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 Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

––––––––––––––––––––––––

BRIEF FOR ROBERT P. ROESSER & THE NATIONAL

RIGHT TO WORK LEGAL DEFENSE FOUNDATION, INC.

AS AMICI CURIAE SUPPORTING PETITIONER

––––––––––––––––––––––––

BRUCE N. CAMERON

Counsel of Record

RAYMOND J. LAJEUNESSE, JR.

BLAINE L. HUTCHISON

FRANK D. GARRISON

c/o NATIONAL RIGHT TO

WORK LEGAL DEFENSE

FOUNDATION, INC.

8001 Braddock Road, Ste. 600

Springfield, VA 22160

(703) 321-8510

bnc@nrtw.org

Counsel for Amici

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY

OF ARGUMENT ......................................................... 2

ARGUMENT ............................................................... 4

I. Whether to Overrule Hardison Is an Important,

Recurring Question of Federal Law that Affects

Thousands of Employees’ Ability to Practice Their

Religion and Keep Their Job ................................. 4

A. Hardison Conflicts with Title VII’s Text ......... 5

B. Hardison’s Deviation from Title VII’s Text Undermines Congress’s Intent to Protect Religious Practice by Replacing Accommodation

with Formal Neutrality .................................... 7

1. Pre-Amendment Interpretations of Title

VII Rejected Accommodation ...................... 7

2. Congress Amended Title VII to Require Religious Accommodation and Reject PreAmendment Formal Neutrality .................. 9

3. Hardison Defies Congress by Rejecting Accommodation and Adopting Pre-Amendment Neutrality......................................... 10

i

TABLE OF CONTENTS—Continued

Page

C. Hardison Undermines Important Protections

for Religious Employees ................................. 12

1. Hardison Undermines Title VII’s Religious

Practice Protections by Inversing the Burden of Accommodation from Employers to

Employees .................................................. 13

2. Hardison Undermines Title VII’s Religious

Practice Protections by Failing to Protect

Religious Minorities .................................. 16

3. Hardison Undermines Title VII’s Religious

Practice Protections by Allowing Systematic Religious Discrimination ................... 18

II. Hardison Conflicts with this Court’s Recent Precedent Protecting Religion in the Workplace ....... 19

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

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Anderson v. Mt. Clemens Pottery Co.,

328 U.S. 680 (1946) .............................................. 13

Bostock v. Clayton Cty., Georgia,

140 S. Ct. 1731 (2020) ............................................ 5

Brener v. Diagnostic Ctr. Hosp.,

671 F.2d 141 (5th Cir. 1982) ................................ 15

Chrysler Corp. v. Mann,

561 F.2d 1282 (8th Cir. 1977) .............................. 15

Dewey v. Reynolds Metals Co.,

429 F.2d 324 (6th Cir. 1970) ........................ passim

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

135 S. Ct. 2028 (2015) ............................... 3,4,19,20

EEOC. v. Firestone Fibers & Textiles Co.,

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

EEOC. v. Univ. of Detroit,

904 F.2d 331 (6th Cir. 1990) .................................. 1

Eversley v. MBank Dallas,

843 F.2d 172 (5th Cir.1988) ................................. 15

Franks v. Bowman Transp. Co.,

424 U.S. 747 (1976) .............................................. 12

Huston v. Local No. 93, UAW,

559 F.2d 477 (8th Cir. 1977) ................................ 15

Janus v. AFSCME, Council 31,

138 S. Ct. 2448 (2018) ............................................ 2

Kennedy v. Bremerton Sch. Dist.,

139 S. Ct. 634 (2019) ............................................ 21

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Patterson v. Walgreen Co.,

140 S. Ct. 685 (2020) ................................. 5,7,18,21

Riley v. Bendix Corp.,

330 F. Supp. 583 (M.D. Fla. 1971) .............. passim

Sandifer v. U.S. Steel Corp.,

571 U.S. 220 (2014) .............................................. 13

Trans World Airlines, Inc. v. Hardison,

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

Weber v. Roadway Express, Inc.,

199 F.3d 270 (5th Cir. 2000) ................................ 15

STATUTES AND RULES

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

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

Supreme Ct. Rule 37.3(a) ............................................ 1

Supreme Ct. Rule 37.6 ................................................ 1

OTHER AUTHORITIES

118 Cong. Rec. 705 ...................................................... 9

Black’s Law Dictionary (4th ed. 1968)........................ 6

Black’s Law Dictionary (5th ed. 1979)........................ 6

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) .............. 13,14,16

Douglas Laycock, Regulatory Exemptions of Religious

Behavior and the Original Understanding of the

Establishment Clause, 81 Notre Dame L. Rev.

1793 (2006) ........................................................... 17

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Douglas Laycock, The Religious Exemption Debate,

11 Rutgers J. L. & Religion 139 (2009) ............... 18

Karen Engle, The Persistence of Neutrality: The

Failure of the Religious Accommodation Provision

to Redeem Title VII, 76 Tex. L. Rev. 317 (1997)

........................................................................... 8,14

Michael W. McConnell, Accommodation of Religion:

An Update and A Response to the Critics,

60 Geo. Wash. L. Rev. 685 (1992) ........................ 16

Pet. Br., Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63 (1977) (No. 75-1126) ......... 5

Peter Zablotsky, After the Fall: The Employer’s Duty

to Accommodate Employee Religious Practices Under Title VII After Ansonia Board of Education v.

Philbrook, 50 U. Pitt. L. Rev. 513 (1989) .. 13,14,16

Random House Dictionary (1973) ............................... 6

Resp’t Br., Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63 (1977) (No. 75-1126) ......... 5

Sara L. Silbiger, Heaven Can Wait: Judicial Interpretation of Title VII’s Religious Accommodation Requirement Since Trans World Airlines v. Hardison, 53 Fordham L. Rev. 839 (1985) .................... 14

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

140 S. Ct. 685 (2020) (No. 18-349).................... 7,18

U.S. Amicus Br., Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63 (1977) (No. 75-1126) ... 5, 18

Webster’s New American Dictionary (1965)................ 6

v

INTEREST OF AMICI CURIAE1

In 1984, the University of Detroit fired Amicus

Dr. Robert P. Roesser from his job as a professor of

electrical engineering because of his faithfulness to

Catholic social teaching. Dr. Roesser refused to fund a

union that would use his money to campaign for abortion rights. EEOC v. Univ. of Detroit, 904 F.2d 331,

332–33 (6th Cir. 1990). As a Catholic who believes promoting abortion is a mortal sin, Dr. Roesser was

forced to sacrifice his career to obey his conscience.

The Equal Employment Opportunity Commission

(“EEOC”) found that firing Dr. Roesser was illegal religious discrimination and sued his employer and union. Dr. Roesser intervened. The district court ruled

against the EEOC and Dr. Roesser, but the Sixth Circuit reversed. It remanded the case for the trial court

to determine whether accommodation was possible

without undue hardship. Id. But the question was

never resolved because the EEOC and Dr. Roesser settled. Dr. Roesser has an interest in what constitutes

undue hardship because his academic career depended on it.

Dr. Roesser thus joins this brief as amicus to highlight the national importance of this case for all employees of faith who believe that they must obey God’s

will but are stymied by the current flawed undue

hardship standard.

Under Supreme Court Rule 37.3(a), the parties consented to

the filing of this brief. Under Supreme Court Rule 37.6, no counsel for any party authored this brief in whole or in part, and no

person or entity other than the amici curiae made a monetary

contribution to its preparation or submission.

1

1

Amicus National Right to Work Legal Defense Foundation, Inc. has been the nation’s leading litigation advocate for employee free choice concerning unionization since 1968. To advance this mission, Foundation staff attorneys pioneered litigation

protecting employees, including amicus Dr. Roesser,

from having to choose between their faith and their

job when forced to pay compulsory union fees. More

broadly, Foundation litigators defended the political

and religious autonomy of employees in many cases

before this Court, including most recently Janus v.

AFSCME, Council 31, 138 S. Ct. 2448 (2018).

INTRODUCTION AND SUMMARY

OF ARGUMENT

Congress enacted Title VII, in part, to protect minority employees from discrimination based on their

religious beliefs. Yet shortly afterwards, this Court

and other courts interpreted Title VII in a way that

allowed employers and unions to discriminate against

religious employees by enforcing rules that discriminate against religious practices.

Congress responded by adding Section 701(j) to Title VII. The amendment clarified that discriminating

against religious practice—even through otherwise

neutral policies—is equivalent to discriminating

against religious belief or status. Both are unlawful

discrimination “because of” religion. To protect religious employees from discrimination, Congress requires employers and unions to provide a reasonable

accommodation unless they can “demonstrate” the

employer cannot adjust its actions “without undue

hardship on . . . [its] business.” 42 U.S.C. § 2000e(j).

2

But Trans World Airlines, Inc. v. Hardison, 432

U.S. 63 (1977), gutted these vital protections for religious employees in the workplace. It did so by deviating from Title VII’s text and plain meaning. The Court

held that little or no duty to accommodate exists, because the majority thought accommodation requires

unequal treatment. Thus, in the guise of equality,

Hardison allows employers and unions to systematically discriminate against and exclude religious minorities from the workplace using general rules, like

union seniority agreements. Id. at 84. The Court encapsulated its holding by stating, without explanation, that an accommodation imposes an undue hardship—and is not required—if it entails “more than a

de minimis cost.” Id.

Hardison’s consequences cannot be overstated. Its

interpretation “nullif[ies]” Congress’s legal protections for religious employees. Id. at 89 (Marshall, J.,

dissenting). And it means that an employer need not

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

Id. at 87. Thus, in practice employers can deprive religious employees of their livelihood for simply following their faith. Congress required accommodation to

eliminate the cruel choice Hardison requires countless religious employees to make—they must either

surrender their faith or their job.

This Court, however, recently reversed course and

rejected Hardison’s conceptual framework. In EEOC.

v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028

(2015), this Court held that “Title VII does not demand mere neutrality with regard to religious practices . . . . Rather, it gives them favored treatment.”

Id. at 2034. Abercrombie affirmed that discrimination

“due to an otherwise-neutral policy” is no excuse. Id.

3

“Title VII requires otherwise-neutral policies to give

way to the need for an accommodation.” Id. Despite

this Court’s course correction, however, lower courts

continue to rigidly apply Hardison—denying crucial

protection for religious employees. The Court should

take this case to make clear to the lower courts what

this Court held in Abercrombie: Title VII protects religious practice—even if an employer adopts a seemingly neutral policy towards religion.

* * *

At bottom, Hardison conflicts with Title VII’s plain

meaning, Congress’s intent, and this Court’s recent

Title VII precedent in Abercrombie. This Court should

therefore take this case to correct Hardison’s mistakes

and restore the protections for religious employees

that Congress enacted.

ARGUMENT

I. Whether to Overrule Hardison Is an Important, Recurring Question of Federal Law

that Affects Thousands of Employees’ Ability

to Practice Their Religion and Keep Their

Job.

Accommodation is necessary to adequately protect

religious employees. Without such protections, religious employees are subject to punishment for practicing their faith. Workplace rules that discriminate

against religious conduct discriminate against religious employees because religious conduct and status

are intimately connected. Congress therefore

amended Title VII to protect employees’ religious belief and practice by requiring accommodation. Hardison undermines these critical protections.

4

A. Hardison Conflicts with Title VII’s Text.

Granting review in this case would present the

first meaningful opportunity for the Court to interpret

undue hardship with the benefit of briefing. The Court

in Hardison gave no justification for its unusual de

minimis standard, and no party endorsed it. Pet. Br.

at 41, 47, Hardison, supra, (No. 75-1126); Resp’t Br.

at 8, 21, Hardison, supra, (No. 75-1126); U.S. Amicus

Br. at 20, Hardison, supra, (No. 75-1126). To the contrary, although the briefs in Hardison did not focus on

the term undue hardship, the parties—and the United

States as amicus—all acknowledged that the standard for it was far higher than the Court’s eventual interpretation. Id.

When interpreting a statute, as this Court recently

explained, a court must construe a statute “in accord

with the ordinary public meaning of its terms at the

time of its enactment.” Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1738 (2020). This is because “only

the words on the page constitute the law adopted by

Congress and approved by the President.” Id. Judges

therefore usurp the legislative process and destroy the

ability to rely on the law when they deviate from a

statutory term’s original public meaning. Id. Because

Congress here did not define the term undue hardship, it must be interpreted according to its ordinary

meaning in 1972—when Congress amended Title VII.

Hardison’s interpretation of undue hardship, as

Justice Alito has noted, “does not represent the most

likely interpretation of the statutory term.” Patterson

v. Walgreen Co., 140 S. Ct. 685, 686 (2020) (Alito, J.,

joined by Thomas and Gorsuch, JJ., concurring in the

denial of certiorari). Indeed, it defies plain English. No

pre-Hardison dictionary defines undue hardship as

5

simply “more than de minimis.” And for good reason.

A de minimis burden—one that is “very small or trifling,” comparable to “a fractional part of a penny”—is

no hardship at all. Black’s Law Dictionary 482 (4th ed.

1968).

Dictionaries when the amendment was enacted defined hardship as “a condition that is difficult to endure; suffering; deprivation; oppression.” Random

House Dictionary 646 (1973). Webster’s and Black’s

law dictionaries agree.2 Undue primarily meant “unwarranted” or “excessive.” Random House Dictionary,

supra, at 1433.3 Thus, the ordinary meaning of the

term undue hardship entails “a condition that is difficult to endure” and that is serious enough to be considered undue—“excessive” or “inappropriate.”

It is impossible to reconcile Hardison’s interpretation of undue hardship—as “[anything] more than a

de minimis cost”—with the term’s original public

meaning. Many costs are neither hardships—difficult

to endure—nor undue—“excessive” or “inappropriate.” But they satisfy Hardison’s de minimis standard. Based on these concerns, Justices Alito, Thomas,

and Gorsuch and the United States recently confirmed that the Court should reconsider Hardison.

2 Webster’s New American Dictionary 379 (1965) (defining hard-

ship as “something that causes or entails suffering or privation”);

Black’s Law Dictionary 646 (5th ed. 1979) (defining hardship as

“privation, suffering, adversity”).

3 See Webster’s New American Dictionary, supra, at 968 (defining

undue as “not due,” as “inappropriate” or “unsuitable,” and as

“exceeding or violating propriety or fitness.”); Black’s Law Dictionary, supra, at 1370 (defining undue as “[m]ore than necessary; not proper; illegal”); Black’s Law Dictionary 1697 (4th ed.

1968) (same).

6

Patterson, 140 S. Ct. at 686; U.S. Amicus Br. at 19–22,

Patterson, supra, (No. 18-349).

B. Hardison’s Deviation from Title VII’s Text

Undermines Congress’s Intent to Protect

Religious Practice by Replacing Accommodation with Formal Neutrality.

Not only does Hardison conflict with Title VII’s

text, but it also denies religious accommodation by

“adopt[ing] the very position that Congress expressly

rejected in 1972” when it amended Title VII. Hardison, 432 U.S. at 87 (Marshall, J., dissenting). Even

though Congress amended Title VII to protect religious employees by requiring accommodation, the

Hardison majority replaced accommodation with formal neutrality.

1. Pre-Amendment Interpretations of Title

VII Rejected Accommodation.

The EEOC first interpreted Title VII’s religious

protection through the lens of formal neutrality, but it

changed course a year later. The EEOC adopted an

accommodation approach in its 1967 Guidelines.

Those Guidelines stated that the duty not to discriminate under Title VII includes an obligation to accommodate religious needs, absent “undue hardship on

the conduct of the employer’s business.” Riley v. Bendix Corp., 330 F. Supp. 583, 591 (M.D. Fla. 1971)

(providing the 1966 and 1967 EEOC Guidelines in Appendix A and B), rev’d, 464 F.2d 1113 (5th Cir. 1972).

The 1967 Guidelines removed earlier language that

subordinated religious practice to formally neutral

employment rules.

7

Many courts ignored the 1967 EEOC Guidelines

and continued to apply formal neutrality instead of accommodation. Two cases in particular motivated Congress to amend Title VII: Dewey v. Reynolds Metals

Co., 429 F.2d 324 (6th Cir. 1970), and Riley v. Bendix

Corp., 330 F. Supp. 583 (M.D. Fla. 1971).

In Dewey and Riley, the plaintiffs were fired for religious practices that conflicted with neutral employment requirements. Both courts presupposed formal

neutrality—they defined discrimination as a departure from category neutrality. Karen Engle, The Persistence of Neutrality: The Failure of the Religious Accommodation Provision to Redeem Title VII, 76 Tex.

L. Rev. 317, 364 (1997). They accordingly held that the

plaintiffs were not discriminated against because the

policies applied equally to all employees. Even though

the policies only harmed religious employees, the disparate outcome was irrelevant because the rules were

category neutral.

By adopting formal neutrality, the courts presumed that Title VII only protects status—work rules

only need to be category neutral. Riley emphasized

that employees of faith with conflicting religious practices must either conform to the workplace or “seek

other employment.” 330 F. Supp. at 590. Neutral rules

therefore trump religious practices. Dewey explained

that Title VII protected religious belief (status), but

not religious practice. 429 F.2d at 331.

Dewey denied accommodation because the court

thought it would be discriminatory. Because the court

assumed that Title VII required formal neutrality, it

objected that accommodation was not category neutral. Dewey reasoned that accommodating the plaintiff

would “discriminate against . . . other employees” and

8

“constitute unequal administration of the collective

bargaining agreement.” Id. at 330.

2. Congress Amended Title VII to Require

Religious Accommodation and Reject

Pre-Amendment Formal Neutrality.

Congress rejected Dewey and Riley. In response to

refusals by employers to accommodate religious employees and repeated failures by courts—particularly

in Dewey and Riley—to require accommodation under

Title VII, Senator Jennings Randolph encouraged

Congress to amend Title VII. 118 Cong. Rec. 705

(1972). Senator Randolph argued that Dewey and Riley had “clouded” the meaning of religious discrimination. Id. at 706. He therefore proposed an amendment

to clarify “that Title VII requires religious accommodation, even though unequal treatment would result.”

Hardison, 432 U.S. at 89 (Marshall, J., dissenting)

(emphasis added). The Senate unanimously passed

his proposed amendment and the House similarly approved.

Senator Randolph explained that the amendment

“assure[s] that freedom from religious discrimination

in the employment of workers is for all time guaranteed by law.” 118 Cong. Rec. 705 (1972). His amendment requires accommodation in most cases, according to Senator Randolph, and only permits non-accommodation in “a very, very, small percentage of

cases.” Id. at 706.

Section 701(j)—Congress’s 1972 religious amendment proposed by Senator Randolph—reads:

(j) The term “religion” includes all aspects of

religious observance and practice, as well as belief, unless an employer demonstrates that he

9

is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on

the conduct of the employer’s business.

42 U.S.C. § 2000e(j).

As a guidepost to interpret the duty to accommodate, Congress included in the record copies of the

Dewey and Riley opinions that motivated amendment.

Those decisions thus represent interpretations that

Congress foreclosed by its amendment.

3. Hardison Defies Congress by Rejecting

Accommodation and Adopting PreAmendment Formal Neutrality.

Despite the Congressional amendment rejecting

Dewey and Riley, Hardison embraced the logic and

analysis of those decisions. While the Court acknowledged that a duty to accommodate exists, it instead

applied formal neutrality. Hardison, 432 U.S. at 85.

The Court ignored whether the employer accommodated the individual employee. It instead held that no

discrimination occurred because the employer treated

all protected groups equally. The Court even described

the policy that caused the plaintiff to lose his job as a

“a significant accommodation,” because it equally applied to protected groups. Id. at 78.

Formal neutrality dictated the result. Using “language striking[ly] similar” to Dewey, the Court reasoned that accommodation conflicts with Title VII because it requires unequal treatment. Id. at 89 (Marshall, J., dissenting). The Court therefore refused to

construe the statute to require accommodation because it would produce what the Court thought were

unequal results.

10

But the Court never defined neutrality or considered the appropriate benchmark for comparison. Unequal could have meant either that accommodation

treats religion better than non-protected characteristics (like contract rights) or better than other protected characteristics (like race). The first meaning,

however, would nullify protecting religion or any

other characteristic—all protected characteristics are

treated better than non-protected characteristics. The

second conflicts with Congress’s 1972 amendment.

Congress amended Title VII by requiring accommodation to prohibit religious discrimination—as the statute equally prohibits discrimination based on other

protected characteristics.

Non-accommodation has failed to protect employees of faith from religious discrimination. Refusing accommodation results in inequality: employees are protected from discrimination based on other characteristics but are not protected from religious discrimination. Hardison thus allows employers to exclude individuals from the workforce based on only one protected characteristic—religion.

The Court simply glossed over Congress’s amendment rejecting formal neutrality. Religious accommodation is substantively, but not formally, neutral—it

requires accommodation based on protected categories. The amendment also collapses the distinction between status and conduct. Religious status and conduct are indivisible under Section 701(j). Thus, by discriminating against religious practices, Hardison’s

policy discriminates against religion.

The Court buttressed its decision by arguing that

accommodation conflicts with other non-protected

characteristics, including contract rights under a collective bargaining agreement. Id. at 81. The majority

11

argued that deviation from a majoritarian collective

bargaining agreement is always an undue hardship.

Id. at 83. But resorting to group rights that dispense

with individual employee rights exacerbates the problem. Congress required accommodation to protect individuals from groups. Accommodation is only needed

for minorities who are unable to enact policies to protect their beliefs. Adding another collective—a union

that has eliminated a plaintiff’s right to negotiate his

own working conditions with his employer and that by

law represents majority interests at the expense of minority interests—increases, not decreases, the need

for accommodation.4

The practical result is not neutrality. Religious employees—often religious minorities—are inherently

singled out for discrimination and exclusion by majoritarian systems. The collective requires it.

C. Hardison Undermines Important Protections for Religious Employees.

By defining undue hardship as anything “more

than de minimis,” Hardison effectively eliminates the

duty to accommodate. Almost any cost, by definition,

is more than de minimis and defeats the duty to accommodate. This Court defined de minimis costs as

“trifles,” mere “[s]plit second absurdities” or inconveniences—for example, requiring “a few seconds or

minutes of work beyond the scheduled working

hours.” Sandifer v. U.S. Steel Corp., 571 U.S. 220,

4 Section 703(h) does not support the Hardison majority’s conclu-

sion: it does not create a safe harbor for duties required elsewhere in Title VII. Franks v. Bowman Transp. Co., 424 U.S. 747,

761–62 (1976) (Section 703(h) does not “modify or restrict relief

otherwise appropriate”).

12

233–34 (2014) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946)). Such costs, according to the Court, are so trivial, the law does not recognize them. Id. Hardison thus allows any cost greater

than a “trifle” or “[s]plit second” inconvenience to excuse religious-practice discrimination.

1. Hardison Undermines Title VII’s Religious Practice Protections by Inverting

the Burden of Accommodation from Employers to Employees.

In practice, courts “almost unanimously” consider

“any economic costs”—regardless of the type or

amount—an undue hardship because of Hardison.

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, 139–40 (2015) (listing cases); see also

Peter Zablotsky, After the Fall: The Employer’s Duty

to Accommodate Employee Religious Practices Under

Title VII After Ansonia Board of Education v. Philbrook, 50 U. Pitt. L. Rev. 513, 544 (1989) (applying

Hardison, most courts hold that an undue hardship

exists if accommodation “requires an employer to bear

any additional cost whatsoever.”).

Hardison supplies the rule: it held that for a major

airline $150 was an undue hardship. 432 U.S. at 92

n.6 (Marshall, J., dissenting). Even though the employee offered to reimburse the airline by working

overtime at regular pay—eliminating any cost—the

Court claimed accommodation was impossible without undue hardship. Justice Marshall noted in his dissent that for a major airline $150 was a de minimis

cost—a mere trifle. Id. But the precise amount was irrelevant to the majority. Because potential economic

13

costs were involved, the majority concluded—with little to no cost-benefit analysis—that accommodation

imposed an undue hardship. Id. at 84. The religious

employee lost his job as a result.

Lower courts have applied Hardison as a per se

rule: “virtually all cost alternatives” are “unduly

harsh,” regardless of the type or amount. Zablotsky,

supra, at 547. It is irrelevant whether the cost is direct—such as costs incurred securing a temporary replacement or paying additional wages—or indirect, including costs resulting from lost efficiency or increased administrative workload. Id. at 544–45.

Because of Hardison, courts have also held that accommodations that require no economic costs impose

an undue hardship. Kaminer, supra, at 141; Engle, supra, at 392; Sara L. Silbiger, Heaven Can Wait: Judicial Interpretation of Title VII’s Religious Accommodation Requirement Since Trans World Airlines v. Hardison, 53 Fordham L. Rev. 839, 850 (1985).

In Hardison, the majority relied on neutral seniority rules and focused on the perceived interests of

other employees—considerations unrelated and untethered to the statute—to conclude that it would unduly burden a company worth hundreds of millions of

dollars to pay $150 to accommodate a religious employee. 432 U.S. at 78, 81. The majority reasoned that

accommodation would impose an undue hardship because it would require the employer to deviate from

the seniority agreement and treat employees differently. Id. at 81.

In many cases, following Hardison’s approach,

courts have reasoned that an accommodation that deviates from neutral policies or potentially affects other

14

employees is an undue burden.5 These opinions, like

Hardison, focused on the employers’ general employment practices and on the interests of employees generally.6 This approach established by Hardison ignores the needs of religious minorities and employers’

efforts to accommodate individual employees.

The approach directly contradicts Title VII, which

requires accommodation unless it unduly burdens “the

employer’s business.” 42 U.S.C. § 2000e(j) (emphasis

added). Congress did not include the preferences of coworkers or the reasonableness of an employer’s general policies as an exception to the duty to accommodate. Congress made the opposite determination: em-

5 See, e.g., EEOC. v. Firestone Fibers & Textiles Co., 515 F.3d 307,

317 (4th Cir. 2008) (“If an employer reasonably believes that an

accommodation would . . . impose ‘more than a de minimis impact

on coworkers,’ then it is not required to offer the accommodation

under Title VII.” Accommodation required an undue hardship

because it imposed on coworkers, even though coworkers were

willing to accommodate the religious employee.); Weber v. Roadway Express, Inc., 199 F.3d 270, 274 (5th Cir. 2000) (“The mere

possibility of an adverse impact on co-workers” based on Hardison “is sufficient to constitute an undue hardship.”); Eversley v.

MBank Dallas, 843 F.2d 172, 176 (5th Cir. 1988) (holding an employer is not required to rearrange its otherwise neutral schedule

to accommodate an employee, particularly when other employees

oppose changes); Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141,

145 (5th Cir. 1982) (holding that a flexible scheduling system was

adequate accommodation; plaintiff was responsible for obtaining

shift exchanges); Chrysler Corp. v. Mann, 561 F.2d 1282, 1285

(8th Cir. 1977) (“an employer should [not] have to adjust its entire work schedule to accommodate individual religious preferences and practices”).

6 See, e.g., Huston v. Local No. 93, UAW, 559 F.2d 477, 480 (8th

Cir. 1977) (The plaintiff was “not discriminated against, for he

was afforded the same rights as other employees”).

15

ployer policies and general employee interests are unreasonable if they exclude religious individuals by refusing accommodation.

The practical result of Hardison is that the duty to

accommodate has been reversed. Accommodation often depends on the religious employee. Zablotsky, supra, at 549. Employers who are in the best position to

accommodate and protect religious employees have

virtually no responsibility; religious employees with

little ability to accommodate themselves have prime

responsibility. Employees must often arrange shift

swaps, use personal days off, or depend on luck. Title

VII provides them little protection under Hardison.

2. Hardison Undermines Title VII’s Religious Practice Protections by Failing to

Protect Religious Minorities.

Hardison conditions religious protection under Title VII on the preferences of co-workers. Kaminer, supra, at 141. Although Hardison harms all religious individuals, it especially prejudices religious minorities

who are most vulnerable.

Majorities rarely need accommodation. Cultural

context informs policies, which reflect a culture’s dominant beliefs and ideas. Accommodation mainly protects minorities—it is only needed when a conflict exists with prevailing policies and practices. Michael W.

McConnell, Accommodation of Religion: An Update

and A Response to the Critics, 60 Geo. Wash. L. Rev.

685, 693 (1992).

In Pennsylvania during the 17th and 18th centuries, for example, there was no exemption from military service or oath taking while the Quakers were politically dominant. At that time, the laws reflected the

Quakers’ values and did not require anyone to serve

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in the military or take oaths. Douglas Laycock, Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause, 81

Notre Dame L. Rev. 1793, 1802 (2006). The Quakers

only needed accommodation when they lost control—

“when the Crown imposed oath requirements and

when a new political majority enacted conscription to

raise an army for the Revolution.” Id.

Hardison endangers minorities who most need

protection from the majority by conditioning their protection on co-worker acceptance and popularity. This

undermines Title VII, which Congress enacted to

eradicate discrimination. Freedom from discrimination based on race, color, sex, or national origin does

not depend on majority will; nor should freedom from

religious discrimination.

No doubt, when Congress passed Title VII, some

employees might have thought it prejudiced them by

altering general workplace rules. But that is no defense. Non-acceptance of racial minorities is odious.

The same is true for religious minorities. Hardison,

however, allows religious hostility as a defense and

creates a heckler’s veto—the rights of religious minorities depend on others’ acceptance. The Court should

remedy this unequal treatment that conflicts with Title VII.

3. Hardison Undermines Title VII’s Religious Practice Protections by Allowing

Systematic Religious Discrimination.

Hardison allows employers to systematically discriminate against religious employees. As the United

States explained in its amicus briefs earlier this year

and in Hardison, the accommodation protection “re17

moves an artificial barrier to equal employment opportunity * * * except to the limited extent that a person’s religious practice significantly and demonstrably affects the employer’s business.” U.S. Amicus Br.

at 21, Patterson, supra, (No. 18-349) (quoting U.S.

Amicus Br. at 20, Hardison, supra, (No. 75-1126). In

this way, Hardison allows ambivalent employers and

those governed by collective bargaining agreements to

resurrect barriers that exclude religious minorities,

which Congress directly sought to prevent.

Hardison also trivializes religion by allowing religious practice discrimination. It limits Title VII’s protection to mere belief. The right to believe, however, is

hollow without the right to practice—it subjects believers to persecution for following their faith. Douglas Laycock, The Religious Exemption Debate, 11 Rutgers J. L. & Religion 139, 176 (2009). The Court said

in Hardison that policies that discriminate against

Sabbatarians and exclude them from the workforce

are not discriminatory because the policies apply

equally. 432 U.S. at 78. But the Court failed to appreciate that the policy adopted in Hardison does not preclude employees from the workplace based on race,

color, sex, or national origin. It does, however, systematically exclude members of Sabbatarian religions.

General policies that ban religious practices ban

believers. Douglas Laycock, Exemption Debate, supra,

at 150. In amending Title VII in 1972 Congress recognized that general workplace rules often discriminate

against religious conduct and exclude from the workforce religious minorities—like the plaintiffs in Dewey

and Riley. Unlike other protected characteristics, conduct is inextricably associated with religion.

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It did not matter in Hardison, Dewey, or Riley

whether the employers explicitly prohibited Sabbatarians from employment or simply required all employees to work on the Sabbath. It likewise would not matter whether an employer bans Muslims and Jews or

forbids head coverings and beards. Many Sabbatarians, Muslims, and Jews cannot work under such policies. Banning religious practices bans believers—even

if the policies apply generally. Id.

Congress therefore decided that Title VII protects

both belief and practice. Because courts that only protected religious beliefs failed to adequately protect religious believers, Congress explicitly amended Title

VII. Hardison, however, undermines Congress’s intent and allows employers to exclude believers

through policies that discriminate against religious

practices. Hardison thus forces thousands of religious

employees to make a cruel choice: surrender their religion or their job.

II. Hardison conflicts with this Court’s Recent

Precedent Protecting Religion in the Workplace.

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

S. Ct. 2028 (2015), this Court held in a virtually unanimous decision that Title VII requires more than formal neutrality. The Court stated that disparate-treatment claims are not limited “to only those employer

policies that treat religious practices less favorably

than similar secular practices” Id. at 2034. Although

a neutral policy may not be discriminatory in other

contexts where conduct and status are unrelated, the

Court clarified that formal neutrality does not apply

to religion. Id. According to this Court, “Title VII does

not demand mere neutrality with regard to religious

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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.’” Id.

(quoting 42 U.S.C. §§ 2000e-2(a), 2000e(j)).

The Court clarified that employers have a right to

adopt neutral policies, like the no-headwear policy at

issue in Abercrombie. But when an employee or prospective employee requires a religious accommodation

“it is no response that the subsequent ‘fail[ure] . . . to

hire’ was due to an otherwise-neutral policy. Title VII

requires otherwise-neutral policies to give way to the

need for an accommodation.” Id.

Hardison is impossible to reconcile with Abercrombie. The majority in Hardison intentionally refused

accommodation to avoid favored religious treatment.

Abercrombie, however, holds that Title VII demands

“favored” religious treatment. Formally neutral rules

are not a defense.

Abercrombie mirrors Justice Marshall’s understanding of accommodation in his Hardison dissent.

He wrote that accommodation “always result[s] in a

privilege being ‘allocated according to religious beliefs,’ unless the employer gratuitously decides to repeal the rule in toto.” Hardison, 432 U.S. at 88 (Marshall, J., dissenting). “[S]uch allocations are required”

by Title VII, Justice Marshall explained, “unless ‘undue hardship’ would result.” Id.

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CONCLUSION

Four Justices on this Court have suggested revisiting Hardison. In Kennedy v. Bremerton Sch. Dist.,

139 S. Ct. 634, 637 (2019), Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh, concurring in

the denial of certiorari, noted that they were open to

revisiting Hardison. More recently, in an opinion concurring in the denial of certiorari in Patterson v.

Walgreen, 140 S. Ct. 685, 685 (2020), Justices Alito,

Thomas, and Gorsuch agreed with the United States

that this Court should “reconsider” Hardison. This

case presents an excellent vehicle to do just that. This

Court should grant review.

Respectfully submitted,

BRUCE N. CAMERON

Counsel of Record

RAYMOND J. LAJEUNESSE, JR.

BLAINE L. HUTCHISON

FRANK D. GARRISON

c/o NATIONAL RIGHT TO

WORK LEGAL DEFENSE

FOUNDATION, INC.

8001 Braddock Road

Springfield, VA 22160

(703) 321-8510

bnc@nrtw.org

Counsel for Amici

August 6, 2020

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