in Orlando, responsible for “training

newly hired employees.” Pet. App. 2a, 23a. He is a Seventh Day Adventist whose religious beliefs prevent him

from working during his Sabbath (sundown on Friday

to sundown on Saturday). Id. at 2a. During petitioner’s

six-year tenure, Walgreens generally had been able to

accommodate that scheduling constraint by moving petitioner’s regular training schedule to avoid his Sabbath

and by allowing voluntary shift swaps whenever an

emergency training was scheduled during the Sabbath

hours. Id. at 2a-3a, 23a-24a.

On August 17, 2011 (a Wednesday), the Alabama

Board of Pharmacy ordered Walgreens to shut down an

Alabama call center that handled mail-order prescriptions. Pet. App. 3a, 24a. In response, Walgreens routed

3

the Alabama calls to the Orlando call center, which required it to hire dozens of new call center representatives in Orlando, and to train the new and existing representatives, to handle the additional volume of calls.

Id. at 3a, 24a. Accordingly, on Friday, August 19,

Walgreens directed petitioner to conduct an emergency

training session the next day. Petitioner contacted the

other Orlando training instructor (Alsbaugh), but she

could not cover the training session for him because she

could not find childcare. Id. at 3a. Although petitioner

did not call anyone else to cover the shift, the parties

dispute whether he was permitted to swap with anyone

other than Alsbaugh. See id. at 4a n.1. That evening,

petitioner left a voicemail message for his supervisor informing her that he would not be able to conduct the

Saturday training. Id. at 3a-4a, 25a. Petitioner’s supervisor later said she offered to do the training, but another supervisor told her not to. See D. Ct. Doc. 62, at

9, 11, 32 (June 30, 2016). Petitioner then conducted the

training the following Monday, and Walgreens completed the transfer of calls from Alabama to Orlando by

the end of that day. Pet. App. 25a-26a.

The following week, Patterson asked for a “guarantee[] that he would not have to work on Friday nights or

Saturdays” in the future. Pet. App. 4a. Walgreens said

it could not offer a guarantee, but instead gave petitioner two options. Ibid. First, he could become a call

center representative, his prior position before he was

promoted to training instructor. Ibid. Alternatively, he

could find a position at a neighboring facility with a

larger employee pool. Id. at 4a, 25a-26a. Either would

have made it more likely, though not certain, that

Walgreens could accommodate his scheduling needs.

4

Id. at 4a. Petitioner declined both options. Ibid. Concluding that petitioner’s insistence on a guarantee

meant that Walgreens “could not rely on [petitioner] if

an urgent business need arose that required emergency

training on a Friday night or a Saturday,” Walgreens

fired petitioner. Id. at 5a. He then filed suit under Title

VII, alleging as relevant here that Walgreens had failed

to reasonably accommodate his religious beliefs and

practices. Ibid.

b. The district court granted Walgreens’ motion for

summary judgment and denied petitioner’s motion for

summary judgment. Pet. App. 20a-34a. The court observed that “Walgreens provided religious accommodations on multiple occasions during [petitioner’s] employment” by allowing petitioner “to swi[tch] shifts with

other employees when he was scheduled to work during

the Sabbath hours.” Id. at 30a-31a. Although petitioner

did not find someone to switch shifts for the August 20

training, the court stated that “Walgreens did not have

the duty to attempt to arrange schedule swaps for [petitioner].” Id. at 30a. The court further stated that

“[c]onsidering Walgreens’ shifting and urgent business

needs, allowing [petitioner] to maintain his position as a

Training Instructor with a guarantee that he would

never be obligated to work during the Sabbath hours

would present an undue hardship on the conduct of

Walgreens’ business.” Id. at 32a.

3. The court of appeals affirmed in a per curiam

opinion. Pet. App. 1a-17a. As relevant here, the court

determined that, based on the record before it,

“Walgreens offered [petitioner] reasonable accommodations that he either failed to take advantage of or re-

5

fused to consider, and that the accommodation he insisted on would have posed an undue hardship to

Walgreens.” Id. at 8a.

a. The court of appeals recognized that “a reasonable accommodation is one that ‘eliminates the conflict

between employment requirements and religious practices.’ ” Pet. App. 7a (citations omitted). The court explained that “[a]n employer may be able to satisfy its

obligations involving an employee’s Sabbath observance by allowing the employee to swap shifts with

other employees, or by encouraging the employee to obtain other employment within the company that will

make it easier for the employee to swap shifts and offering to help him find another position.” Id. at 8a.

The court of appeals further explained that moving

petitioner’s regular schedule to Sunday through Thursday had “minimized conflicts,” and that for training sessions that had to be scheduled during the Sabbath

hours, “Walgreens allowed [petitioner] to find other employees to cover his shifts, and he did so on several occasions.” Pet. App. 8a-9a. The court observed that petitioner believed he could have found another employee

to cover his August 20 shift, but “he did not attempt to

contact any of ” those employees. Id. at 9a. The court

concluded that “Walgreens was not required to ensure

that [petitioner] was able to swap his shift, nor was it

required to order another employee to work in his

place.” Ibid.

The court of appeals also observed that Walgreens

offered petitioner the options of “seek[ing] a different

position within the company, including his former position as a customer care representative,” and found that

petitioner’s refusal to consider those options violated

his “duty to make a good faith attempt to accommodate

6

his religious needs through the means offered by

Walgreens.” Pet. App. 9a-10a. The court rejected petitioner’s argument that returning to his former position

would entail a pay cut because “he ha[d] not presented

any evidence to support that assertion.” Id. at 10a.

The court of appeals also rejected petitioner’s argument that the proposed accommodations were unreasonable because they could not guarantee the elimination of any future conflict: “Guarantees are not required. * * * [E]ven if moving to the customer care representative position did not completely eliminate the

conflict, it would have enhanced the likelihood of avoiding it because there were so many more employees with

whom he could swap shifts, as he had done during his

almost six years with the company.” Pet. App. 10a-11a.

b. Although the court of appeals found the proposed

accommodations reasonable, it explained that even if

those accommodations “were not reasonable, allowing

[petitioner] to retain his training instructor position

with a guarantee that he would never have to work [during his Sabbath] would have posed an undue hardship” on

Walgreens. Pet. App. 11a-12a. The court observed that

Walgreens “operates seven days a week and sometimes

needs emergency training for its employees based on

business needs,” and that the circumstances of the August

20 training in response to the Alabama Board of Pharmacy’s directive “were a true emergency.” Id. at 12a.

The court of appeals explained that acceding to petitioner’s request would require Walgreens “to schedule

all training shifts, including emergency ones, based

solely on [petitioner’s] religious needs, at the expense of

other employees who had nonreligious reasons for not

working on weekends.” Pet. App. 13a. The court observed that Alsbaugh, the other training instructor, was

7

leaving the Orlando facility, “which would have left [petitioner] as the only training instructor” and which in

turn would have required Walgreens “either to eliminate Friday night and Saturday training sessions altogether, regardless of its business needs, or to schedule

less-effective non-trainers to train the untrained some

of the time.” Ibid. “Under those circumstances,” the

court determined, “the accommodation [petitioner]

sought would have imposed an undue hardship on

Walgreens.” Ibid.

DISCUSSION

Petitioner presents three questions for review:

(1) whether in “reasonably accommodat[ing]” an employee’s religious practice, 42 U.S.C. 2000e( j), an employer must fully eliminate the conflict between the

employee’s religious practice and work; (2) whether an

employer can show that accommodating an employee’s

religious practice would impose an “undue hardship,”

ibid., based on speculative hardships; and (3) whether

this Court should revisit its statement in Trans World

Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), that an

accommodation qualifies as an undue hardship if the

employer must “bear more than a de minimis cost,” id.

at 84.

The first two questions do not warrant the Court’s

review. Petitioner is correct that an employer must

eliminate conflicts between an employee’s religious

practice and work, absent undue hardship; and the employer may not rely on speculation to establish undue

hardship. But the court of appeals purported to apply

both of those legal rules in its unpublished decision below, and there is no clear division in the circuits on either question.

8

The third question—whether to revisit the de minimis standard for undue hardship—does warrant the

Court’s attention. “More than a de minimis cost” is not

a reasonable interpretation of the statutory phrase “undue hardship,” and subsequent case law has eroded

Hardison’s doctrinal underpinnings.

A. The Question Whether A Reasonable Accommodation

Must Eliminate The Religious Conflict Does Not Warrant Review

Petitioner is correct that a reasonable accommodation must eliminate all conflicts between the employee’s

religious practice and work as long as it would not impose an undue hardship on the employer. Nevertheless,

the court of appeals purported to apply that standard

here. And although the court’s understanding of “undue hardship” warrants further review—an issue discussed separately below—its factbound application of

the elimination standard itself does not.

1. a. Title VII generally prohibits employment discrimination against an individual “because of such individual’s * * * religion.” 42 U.S.C. 2000e-2(a)(1) and (2).

The statute defines “religion” as “includ[ing] all aspects

of religious observance and practice, as well as belief,

unless an employer demonstrates that he is unable to

reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without

undue hardship on the conduct of the employer’s business.” 42 U.S.C. 2000e( j). As this Court has recognized, in combination those provisions impose, albeit

“somewhat awkwardly,” a “reasonable accommodation

duty” on an employer unless it would result in an undue

hardship, Ansonia Bd. of Educ. v. Philbrook, 479 U.S.

60, 63 n.1 (1986).

9

In the government’s view, an “accommodation” must

eliminate any conflict between an employee’s religious

practice and work requirements. That follows from the

meaning of “accommodate.” 42 U.S.C. 2000e( j). Because Title VII does not define “accommodate” or “accommodation,” the terms should “be interpreted as taking their ordinary, contemporary, common meaning.”

Sandifer v. United States Steel Corp., 571 U.S. 220, 227

(2014) (citation omitted). In this context, the ordinary

meanings of “accommodate” and “accommodation” are

“[t]o make suitable; adapt; adjust,” and “[a]nything that

meets a need; convenience,” respectively. American

Heritage Dictionary of the English Language 8 (1969);

see 1 Oxford English Dictionary 79 (2d ed. 1989) (“[t]o

suit, oblige, convenience” and “[t]he supplying with

what is suitable or requisite,” respectively).

Under those ordinary meanings, an employer’s “accommodation” of an employee’s religious practice must

be suitable to meet the employee’s religious needs—

that is, it must actually allow the employee to engage in

the religious practice without adverse employment consequences. That is possible only if it eliminates the conflict between the employee’s religious practice and

work. In Ansonia, this Court appeared to recognize

that principle when, in holding that the accommodation

there satisfied Title VII’s requirements, it observed

that the accommodation “eliminate[d] the conflict between employment requirements and religious practices.” 479 U.S. at 70.

In the context of the Americans with Disabilities Act

of 1990 (ADA), Pub. L. No. 101-336, 104 Stat. 327

(42 U.S.C. 12101 et seq.), which similarly requires employers to make “reasonable accommodations” for their

disabled employees, 42 U.S.C. 12112(b)(5), this Court

10

has recognized that “the word ‘accommodation’ * * *

conveys the need for effectiveness.” US Airways, Inc.

v. Barnett, 535 U.S. 391, 400 (2002). Just as a method

or policy cannot be considered effective under the ADA

if it does not actually eliminate the barriers otherwise

preventing a “qualified individual with a disability

[from] perform[ing] the essential functions of a position,” id. at 399 (brackets and citation omitted), so too a

method or policy under Title VII cannot be considered

effective if it does not actually eliminate all conflicts between the employee’s religious practice and workplace

demands.

That conclusion is reinforced by Title VII’s requirement that accommodations be “reasonabl[e].” 42 U.S.C.

2000e( j); see Ansonia, 479 U.S. at 63 n.1. As EEOC has

long recognized, “[a]n accommodation is not ‘reasonable’ if it merely lessens rather than eliminates the conflict between religion and work, provided eliminating

the conflict would not impose an undue hardship.”

EEOC Compliance Manual § 12-IV(A)(3) (2008); see

U.S. Amicus Br. at 9, Ansonia, supra (No. 85-495). An

employer who offers a reasonable accommodation has

satisfied its duty under Title VII; it need not consider

other reasonable accommodations that the employee

might prefer. Ansonia, 479 U.S. at 68. But if an employer does not offer a reasonable accommodation that

eliminates the religious conflict, it must demonstrate

that such an accommodation would impose an undue

hardship. See 29 C.F.R. 1605.2(b)(1); Ansonia, 479 U.S.

at 63 n.1.

b. Although a reasonable accommodation must fully

eliminate all conflicts between an employee’s religious

practice and work unless it would impose an undue

hardship, an employer has not satisfied Title VII

11

merely by showing that every complete accommodation

would impose an undue hardship; Title VII should not

be read to create that kind of all-or-nothing regime. Instead, the statute should be read to require the employer to reasonably accommodate the employee’s religious practice to the extent that it can without suffering

an undue hardship. If the employer demonstrates that

every complete accommodation would result in an undue hardship, it still must offer what might be called

a “partial” accommodation that would not result in undue hardship. Cf. Estate of Thornton v. Caldor, Inc.,

472 U.S. 703, 712 (1985) (O’Connor, J., concurring) (“Title VII calls for reasonable rather than absolute accommodation.”).

Consider three hypothetical employees: one who attends religious services on Fridays, one who observes

the Sabbath on Saturdays, and one who does both. Suppose the employer can reasonably accommodate Friday

schedule changes, but a Saturday schedule change

would impose an undue hardship. Because the employer can eliminate the first employee’s Friday conflict, Title VII would of course require it to offer that

accommodation. Conversely, because the employer cannot eliminate the second employee’s Saturday conflict

without undue hardship, Title VII would not require an

accommodation. The employer also cannot fully accommodate the third employee without undue hardship.

Yet Title VII should not be read to relieve the employer

of all obligations with respect to that employee. Instead, the third employee should be in the same position

as his colleagues: the employer must accommodate the

Friday, but not the Saturday, conflict.

12

Courts of appeals generally have ruled consistently

with that principle. For example, in Knight v. Connecticut Department of Public Health, 275 F.3d 156 (2d Cir.

2001), the court held that the employer did not violate

Title VII when it accommodated an employee’s need to

proselytize by allowing religious speech when the employee was not working with clients on state business.

See id. at 168. That allowance did not eliminate the religious conflict (the employee was obliged to proselytize

at all times), but allowing the employee to proselytize

on government business would have “jeopardize[d] the

state’s ability to provide services in a religion-neutral

manner,” which the court apparently concluded would

pose an undue hardship. Ibid. The court sensibly recognized, however, that the employer still was required

to offer a reasonable partial accommodation. Similarly,

in EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th

Cir. 1997), the court—immediately after stating that

the employer’s proffered accommodation was unacceptable “because it d[id] not eliminate the conflict”—

suggested that if giving a full day off for a religious holiday would impose an undue hardship, the employer still

should “offer a partial day off ” rather than no time off

at all. Id. at 1576.

c. The court of appeals acknowledged the principles

set forth above. It correctly recognized that “a reasonable accommodation is one that ‘eliminates the conflict

between employment requirements and religious practices.’ ” Pet. App. 7a (citations omitted). The court also

acknowledged that an employer discharges its burden

under Title VII by offering a reasonable accommodation, and that an employer need not offer accommodations that result in undue hardships. Id. at 7a-8a.

Those, too, are correct statements of law.

13

In the particular context of Sabbath observance,

moreover, the court of appeals applied the correct governing legal principles. In the frequently arising

context of a “conflict between work schedules and religious practices,” reasonable accommodations may include “voluntary substitutes and ‘swaps,’ ” “flexible

scheduling,” and “lateral transfer and change of job assignments.” 29 C.F.R. 1605.2(d)(1)(i), (ii), and (iii) (capitalization omitted); see EEOC Compliance Manual

§ 12-IV(C)(1)-(3). Consistent with those principles, the

court recognized that “allowing the employee to swap

shifts with other employees,” and “encouraging the employee to obtain other employment within the company

that will make it easier for the employee to swap shifts,”

may constitute reasonable accommodations. Pet. App. 8a.

Petitioner argues that the proffered accommodations were nevertheless unreasonable because they

“d[id] not ensure that [petitioner] will * * * be able to

‘abstain from work totally’ every Saturday” in the future. Pet. 20 (emphasis added; citation omitted). But

Title VII does not require an employer to accommodate

an employee’s religious practice “at all costs.” Ansonia,

479 U.S. at 70. Based on the factual record before it,

the court of appeals found that providing the requested

guarantee would have posed an undue hardship. Pet.

App. 8a. The court therefore applied the correct legal

standard (save for its understanding of “undue hardship,” which is separately addressed below).

To be sure, the court of appeals observed that the

shifting of petitioner’s “regular training schedule to

Sunday through Thursday * * * minimized conflicts.”

Pet. App. 8a. Likewise, it observed that petitioner’s

transferring to a customer-care position “would have

14

enhanced the likelihood of avoiding” a conflict in the future. Id. at 10a. In isolation, those statements could be

read to suggest that an accommodation need only minimize, not eliminate, religious conflicts. See Pet. 20. But

the court’s first observation immediately followed its

holding that “[t]he undisputed facts show * * * that the

accommodation [petitioner] insisted on”—namely, a

guarantee of never having to work on his Sabbath—

“would have posed an undue hardship to Walgreens.”

Pet. App. 8a. And the second immediately followed the

court’s explanation that “[g]uarantees are not required.” Id. at 10a. In context, therefore, the court’s

observations are best read as explaining its view that

although fully eliminating petitioner’s religious conflict

by providing the requested guarantee would have imposed an undue hardship, Walgreens nevertheless was

required to reasonably accommodate petitioner’s religious practice to the extent that it could without incurring an undue hardship; Walgreens was not relieved of

its duty to offer any accommodation at all.

2. Petitioner alleges (Pet. 13-22) a division of authority on whether a reasonable accommodation must eliminate, not merely lessen, a religious conflict. Although

there is some tension in the language used by the lower

courts, this case is a poor vehicle in which to resolve it

because, as explained above, the court of appeals correctly adopted the “elimination” standard that petitioner presses here. See Pet. App. 7a.

Moreover, the circuit conflict likely is illusory. Despite some differences in phrasing, courts of appeals

have not applied standards that are materially different

in practice. See Br. in Opp. 13-16. Rather, the various

decisions appear to have turned on whether the particular employer demonstrated an undue hardship. When

15

an employer utterly fails to address the employee’s religious conflict without demonstrating an undue hardship, courts have correctly stated that a reasonable accommodation must eliminate the conflict. See Pet. 1416 (listing cases); see also EEOC v. Universal Mfg.

Corp., 914 F.2d 71, 73 (5th Cir. 1990) (per curiam).

Conversely, when an employer demonstrates that

elimination of the conflict would impose an undue hardship, courts have recognized that Title VII does not require elimination in that circumstance. For example,

the decisions that petitioner cites (Pet. 17-18, 21-22) as

having approved partial accommodations for employees’ Sabbath observances involved situations in which

the employer demonstrated that it could not guarantee

no future Sabbath work without suffering an undue

hardship. See Sánchez-Rodríguez v. AT & T Mobility

Puerto Rico, Inc., 673 F.3d 1, 12-13 (1st Cir. 2012) (offering two different positions at comparable pay, along

with shift-swaps and forgiveness of past absenteeism);

EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307,

315-316 (4th Cir. 2008) (permitting voluntary shiftswapping, paid and unpaid leave, ability to take vacation

days in half-day increments, and preferential status for

shift substitutions); Sturgill v. United Parcel Serv.,

Inc., 512 F.3d 1024, 1028-1033 (8th Cir. 2008) (allowing

“split” delivery loads to enable early completion on Friday, subject to a collectively bargained requirement to

balance loads across employees); Tabura v. Kellogg

USA, 880 F.3d 544, 555-557 (10th Cir. 2018) (providing

voluntary shift swaps and vacation time).

Notwithstanding some imprecise language in those

decisions, they are not necessarily inconsistent with the

elimination standard as described above. Instead, they

may be viewed as holding that the accommodations in

16

those cases satisfied (or potentially could satisfy) Title

VII because any further accommodations would have

imposed undue hardships on the respective employers.

For instance, despite rejecting a per se rule that an employer must in every circumstance eliminate the religious conflict, Sturgill expressly acknowledged that

“there may be many situations in which the only reasonable accommodation is to eliminate the religious conflict altogether.” 512 F.3d at 1033. Likewise, Tabura observed

that “an accommodation will not be reasonable if it only

provides [the employee] an opportunity to avoid working

on some, but not all, Saturdays.” 880 F.3d at 550.

So viewed, those cases are simply illustrations of the

principle that an employer must reasonably accommodate (that is, eliminate) the conflict to the extent that it

can without suffering an undue hardship. As explained

above, even the circuits that petitioner agrees have

adopted the elimination standard recognize that principle. See, e.g., Knight, 275 F.3d at 168; Ilona of Hungary, 108 F.3d at 1576. Indeed, the circuits favorable to

petitioner even recognize, consistent with EEOC guidance, that voluntary shift swaps—which by definition

cannot guarantee elimination of future conflicts—

nevertheless could under some circumstances constitute the best reasonable accommodation that would not

impose an undue hardship on an employer. See, e.g.,

Opuku-Boateng v. California, 95 F.3d 1461, 1470-1471

(9th Cir. 1996), cert. denied, 520 U.S. 1228 (1997); cf.

Baker v. The Home Depot, 445 F.3d 541, 548 (2d Cir.

2006).

In any event, to the extent there is tension in the

courts of appeals, this case would be a poor vehicle in

which to address it. The court of appeals here purported to apply the elimination standard that petitioner

17

favors. And the court determined, based on the factual

record before it, that Walgreens had eliminated petitioner’s conflict to the extent it could without incurring

an undue hardship. The critical question, therefore, is

whether the court properly understood the “undue

hardship” standard—an issue addressed separately below. But the court’s application of the elimination

standard itself does not merit further review.

B. The Question Whether An Employer May Rely On Speculative Hardships Does Not Warrant Review

Petitioner again is correct that an employer may not

simply speculate that it will suffer an undue hardship.

See EEOC Compliance Manual § 12-IV(B)(1). But no

court, including the court of appeals here, has endorsed

such speculation. At most, courts have held that an employer may rely on predictions of future hardships that

are likely to materialize, given the objective facts in the

record. For example, Weber v. Roadway Express, Inc.,

199 F.3d 270 (5th Cir. 2000), explained that “federal law

does not require [the employer] to wait until it [feels] the

effects of [the employee’s] proposal” before it can predict

that the proposal, if implemented, likely would impose a

hardship. Id. at 275. Likewise, Virts v. Consolidated

Freightways Corp., 285 F.3d 508 (6th Cir. 2002), explained that “an employer does not have to actually experience the hardship in order for the hardship to be recognized as too great to be reasonable.” Id. at 519.

Far from endorsing reliance on speculation, those

cases hold that an employer may demonstrate an undue

hardship based on the likely, as opposed to “remote or

unlikely,” effects of a proposed accommodation. Weber,

199 F.3d at 274-275. Indeed, the rule could not be otherwise. Disputes under Title VII often arise precisely

because the employee desires an accommodation that

18

the employer has been theretofore unwilling to provide.

Under those circumstances, an employer has no choice

but to rely on reasonable predictions of the future hardships it would suffer were it compelled to grant that accommodation.

The courts of appeals that petitioner identifies (Pet.

23-24) as having rejected the “speculation” standard

therefore have not stated that Title VII prohibits an

employer’s reliance on reasonable predictions of future

hardships. To the contrary, they agree that an employer may rely on known conditions to project future

hardships. See Benton v. Carded Graphics, Inc.,

28 F.3d 1208, 1994 WL 249221, at *2 (4th Cir. Mar. 9,

1994) (Tbl.) (per curiam) (explaining that an employer

need not “actually implement an accommodating program,” but must demonstrate a “predictably certain undue hardship”); Toledo v. Nobel-Sysco, Inc., 892 F.2d

1481, 1489 (10th Cir. 1989) (explaining that “the more

reasonable approach” is to allow “ ‘an employer to prove

undue hardship without actually having undertaken any

of the possible accommodations’ ” in certain circumstances) (citation omitted), cert. denied, 495 U.S. 948

(1990); Tooley v. Martin-Marietta Corp., 648 F.2d 1239,

1243-1244 (9th Cir.) (acknowledging that a future loss of

union dues could be “sufficient to establish undue hardship,” but that the “ ‘likelihood’ of hardship to the union”

given “ ‘the particular factual context’ ” there was too

“ ‘remote’ ” to qualify) (citation omitted), cert. denied,

454 U.S. 1098 (1981); Brown v. General Motors Corp.,

601 F.2d 956, 960 & n.5 (8th Cir. 1979) (acknowledging

that “ ‘foreseeable’ ” future costs may sometimes establish an undue hardship, but that “future effects cannot

outweigh [evidence of costs that] were actually incurred”) (citation and emphasis omitted).

19

The court of appeals here did not engage in speculation about potential harms to Walgreens. Instead, it relied on findings about whether Walgreens foreseeably

could face a factual scenario similar to the one that gave

rise to this case. Pet. App. 12a-13a. Whether or not

those findings are correct, they were based on the

factual record before the court rather than on mere

speculation. The court’s application of the correct legal

standard to the facts here does not merit further review.

C. The Question Whether To Revisit Hardison’s De Minimis Standard Warrants Review

In Hardison, this Court stated that requiring an employer “to bear more than a de minimis cost” to accommodate an employee’s religious practice “is an undue

hardship.” 432 U.S. at 84. That formulation is incorrect. It does not naturally follow from the statutory

text. A de minimis cost is “very small or trifling.”

Black’s Law Dictionary 482 (Rev. 4th ed. 1968). That

is how the Court seemed to understand it in Hardison,

finding that a potential cost to the employer of just

“$150 for three months,” 432 U.S. at 92 n.6 (Marshall,

J., dissenting), would be an undue hardship. See id. at

84. Accordingly, “more than a de minimis cost” appears to mean any cost that is “more than a trifle.”

That is an ill fit to the word “undue,” whose ordinary

meaning is “[e]xceeding what is appropriate or normal;

excessive.” American Heritage Dictionary 1398; see

18 Oxford English Dictionary 1010 (“Going beyond

what is appropriate, warranted, or natural; excessive.”).

An undue hardship is thus an “excessive hardship” or a

hardship that is “more than appropriate or normal.” As

petitioner correctly observes (Pet. 28), “some burdens

are surely more than ‘trifling’ but less than ‘excessive.’ ”

20

And in ordinary parlance, “more than a trifle” generally

does not mean the same as “more than appropriate or

normal.” Contrary to Hardison, therefore, an “undue

hardship” is not best interpreted to mean “more than a

de minimis cost.”

Of course, determining exactly what Congress meant

by “undue hardship” is difficult because determining

whether a cost is “excessive,” or “more than appropriate or normal,” requires a valuation of the thing being

purchased. Yet that sort of balancing is inappropriate

here because it would require a court to weigh the employer’s costs against the value of accommodating the

employee’s religious beliefs or practices. Those are fundamentally incommensurable. And, in any event, a

court is in no position to place a value on a particular

religious belief or practice. Cf. Masterpiece Cakeshop,

Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719,

1737 (2018) (Gorsuch, J., concurring) (government officials should not make “bureaucratic judgment[s]” about

“sincerely held religious belief [s]”).

Therefore, to the extent the word “undue” requires

courts to engage in balancing, that balancing should

be solely on the employer’s side of the equation; that

is, the court should weigh the cost of a given accommodation against what the particular employer may

properly be made to bear. For example, EEOC considers, among other things, “the identifiable cost in

relation to the size and operating cost of the employer.”

29 C.F.R. 1605.2(e)(1); see EEOC Compliance Manual

§ 12-IV(B)(2). That is the approach Congress expressly

took in the ADA, which defines “undue hardship” as “an

action requiring significant difficulty or expense,” and

lists as factors to be considered the accommodation’s

21

cost and the employer’s financial resources. 42 U.S.C.

12111(10)(A) and (B).

Granting review here would present the Court with

its first meaningful opportunity to interpret “undue

hardship” in Title VII with the benefit of full briefing.

The parties’ briefs in Hardison did not focus on that issue, but instead principally addressed whether the duty

to provide a reasonable accommodation may require an

employer to violate a collectively bargained seniority

system, and whether that duty violates the Establishment Clause. The Court did not explain why it adopted

the de minimis standard, see Hardison, 432 U.S. at

84-85, which neither the government nor any of the parties had urged. To the contrary, the government presupposed a higher standard, observing that the duty to

provide a reasonable accommodation absent undue

hardship “removes an artificial barrier to equal employment opportunity * * * except to the limited extent

that a person’s religious practice significantly and demonstrably affects the employer’s business.” U.S. Amicus Br. at 20, Hardison, supra, (No. 75-1126) (emphasis

added). Even the employer in Hardison appeared to

assume that being forced to incur potentially substantial “out-of-pocket costs,” “particularly if the employer

is large,” would not be deemed an undue hardship. Pet.

Br. at 41, 47, Hardison, supra (No. 75-1126).

Nor is revisiting Hardison’s de minimis standard

precluded by stare decisis. When, as here, civil-rights

statutes are involved, this Court has often declined to

“place on the shoulders of Congress the burden of the

Court’s own error.” Monell v. Department of Social

Servs., 436 U.S. 658, 695 (1978) (citation omitted); see

Johnson v. Transportation Agency, 480 U.S. 616, 672673 (1987) (Scalia, J., dissenting). Reliance interests

22

also are less of a concern in this context, because this

case does not involve “property [or] contract rights,”

Payne v. Tennessee, 501 U.S. 808, 828 (1991), and any

interest in refusing to accommodate an employee’s religious practice going forward should be outweighed by

the “countervailing interest * * * in having [employees’

Title VII] rights fully protected,” Janus v. American

Fed’n of State, County, & Mun. Emps., 138 S. Ct. 2448,

2484 (2018) (citation omitted). Moreover, Hardison’s

“doctrinal underpinnings” have “eroded over time.”

Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2410

(2015). In the sentence immediately following its adoption of the de minimis standard, Hardison suggested

that Title VII does not require accommodations that

would result in “unequal treatment of employees on the

basis of their religion.” 432 U.S. at 84. Yet this Court

has since made clear that “Title VII does not demand

mere neutrality with regard to religious practices,” but

rather “gives them favored treatment.” EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2034

(2015). That observation is irreconcilable with Hardison’s focus on neutrality.

23

CONCLUSION

The petition for a writ of certiorari should be

granted, limited to the third question presented.

Respectfully submitted.

SHARON FAST GUSTAFSON

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Senior Attorney

U.S. Equal Employment

Opportunity Commission

DECEMBER 2019

NOEL J. FRANCISCO

Solicitor General

ERIC S. DREIBAND

Assistant Attorney General

JEFFREY B. WALL

Deputy Solicitor General

ELLIOTT M. DAVIS

Acting Principal Deputy

Assistant Attorney General

SOPAN JOSHI

Assistant to the Solicitor

General

TOVAH R. CALDERON

KATHERINE LAMM

Attorneys