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

Supreme Court briefOct 17, 2018

Ask Donna

What actually matters in this document.

Text

No. 18-349

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------DARRELL PATTERSON,

Petitioner,

WALGREEN CO.,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

-----------------------------------------------------------------BRIEF OF AMICI CURIAE CHRISTIAN LEGAL

SOCIETY, AMERICAN ISLAMIC CONGRESS,

ASSOCIATION OF CHRISTIAN SCHOOLS

INTERNATIONAL, INSTITUTIONAL

RELIGIOUS FREEDOM ALLIANCE, AND

QUEENS FEDERATION OF CHURCHES

IN SUPPORT OF THE PETITION

-----------------------------------------------------------------THOMAS C. BERG

UNIVERSITY OF ST. THOMAS

SCHOOL OF LAW (MINNESOTA)

RELIGIOUS LIBERTY

APPELLATE CLINIC

MSL 400, 1000 LaSalle Ave.

Minneapolis, MN 55403-2015

(651) 962-4918

tcberg@stthomas.edu

KIMBERLEE WOOD COLBY

Counsel of Record

CHRISTIAN LEGAL SOCIETY

8001 Braddock Rd.

Suite 302

Springﬁeld, VA 22151

(703) 894-1087

kcolby@clsnet.org

Counsel for Amici Curiae

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

TABLE OF AUTHORITIES .................................

iii

INTEREST OF AMICI CURIAE .........................

INTRODUCTION AND SUMMARY OF

ARGUMENT.....................................................

ARGUMENT ........................................................

An Employer Should Not Be Able to Establish “Undue Hardship,” and Thus Deny

Reasonable Accommodation, on the Basis

of Speculative or Hypothetical Future

Harms ........................................................

A. Allowing Hypothetical Hardship Undermines the Employer’s Responsibility

to Make Reasonable Accommodations

for its Employees ..................................

B. The Requirement of Actual, Not Hypothetical, Hardship Is Supported by

Other Authorities and by This Court’s

Rulings in Comparable Contexts ........ 12

C. Reliance on Hypothetical Hardships

Particularly Undermines the Accommodation Provision When Combined

with the “De Minimis” Definition of

“Undue Hardship” ............................... 14

TABLE OF CONTENTS – Continued

Page

II.

The Court Should Reconsider the TWA v.

Hardison Definition of “Undue Hardship”

as “Anything More than De Minimis

Harm,” and at the Very Least Should Not

Extend That Standard to Cases of Hypothetical Hardships ..................................... 15

A. The De Minimis Standard Is Inconsistent with the Text of Title VII ......... 16

B. The Premise Underlying Hardison’s

De Minimis Standard Has Been Undercut by This Court’s Decision in

Abercrombie & Fitch ............................ 19

C. The De Minimis Standard Particularly

Harms Accommodation of Religious

Minorities ............................................ 23

D. At the Very Least, the De Minimis

Standard Should Not Be Extended to

Cases Involving Speculative or Hypothetical Hardships ............................... 25

CONCLUSION..................................................... 26

APPENDIX

Breakdown by Employee’s Religion in Religious

Accommodation Cases ............................................1a

iii

TABLE OF AUTHORITIES

Page

CASES

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

(1986) ................................................................. 10, 21

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

1994 WL 249221 (4th Cir. 1994) (unpublished) ........10

Board of Trustees of State Univ. of N.Y. v. Fox,

492 U.S. 469 (1989) .................................................13

BP America Production Co. v. Burton, 549 U.S.

84 (2006) ..................................................................16

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

(8th Cir. 1979).................................................. 8, 9, 11

Central Hudson Gas & Electric Corp. v. Public

Service Comm’n of N.Y., 447 U.S. 557 (1980)..........13

City of Cleburne v. Cleburne Living Center, 473

U.S. 432 (1985) ........................................................14

Dickerson v. United States, 530 U.S. 428 (2000) ........19

Edenﬁeld v. Fane, 507 U.S. 761 (1993) .......................13

EEOC v. Abercrombie & Fitch Stores, Inc., 135

S. Ct. 2028 (2015) ............................................ passim

EEOC v. Abercrombie & Fitch Stores, Inc., 731

F.3d 1106 (10th Cir. 2013), rev’d, 135 S. Ct.

2028 (2015) ..............................................................25

Hussein v. The Waldorf-Astoria, 134 F. Supp. 2d

591 (S.D.N.Y. 2001) .................................................25

Mohamed v. 1st Class Stafﬁng, LLC, 286

F. Supp. 3d 884 (S.D. Ohio 2017) ............................25

TABLE OF AUTHORITIES – Continued

Page

National Ass’n of Manufacturers v. Dep’t of Defense, 138 S. Ct. 617 (2018) ............................... 16, 18

Puerto Rico v. Franklin Cal. Tax-Free Trust, 136

S. Ct. 1938 (2016) ....................................................18

Sebelius v. Cloer, 569 U.S. 369 (2013) ........................16

State Oil Co. v. Khan, 522 U.S. 3 (1997) .....................19

Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481 (10th

Cir. 1989) ...................................................................9

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

(1977) ............................................................... passim

Wisconsin Cent. Ltd. v. United States, 138 S. Ct.

2067 (2018) ..............................................................16

CONSTITUTION, STATUTES, REGULATIONS, AND RULES

U.S. Const. amend. I ...................................................13

42 U.S.C. § 2000e-2(a) .................................................20

42 U.S.C. § 2000e(j) ............................................. passim

42 U.S.C. § 12111(10)(A) .............................................18

42 U.S.C. § 12112(b)(5)(A) ..........................................18

Administration of William J. Clinton, Memorandum on Religious Exercise and Religious Expression in the Federal Workplace (Aug. 14,

1997) ........................................................................12

EEOC, Guidelines on Discrimination Because of

Religion, 45 Fed. Reg. 72,610 (1980), codiﬁed

as revised, 29 C.F.R. § 1605.2(c)(1) .........................10

TABLE OF AUTHORITIES – Continued

Page

Ofﬁce of the Attorney General, Memorandum on

Federal Law Principles of Religious Liberty,

82 Fed. Reg. 49,668 (Oct. 26, 2017) .........................12

Pew Research Center, America’s Changing Religious Landscape (May 12, 2015).............................24

Sup. Ct. R. 10(c) ............................................................3

OTHER AUTHORITIES

Black’s Law Dictionary (5th ed. 1979) .......................17

Debbie N. Kaminer, Religious Accommodation

in the Workplace: Why Federal Courts Fail to

Provide Meaningful Protection of Religious

Employees, 20 Tex. Rev. L. & Pol. 107 (2015) .........21

Debbie N. Kaminer, Title VII’s Failure to Provide

Meaningful and Consistent Protection of Religious Employees: Proposals for an Amendment, 21 Berkeley J. Emp. & Lab. L. 575

(2000) .......................................................................11

Random House Dictionary (1973) ..............................17

Webster’s New American Dictionary (1965) ...............17

INTEREST OF AMICI CURIAE1

The Christian Legal Society (CLS) is an association of attorneys, law students, and law professors.

CLS has long believed that pluralism, essential to a

free society, prospers only when the First Amendment

rights of all Americans are protected.

The American Islamic Congress (AIC) serves

both Muslims and non-Muslims through the promotion of civil and human rights, including religious freedom. Its programs have reached tens of thousands of

people in 40 U.S. states and across the globe. AIC recognizes that American Muslims have prospered under

this country’s tradition of religious tolerance, and that

American Muslims must champion and protect such

tolerance for people of all faiths.

The Association of Christian Schools International (ACSI) is a nonproﬁt association providing

support services to 24,000 Christian schools in over

100 countries. ACSI serves 2500 Christian preschools,

elementary, and secondary schools and 90 post-secondary institutions in the United States. Member schools

educate some 5.5 million children around the world.

ACSI accredits Protestant pre-K-12 schools, provides

professional development and teacher certiﬁcation,

Pursuant to Rule 37.2(a), amici gave all parties’ counsel of

record timely notice of their intent to ﬁle this brief. By letters of

blanket consent ﬁled with the Clerk of this Court, all parties gave

written consent to its ﬁling. In accordance with Rule 37.6, no

counsel for a party authored this brief in whole or in part, and no

person or entity other than the amici, their members, or their

counsel made a monetary contribution intended to fund the

brief ’s preparation or submission.

and offers member-schools high-quality curricula, student testing and a wide range of student activities.

ACSI members advance the common good by providing

quality education and spiritual formation to their students. ACSI’s calling relies upon a vibrant Christian

faith that embraces every aspect of life. This gives

ACSI an interest in ensuring expansive religious liberty with strong protection from government attempts

to restrict it.

The Institutional Religious Freedom Alliance

(IRFA), founded in 2008 and now a division of the Center for Public Justice, a nonpartisan Christian policy

research and citizenship education organization, works

to protect the religious freedom of faith-based service

organizations through a multi-faith network of organizations to educate the public, train organizations and

their lawyers, create policy alternatives that better

protect religious freedom, and advocate to the federal

administration and Congress on behalf of the rights of

faith-based services.

Queens Federation of Churches was organized

in 1931 and is an ecumenical association of Christian

churches located in the Borough of Queens, City of

New York. It is governed by a Board of Directors composed of an equal number of clergy and lay members

elected by the delegates of member congregations at an

annual assembly meeting. Over 390 local churches representing every major Christian denomination and

many independent congregations participate in the

Federation’s ministry.

------------------------------------------------------------------

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case presents important questions under the

religious-accommodation provision, section 701(j), of

Title VII of the Civil Rights Act, 42 U.S.C. § 2000e(j).

That provision makes it illegal for an employer to act

against an employee based on the employee’s religiously grounded observance or practice, unless the

employer “demonstrates that he is unable to reasonably accommodate to [the] observance or practice without undue hardship on the conduct of the employer’s

business.” Amici agree with petitioner that conﬂicts

between rulings in the courts of appeals on the questions presented call for this Court’s review.

We write to focus on a related point. The legal

rules followed in the court of appeals decision in this

case—and properly challenged in the petition—undermine the protection that the accommodation provision

gives to employees in their religious practices, especially to employees of minority faiths. The decision below is merely one example of rulings on the same legal

questions that have undermined the accommodation

provision. Those rulings constitute yet another reason

that the petition raises “important questions of federal

law” meriting review. Sup. Ct. R. 10(c).

I. As the petition explains, an employer should

not be able to establish “undue hardship,” and thus

deny reasonable accommodation, on the basis of speculative or hypothetical future harms. Here the court

of appeals allowed Walgreens to rely on such harms,

based on a reorganization that was planned to occur

several months in the future. In permitting reliance on

such harms, the court of appeals adopted a rule that

conﬂicts not only with other circuits but with the nature and purpose of the accommodation provision.

A. Most fundamentally, allowing a showing of

hardship to be based on future contingencies undermines the protection that Title VII’s religious-accommodation provision gives to employees. Allowing

employers to rely on predicted future events creates at

least three problems that undermine the effectiveness

of the provision. First, it allows employers to ﬁre or

otherwise adversely affect employees now based on

events that might never occur—events that might

never necessitate the ﬁring. Second, reliance on future,

hypothetical events makes it much more difﬁcult to

identify speciﬁc accommodations that might be available at the time the conﬂict arises. Third, reliance on

speculative or hypothetical harms relieves the employer of the duty to search for reasonable accommodation—and at the worst, may incentivize employers

to dream up scenarios of future hardship.

B. A requirement that the employer show actual,

not hypothetical, hardship is supported by other authorities and by this Court’s rulings in comparable contexts. Reliance on hypothetical hardships has been

rejected not only by the Equal Employment Opportunity Commission, but in guidelines promulgated by

both the Clinton and Trump administrations. Likewise, constitutional decisions of this Court under both

intermediate and rational-basis scrutiny have required

government to demonstrate more than “mere speculation or conjecture.”

C. Allowing speculative or hypothetical hardships particularly undermines the accommodation

provision when combined with the deﬁnition this

Court has adopted for “undue hardship”—which allows anything “more than a de minimis cost” to count

as undue hardship. Trans World Airlines v. Hardison,

432 U.S. 63, 84 (1977) (italics in original). As long as

that weak standard of justiﬁcation remains in place,

the use of speculative or hypothetical hardships to satisfy it makes the duty of accommodation doubly weak.

II. In the alternative, as the petition also explains, this Court should reconsider Hardison’s holding that anything more than “de minimis harm” from

an accommodation constitutes “undue hardship.” The

de minimis standard has multiple fundamental ﬂaws.

A. First and foremost, the de minimis standard

is inconsistent with the text of Title VII. The ordinary

meaning of “undue hardship” at the time the accommodation provision was enacted (1972) included not

only that some “suffering” or “deprivation” existed—“a

condition that is difﬁcult to endure”—but also that it

was serious enough as to be “excessive” or “inappropriate.” That meaning is irreconcilable with a standard of

mere “de minimis” cost.

B. Moreover, the premise of the de minimis

standard has been undercut by this Court’s recent decision in EEOC v. Abercrombie & Fitch Stores, Inc., 135

S. Ct. 2028 (2015). The Court in Hardison adopted the

weak de minimis standard largely based on the assertion that Title VII aims only at preventing intentional

discrimination against religion. But Abercrombie

makes clear that Title VII, in its accommodation provision, also requires protection against the effects of a

religion-neutral employer policy.

C. A weak interpretation of Title VII’s religiousaccommodation provision is particularly harmful to religious minorities, who are particularly likely to come

in conﬂict with formally neutral employer policies reﬂecting the majority’s norms. Such disproportionate effects are apparent in the accommodation cases listed

in the appendix to the petition, a disproportionate

number of which involve religious minorities.

D. Finally, if the Court retains the de minimis

standard based on principles of stare decisis, at the

very least it should make clear that that standard does

not extend to cases where the asserted harms from

accommodation are hypothetical or speculative. Starting with a relatively weak substantive standard (de

minimis) and adding a toothless conception of permissible evidence to satisfy it (hypothetical harms) will

guarantee no protection at all.

------------------------------------------------------------------

ARGUMENT

An Employer Should Not Be Able to Establish “Undue Hardship,” and Thus Deny Reasonable Accommodation, on the Basis of

Speculative or Hypothetical Future Harms.

This case presents the issue whether an assertion

of future hardship, based on predicted events that have

not yet happened, is sufﬁcient to demonstrate the “undue hardship” that relieves an employer of the duty

to make an accommodation. 42 U.S.C. § 2000e(j).

Walgreens ﬁred petitioner Darrell Patterson, a Seventh-day Adventist, after he was unable to conduct a

training session on a Saturday, his Sabbath.

As the petition explains, Walgreens could not justify its refusal to accommodate petitioner based on any

hardship it had already suffered from his failure to

conduct the Saturday session: the training had simply

gone forward on Monday, and calls began transferring

on Tuesday, “thereby meeting [Walgreens’] internal

goal.” Pet. 9 (citing record); see id. at 23 (Walgreens’

transfers of calls on Tuesday satisﬁed “the only schedule it ever established”). Instead, Walgreens claimed,

and the court of appeals accepted, that accommodating

petitioner “would produce undue hardship for Walgreens in the future,” based on a prediction that the

other trainer, Alsbaugh, would be transferring out

of the position at a future point. Pet. App. 13a.2 For

Petitioner was ﬁred in August 2011 (Pet. 9); the other

trainer, Alsbaugh, transferred from Walgreens in May 2012, nine

months later. Doc. 61:11-13 (Alsbaugh Dep.).

several reasons, such a prediction cannot justify a ﬁnding of undue hardship under Title VII.

A. Allowing Hypothetical Hardship Undermines the Employer’s Responsibility to

Make Reasonable Accommodations for

its Employees.

Most fundamentally, allowing a showing of hardship to be based on future contingencies undermines

the protection that Title VII’s accommodation provision gives to employees. “[P]rojected ‘theoretical’ future effects cannot outweigh” the fact that no costs

“were actually incurred” by the employer. Brown v.

General Motors Corp., 601 F.2d 956, 960 (8th Cir. 1979).

And potential future harms cannot justify ﬁring an

employee now—like petitioner, or other employees. Allowing employers to rely on predicted future events

that might not occur creates at least three problems

that undermine the effectiveness of the religious accommodation provision.

First, there is a good chance that the predicted future hardship will not materialize. If the employer

does not wait—and has no duty to wait—until the projected circumstances actually arise, it is impossible to

know whether terminating employment is necessary.

This case presents just one example of such a problem. Walgreens asserted it would face “undue hardship” in accommodating petitioner because he would

be the only trainer once Alsbaugh left. Pet. App. 13a.

But the reason Alsbaugh was predicted to leave was

because Walgreens was to sell the initiative that had

constituted a large portion of her work—a sale that

was not set to take place until May 2012, nine months

after petitioner was ﬁred. Pet. 9; Doc. 61:11-13 (Alsbaugh Dep.). During the nine months, however, the

sale might have fallen through or a new source of work

might have arisen, allowing or even requiring the additional trainer to stay. Similarly, the workload might

have decreased, making Saturday training unnecessary.

Such unknowns exist whenever employers engage

in speculation or projections about future events. By

its very nature, Title VII’s accommodation provision

entails that an employer should take action against an

employee only when “accommodation of [the employee’s] practices without undue hardship [i]s impossible.” Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1492

(10th Cir. 1989) (emphasis added). Avoiding hardship

cannot be “impossible” when the hardship might not

occur. Accordingly, hypothetical or future predicted situations cannot establish “undue hardship.”

Second, when an employer acts before actual harm

has occurred or is at least imminent, it is more difﬁcult

to determine what reasonable accommodations might

be possible. This is precisely why an “employee’s religious practices are required to be tolerated” “until facts

or circumstances arise from which it may be concluded

that there can no longer be an accommodation without

undue hardship.” Brown, 601 F.2d at 961.

Again, this case provides just one example of the

problem. Even when the other trainer was unavailable

to conduct training on petitioner’s Sabbath, their supervisor offered to conduct the training instead. Pet. 89 (citing Doc. 62:11, 26, 32). Thus, even if petitioner

had become the only available trainer after the reorganization, there would remain possibilities for accommodation—possibilities that could never be identiﬁed,

because Walgreens terminated him based on the hypothetical future situation.

Third, allowing for speculation or hypotheticals

relieves the employer of the duty to work out a reasonable accommodation. This Court has held that “ ‘bilateral cooperation is appropriate in the search for an

acceptable reconciliation of the needs of the employee’s

religion and the exigencies of the employer’s business.’ ” Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60,

69 (1986) (quotation omitted). The accommodation provision’s purpose is to require “a thorough exploration

of all the alternatives that would meet the employee’s

needs, and the fact-based determination of whether

any of those programs could be implemented without

a predictably certain undue hardship,” before waving

the white ﬂag and declaring undue hardship. Benton

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

249221, at *2 (4th Cir. 1994) (unpublished). The EEOC

Guidelines on Discrimination Because of Religion echo

this sentiment: “A refusal to accommodate is justiﬁed

only when an employer . . . can demonstrate that an

undue hardship would in fact result from each available alternative method of accommodation.” 45 Fed.

Reg. 72,610 (1980) (codiﬁed as revised at 29 C.F.R.

§ 1605.2(c)(1)).

Employers, however, can avoid this statutory duty

if they can rely on future, contingent events. And many

members of minority faiths throughout the nation may

lose their jobs when that result might have turned out

not to be necessary.

At its worst, permitting speculation as proof of

undue hardship will incentivize employers to dream

up scenarios of future hardship in order to avoid not

only reasonable accommodation, but the smallest inconvenience. In sum, allowing employers to assert hypothetical or future problems would “interpret undue

hardship in a manner that would essentially render

§ 701(j) meaningless.” Debbie N. Kaminer, Title VII’s

Failure to Provide Meaningful and Consistent Protection of Religious Employees: Proposals for an Amendment, 21 Berkeley J. Emp. & Lab. L. 575, 611 (2000).3

Moreover, if employers are allowed to speculate about the

employee at issue, they could also factor in speculative hardship

that would arise if coworkers sought similar accommodations. If

“anticipated or multiplied hardship” counted, “any accommodation, however slight, would rise to the level of an undue hardship

because, if sufﬁciently magniﬁed through predictions of the future

behavior of the employee’s co-workers, even the most minute accommodation could be calculated to reach that level.” Brown, 601

F.2d at 961.

B. The Requirement of Actual, Not Hypothetical, Hardship Is Supported by Other

Authorities and by This Court’s Rulings in Comparable Contexts.

Requiring a showing of actual as opposed to hypothetical hardship is not only consistent with the statutory language and concept but, as the petition shows,

is the longstanding position of the Equal Employment

Opportunity Commission. Pet. 16, 18, 24. We would add

that in the context of federal employment, presidential

administrations across the spectrum of views have

taken the same position. During the Clinton Administration, the White House’s Memorandum on Religious Exercise and Religious Expression in the Federal

Workplace mandated that to justify denying an employee a religious accommodation, “cost or hardship

[to an agency] must be real rather than speculative or

hypothetical.” Administration of William J. Clinton,

Memorandum on Religious Exercise and Religious

Expression in the Federal Workplace, § 1(C) (“Accommodation of Religious Exercise”) (Aug. 14, 1997),

https://www.gpo.gov/fdsys/pkg/PPP-1997-book2/pdf/

PPP-1997-book2-doc-pg1104.pdf. Similarly, the Department of Justice in the Trump Administration has

made clear, in its Principles of Religious Liberty, that a

federal employer “cannot rely on assumptions about

hardships that might result from an accommodation.”

Ofﬁce of the Attorney General, Memorandum on Federal Law Principles of Religious Liberty, 82 Fed. Reg.

49,668, 49,670 (Oct. 26, 2017). This consensus between administrations with diverse legal and policy

perspectives is telling evidence that the logic of “undue

hardship” requires a showing of actual, not merely potential future, harm.

In addition, speculation is impermissible as a

means of meeting a burden of justiﬁcation in other contexts comparable to Title VII religious accommodation.

For example, to regulate commercial speech consistently with the First Amendment, the government must

satisfy mid-level scrutiny: it has the burden to demonstrate that its rule is tailored “in a reasonable manner

to serve a substantial state interest.” Edenﬁeld v. Fane,

507 U.S. 761, 767 (1993) (citing Bd. of Trustees of State

Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989); Central

Hudson Gas & Electric Corp. v. Public Service Comm’n

of N.Y., 447 U.S. 557, 564 (1980)); see Edenﬁeld, 507

U.S. at 769 (restriction on commercial speech must be

“designed in a reasonable way to accomplish [the government’s substantial] end”). Under this standard, the

Court has repeatedly held that the government’s “burden is not satisﬁed by mere speculation or conjecture.”

Id. at 770. “[R]ather, [the] governmental body . . . must

demonstrate that the harms it recites are real and that

its restriction will in fact alleviate them to a material

degree.” Id. at 770-71 (citations omitted).

Mid-level scrutiny of commercial speech is analogous to the “undue hardship” Title VII standard in

that, while neither imposes strict scrutiny, they also

do not give simple deference. The government must

“demonstrate” the “real” harms that speech would

cause (id. at 771), as it must “demonstrate . . . undue

hardship” from a religious accommodation (42 U.S.C.

§ 2000e(j)). In both cases, the harm should be real: that

is, actual rather than hypothetical.

Indeed, speculative predictions of harm have

failed to pass even the minimum level of constitutional

scrutiny. For example, in City of Cleburne v. Cleburne

Living Center, 473 U.S. 432 (1985), this Court invalidated a city’s denial of a permit for a home for the mentally disabled. The city argued, among other things,

that residents of the home might face harassment from

youth attending school across the street; but this Court

determined that these “vague, undifferentiated fears”

did not provide even a rational basis for denying the

permit. Id. at 449. If speculation about future events

cannot satisfy minimal constitutional scrutiny, it likewise should not satisfy any “undue hardship” standard.

C. Reliance on Hypothetical Hardships

Particularly Undermines the Accommodation Provision When Combined

with the “De Minimis” Definition of

“Undue Hardship.”

Allowing speculative or hypothetical hardships

especially undermines statutory protection given the

relatively low substantive standard that previous decisions have set forth for deﬁning an undue hardship.

As Part II, infra, details, this Court has indicated that

“[t]o require [an employer] to bear more than a de minimis cost in order to [accommodate an employee] is an

undue hardship.” Trans World Airlines v. Hardison,

432 U.S. 63, 84 (1977) (italics in original). And lower

courts have followed this suggestion. Amici believe (see

part II) that the Court should reconsider the de minimis standard. But as long as that standard remains in

place, the use of speculative or hypothetical hardships

to satisfy it makes the duty of accommodation doubly

weak. The conjunction of the two rules means that an

employer may hypothesize innumerable potential situations that might arise to create slightly more than

minimal costs. It is difﬁcult to imagine any employer

failing such a toothless standard. Consequently, allowing employers to use harms that are not actual or

imminent would signiﬁcantly undermine the accommodation provision.

II.

The Court Should Reconsider the TWA v.

Hardison Definition of “Undue Hardship”

as “Anything More than De Minimis

Harm,” and at the Very Least Should Not

Extend That Standard to Cases of Hypothetical Hardships.

As the petition urges, this Court should reconsider

the de minimis standard adopted in Hardison.4 For

Amici focus here on the ﬂaws in Hardison’s reasoning in

adopting the de minimis standard. We agree with petitioner that

a further reason to reconsider that standard is that “Hardison’s

discussion of ‘undue hardship’ was technically dicta.” Pet. 28 (citing EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028,

2040 n.* (2015) (Thomas, J., concurring in part and dissenting in

part) (“Because the employee’s termination had occurred before

the 1972 amendment to Title VII’s deﬁnition of religion, Hardison

applied the then-existing EEOC guideline—which also contained

multiple reasons, this standard is fundamentally

ﬂawed as a deﬁnition of “undue hardship.”

A. The De Minimis Standard Is Inconsistent

with the Text of Title VII.

First and foremost, the phrase “undue hardship”

in Title VII simply will not bear the meaning that expands it to “[anything] more than a de minimis cost.”

In construing a statute, this Court “ ‘start[s], of course,

with the statutory text,’ ” and “proceed[s] from the understanding that ‘[u]nless otherwise deﬁned, statutory

terms are generally interpreted in accordance with

their ordinary meaning.’ ” Sebelius v. Cloer, 569 U.S.

369, 376 (2013) (some brackets in original) (quoting

BP America Production Co. v. Burton, 549 U.S. 84, 91

(2006)). Consequently, the Court sharply rejects interpretations that are “completely unmoored from the

statutory text.” Nat’l Ass’n of Manufacturers v. Dep’t of

Defense, 138 S. Ct. 617, 632 (2018). Ordinary meaning

is determined “at the time Congress enacted the statute.” Wisconsin Cent. Ltd. v. United States, 138 S. Ct.

2067, 2070 (2018).

Here, the phrase at issue is “undue hardship.” Because Title VII does not “otherwise deﬁn[e]” it (Cloer,

supra), the phrase should be interpreted according to

its ordinary meaning in 1972, the time Congress added

the provision to the statute. Begin with the term “hardship”: At that time, Random House deﬁned hardship

an ‘undue hardship’ defense—not the amended statutory deﬁnition.”)).

as “a condition that is difﬁcult to endure; suffering;

deprivation; oppression; or something hard to bear, as

a deprivation, lack of comfort, constant toil or danger,

etc.” Random House Dictionary 646 (1973). “[H]ardship,” it added, “applies to a circumstance in which excessive and painful effort of some kind is required.” Id.

Similarly, Webster’s Dictionary deﬁned hardship as

“something that causes or entails suffering or privation.” Webster’s New American Dictionary 379 (1965).

Black’s Law Dictionary echoes the others, deﬁning

hardship as “privation, suffering, adversity.” Black’s

Law Dictionary 646 (5th ed. 1979). In a zoning example, hardship means that a restriction applied is “unduly oppressive, arbitrary or conﬁscatory.” Id.

With respect to “undue,” Random House deﬁned it

as “unwarranted” or “excessive”; “inappropriate, unjustiﬁable or improper”; or “not owed.” Random House

Dictionary, supra, at 1433. Webster’s deﬁned it as “not

due,” as “inappropriate” or “unsuitable,” and as “exceeding or violating propriety or ﬁtness.” Webster’s

New American Dictionary, supra, at 968. And Black’s

deﬁned “undue” to mean “more than necessary; not

proper; illegal. It denotes something wrong.” Black’s

Law Dictionary, supra, at 1370.

In other words, the ordinary meaning of “undue

hardship” includes not only that some “suffering” or

“deprivation” exists—“a condition that is difﬁcult to

endure”—but also that it is serious enough as to be “excessive” or “inappropriate.”

It is impossible to reconcile that ordinary meaning

of “undue hardship” with Hardison’s deﬁnition of it as

“[anything] more than a de minimis cost.” See also Pet.

28-29. A cost that is barely more than minimal does not

correspond either with the baseline idea that a hardship involves “suffering” and “a condition difﬁcult to

endure,” or with the further idea that this suffering is

serious enough as to be “undue” or “excessive.”

In short, as Justice Marshall pointed out in Hardison, it is “seriously question[able] whether simple

English usage permits ‘undue hardship’ to be interpreted to mean ‘more than de minimis cost.’ ” 432 U.S.

at 92 n.6 (Marshall, J., dissenting). In other cases besides Hardison, this Court has repeatedly “decline[d]

the . . . invitation to override Congress’ considered

choice by rewriting the words of the statute.” Nat’l

Ass’n of Manufacturers, 138 S. Ct. at 632; see Puerto

Rico v. Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938,

1948-49 (2016). This case presents the opportunity to

rectify Hardison’s mistaken rewriting of the words of

Title VII’s accommodation provision.

The ordinary meaning of “undue hardship” as of

1972 is far closer to the deﬁnition of that phrase

under the Americans with Disabilities Act (ADA),

which requires an employer to make “reasonable accommodations” of an employee’s disability unless accommodation would impose an “undue hardship” on

the employer’s business. 42 U.S.C. § 12112(b)(5)(A). According to the ADA, undue hardship means “an action

requiring signiﬁcant difﬁculty or expense.” 42 U.S.C.

§ 12111(10)(A). Nor is there a good reason to protect

religious freedom rights less than disability rights. In

fact, as we now discuss, this Court has made clear that

Title VII’s accommodation provision gives religious

practice “favored [rather than lesser] treatment.”

EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct.

2028, 2034 (2015).

B. The Premise Underlying Hardison’s

De Minimis Standard Has Been Undercut by This Court’s Decision in Abercrombie & Fitch.

Hardison’s de minimis standard should be reconsidered not only because it is textually indefensible,

but also because the premise underlying it has been

undermined by this Court’s decision in Abercrombie &

Fitch, 135 S. Ct. 2028. This Court has revisited previous decisions, including decisions interpreting statutes, “when the theoretical underpinnings of those

decisions are called into serious question” by subsequent decisions. State Oil Co. v. Khan, 522 U.S. 3, 21

(1997); accord Dickerson v. United States, 530 U.S. 428,

443 (2000) (“we have overruled our precedents when

subsequent cases have undermined their doctrinal underpinnings”).

In Hardison, the Court justiﬁed its weak “de minimis” standard on the ground that religious practices

should not be protected more than nonreligious practices: “[T]o require TWA to bear additional costs when

no such costs are incurred to give other employees

the days off that they want would involve unequal

treatment of employees on the basis of their religion.”

432 U.S. at 84. The Court found such treatment unwarranted based on its conclusion that “the paramount

concern of Congress in enacting Title VII was the elimination of discrimination in employment.” Id. at 85. Focusing on protecting against overt discrimination, the

Court thus declined to require accommodation for the

employee from a neutral policy that coincidentally interfered with his religious practice. See id. at 82 (refusing to order accommodation in face of seniority

system because system “was not designed with the intention to discriminate against religion”).

Four terms ago, however, the Court in Abercrombie

& Fitch rejected the theoretical underpinnings of

Hardison’s rule. Contrary to Hardison’s reasoning that

Title VII aims only at actions treating religion worse

than other practices, the Court in Abercrombie said:

Title VII does not demand mere neutrality

with regard to religious practices—that they

be treated no worse than other practices. Rather, it gives them favored treatment, afﬁrmatively obligating employers not “to fail or

refuse to hire or discharge any individual . . .

because of such individual’s” “religious observance and practice.”

135 S. Ct. at 2034.5 As the Court pointed out: “An

employer is surely entitled to have, for example, a

To make the point explicitly: When an employer takes adverse

action against an employee because of an employee’s practice that is

religiously grounded, it is acting “because of [the employee’s] religious observance and practice,” 42 U.S.C. § 2000e-2(a)—even if

no-headwear policy as an ordinary matter. But when

an applicant requires an accommodation as an ‘aspec[t] of religious practice . . . ,’ it is no response that

the subsequent ‘fail[ure] . . . to hire’ was due to an otherwise-neutral policy.” Id. (ellipses in original).

As one commentator has put it, this Court in Abercrombie, “for the ﬁrst time, emphasized that § 701(j)

mandates more than formal equality. . . . The Court

used different rhetoric than it had in its earlier decisions in Hardison and Philbrook, where it emphasized

formal equality.” Debbie N. Kaminer, Religious Accommodation in the Workplace: Why Federal Courts Fail to

Provide Meaningful Protection of Religious Employees,

20 Tex. Rev. L. & Pol. 107, 130 (2015). Abercrombie has

cut the legs out from under the de minimis standard,

and this case presents the opportunity for this Court

to conﬁrm that reality.

Moreover, this reasoning in Abercrombie was

important to the Court’s ultimate holding there: that

an employer can be held liable for refusing to accommodate an employee’s practice that is religiously

grounded even if the employer had no actual knowledge the practice was religious. Abercrombie & Fitch

had argued that a claim for accommodation could be

brought only as a disparate-impact claim, not as a

disparate-treatment (or intentional-discrimination)

claim. 135 S. Ct. at 2033. Speciﬁcally, Abercrombie &

the employer’s action is “neutral” in the sense that it does not target the employee’s practice only when it is religiously grounded.

Abercrombie, 135 S. Ct. at 2034.

Fitch argued that “the statute limits disparate-treatment claims to only those employer policies that treat

religious practices less favorably than similar secular

practices.” Id. at 2034. The Court held that disparatetreatment claims were not so limited, and explained its

holding on the basis that Title VII’s accommodation

provision gives “favored treatment,” not “mere neutrality[,] with regard to religious practices.” Id.

The reasoning in Abercrombie aligns with Justice

Marshall’s dissent in Hardison, not with the majority.

As that dissent explained, the Hardison majority’s

claim that Title VII focuses only on “intentional discrimination” against religion, and rejects “unequal

treatment” favoring employee religious practices, is irreconcilable with the very concept of accommodation:

The accommodation issue by deﬁnition

arises only when a neutral rule of general

applicability conﬂicts with the religious practices of a particular employee. . . . In each instance, the question is whether the employee

is to be exempt from the rule’s demands. To do

so will always result in a privilege being “allocated according to religious beliefs,” unless

the employer gratuitously decides to repeal

the rule in toto. What the statute says, in

plain words, is that such allocations are required unless “undue hardship” would result.

Hardison, 432 U.S. at 87-88 (Marshall, J., dissenting).

Hardison’s de minimis standard, which could be read

to reject “even the most minor special privilege to religious observers to enable them to follow their faith”

(id. at 87), therefore rests on the very misunderstanding of Title VII that this Court has now rejected in

Abercrombie.

C. The De Minimis Standard Particularly

Harms Accommodation of Religious

Minorities.

Title VII’s religious-accommodation provision is

particularly vital to the protection of minority religious

practices. Because facially or formally neutral workplace policies by nature reﬂect the perspective of the

cultural majority, they will disproportionately come

into conﬂict with the practices of religious minorities.

Therefore, a meaningful requirement of religious

accommodation disproportionately protects religious

minorities—but a weak accommodation requirement,

conversely, disproportionately hurts them.

These disproportionate effects appear, for example, in the cases listed in the appendix to the petition:

reported religious accommodation cases decided on

summary judgment motions concerning “undue hardship” from 2000 to the present. See Pet. App. 35a-67a.

In our own appendix to this brief, we identify the religion of the employee claimants in those cases. Of 102

cases where the employee’s religion is apparent, the

number of cases involving claimants of varying faiths

are:

General Christian

Seventh-day Adventist

Muslim

Sabbatarian Christian sects

Jehovah’s Witness

Idiosyncratic religions, Pentecostal Christian:

4 each

Jewish, Hebrew Israelite: 3 each

Non-religious, Rastafarian, Sikh, African religions: 2 each

Muslims, a classic religious minority, constitute

18.6 percent of this large set of accommodation decisions (19 of 102), even though, according to a comprehensive 2014 study, they constitute only 0.9 percent

of the population. Pew Research Center, America’s

Changing Religious Landscape, at 4 (May 12, 2015),

http://www.pewforum.org/wp-content/uploads/sites/7/

2015/05/RLS-08-26-full-report.pdf. Overall, claims by

members of non-Christian faiths (Muslims, idiosyncratic faiths, Jews, Hebrew Israelites, Rastafarians,

Sikhs, and African religions) make up 34.3 percent

of the accommodation cases (35 of 102), even though

non-Christian faiths made up only 5.9 percent of the

population in 2014 (and signiﬁcantly less than that in

earlier years). America’s Changing Religious Landscape, supra, at 4. The percentage of cases in the appendix involving religious minorities climbs to 62

percent when one combines the various non-Christians

(34.3 percent of the cases) with sects that follow the

minority practice of Saturday Sabbath observance:

Seventh-day Adventists (22 of 102, or 21.6 percent of

the cases) and other small Saturday-observing sects (6

of 102, or 5.9 percent of the cases).6 Together, these statistics leave no doubt that Hardison’s de minimis

standard harms religious minorities, especially by

comparison to “majority” faith groups.

D. At the Very Least, the De Minimis

Standard Should Not Be Extended to

Cases Involving Speculative or Hypothetical Hardships.

For the foregoing reasons, the Court should grant

review in this case to reconsider Hardison’s “de minimis” standard and adopt an interpretation consistent

with the text and purpose of Title VII. But if the Court

decides not to overturn the de minimis standard in

general, then at the very least it should reject the lower

courts’ inappropriate extension of that standard to

cases where the asserted harms from accommodation

are hypothetical or speculative. As we have already

shown in part I-C, supra, starting with a relatively

weak substantive standard (de minimis) and adding a

toothless conception of permissible evidence to satisfy

it (hypothetical harms) will guarantee no protection at

The cases reﬂect a variety of religious observances and

practices conﬂicting with employer rules. For example, among

Muslims, the cases involve the ability to conduct prayer during

the workday, see, e.g., Mohamed v. 1st Class Stafﬁng, LLC, 286

F. Supp. 3d 884 (S.D. Ohio 2017) (space for prayer); to wear a

beard, see, e.g., Hussein v. The Waldorf-Astoria, 134 F. Supp. 2d

591 (S.D.N.Y. 2001); and to wear a hijab or woman’s head-scarf,

see, e.g., EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106

(10th Cir. 2013), rev’d, 135 S. Ct. 2028 (2015).

all. It is even easier for employers to make speculative

predictions of hypothetical harms when those hypothesized harms can be relatively minor.

------------------------------------------------------------------

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

THOMAS C. BERG

UNIVERSITY OF ST. THOMAS

SCHOOL OF LAW (MINNESOTA)

RELIGIOUS LIBERTY

APPELLATE CLINIC

MSL 400, 1000 LaSalle Ave.

Minneapolis, MN 55403-2015

(651) 962-4918

tcberg@stthomas.edu

KIMBERLEE WOOD COLBY

Counsel of Record

CHRISTIAN LEGAL SOCIETY

8001 Braddock Rd.

Suite 302

Springﬁeld, VA 22151

(703) 894-1087

kcolby@clsnet.org

Counsel for Amici Curiae

October 17, 2018

APPENDIX

Breakdown by Employee’s Religion

in Religious Accommodation Cases

from Petition Appendix 35a-67a

Cases in the list are drawn from petitioner’s list of decisions, Pet. App. 35a-67a. Unless otherwise indicated,

percentages of the U.S. population for particular faiths

are drawn from the ﬁgures at Pew Research Center,

America’s Changing Religious Landscape, at 4 (May

12, 2015), http://www.pewforum.org/wp-content/uploads/

sites/7/2015/05/RLS-08-26-full-report.pdf (hereinafter

“America’s Changing Religious Landscape”).

General Christian: 28 of 102 (27.4 percent versus approximately 65 percent of population)1

O’Brien v. City of Springﬁeld, 319 F. Supp. 2d

90 (D. Mass. 2003)

Rivera v. Choice Courier Sys., Inc., 2004 WL

1444852 (S.D.N.Y. June 25, 2004)

Daniels v. City of Arlington, Tex., 246 F.3d 500

(5th Cir. 2001)

The Pew study, America’s Changing Religious Landscape,

lists Christians as 70.6 percent of the population. Id. at 4. In this

Appendix, we separate out Pentecostal Christians (4.6 percent)

and Jehovah’s Witnesses (0.8 percent). Subtracting those groups

leaves our category of “general” Christians as approximately 65

percent of the population.

Quental v. Connecticut Comm’n on Deaf &

Hearing Impaired, 122 F. Supp. 2d 133 (D.

Conn. 2000)

E.E.O.C. v. Aldi, Inc., 2008 WL 5429624 (W.D.

Pa. Dec. 31, 2008)

Jacobs v. Scotland Mfg., Inc., 2012 WL

2366446 (M.D.N.C. June 21, 2012)

Daniel v. Kroger Ltd. P’ship I, 2011 WL

5119372 (E.D. Va. Oct. 27, 2011)

George v. Home Depot Inc., 51 F. App’x 482 (5th

Cir. 2002)

Bolden v. Caravan Facilities Mgmt., LLC, 112

F. Supp. 3d 785 (N.D. Ind. 2015)

10. Davis v. Fort Bend Cty., 765 F.3d 480 (5th Cir.

2014)

11. Andrews v. Virginia Union Univ., 2008 WL

2096964 (E.D. Va. May 16, 2008)

12. U.S. Equal Employment Opportunity Comm’n

v. Consol Energy, Inc., 860 F.3d 131 (4th Cir.

2017)

13. Shatkin v. Univ. of Texas at Arlington, 2010

WL 2730585 (N.D. Tex. July 9, 2010)

14. Moore v. Metro. Human Serv. Dist., 2010 WL

1462224 (E.D. La. Apr. 8, 2010)

15. Gay v. Lowe’s Home Centers, Inc., 2007 WL

1599750 (S.D. Miss. June 4, 2007)

16. Jiglov v. Hotel Peabody, G.P., 719 F. Supp. 2d

918 (W.D. Tenn. 2010)

17. Virts v. Consol. Freightways Corp. of Delaware, 285 F.3d 508 (6th Cir. 2002)

18. U.S. E.E.O.C. v. Bridgestone/Firestone, Inc., 95

F. Supp. 2d 913 (C.D. Ill. 2000)

19. Noesen v. Med. Stafﬁng Network, Inc., 232

F. App’x 581 (7th Cir. 2007)

20. Walker v. Alcoa, Inc., 2008 WL 2356997 (N.D.

Ind. June 9, 2008)

21. Adams v. Retail Ventures, Inc., 325 F. App’x

440 (7th Cir. 2009)

22. Seaworth v. Pearson, 203 F.3d 1056 (8th Cir.

2000)

23. Kenner v. Domtar Indus., Inc., 2006 WL

522468 (W.D. Ark. Mar. 3, 2006)

24. Peterson v. Hewlett-Packard Co., 358 F.3d 599

(9th Cir. 2004)

25. Berry v. Dep’t of Soc. Servs., 447 F.3d 642 (9th

Cir. 2006)

26. Slater v. Douglas Cty., 743 F. Supp. 2d 1188

(D. Or. 2010)

27. Ross v. Colorado Dep’t of Transp., 2012 WL

5975086 (D. Colo. Nov. 14, 2012)

28. Dixon v. The Hallmark Companies, Inc., 627

F.3d 849 (11th Cir. 2010)

Seventh-day Adventist: 22/102 (21.6 percent

versus 0.5 percent of population)2

Leonce v. Callahan, 2008 WL 58892 (N.D. Tex.

Jan. 3, 2008)

Jones v. United Parcel Serv., Inc., 2008 WL

2627675 (N.D. Tex. June 30, 2008)

E.E.O.C. v. Dalfort Aerospace, 2002 WL

255486 (N.D. Tex. Feb. 19, 2002)

Antoine v. First Student, Inc., 713 F.3d 824

(5th Cir. 2013)

Ford v. City of Dallas, Tex., 2007 WL 2051016

(N.D. Tex. July 12, 2007)

Vaughn v. Wafﬂe House, Inc., 263 F. Supp. 2d

1075 (N.D. Tex. 2003)

Crider v. Univ. of Tennessee, Knoxville, 492

F. App’x 609 (6th Cir. 2012)

Prach v. Hollywood Supermarket, Inc., 2010

WL 3419461 (E.D. Mich. Aug. 27, 2010)

Burdette v. Fed. Exp. Corp., 367 F. App’x 628

(6th Cir. 2010)

10. Morris v. Four Star Paving, LLC, 2013 WL

1681835 (M.D. Tenn. Apr. 17, 2013)

11. Rose v. Potter, 90 F. App’x 951 (7th Cir. 2004)

12. Filinovich v. Claar, 2005 WL 2709284 (N.D.

Ill. Oct. 19, 2005)

America’s Changing Religious Landscape, supra, Appendix

B (Classiﬁcation of Protestant Denominations), at 102.

13. Maroko v. Werner Enterprises, Inc., 778

F. Supp. 2d 993 (D. Minn. 2011)

14. Harrell v. Donahue, 638 F.3d 975 (8th Cir.

2011)

15. Brown v. Hot Springs Nat. Park Hosp. Holdings, LLC, 2013 WL 1968483 (E.D. Ark. May

13, 2013)

16. Tabura v. Kellogg USA, 880 F.3d 544 (10th Cir.

2018)

17. Patterson v. Walgreen Co., 727 F. App’x 581

(11th Cir. 2018)

18. Rice v. U.S.F. Holland, Inc., 410 F. Supp. 2d

1301 (N.D. Ga. 2005)

19. Kilpatrick v. Hyundai Motor Mfg. Alabama,

LLC, 911 F. Supp. 2d 1211 (M.D. Ala. 2012)

20. Ashley v. Chaﬁn, 2009 WL 3074732 (M.D. Ga.

Sept. 23, 2009)

21. Cameau v. Metro. Atlanta Rapid Transit

Auth., 2014 WL 11379548 (N.D. Ga. Feb. 20,

2014)

22. E.E.O.C. v. Rent-A-Ctr., Inc., 917 F. Supp. 2d

112 (D.D.C. 2013)

Muslim: 19/102 (18.6 percent versus 0.9 percent

of population)

Robinson v. Children’s Hosp. Boston, 2016 WL

1337255 (D. Mass. Apr. 5, 2016)

Hussein v. Hotel Employees & Rest. Union, Local 6, 108 F. Supp. 2d 360 (S.D.N.Y. 2000)

Abdelwahab v. Jackson State Univ., 2010 WL

384416 (S.D. Miss. Jan. 27, 2010)

Nichols v. Illinois Dep’t of Transportation, 152

F. Supp. 3d 1106 (N.D. Ill. 2016)

Mohamed v. 1st Class Stafﬁng, LLC, 286

F. Supp. 3d 884 (S.D. Ohio 2017)

Hussein v. The Waldorf-Astoria, 134 F. Supp. 2d

591 (S.D.N.Y. 2001)

Wallace v. City of Philadelphia, 2010 WL

1730850 (E.D. Pa. Apr. 26, 2010)

E.E.O.C. v. GEO Grp., Inc., 616 F.3d 265 (3d

Cir. 2010)

Webb v. City of Philadelphia, 562 F.3d 256 (3d

Cir. 2009)

10. Equal Employment Opportunity Comm’n v.

Jetstream Ground Servs., Inc., 134 F. Supp. 3d

1298 (D. Colo. 2015)

11. King v. Borgess Lee Mem’l Hosp., 2015 WL

852324 (W.D. Mich. Feb. 26, 2015)

12. Mohamed-Sheik v. Golden Foods/Golden Brands

LLC, 2006 WL 709573 (W.D. Ky. Mar. 16, 2006)

13. U.S. Equal Employment Opportunity Comm’n

v. Abercrombie & Fitch Stores, Inc., 966

F. Supp. 2d 949 (N.D. Cal. 2013)

14. E.E.O.C. v. Alamo Rent-A-Car LLC, 432

F. Supp. 2d 1006 (D. Ariz. 2006)

15. E.E.O.C. v. Abercrombie & Fitch Stores, Inc.,

731 F.3d 1106 (10th Cir. 2013), rev’d, 135

S. Ct. 2028 (2015)

16. Fazlovic v. Maricopa Cty., 2012 WL 12960870

(D. Ariz. Sept. 28, 2012)

17. E.E.O.C. v. JBS USA, LLC, 2013 WL 3302429

(D. Colo. July 1, 2013)

18. Farah v. A-1 Careers, 2013 WL 6095118 (D.

Kan. Nov. 20, 2013)

19. E.E.O.C. v. 704 HTL Operating, LLC, 979

F. Supp. 2d 1220 (D.N.M. 2013)

Other (or Unspecified) Saturday-Sabbatarian

Sects: 6/102

Stolley v. Lockheed Martin Aeronautics Co.,

228 F. App’x 379 (5th Cir. 2007)

Rumfola v. Total Petrochemical USA, Inc.,

2012 WL 860405 (M.D. La. Mar. 13, 2012)

O’Barr v. United Parcel Serv., Inc., 2013 WL

2243004 (E.D. Tenn. May 21, 2013)

Creusere v. James Hunt Constr., 83 F. App’x

709 (6th Cir. 2003)

E.E.O.C. v. Chemsico, Inc., 216 F. Supp. 2d 940

(E.D. Mo. 2002)

E.E.O.C. v. Texas Hydraulics, Inc., 583

F. Supp. 2d 904 (E.D. Tenn. 2008)

Jehovah’s Witness: 5/102 (4.9 percent versus 0.8

percent of population)

Shepherd v. Gannondale, 2014 WL 7338714

(W.D. Pa. Dec. 22, 2014)

Westbrook v. N. Carolina A & T State Univ., 51

F. Supp. 3d 612 (M.D.N.C. 2014)

Weber v. Roadway Exp., Inc., 199 F.3d 270 (5th

Cir. 2000)

E.E.O.C. v. Sw. Bell Tel., L.P., 550 F.3d 704 (8th

Cir. 2008)

Zamora v. Gainesville City Sch. Dist., 2015

WL 12851549 (N.D. Ga. June 22, 2015)

Idiosyncratic Religions: 4

Lizalek v. Invivo Corp., 314 F. App’x 881 (7th

Cir. 2009)

E.E.O.C. v. Papin Enterprises, Inc., 2009 WL

961108 (M.D. Fla. Apr. 7, 2009)

Lorenz v. Wal-Mart Stores, 225 F. App’x 302

(5th Cir. 2007)

Cloutier v. Costco Wholesale Corp., 390 F.3d

126 (1st Cir. 2004)

Pentecostal Christian: 4/102 (3.9 percent versus

4.6 percent of population)3

Rojas v. GMD Airlines Servs., Inc., 254 F. Supp. 3d

281 (D.P.R. 2015)

Chavis v. Wal-Mart Stores, Inc., 265 F. Supp. 3d

391 (S.D.N.Y. 2017)

Finnie v. Lee Cty., Miss., 907 F. Supp. 2d 750

(N.D. Miss. 2012)

E.E.O.C. v. Oak-Rite Mfg. Corp., 2001 WL

1168156 (S.D. Ind. Aug. 27, 2001)

Jewish: 3/102 (2.9 percent versus 1.9 percent of

population)

Litzman v. New York City Police Dep’t, 2013

WL 6049066 (S.D.N.Y. Nov. 15, 2013)

Jamil v. Sessions, 2017 WL 913601 (E.D.N.Y.

Mar. 6, 2017)

Hill v. Cook Cty., 2007 WL 844556 (N.D. Ill.

Mar. 19, 2007)

Hebrew Israelite: 3/102

Cherry v. Sunoco, Inc., 2009 WL 2518221 (E.D.

Pa. Aug. 17, 2009)

E.E.O.C. v. Thompson Contracting, Grading,

Paving, & Utilities, Inc., 499 F. App’x 275 (4th

Cir. 2012)

Id., Appendix B, at 101.

10a

Batson v. Branch Banking & Tr. Co., 2012 WL

4479970 (D. Md. Sept. 25, 2012)

Rastafarian: 2/102 (1.9 percent versus <0.3 percent of population)4

Brown v. F.L. Roberts & Co., 419 F. Supp. 2d 7

(D. Mass. 2006)

Equal Employment Opportunity Comm’n v.

Triangle Catering, LLC, 2017 WL 818261

(E.D.N.C. Mar. 1, 2017)

Sikh: 2/102 (1.9 percent versus < 0.3 percent of

population)

Tagore v. United States, 735 F.3d 324 (5th Cir.

2013)

E.E.O.C. v. Healthcare & Ret. Corp. of Am.,

2009 WL 2488110 (E.D. Mich. Aug. 11, 2009)

African Religions: 2/102

Adeyeye v. Heartland Sweeteners, LLC, 721

F.3d 444 (7th Cir. 2013)

E.E.O.C. v. Red Robin Gourmet Burgers, Inc.,

2005 WL 2090677 (W.D. Wash. Aug. 29, 2005)

According to Pew’s study, “0.3% of American adults identify

with a wide variety of other world religions, including Sikhs,

Baha’is, Taoists, Jains, Rastafarians, Zoroastrians, Confucians

and Druze.” Id. at 29. Thus Rastafarians and Sikhs each constitute far less than 0.3 percent apiece.

11a

Non-religious: 2/102

Mathis v. Christian Heating & Air Conditioning, Inc., 158 F. Supp. 3d 317 (E.D. Pa. 2016)

Nobach v. Woodland Vill. Nursing Ctr., Inc.,

799 F.3d 374 (5th Cir. 2015)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.