Amicus Curiae Brief — Mitche A. Dalberiste, Petitioner v. GLE Associates, Inc.

No. 19-1461

In the Supreme Court of the United States

___________________

MITCHE A. DALBERISTE, Petitioner,

v.

GLE ASSOCIATES, INC., Respondent.

___________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

___________________

BRIEF FOR JEWISH COALITION FOR

RELIGIOUS LIBERTY; THE COALITION FOR JEWISH

VALUES; THE SIKH COALITION; THE INTERNATIONAL

SOCIETY FOR KRISHNA CONSCIOUSNESS; ETHICS &

RELIGIOUS LIBERTY COMMISSION OF THE

SOUTHERN BAPTIST CONVENTION; THE LUTHERAN

CHURCH–MISSOURI SYNOD; AND

CHURCH OF GOD IN CHRIST, INC.

AS AMICI CURIAE SUPPORTING PETITIONER

___________________

ALEXANDER DUSHKU

R. SHAWN GUNNARSON

Counsel of Record

JAMES C. PHILLIPS

EMILY R. HAWS

KIRTON | MCCONKIE

36 South State Street

Suite 1900

Salt Lake City, Utah 84111

(801) 328-3600

sgunnarson@kmclaw.com

Counsel for Amici Curiae

i

QUESTION PRESENTED

Whether the Court should reconsider Trans World

Airlines v. Hardison and set a proper legal standard

for determining what constitutes an “undue hardship”

under 42 U.S.C. § 2000e(j).

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

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

INTERESTS OF AMICI CURIAE ............................. 1

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT ............................................................... 3

I.

II.

TWA v. Hardison Should Be Overruled .......... 3

A.

Hardison’s interpretation of Title

VII withholds protection that

Congress enacted for employees of

faith ........................................................ 3

B.

Hardison’s incorrectness has been

a recurring issue for four decades......... 7

C.

The lax regime created by

Hardison

imposes

especially

severe hardships on economically

vulnerable workers ................................ 8

Overruling Hardison Holds National

Importance for Americans from Diverse

Faith Communities .......................................... 9

A.

B.

Sabbaths, Holy Days, and the

Duty to Worship .................................. 10

1.

Christianity............................... 10

2.

Judaism ..................................... 12

3.

Islam ......................................... 12

Religious dress and grooming

standards ............................................. 13

1.

Women’s head coverings........... 13

iii

III.

2.

Men’s head coverings ................ 14

3.

Other dress and grooming

standards .................................. 15

C.

Religious symbols ................................ 16

D.

Hair and beards ................................... 17

The Petition Presents an Excellent

Vehicle to Revisit Hardison ........................... 18

CONCLUSION ......................................................... 21

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Adams v. Retail Ventures, Inc.,

325 Fed. App’x 440 (7th Cir. 2009) .......................... 7

Brener v. Diagnostic Center Hospital,

671 F.2d 141 (5th Cir. 1982) .................................. 17

Daniels v. City of Arlington, Tex.,

246 F.3d 500 (5th Cir. 2001) .............................. 7, 16

EEOC v. Abercrombie & Fitch Stores, Inc.,

135 S. Ct. 2028 (2015) .................................. 4, 17–18

Finnie v. Lee Cty., Miss.,

907 F. Supp. 2d 750 (N.D. Miss. 2012) .............. 9, 15

Fraternal Order of Police Newark Lodge No. 12 v.

City of Newark, 170 F.3d 359 (3d Cir. 1999) ......... 17

In re Palmer,

386 A.2d 1112 (R.I. 1978)....................................... 15

Jiglov v. Hotel Peabody, G.P.,

719 F. Supp. 2d 918 (W.D. Tenn. 2010)................... 8

Leonce v. Callahan,

No. 7:03-CV-110-KA, 2008 WL 58892

(N.D. Tex. Jan. 3, 2008) ....................................... 7, 9

McCarter v. Harris Cty., Tex.,

No. CIV.A. H-04-4159, 2006 WL 1281087

(S.D. Tex. May 5, 2006) ...................................... 8, 15

v

McGowan v. Maryland,

366 U.S. 420 (1961) .................................................. 5

Mohamed v. 1st Class Staffing, LLC,

286 F. Supp. 3d 884 (S.D. Ohio 2017) ..................... 8

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

No. 1:11CV346-HSO-RHW, 2012 WL 3811748

(S.D. Miss. Sept. 4, 2012) ......................................... 8

O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987) .......................................... 12–13

Patterson v. Walgreen Co.,

140 S. Ct. 685 (2020) .......................................... 4, 18

Prach v. Hollywood Supermarket, Inc.,

No. 09-13756, 2010 WL 3419461

(E.D. Mich. Aug. 27, 2010) ....................................... 8

Shatkin v. Univ. of Texas at Arlington,

No. 4:06-CV-882-Y, 2010 WL 2730585

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

Sherbert v. Verner,

374 U.S. 398 (1963) .............................................. 5–6

Small v. Memphis Light, Gas and Water,

952 F.3d 821 (6th Cir. 2020) .................................... 4

Tagore v. United States,

735 F.3d 324 (5th Cir. 2013) .................................. 18

Tolan v. Cotton,

572 U.S. 650 (2014) ................................................ 20

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) .......................................... passim

vi

Statutes

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

42 U.S.C. 2000e-2(a) .................................................... 3

The Law Concerning Liberty of Conscience,

1700, 2 Pa. Stats. at Large 34 (1700) ...................... 5

Rules

Sup. Ct. R. 10 ............................................................. 19

Briefs and Government Materials

Att’y Gen. Jeff Sessions, Mem. for All Executive

Dep’ts and Agencies, Federal Law Protections

for Religious Liberty (Oct. 6, 2017) .......................... 7

U.S. Invitation Br., Patterson v. Walgreen Co.,

No. 18-349 (2019) ........................................... 4, 6, 18

Other Authorities

Adventist, Is Saturday the Sabbath?, July 9, 2013,

https://www.adventist.org/en/beliefs/living/thesabbath/article/go/-/is-saturday-the-sabbath/ ....... 11

Al-Qur’an .............................................................. 12, 13

Catechism of the Catholic Church (2d ed. 2000)....... 10

Council on American-Islamic Relations, An

Employer’s Guide to Islamic Religious Practices

(2005), https://www.cair.com/images/pdf/

employers_guide.pdf .............................................. 13

Deuteronomy 22:12 ................................................... 16

vii

Doctrine and Covenants ............................................ 11

The Encyclopaedia of Sikhism (Harbans Singh

ed., 2d ed. 2001)...................................................... 17

Exodus 20:8–10 (King James) ................................... 10

Ceasar E. Farah, Islam: Beliefs and Observances

(7th ed. 2003) .......................................................... 12

S. R. Hirsch, Hirsch Siddur (1969) ........................... 15

Muhammed al-Jibaly, The Beard Between the Salaf &

Kalaf (1999) ............................................................ 17

Surinder Singh Johar, Handbook on Sikhism

(1977) ................................................................ 14, 17

L.M. Joshi, Ahimsa, in 1 The Encyclopaedia of

Sikhism (Harbans Singh ed., 1992)....................... 16

JW.org, What Are Our Meetings Like?,

https://www.jw.org/en/library/ books/jehovahswill/meetings-of-jehovahs-witnesses/ .................... 11

JW.org, What Happens at Our Meetings?,

https://www.jw.org/en/jehovahswitnesses/meetings/ ............................................... 11

Aryeh Kaplan, The Aryeh Kaplan Anthology

(1998) ...................................................................... 12

Rabbi Yosef Karo, Shulchan Aruch Orach

Chayim ................................................................... 12

Kaur Foundation, FAQS,

https://www.kaurfoundation.org/faqs.html ........... 14

viii

Leviticus 19:27 ........................................................... 17

A.H. Lewis, A Critical History of Sunday

Legislation (1888) ..................................................... 5

Gobind Singh Mansukhani, Sikhism Its Philosophy

and History (Daljeet Singh & Kharak Singh eds.,

1997) ....................................................................... 14

Aaron Moss, Why Do Jewish Women Cover

their Hair, https://www.chabad.org/the

JewishWoman/article_cdo/aid/336035/jewish/

Why-Do-Jewish-Women-Cover-TheirHair.htm ........................................................... 13–14

Russell M. Nelson, The Sabbath Is a Delight (April

2015),https://www.lds.org/generalconference/2015/04/ the-sabbath-is-adelight?lang=eng .................................................... 11

Note, State Sunday Laws and the Religious

Guarantees of the Federal Constitution,

73 Harv. L. Rev. 729 (1960) ..................................... 5

Numbers 15:38–40 ..................................................... 16

Orthodox Union, The 39 Categories of Sabbath

Work Prohibited by Law, July 17, 2006,

https://www.ou.org/holidays/shabbat/the_

thirty_nine_categories_of_sabbath_work_pro

hibited_ by_law/ ..................................................... 12

Pew Research Ctr., Muslim Americans: No

signs of growth in alienation or support for

extremism, Aug. 30, 2011, http://www.peoplepress.org/2011/08/30/section-2-religiousbeliefs-and-practices/ ............................................. 13

ix

Seigel, M. Strassfeld & S. Strassfeld, The Jewish

Catalogue (1973)..................................................... 15

Dawinder S. Sidhu & Neha Singh Gohil, Civil

Rights in Wartime: The Post-9/11 Sikh

Experience (2009) ................................................... 17

The Sikh Coalition, FAQ,

https:/www.sikhcoalition.org/about-sikhs/ faq/ ..... 15

Ganda Singh, Gobind Singh, Guru, in 2 The

Encyclopaedia of Sikhism (Harbans Singh ed.,

1996) ....................................................................... 14

Kapur Singh, Me Judice (2003)................................. 14

Patwant Singh, The Sikhs (1999) ............................. 17

Santokh Singh, Fundamentals of Sikhism

(1991) ................................................................ 14, 16

Talmud Kiddushin .................................................... 15

Talmud Shabbat ........................................................ 15

INTERESTS OF AMICI CURIAE 1

Religious organizations and associated faith communities representing millions of Americans appear

on this brief. Although our beliefs and practices are diverse, we are united in supporting robust legal

protections for religious freedom. That freedom must

include a vibrant right for religious Americans to worship on their Sabbath day, participate in other

religiously significant events, and comply with religious dress and grooming standards in the workplace,

without the loss of employment. Yet the promise of legal protection for such religious practices has been

hollow since Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977). With Hardison’s sanction, employers routinely deny or disregard an employee’s request

for religious accommodation. We submit this brief to

support petitioner’s effort to restore full legal protection for religious employees.

SUMMARY OF ARGUMENT

“No Adventists need apply.” That is effectively the

message delivered by Respondent GLE Associates, Inc.

when Petitioner Mitche Dalberiste tried to live his

faith. Days after telling GLE that he was unavailable

to work on his Sabbath, Dalberiste lost his job—without any effort by GLE to accommodate his request. See

App. 15a; Pet. 9. His loss is directly traceable to the

1 Pursuant to Supreme Court Rule 37.2, amici state that counsel

of record for all parties received notice of the intent to file this

brief at least ten days before it was due and have consented to

this filing. Pursuant to Supreme Court Rule 37.6, amici state that

no counsel for any party authored this brief in whole or in part

and that no entity or person, aside from amici, their members,

and their counsel, made any monetary contribution toward the

preparation or submission of this brief.

2

Hardison decision that the petition asks the Court to

reconsider.

Forcing an employee to choose between his faith

and his job contravenes the original public meaning of

the Civil Rights Act of 1964. Title VII of the Act requires employers to reasonably accommodate an

employee’s religious practice unless an accommodation would impose “an undue hardship.” See 42 U.S.C.

§ 2000e(j). But this Court reduced the law’s protection

to a virtual nullity by deciding that an employer may

deny a religious accommodation without legal consequence if it would incur “more than a de minimis cost.”

Hardison, 432 U.S. at 84.

We wholeheartedly support petitioner’s plea to reconsider and overrule Hardison. American workers

from diverse faith communities face the same conflict

as Dalberiste, torn between the imperative requirements of faith and the inflexible demands of an

employer. Without this Court’s intervention, religious

employees will continue to face religious discrimination and all its attendant harms.

The petition ably describes several reasons for

granting review. But perhaps the most compelling reason is that Hardison stands as an obstacle to applying

a vital statute on its own terms. Employers and courts

cite Hardison as reason to brush aside virtually any

request for religious accommodation, no matter how

reasonable or inexpensive. The guarantee of religious

accommodation simply cannot be honored by redefining the ordinary meaning of “undue hardship” to mean

a little more than “de minimis cost.” Inconvenience is

not hardship.

3

This case offers the vehicle to reconsider Hardison

that the Court has been waiting for. The petition presents a single question of law—the meaning of “undue

hardship” under 2000e(j)—on which the judgment below solely rests. That question holds national

significance for the millions of religious Americans desiring to practice their faith without sacrificing their

livelihood. And to an unusual degree, this case comes

to the Court free of material factual disputes since it is

uncontested that Dalberiste produced a prima facie

case of religious discrimination under 2000e(j). See

App. 18a. Hardison is the only obstacle to the reasonable accommodation he seeks.

In short, review should be granted in this case to

reconsider Hardison and return 2000e(j) to its textual

moorings.

ARGUMENT

I. TWA v. Hardison Should Be Overruled.

A. Hardison’s interpretation of Title VII

withholds protection that Congress enacted for employees of faith.

1. Hardison tore a hole in the Civil Rights Act of

1964, the Nation’s signature civil rights law. Title VII

of the Act prohibits an employer from discriminating

against a person because of religion and defines religion to include “all aspects of religious observance and

practice.” See 42 U.S.C. §§ 2000e-2(a), 2000e(j). Under

the statute, an employer can lawfully deny a request

“to reasonably accommodate” an employee’s religious

observance or practice only by showing that an accommodation would inflict “undue hardship on the conduct

of the employer’s business.” Id. 2000e(j). In Hardison,

the Court read “undue hardship” to mean that such an

4

accommodation can be refused whenever it requires an

employer “to bear more than a de minimis cost.” 432

U.S. at 84. Justice Marshall rightly pointed out that

this interpretation of 2000e(j) “makes a mockery of the

statute.” Id. at 88 (Marshall, J., dissenting). Undue

hardship did not mean more than a de minimis cost

when the statute was enacted. See Small v. Memphis

Light, Gas and Water, 952 F.3d 821, 826–27 (6th Cir.

2020) (Thapar, J., concurring). Nor does undue hardship carry that meaning today. See U.S. Invitation Br.

19, Patterson v. Walgreen Co., No. 18-349 (2019). And

it is passing strange for Hardison to have distorted the

meaning of 2000e(j) when the case turned on the interpretation of an EEOC guideline, not on Title VII

itself. 2

No wonder three members of this Court agree that

the Court should “grant review in an appropriate case

to consider whether Hardison’s interpretation [of undue hardship] should be overruled.” Patterson v.

Walgreen Co., 140 S. Ct. 685, 685 (2020) (Alito, J.,

joined by Thomas and Gorsuch, J.J., concurring in denial of certiorari).

This is that case.

2 Justice Thomas has rightly pointed out that “[b]ecause 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 an ‘undue hardship’

defense—not the amended statutory definition.” EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2040 n.* (2015)

(Thomas, J., concurring in part and dissenting in part). Yet

courts—including the Eleventh Circuit below—have treated Hardison as a controlling interpretation of Title VII. See App. 9a

(describing Hardison as “binding Supreme Court precedent”).

5

2. Petitioner’s plea to reconsider Hardison is

deeply rooted not only in the language of Title VII, but

in the history of Anglo-American religious freedom.

For centuries, Sabbath worship was so intrinsic to religious faith that laws commonly barred commerce on

Sunday. English statutes guarding Sunday from commercial activity date back to 1237. See McGowan v.

Maryland, 366 U.S. 420, 431–32 (1961) (citing A.H.

Lewis, A Critical History of Sunday Legislation 81–

108 (1888)). This deeply engrained pattern of English

law influenced legislation in the American colonies—

even those founded on the right of religious dissent.

See Note, State Sunday Laws and the Religious Guarantees of the Federal Constitution, 73 Harv. L. Rev.

729, 729 n.2 (1960) (citing The Law Concerning Liberty of Conscience, 1700, 2 Pa. Stats. at Large 34

(1700)). Sunday closing laws “persevered after the

Revolution and, at about the time of the First Amendment’s adoption, each of the colonies had laws of some

sort restricting Sunday labor.” McGowan, 366 U.S. at

433 (citations omitted). Even after the religious rationale for Sunday closing laws had eroded, most

states maintained laws restricting Sunday labor. See

id. at 435 (“Almost every State in our country presently has some type of Sunday regulation and over

forty possess a relatively comprehensive system.”) (citations omitted).

Considering the importance of Sabbath worship, it

should not be surprising that the modern understanding of religious freedom under the First Amendment

recognizes that the government may not penalize an

employee for taking time off work to observe his or her

Sabbath. One of the Court’s leading decisions under

the Free Exercise Clause holds that a state could not

6

deny unemployment benefits to a Seventh-day Adventist whose faith prevented her from working on

Saturdays—essentially the same conflict petitioner

faces here. See Sherbert v. Verner, 374 U.S. 398, 408–

09 (1963). The Court criticized the state for compelling

the employee “to choose between following the precepts of her religion and forfeiting benefits, on the one

hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Id. at

404.

Yet Hardison—in spite of Congress’s best efforts to

safeguard religious freedom—forces employees to

make that same “cruel choice.” 432 U.S. at 87 (Marshall, J., dissenting).

3. The United States has rejected Hardison’s

reading of 2000e(j).

In response to this Court’s invitation, the Solicitor

General wrote last year that Hardison was “incorrect”

because it did not articulate “a reasonable interpretation of the statutory phrase ‘undue hardship,’ and

subsequent case law has eroded Hardison’s doctrinal

underpinnings.” U.S. Invitation Br. 8. Accordingly, the

Solicitor General concluded that “the question

whether to revisit Hardison’s de minimis standard

warrants review.” Id. at 19 (emphasis removed, capitalization altered).

In another blow against Hardison, the U.S. Department of Justice has interpreted 2000e(j) as a duty to

accommodate religious observance. By the Department’s reckoning, “covered employers are required to

adjust employee work schedules for Sabbath observance, religious holidays, and other religious

observances, unless doing so would create an undue

7

hardship, such as materially compromising operations

or violating a collective bargaining agreement.” Att’y

Gen. Jeff Sessions, Mem. for All Executive Dep’ts and

Agencies, Federal Law Protections for Religious Liberty, at 5 (Oct. 6, 2017).

Welcome as they are, these statements will do little

to shore up the rights of religious employees like Dalberiste without this Court’s review. Only then can

Hardison be removed as an obstacle to the protection

that Congress enacted for religious employees.

B. Hardison’s incorrectness has been a recurring issue for four decades.

Since Hardison was announced, the cost of that decision for millions of religious employees has been

anything but de minimis. Hardison sets the bar for

employers so low that allowing an employee to make a

slight departure from a company-wide dress and appearance policy is held to be an undue hardship.

Allowing a police officer to wear a small gold cross on

his uniform was deemed an undue hardship when department policy allowed pins to be worn only if

approved by the police chief. See Daniels v. City of Arlington, Tex., 246 F.3d 500, 506 (5th Cir. 2001).

Denying other workers their preferred shifts to make

a religious accommodation has been ruled an undue

hardship. See Adams v. Retail Ventures, Inc., 325 Fed.

App’x 440, 443 (7th Cir. 2009). And perhaps most absurdly, the possibility that “other employees could

have hard feelings” if a religious employee was allowed

to have his Sabbath day off was considered a valid factor in court’s undue hardship analysis. Leonce v.

Callahan, No. 7:03-CV-110-KA, 2008 WL 58892, at *5

(N.D. Tex. Jan. 3, 2008).

8

These decisions illustrate the sad fact that Hardison allows all but the most unimaginative employer to

shirk the legal duty to accommodate religious employees. Review is warranted to revisit that decision and

realign judicial doctrine with the text of Title VII.

C. The lax regime created by Hardison imposes especially severe hardships on

economically vulnerable workers.

Tragically, the damage caused by Hardison often

hurts employees who are least able to weather the loss

of a job. Many who assert the right to a religious exemption come from the lower rungs of the economic

ladder—store clerks and mechanics, not lawyers and

investment bankers:



Entry-level maintenance worker, see McCarter

v. Harris Cty., Tex., No. CIV.A. H-04-4159, 2006

WL 1281087 (S.D. Tex. May 5, 2006);



Hotel kitchen mechanic, see Jiglov v. Hotel Peabody, G.P., 719 F. Supp. 2d 918 (W.D. Tenn.

2010);



Part-time grocery store clerk, see Prach v. Hollywood Supermarket, Inc., No. 09-13756, 2010

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



Immigrant pet food factory production workers,

see Mohamed v. 1st Class Staffing, LLC, 286

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



Nursing home activity aide, see Nobach v.

Woodland Vill. Nursing Home Ctr., Inc., No.

1:11CV346-HSO-RHW, 2012 WL 3811748 (S.D.

Miss. Sept. 4, 2012);

9



Administrative assistants, see Shatkin v. Univ.

of Texas at Arlington, No. 4:06-CV-882-Y, 2010

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



Juvenile detention center officer, see Finnie v.

Lee Cty., Miss., 907 F. Supp. 2d 750 (N.D. Miss.

2012);



Sheriff’s office detention officer, see Leonce v.

Callahan, No. 7:03-CV-110-KA, 2008 WL 58892

(N.D. Tex. Jan. 3, 2008).

Employees like these have limited bargaining

power and financial resources. They are seldom able to

pressure employers for religious accommodations,

much less wage a legal battle to vindicate their civil

rights. Reported cases represent only the tip of the proverbial iceberg since these claims rarely come before a

judge at all, much less before this Court. Yet economically vulnerable workers have the greatest need for

protection since few can absorb the devastating blow

of losing their jobs as the price of practicing their faith.

Hardison stands in the way protecting them.

II. Overruling Hardison Holds National Importance for Americans from Diverse Faith

Communities.

Seventh-day Adventists are hardly the only religious group affected by Hardison. Millions of

Christians observe Sunday as the Sabbath and other

legal holidays like Christmas as days of religious observance. Hardison prevents these employees from

practicing their religion without risking their jobs.

Non-Christian beliefs and practices from diverse religious groups likewise create potential conflicts

between conscientious employees and their employers.

10

Understanding some of those beliefs and practices underscores the importance of accommodating religious

practices for people of all faiths.

A. Sabbaths, Holy Days, and the Duty to

Worship

Many religions in the United States observe a day

set aside each week for religious worship, annual holy

days or periods, and other religious observances. Firm

religious standards often require that the believer refrain from commercial work on such days.

1. Christianity

The Decalogue declares: “Remember the sabbath

day, to keep it holy. Six days you shall labor, and do all

your work; but the seventh day is a Sabbath to the

Lord your God; in it you shall not do any work.” Exodus

20:8–10 (King James). Millions of American Christians still understand this scriptural injunction as a

divine command not to perform work for pay on the

Sabbath.

The Catholic Catechism teaches, for instance, that

“[o]n Sundays and other holy days of obligation, the

faithful are to refrain from engaging in work or activities that hinder the worship owed to God, * * * and the

appropriate relaxation of mind and body.” Catechism

of the Catholic Church § 2185 (2d ed. 2000). On Sundays and other holy days, the “faithful are bound * * *

to abstain from those labors and business concerns

which impede the worship to be rendered to God, * * *

or the proper relaxation of mind and body.” Id. § 2193.

And on these days of religious observance “the faithful

are bound to participate in Mass.” Id. § 2180.

11

Other Christian faiths interpret this commandment of Sabbath-day observance in similar terms.

Members of The Church of Jesus Christ of Latter-day

Saints believe that the Lord has commanded them to

“go to the house of prayer and offer up thy sacraments upon my holy day” as “a day appointed unto you

to rest from your labors, and to pay thy devotions unto

the Most High.” Doctrine and Covenants 59:9–10; see

also Russell M. Nelson, The Sabbath Is a Delight (April

2015),

https://www.lds.org/general-conference/2015/04/the-sabbath-is-a-delight?lang=eng (“God

gave us this special day, not for amusement or daily

labor but for a rest from duty, with physical and spiritual relief. * * * We are under covenant to [keep the

Sabbath].”).

Jehovah’s Witnesses not only attend a mandatory

Sabbath-day worship meeting but also a mid-week

mandatory meeting, often in the evening. See JW.org,

What

Happens

at

Our

Meetings?,

https://www.jw.org/en/jehovahs-witnesses/meetings/;

JW.org,

What

Are

Our

Meetings

Like?,

https://www.jw.org/en/library/books/jehovahswill/meetings-of-jehovahs-witnesses/.

Although not all Christians agree which day of the

week should be observed as the Sabbath, many share

Dalberiste’s belief that it would offend God and violate

his commandments to work for an employer on the

Sabbath. See Adventist, Is Saturday the Sabbath?,

July 9, 2013, https://www.adventist.org/en/beliefs/living/the-sabbath/article/go/-/is-saturday-the-sabbath/.

12

2. Judaism

Members of the Orthodox Jewish community interpret the Torah and Oral Law to prohibit working on

the Jewish Sabbath (sundown Friday to Saturday

night) and designated Jewish holy days. See generally

Rabbi Yosef Karo, Shulchan Aruch Orach Chayim

242–365 (Sabbath prohibitions); id. at 495–529 (holy

day prohibitions); Aryeh Kaplan, Sabbath: Day of

Eternity, in II The Aryeh Kaplan Anthology 107, 128

(1998). Sabbath restrictions extend beyond mere employment to encompass thirty-nine categories of

prohibited activity. See Orthodox Union, The 39 Categories of Sabbath Work Prohibited by Law, July 17,

2006,

https://www.ou.org/holidays/shabbat/the_

thirty_nine_categories_of_sabbath_work_prohibited_

by_law/. Given the importance of these restrictions for

Orthodox Judaism, adherents feel that an observant

Jew must be willing to lose a job rather than work on

the Sabbath. See 3 Karo, Shulchan Aruch Orach Chayim, at 308.

3. Islam

The Muslim equivalent of the Christian or Jewish

Sabbath is the Friday noonday prayer at the local

Mosque, known as Jumu’ah. For observant Muslim

men, work is not forbidden on Fridays but missing

Jumu’ah is a serious violation of Islamic law. See

Ceasar E. Farah, Islam: Beliefs and Observances 136

(7th ed. 2003). The Qur’an directs Muslims to “leave

trade” and proceed to Friday prayer when called. AlQur’an 62:9; see also O’Lone v. Estate of Shabazz, 482

U.S. 342, 345 (1987) (describing “Jumu’ah, a weekly

Muslim congregational service” that is “commanded by

the Koran and must be held every Friday after the sun

13

reaches its zenith and before the Asr, or afternoon

prayer”).

B. Religious dress and grooming standards

Besides observance of Sabbaths and holy days,

many believing Americans demonstrate their faith in

the workplace by complying with religious dress and

grooming standards. These may include ways of covering one’s head, objects worn on one’s body, or not

cutting one’s hair. For many faiths, compliance with

these standards is an outward expression of religious

commitment.

1. Women’s head coverings

Many Muslim women believe that Islamic scripture

encourages, if not requires, them to cover their heads

in public to be modest. See, e.g., Al-Qur’an 24:31;

33:59. The headscarf or veil Muslim women wear is often called a hijab. See Council on American-Islamic

Relations, An Employer’s Guide to Islamic Religious

Practices (2005), https://www.cair.com/images/pdf/employers_guide.pdf. About 60 percent of Muslim women

in this country report that they wear a hijab at least

sometimes, including 36 percent who wear it whenever

they are in public. See Pew Research Ctr., Muslim

Americans: No signs of growth in alienation or support

for extremism, Aug. 30, 2011, http://www.peoplepress.org/2011/08/30/section-2-religious-beliefs-andpractices/.

Married Orthodox Jewish women also wear various

types of head coverings in public as a symbol of modesty and as a visible token of their married status. See

Aaron Moss, Why Do Jewish Women Cover Their

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Hair, https://www.chabad.org/theJewishWoman/article_cdo/aid/336035/jewish/Why-Do-Jewish-WomenCover-Their-Hair.htm.

Sikhs, both women and men, wear a comb in their

hair called a kanga. See Kaur Foundation, FAQS,

https://www.kaurfoundation.org/faqs.html. Wearing

the kanga is one of five articles of faith Sikhs commit

to obey after going through an initiation called the Amrit Ceremony, wherein they promise to live by the Sikh

code of conduct. See id.; Santokh Singh, Fundamentals

of Sikhism 67, 91 (1991). Wearing or abiding by these

articles of faith is a fundamental tenet of the Sikh

faith. See Kapur Singh, Me Judice 258–64 (2003). The

kanga represents religious principles of order and discipline. Surinder Singh Johar, Handbook on Sikhism

94 (1977). It also signifies the obligation for Sikhs to

remain engaged in improving society rather than withdrawing into the life of an ascetic. See generally

Gobind Singh Mansukhani, Sikh Rahit Maryada and

Sikh Symbols, in Sikhism Its Philosophy and History

312 (Daljeet Singh & Kharak Singh eds., 1997); Ganda

Singh, Gobind Singh, Guru, in 2 The Encyclopaedia of

Sikhism 88 (Harbans Singh ed., 1996).

2. Men’s head coverings

Many Sikh men wear turbans. Covering one’s hair

with the turban represents religious values such as piety, courage, and dedication. See generally Gobind

Singh Mansukhani, Sikh Rahit Maryada and Sikh

Symbols, in Sikhism Its Philosophy and History at

312. “[T]urbans become a part of a Sikh’s body and are

usually removed only in the privacy of the house.” The

Sikh

Coalition,

FAQ,

https:/www.sikhcoalition.org/about-sikhs/ faq/.

15

Other faiths require men to wear head coverings.

Orthodox Jewish men wear a yarmulke or kippah. See

R. Seigel, M. Strassfeld & S. Strassfeld, The Jewish

Catalogue 49–50 (1973); see also Talmud Kiddushin

31(a) & 33(a); Talmud Shabbat 118(b), 156(b). By covering one’s head, a “Jew symbolically expresses

[submission to God] by keeping his head covered, and

in this subordination to God he finds his own honor.”

S. R. Hirsch, Hirsch Siddur 14 (1969). Some Muslim

men also wear a cap, called a taqiyah, to symbolize

that “its wearer is in constant prayer,” and its removal

is forbidden. See In re Palmer, 386 A.2d 1112, 1113

(R.I. 1978).

3. Other dress and grooming standards

Some faiths require their adherents to dress according to traditional norms. Pentecostal Christian

women do not wear pants, for instance. See, e.g.,

McCarter v. Harris Cty., Tex., No. CIV.A. H-04-4159,

2006 WL 1281087, at *1 (S.D. Tex. May 5, 2006) (entry-level maintenance worker “requested permission

to wear a long, tapered skirt” at work because “[o]ne of

the tenets of her new [Pentecostal] faith was that

women could not wear men’s clothing, including

pants”); Finnie v. Lee Cty., Miss., 907 F. Supp. 2d 750,

756–57 (N.D. Miss. 2012) (officer at juvenile detention

center “requested an exemption from the uniform policy” because “wearing pants would violate her

[Pentecostal] beliefs”).

Also, Vaishnava Hindus, represented on this brief

by the International Society for Krishna Consciousness, must wear sacred neck beads at all times.

Devoted men must wear a tuft of hair on the back of

their heads; faithful women often cover their heads

and always prefer modest dress.

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C. Religious symbols

Some Catholics and other Christian believers feel a

duty or desire born of their faith to wear a cross or Crucifix at all times—including in the office. See, e.g.,

Daniels, 246 F.3d at 500 (police officer fired for refusing to stop wearing a gold cross pin on his uniform).

Some Jewish men follow the Biblical command to wear

knotted strings, called tzitzit, hanging from the corners of a four-cornered garment, and, according to

some, these strings must be visible to comply with the

divine directive. See Deuteronomy 22:12, Numbers

15:38–40.

Sikhs who have completed the Amrit Ceremony and

committed to live by the Sikh code of conduct must

wear a dagger called a kirpan as one of the five articles

of the Sikh faith. Santokh Singh, Fundamentals of

Sikhism 91–97 (1991). While there is no prescribed

length or shape as individuals choose a kirpan consistent with their own religious practice, the kirpan

generally has a curved, blunted edge and obligates

Sikhs to maintain their duty to promote justice and

protect the weak. See L.M. Joshi, Ahimsa, in 1 The Encyclopaedia of Sikhism 19 (Harbans Singh ed., 1992). 3

Observant Sikhs also must wear a steel or iron band

called a karaa, another element of the five articles of

faith. See Singh, Fundamentals of Sikhism at 91–97.

The karaa represents the unbreakable bond between

Sikhs and their faith. See Johar, Handbook on Sikhism at 95.

3 In reality, the dulled kirpan is no more dangerous than a common pencil, pen, or fingernail clipper.

17

D. Hair and beards

Some faiths require a man to wear a beard or refrain from cutting his hair. Many understand Islam to

dictate that men should wear beards. See Muhammed

al-Jibaly, The Beard Between the Salaf & Kalaf, ch. 1

(1999). For these believers, “[t]his is not a discretionary instruction; it is a commandment,” and refusing to

grow a beard when one is capable “is a major sin.” Fraternal Order of Police Newark Lodge No. 12 v. City of

Newark, 170 F.3d 359, 360 (3d Cir. 1999) (Alito, J).

Orthodox and Hasidic Jews let their sideburns

grow to a certain length, and some wear beards to follow the Biblical commandment found in Leviticus

19:27: “You shall not round off the edge of your scalp

and you shall not destroy the edge of your beard.”

The Sikh Code of Conduct commands adherents to

keep all body hair “unshorn.” Dawinder S. Sidhu &

Neha Singh Gohil, Civil Rights in Wartime: The Post9/11 Sikh Experience 1, 23, 43 (2009). For a Sikh man

to cut his beard is a grave sin. See 2 The Encyclopaedia

of Sikhism 466 (Harbans Singh ed., 2d ed. 2001). Likewise, Sikh men and women may not cut any other hair

as part of the article of faith called kesh. See Patwant

Singh, The Sikhs 56 (1999). Violating this article of

faith is considered “direct apostasy.” 2 The Encyclopaedia of Sikhism.

Hardison’s shadow falls on all these groups. Conflicts arise when an orthodox Jew requests Saturdays

off, see Brener v. Diagnostic Center Hospital, 671 F.2d

141 (5th Cir. 1982); a Muslim woman wears a scarf

with her employee uniform, see Abercrombie & Fitch

Stores, Inc., 135 S. Ct. at 2031; or a Sikh wears a kirpan to work, see Tagore v. United States, 735 F.3d 324

18

(5th Cir. 2013). Unless this Court intervenes, Hardison will continue to deny religious Americans from

diverse religious communities their right to accommodation for trivial reasons. As Justice Marshall

correctly forecast, Hardison’s standard “deals a fatal

blow to all efforts under Title VII to accommodate

work requirements to religious practices.” Hardison,

432 U.S. at 86 (Marshall, J., dissenting).

III. The Petition Presents an Excellent Vehicle

to Revisit Hardison.

Earlier this year, the Court denied certiorari in

Patterson v. Walgreen Co.—a closely watched case presenting the same question posed here. See 140 S. Ct.

at 685. This despite the Solicitor General’s support for

review on the question of Hardison’s interpretation of

42 U.S.C. § 2000e(j). See U.S. Invitation Br. 19. Justice

Alito authored an opinion concurring in that result,

which Justices Thomas and Gorsuch joined. All of

them conceded that Patterson “does not present a good

vehicle for revisiting Hardison.” Id. at 686. Probably,

concerns arose from the fact that the court of appeals

rested its decision on alternative grounds. See Pet. 15.

But the concurrence stressed that the Court “should

grant review in an appropriate case to consider

whether Hardison’s interpretation should be overruled.” 140 S. Ct. at 686.

This case presents the vehicle the Court has been

waiting for.

First, the petition presents a single question of

law—the meaning of “undue hardship” under

2000e(j)—an issue that both lower courts squarely addressed. See App. 6a–7a (summarily affirming the

19

district court on the basis that it properly applied Hardison); id. at 19a, 27a (applying Hardison to conclude

that accommodating Dalberiste would impose an unjust hardship on GLE). Unlike the court in Patterson,

the Eleventh Circuit here did not articulate any other

ground of decision. See id. at 7a.

Second, the petition presents a legal question of national significance—not a fact-bound determination.

Granting review and vacating the decision below

would give Dalberiste a clear opportunity to seek relief

under a more robust standard of undue hardship. His

claim has broad implications since it falls in “the largest class of cases”—those arising from conflicts over

“work schedules.” Hardison, 432 U.S. at 87 (Marshall,

J., dissenting). Overturning Hardison would end a decades-old regime of forcing religious employees to

choose between their faith and their livelihood. It follows that the petition steers well clear of Rule 10’s

injunction against seeking review based on “erroneous

factual findings or the misapplication of a properly

stated rule of law.” Sup. Ct. R. 10.

Third, this case comes to the Court free of material

factual disputes. It is uncontested that Dalberiste was

qualified for his position as an industrial hygiene technician. It is uncontested that he holds a sincere belief

in observing sundown Friday to sundown Saturday as

his Sabbath and that he cannot, in good conscience, do

any paid work during that period. It is likewise uncontested that Dalberiste asked GLE to accommodate his

religious practice by excusing him from work on his

Sabbath. And it is uncontested that GLE refused even

20

to consider Dalberiste’s request, discharging him instead. 4 The record leaves no doubt, therefore, that

Dalberiste produced a prima facie case of religious discrimination under 2000e(j). See App. 18a.

Other factual disputes are beside the point. It does

not matter whether Dalberiste disclosed his religious

objection to working on Saturdays before he accepted

a position with GLE. Nor does it matter whether some

or all of Dalberiste’s suggested accommodations would

satisfy a different standard than Hardison. Even if

these disputes were relevant, the record must be construed in Dalberiste’s favor since he appeals from a

summary judgment against him. See Tolan v. Cotton,

572 U.S. 650, 657 (2014). But these disputes are so

many red herrings. What genuinely matters is that

Dalberiste has satisfied every element under Title VII

for a claim of religious discrimination, see Pet. 18a,

and that his ability to obtain relief depends on this

Court’s answer to the question presented.

Few Title VII cases offer such a “straightforward”

vehicle for this Court’s review. Pet. 36. Granting review here offers a procedurally and factually clean

opportunity to revisit Hardison’s interpretation of Title VII and, we hope, to restore the civil rights for

religious employees that Congress enacted.

4 Dalberiste properly brought separate claims for religious dis-

crimination and retaliation based on GLE’s denial of an

accommodation and its rescission of Dalberiste’s job offer. See

Pet. 15a (describing petitioner’s claims of religious discrimination

and unlawful retaliation).

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CONCLUSION

The petition should be granted.

Respectfully submitted,

ALEXANDER DUSHKU

R. SHAWN GUNNARSON

Counsel of Record

JAMES C. PHILLIPS

EMILY R. HAWS

KIRTON | MCCONKIE

36 South State Street

Suite 1900

Salt Lake City, Utah 84111

(801) 328-3600

sgunnarson@kmclaw.com

Counsel for Amici Curiae

July 31, 2020