Petition for Writ of Certiorari — Edward Hedican, Petitioner v. Walmart Stores East, L.P., et al.

No. _______

In the Supreme Court of the United States

__________

EDWARD HEDICAN,

Petitioner,

v.

WALMART STORES EAST, L.P., ET AL.,

and

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

__________

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

__________

PETITION FOR A WRIT OF CERTIORARI

__________

ERIC C. RASSBACH

Counsel of Record

MARK L. RIENZI

NICHOLAS R. REAVES

DANIEL L. CHEN

JAMES KIM

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave. NW

Suite 400

Washington, D.C. 20006

(202) 955-0095

erassbach@becketlaw.org

Counsel for Petitioner

QUESTIONS PRESENTED

1. Is use of voluntary shift swaps to cover a religious employee’s holy day always an “undue hardship”

under Title VII, as the Seventh Circuit held below, or

can it sometimes be a reasonable accommodation, as

the First, Fourth, Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits have held?

2. Must a company asserting undue hardship based

on costs prove that those costs are likely to occur, as

the First, Fourth, Sixth, Eighth, Ninth, and Tenth Circuits have held, or may the defendant company meet

its burden of proof by offering speculation about possible future burdens instead, as the Fifth, Seventh, and

Eleventh Circuits have held?

3. Should this Court reconsider Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977)?

ii

PARTIES TO THE PROCEEDINGS

Petitioner Edward Hedican was the charging party

before the EEOC, and proposed intervenor-plaintiffappellant in the court of appeals.

Respondents Walmart Stores East, L.P., and WalMart Stores, Inc., were the defendants in the district

court and the appellees in the court of appeals.

Respondent Equal Employment Opportunity Commission was the plaintiff in the district court and the

appellant in the court of appeals.

iii

RELATED PROCEEDINGS

Hedican v. Walmart Stores East, L.P., et al.,

No. 21M24 (motion to intervene denied Oct. 12, 2021).

Hedican v. Walmart Stores East, L.P., et al.,

No. _____ (Petition for a Writ of Certiorari filed on

Oct.

29,

2021

challenging

denial

of

intervention in Seventh Circuit).

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED........................................ i

PARTIES TO THE PROCEEDINGS ......................... ii

RELATED PROCEEDINGS .....................................iii

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

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 4

JURISDICTION ......................................................... 4

STATUTORY PROVISIONS INVOLVED................. 4

STATEMENT ............................................................. 5

I. Factual Background ........................................ 5

A. Petitioner Edward Hedican ....................... 5

B. Walmart offers Hedican an assistant

manager position ........................................ 6

C. Hedican seeks an accommodation for

his Sabbath observance and Walmart

rescinds the offer ........................................ 7

II. The proceedings below ................................... 10

A. Hedican’s charge and the EEOC’s

complaint .................................................. 10

B. Seventh Circuit proceedings .................... 11

v

REASONS FOR GRANTING THE PETITION....... 13

I. The Court should resolve the 7-1 circuit

split over whether a system of voluntary

shift swaps can ever be required

reasonable accomodation for Sabbath

observance. ..................................................... 13

II. The Court should resolve the 6-3 circuit

split over whether employers must prove

likelihood of undue hardship or merely

offer hypothetical hardships.. ........................ 18

III.The Court should reconsider Hardison. ........ 23

A. Hardison’s definition of undue

hardship conflicts with Title VII’s

text, ordinary statutory construction,

and the 1972 amendment’s history

and purpose.. ............................................ 24

B. Hardison

has

had

negative

consequences for religious workers,

particularly those of minority faiths........ 28

C. Ordinary stare decisis factors do not

support retaining Hardison.. ................... 30

D. Title VII’s religious accommodation

provision should be read in pari

materia with the ADA’s disability

accommodation provision. ........................ 33

IV. This case is an excellent vehicle for

addressing the questions presented. ............. 35

CONCLUSION ......................................................... 38

vi

APPENDIX

Opinion, EEOC v. Walmart,

No. 20-1419 (7th Cir. Mar. 31, 2021),

ECF No. 34 ......................................................... 1a

Final Judgment, EEOC v. Walmart,

No. 20-1419 (7th Cir. Mar. 31, 2021),

ECF No. 35 ....................................................... 11a

Opinion & Order, EEOC v. Walmart,

No. 18-cv-804-bbc (W.D. Wis. Jan. 16, 2020),

ECF No. 64 ....................................................... 13a

Order Denying Motion to Intervene, EEOC v.

Walmart, No. 20-1419 (7th Cir. June 4, 2021),

ECF No. 55 ....................................................... 35a

Order Denying Motion for Reconsideration,

EEOC v. Walmart, No. 20-1419

(7th Cir. June 8, 2021), ECF No. 57 ................ 37a

Order Denying Rehearing

En Banc, EEOC v. Walmart, No. 20-1419

(7th Cir. June 1, 2021), ECF No. 49 ................ 39a

Petition for Rehearing En Banc,

EEOC v. Walmart, No. 20-1419

(7th Cir. May 17, 2021), ECF No. 37 ............... 40a

Motion to Intervene, EEOC v. Walmart,

No. 20-1419 (7th Cir. June 3, 2021),

ECF No. 50 ....................................................... 58a

Motion to Reconsider Denial of Intervention,

EEOC v. Walmart, No. 20-1419 (7th Cir.

June 7, 2021), ECF No. 56 ............................... 86a

Walmart Religious Accommodations

Guidelines (Apr. 29, 2019) ............................... 93a

vii

Walmart Offer Letter & Selected

Email Correspondence ................................... 102a

Excerpts from Transcript of Deposition of

Lori S. Ahern, EEOC v. Walmart,

No. 18-cv-804 (W.D. Wis. July 9, 2019) ......... 116a

viii

TABLE OF AUTHORITIES

Page(s)

Cases

Alleyne v. United States,

133 S.Ct. 2151 (2013) ........................................... 32

Anderson v. General Dynamics Convair

Aerospace Div.,

589 F.2d 397 (9th Cir. 1978) ................................ 21

Ansonia Board of Education v. Philbrook,

479 U.S. 60 (1986) .................................... 24, 29, 31

Beadle v. Hillsborough County Sheriff’s

Department,

29 F.3d 589 (11th Cir. 1994) ............................... 16

Benton v. Carded Graphics, Inc.,

28 F.3d 1208, 1994 WL 249221 (4th

Cir. 1994) .............................................................. 22

Brown v. General Motors Corp.

601 F.2d 956 (8th Cir. 1979) ................................ 20

Brown v. Polk County,

61 F.3d 650 (8th Cir. 1995) .................................. 21

Camara v. Epps Air Serv., Inc.,

292 F. Supp. 3d 1314 (N.D. Ga. 2017) ................. 29

Central Green Co. v. United States,

531 U.S. 425 (2001) .............................................. 30

ix

Cloutier v. Costco Wholesale Corp.,

390 F.3d 126 (1st Cir. 2004)............................ 21-22

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) .............................. 30

Davis v. Fort Bend County,

765 F.3d 480 (5th Cir. 2014) .......................... 14, 17

EEOC v. Abercrombie & Fitch Stores,

575 U.S. 768 (2015) .......................................passim

EEOC v. Arlington Transit Mix, Inc.,

957 F.2d 219 (6th Cir. 1991) ................................ 15

EEOC v. Firestone Fibers & Textiles Co.,

515 F.3d 307, 317 (4th Cir. 2008) ........................ 22

EEOC v. Ithaca Indus., Inc.,

849 F.2d 116, 118 (4th Cir. 1988) .................. 14, 17

EEOC v. Sambo’s of Georgia, Inc.,

530 F. Supp. 86 (N.D. Ga. 1981) .......................... 29

Fort Bend County v. Davis,

139 S.Ct. 1843 (2019) ........................................... 15

In re Frushour,

433 F.3d 393 (4th Cir. 2005) ................................ 27

Humphrey’s Ex’r v. United States,

295 U.S. 602 (1935) .............................................. 30

Janus v. AFSCME,

138 S.Ct. 2448 (2018) ........................................... 32

x

Kennedy v. Bremerton Sch. Dist.,

139 S.Ct. 634 (2019) ............................................... 2

Knick v. Township of Scott,

139 S.Ct. 2162 (2019) ........................................... 31

McDaniel v. Essex Int’l, Inc.,

571 F.2d 338 (6th Cir. 1978) ................................ 22

New Prime Inc. v. Oliveira,

139 S.Ct. 532 (2019) ............................................. 24

Nottelson v. Smith Steel Workers

D.A.L.U. 19806,

643 F.2d 445 (7th Cir. 1981) ........................... 27-28

Opuku-Boateng v. California,

95 F.3d 1461 (9th Cir. 1996) .......................... 15, 21

Patterson v. Walgreen Co.,

140 S.Ct. 685 (2020) ......................................passim

Patterson v. Walgreen Co.,

727 F.App’x 581 (11th Cir. 2018) ......................... 19

Payne v. Tennessee,

501 U.S. 808 (1991) .............................................. 33

Ramos v. Louisiana,

140 S.Ct. 1390 (2020) ........................................... 31

Sánchez-Rodríguez v. AT&T Mobility

P.R., Inc.,

673 F.3d 1 (1st Cir. 2012). ................................... 16

Small v. Memphis Light, Gas & Water,

141 S.Ct. 1227 (2021) ................................... 1, 2, 35

xi

Small v. Memphis Light, Gas & Water,

952 F.3d 821 (6th Cir. 2020) ...................... 2, 26, 27

Smith v. Pyro Mining Co.,

827 F.2d 1081 (6th Cir. 1987) .................. 15, 17, 22

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ................................................ 31

Tabura v. Kellogg USA,

880 F.3d 544 (10th Cir. 2018) ................... 15-16, 17

Toledo v. Nobel-Sysco, Inc.,

892 F.2d 1481 (10th Cir. 1989) ................. 20, 21-22

Tooley v. Martin-Marietta Corp.,

648 F.2d 1239 (9th Cir. 1981) .............................. 21

Trans World Airlines, Inc. v. Hardison,

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

United States v. Bd. of Educ.,

911 F.2d 882 (3d Cir. 1990).................................. 28

United States v. Butler,

297 U.S. 1 (1936) .................................................. 25

United States v. Verdugo-Urquidez,

494 U.S. 259 (1990) .............................................. 31

Weber v. Roadway Express, Inc.,

199 F.3d 270 (5th Cir. 2000) ................................ 19

Statutes

29 U.S.C. 207 ............................................................. 27

xii

38 U.S.C. 4303 ........................................................... 27

42 U.S.C. 2000e ..................................................passim

42 U.S.C. 12111 ......................................................... 27

42 U.S.C. 12112 ................................................... 33, 34

Other Authorities

29 C.F.R. 1605.1 ........................................................ 26

29 C.F.R. 1605.2 ........................................................ 18

118 Cong. Rec. 1 (1972) ....................................... 17, 28

Black’s Law Dictionary

(11th ed. 2019) ...................................................... 25

Black’s Law Dictionary

(rev. 4th ed. 1968) ................................................ 25

Brigham Young University, Corpus of

Historical American English ............................... 25

EEOC Compliance Manual ................................. 18, 23

EEOC Decision No. 72-1578, 5 Fair

Empl. Prac. Cas. (BNA) 960 (1972) ..................... 26

Random House Dictionary of the English Language, College Edition (Laurence Urdang & Stuart Berg Flexner,

eds.) 1433 (1968)................................................... 25

Sabbath Observance,

Seventh-day Adventist Church ............................. 6

xiii

What Adventists Believe about the Sabbath, Seventh-day Adventist Church .................... 6

Karen Engle, The Persistence of Neutrality: The Failure of the Religious Accommodation Provision to Redeem

Title VII, 76 Tex. L. Rev. 317 (1997) ................... 17

Bryan A. Garner, Neil M. Gorsuch, Brett

M. Kavanaugh et al., The Law of Judicial Precedent 62 (2016) .................................... 30

Matt Rothenberg, Sandy Koufax responded to a higher calling on Yom

Kippur in 1965, National Baseball

Hall of Fame ......................................................... 38

Gregory C. Sisk & Michael Heise, Muslims and Religious Liberty in the Era

of 9/11: Empirical Evidence from the

Federal Courts, 98 Iowa L. Rev. 231

(2011) .................................................................... 29

Mark Storslee, Religious Accommodation, The Establishment Clause, and

Third-Party Harm, 86 U. Chi. L. Rev.

871 (2019) ............................................................. 25

Ted N.C. Wilson, A Message to the Seventh-day Adventist Church from the

President, ANN News, Apr. 4, 2019 ...................... 5

Exodus 20:8-10 (King James Version) ........................ 6

INTRODUCTION

This case presents an important and recurring

question: when must an employer accommodate an

employee’s religious practices? On its face, Title VII’s

text is clear, as are its history and purpose: employers

must “reasonably accommodate * * * religious observance or practice” unless doing so poses “undue

hardship.” 42 U.S.C. 2000e(j). This guarantees significant workplace protections—indeed, “favored treatment”—to employees who need accommodation so

that “otherwise-neutral” policies are not used to exclude them from the workplace. EEOC v. Abercrombie

& Fitch Stores, 575 U.S. 768, 775 (2015).

But that guarantee has never taken full effect. In

1977, this Court interpreted “undue hardship” to

mean anything “more than a de minimis cost.” Trans

World Airlines, Inc. v. Hardison, 432 U.S. 63, 84

(1977). That decision “effectively nullif[ied]” the protection of the statute’s “plain words,” forcing “thousands” to choose between their “livelihood” and their

“conscience.” Id. at 88, 89, 96 (Marshall, J., dissenting); see also Small v. Memphis Light, Gas & Water,

141 S.Ct. 1227, 1228 (2021) (Gorsuch, J., dissenting

from denial of certiorari).

Since that reading is not “the most likely interpretation[,]” three current Justices have called for the

Court to “reconsider the proposition” that accommodation is not required when an employer would face

“more than a de minimis burden.” Patterson v.

Walgreen Co., 140 S.Ct. 685, 686 (2020) (Alito, J., concurring in the denial of certiorari). Two of those Justices, and the United States in an earlier case, have

opined that “it is past time for the Court to correct”

2

Hardison. Small, 141 S.Ct. at 1229 (Gorsuch, J., dissenting); see also U.S. Br.19, Patterson v. Walgreen

Co., No. 18-349 (Hardison was “incorrect”); Kennedy v.

Bremerton Sch. Dist., 139 S.Ct. 634, 637 (2019) (statement of Alito, J.) (raising prospect of revisiting Hardison). Lower court judges, along with scholars and

other commentators, have also chafed at how Hardison “rewr[o]te” Congress’ effort to protect religious employees in a manner that “most often harm[s] religious

minorities.” Small v. Memphis Light, Gas & Water,

952 F.3d 821, 829 (6th Cir. 2020) (Thapar, J., concurring).

Edward Hedican’s case against Walmart, originally carried forward by the EEOC, turns solely on the

question of what an employer must show to prove undue hardship. And it illustrates the absurdity of Hardison’s logic. A divided panel of the Seventh Circuit

found that Walmart had shown “a slight burden” if it

had to allow for even voluntary shift-swapping to accommodate Hedican. App.6a. The court found that

even “let[ting]” Hedican “trade shifts with other assistant managers” would go too far, by burdening those

“other workers” and disrupting the current “rotation

system.” App.5a; 6a.

None of this, without more, would amount to a

hardship—much less an “undue hardship”—for most

large employers, let alone the largest private employer

in the United States. But while the Seventh Circuit

majority acknowledged the problematic nature of

equating “undue hardship” and “slight burden,” it

threw up its hands: “Our task, however, is to apply

Hardison unless the Justices themselves discard it.”

App.7a.

3

This Court should accept the invitation. Even if

this Court decides not to overrule Hardison, it should

still address the other two circuit splits identified by

the EEOC in its en banc petition below. App.41a-43a.

As the EEOC explained, the below decision splits with

other circuits in two ways that would allow employers

to evade even the requirement to show barely more

than de minimis costs.

First, the decision below created a 7-1 circuit split

by holding that “Title VII never requires an employer”

to use one of the most common accommodations

known to this area of law: voluntary shift-swaps that

allow religious employees to meet their Sabbath obligations. App.42a (emphasis added). Every other circuit to confront the question has held that voluntary

shift swap systems can be required. By contrast, the

Seventh Circuit held that such swaps “thrust” the

duty to accommodate on “other workers” and thus can

never be required of employers, even if employees

would voluntarily swap shifts. App.5a. That rule is a

gross deviation from the law of other circuits, and

would come at the expense of religious minorities.

Second, the decision below adds to an existing 6-2

circuit split over the evidentiary standard an employer

must meet to make out an undue hardship defense. It

relies on speculation about other employees’ presumed

preferences, which, as the EEOC put it below, both

conflicts with other circuits that “forbid[] reliance on

such speculation” and undermines the rule that “employers bear the burden of proving undue hardship.”

App.42a; 43a. In Patterson, three Justices took note

that the United States had flagged this “speculative

harm” question as “important” for future resolution.

Patterson, 140 S.Ct. at 686 (Alito, J., concurring).

4

Ultimately, both splits are attributable to Hardison. Only in a world warped by Hardison could lower

courts be in conflict about whether merely allowing an

employee to ask fellow shift-workers to swap is so burdensome on the employer as to defeat the duty to accommodate. Only in a world warped by Hardison could

employers be deemed to have proven an undue hardship simply by guessing one might exist. Fixing Hardison would resolve all three splits.

But even if this Court reaches only the more modest questions, the guidance it would then provide is

badly needed. It has been nearly forty-five years since

this Court addressed the meaning of “undue hardship.” Title VII’s reasonable-accommodation provision

should not be considered a nullity, and this Court

should say as much.

OPINIONS BELOW

The Seventh Circuit’s opinion is reported at 992

F.3d 656 and reproduced at App.1a. The district

court’s opinion is unreported but available at 2020 WL

247462 and reproduced at App.13a.

JURISDICTION

The court of appeals entered its judgment on

March 31, 2021. This Court has jurisdiction under 28

U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

42 U.S.C. 2000e-2(a) provides in part:

5

It shall be an unlawful employment practice for

an employer to fail or refuse to hire or to discharge any individual * * * because of such individual’s * * * religion[.]

42 U.S.C. 2000e(j) defines “religion,” and a defense

to otherwise-unlawful discharge, as follows:

The term “religion” includes all aspects of religious observance and practice, as well as belief,

unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on

the conduct of the employer’s business.

STATEMENT

I. Factual Background

A. Petitioner Edward Hedican

Petitioner Edward Hedican was baptized into the

Seventh-day Adventist Church in 2002. He later became an Elder in his local congregation, App.110a, assisting the pastor with church functions and occasionally teaching lessons and giving sermons.

The Seventh-day Adventist Church is a Protestant

Christian denomination with more than 21 million

members and a presence in over 200 countries. See

Ted N.C. Wilson, A Message to the Seventh-day Adventist Church from the President, ANN News, Apr. 4,

2019, https://perma.cc/6GNN-WY32. As the Church’s

name indicates, a central tenet of the Seventh-day Adventist faith is observance of the Sabbath from sundown Friday to sundown Saturday. App.2a; App110a.

6

For Adventists, the Sabbath is “God’s perpetual sign

of His eternal covenant between Him and His people.”

What Adventists Believe about the Sabbath, Seventhday Adventist Church, https://perma.cc/MR98-V4ZC.

This practice is rooted in the commands of Holy Scripture. The Fourth Commandment instructs: “Remember the sabbath day, to keep it holy. * * * [T]he seventh day is the sabbath of the Lord thy God, in it thou

shalt not do any work * * * .” Exodus 20:8-10 (King

James Version). App.110a.

The hours of the Sabbath are sacred time devoted

to God in worship and pursuit of Him for His purposes.

Seventh-day Adventists must spend the day in rest,

prayer, and collective worship. See What Adventists

Believe about the Sabbath, Seventh-day Adventist

Church, https://perma.cc/MR98-V4ZC. The Sabbath

“encompasses [Seventh-day Adventist’s] entire relationship with God.” Not keeping it has serious consequences, leading “to the distortion and eventual destruction of a person’s relationship with God.” Sabbath Observance, Seventh-day Adventist Church,

https://perma.cc/6S7Z-HLYV.

As a practicing Seventh-day Adventist, Hedican

observed the Sabbath every week, refraining from

work starting at sundown on Friday until sundown on

Saturday. App.110a. On Saturdays, Hedican would attend Sabbath school classes and church services,

travel to different churches to attend church functions

or district meetings, and spend time with his family.

B. Walmart offers Hedican an assistant

manager position.

On April 25, 2016, Walmart offered Edward Hedican a position as assistant manager at its Hayward,

7

Wisconsin store. App.102a. As an assistant manager,

Hedican would be responsible for overseeing hourly

associates, “the stocking and rotation of merchandise,”

“monitoring expenses, asset protection and safety controls, overseeing safety and operational reviews, [and]

analyzing reports and modeling proper customer service.” App.18a. All assistant managers are also assigned a specific area of responsibility in the store.

While assistant managers typically rotate areas of responsibility annually, some assistant managers maintained the same area of responsibility for several

years. App.19a.

In 2016, the Hayward store had one manager and

eight assistant managers. The Hayward store was

open 24 hours a day, seven days a week, and an assistant manager’s schedule usually varied “from day to

day and week to week.” App.20a. In any given week,

two assistant managers worked overnight shifts

(working four days on and three days off) and the remaining six were assigned to daytime shifts (working

five days a week). App.20a. Generally, the store manager made the shift schedules about three weeks in

advance, sometimes more. When assistant managers

rotated to a new area of responsibility, they typically

also rotated to a new schedule. App.20a.

C. Hedican seeks an accommodation for his

Sabbath observance and Walmart

rescinds the offer.

On May 1, 2016, Hedican accepted Walmart’s offer,

explaining that he was “very excited to accept the position and begin my career with the Walmart family.”

App.109a. He also informed the company that he was

a Seventh-day Adventist and that his “religious faith

8

[wa]s extremely important” to him. App.110a. And he

explained that he “believe[d] and ke[pt] the biblical

7th day Sabbath in the 10 Commandments which is

Saturday.” App.110a. Accordingly, he would “not [be]

able to work any Saturdays until after sundown,” but

was “available any other day of the week and can be

available after sundown on Saturday nights if

needed.” App.110a. When Lori Ahern, Walmart’s market human resources manager, received Hedican’s request, she sent him a form for a disability or medical

accommodation, with questions mostly irrelevant to

Hedican’s request for a religious accommodation.

App.16a-17a; App.109a. Ahern also told Hedican that

Walmart’s Americans with Disabilities Act department would handle his accommodation request.

App.17a; App.109a. However, when the ADA department returned his completed form to Ahern and told

her they did not handle religious accommodations, the

decision fell to her. App.17a.

Ahern stated that, in making her determination,

she considered Walmart’s expectations for the role of

assistant manager, the Hayward store’s specific staffing needs, and overall manager coverage at the store.

App.17a-18a. Ahern also consulted Walmart’s religious accommodations guidelines. These guidelines

specifically addressed accommodating Sabbath observance, noting that “flexible arrival and departure

times,” “staggered work hours,” and “voluntary swaps

with other associates” “may be necessary, unless

providing the accommodation will result in an undue

9

hardship.” App.16a; 98a-99a. 1 This guidance specifically addressed Sabbath-observing managers like

Hedican, explaining that managers “may be able to arrange a shift swap with another manager and that

[Walmart] can help facilitate that by providing an

email or other means of communication.” App.16a;

99a. Walmart’s guidance also encouraged “all managers to work collaboratively and swap shifts as needed

for personal or religious reasons.” App.99a. The guidance also explained that on the “rare occasion” when a

manager is unable to find another manager to swap

shifts, the manager may “be permitted to take a PTO

day in lieu of working his/her Sabbath.” App.99a-100a.

Despite this guidance, and without talking to Hayward’s seven other assistant managers or making additional inquiries, Ahern assumed that accommodating Hedican would impose “a hardship on the business

because it could cause them to be understaffed or to

have to add an additional assistant manager to ensure

that we have the coverage.” App.132a. Ahern later testified she did not think Hedican would be able to swap

shifts with other assistant managers, as other assistant managers “may have plans” or may not want to

work extra Saturdays. App.132a-133a; App.23a.

Ahern also did not consider other potential scheduling

accommodations (like letting Hedican work night

shifts or 12-hour shifts), instead asserting that all assistant managers needed to be available to work “various days” and “various shifts” given the variable

needs of the store. App.133a. Accordingly, despite

Under these guidelines, any accommodation imposing “more

than minimal cost” could be denied as an undue hardship.

App.96a-97a.

1

10

Hedican’s offer to work nights or any other weekend

hours, Ahern concluded that Walmart could not accommodate Hedican. App.132-134a; App.113a.

In a May 18, 2016 email, Ahern denied Hedican’s

requested accommodation, claiming that his Sabbath

observance constituted an “inability to perform the essential functions of the job.” App.113a. Ahern said she

could “assist him in the application process” for other

positions in the store, App.113a, but all of these positions were hourly (instead of salaried, like the assistant manager position) and paid less. See App.29a.

II. The proceedings below

A. Hedican’s charge and the EEOC’s

complaint

Hedican filed a charge with the EEOC, outlining

Walmart’s recission of his employment offer and denial of a religious accommodation. At that time—and

up until seeking intervention for purposes of filing a

petition for certiorari—Hedican acted pro se. After investigating Hedican’s charge, the EEOC brought suit

against Walmart on September 27, 2018. App.70a. As

the charging party, Hedican was not included in the

EEOC’s complaint, through the EEOC’s Prayer for Relief included a request for monetary damages for Hedican.

On January 16, 2020, the district court dismissed

the case and held, under the Hardison standard, that

Walmart “could not accommodate [Hedican’s] request

to have every Saturday off without incurring undue

hardship.” App.14a. As the Court explained, accommodating Hedican’s religious exercise meant that

Walmart would have to allow Hedican to swap shifts

11

with his coworkers, “hir[e] another manager who

could help cover those shifts (which would be an extra

cost), or operat[e] the store with one less manager

than needed (which would create operational inefficiencies and lost sales).” App.23a; App.33a.

B. Seventh Circuit proceedings

The EEOC appealed. In its brief, the EEOC argued

that Walmart should have considered voluntary shift

swaps, see EEOC CA7 Br.44-48, and that Walmart

could not rely on speculative hardships, see id., 46-47.

The EEOC also stated that this Court should overrule

Hardison. See id., 36 n.5.

On March 31, 2021, a divided panel of the Seventh

Circuit affirmed. App.7a. The majority acknowledged

an ongoing debate at the Supreme Court over the validity of the Hardison standard, noting “[t]hree Justices believe that Hardison’s definition of undue hardship as a slight burden should be changed[,]” but

stated that “[o]ur task, however, is to apply Hardison

unless the Justices themselves discard it.” App.7a. Accordingly, the panel held that Walmart’s options for

accommodating Hedican—including hiring “a ninth

assistant manager”—would “require Walmart to bear

more than a slight burden,” in violation of Hardison.

App.3a; App.7a. The majority rejected voluntary shift

swaps as an accommodation, asserting that this

“would not be an accommodation by the employer” because it “would thrust [accommodating Hedican] on

other workers.” App.5a. The majority also thought

other workers might “balk[ ]” and refuse to swap shifts,

but acknowledged this was hypothetical as Walmart

didn’t even ask. App.5a-6a.

12

Judge Rovner dissented. She observed that “Hedican was available to work on Fridays, Saturday nights

and Sundays,” and explained that “if he were willing

to disproportionately accept shift assignments during

the 48 of 72 weekend hours outside of his observed

Sabbath, then other managers might have been willing to pick up the slack on Friday nights and Saturdays.” App.8a. She noted Walmart “could not know for

certain unless [it] asked” the other assistant managers, “and yet [it] did not.” Ibid. Had Walmart done so,

it “might have discovered that it was in fact feasible to

accommodate both Hedican and the other managers.”

Ibid. Judge Rovner further noted that, while

“Walmart’s scheduling needs are genuine,” the company cannot simply rely on past practices: “the duty to

reasonably accommodate entails an obligation to look

at matters with fresh eyes and to separate what is necessary from what, to date, has been customary.”

App.9a.

On May 17, 2021, the EEOC filed a petition for

panel rehearing and rehearing en banc, raising a division of authority among the circuits on two different

questions regarding what constitutes an “undue hardship” under Title VII. App.41a. On June 1, 2021, the

Seventh Circuit denied the EEOC’s petition. App.39a.

Hedican obtained his own legal counsel for the first

time on May 26, 2021. One week later, he moved to

intervene at the Seventh Circuit for the sole purpose

of filing a petition for review in this Court. App.58a85a. Hedican explained to the Seventh Circuit that the

federal government, now represented by the Solicitor

General, might not seek this Court’s review of the

panel’s decision and that the federal government for

13

the first time in the litigation did not adequately represent Hedican’s interests. Ibid.

On June 4, 2021, the Seventh Circuit, in a singlejudge order issued by Judge Easterbrook, denied Hedican’s motion as “untimely” because “Hedican had opportunity to intervene before the case was argued to

the panel many months ago.” App.35a-36a.

Hedican immediately sought reconsideration, explaining that, because he sought intervention for the

sole purpose of seeking Supreme Court review, his request was timely. App.86a-92a. The Seventh Circuit,

in another single-judge order issued by Judge Easterbrook, denied his reconsideration motion. App.37a.

REASONS FOR GRANTING THE PETITION

I. The Court should resolve the 7-1 circuit split

over whether a system of voluntary shift

swaps can ever be a required reasonable accommodation for Sabbath observance.

The Seventh Circuit concluded that shift swaps are

not “an accommodation by the employer, as Title VII

contemplates.” App.5a. The Seventh Circuit thus held

that voluntary shift swap systems—that is, systems

where the employer allows non-observant employees

to volunteer to take on shifts that conflict with a Sabbath-observant employee’s religious practice—cannot

be reasonable accommodations, much less religious accommodations that Title VII requires in some cases.

This categorical rejection of voluntary shift swap systems splits from seven other courts of appeals, in two

different ways.

1. First, five courts of appeals have specifically held

that, at least in some circumstances, voluntary shift

14

swaps do not impose an undue hardship on employers

and thus must be offered as a reasonable accommodation under Title VII.

In EEOC v. Ithaca Industries, Inc., the religious

employee plaintiff observed a Sunday Sabbath. 849

F.2d 116, 118 (4th Cir. 1988) (en banc). The en banc

Fourth Circuit recognized that “Section 701(j) clearly

anticipates that some employees will absolutely refuse

to work on their Sabbath and that this firmly held religious belief requires some offer of accommodation by

employers.” Ibid. Because the employer refused to employ a system of “voluntary substitutes” and because

the employer did not “suggest[]” that the religious employee use an existing system for “find[ing] a qualified

substitute” to work a Sunday shift, the Fourth Circuit

held that the employer violated Title VII. Id. at 119

nn.4-5. This Court denied certiorari. 488 U.S. 924

(1988).

Similarly, in Davis v. Fort Bend County, the Fifth

Circuit concluded that although “requiring an employee to substitute” for a plaintiff may impose an undue hardship as a matter of law, “[s]ubstituting a volunteer does not necessarily impose the same hardship

on the employer, if any.” 765 F.3d 480, 488-489 (5th

Cir. 2014). The Fifth Circuit held that “because there

was a ready and willing volunteer to substitute for Davis” the County could not prove undue hardship. As

the Fifth Circuit pointed out, “[s]ubstituting a volunteer does not necessarily impose the same hardship on

the employer, if any, as requiring an employee to substitute for another’s religious observance.” Id. at 489.

The Fifth Circuit reversed summary judgment for the

15

County and this Court denied certiorari. 576 U.S. 1004

(2015).2

In Smith v. Pyro Mining Co., the plaintiff sought

an accommodation for his Sunday Sabbath. 827 F.2d

1081, 1089 (6th Cir. 1987). The Sixth Circuit found “it

difficult to see why soliciting replacements for [the religious plaintiff] would have been an undue hardship

for” the employer. Ibid. And because the employer

“had the mechanism in place for soliciting replacements” but did not use that mechanism, it “failed to

meet its burden of establishing that such an accommodation of [the plaintiff]’s religious convictions would be

an undue hardship.” Ibid. This Court denied certiorari. 485 U.S. 989 (1988); see also EEOC v. Arlington

Transit Mix, Inc., 957 F.2d 219, 222 (6th Cir. 1991)

(employer did not explore voluntary shift-swap arrangement and so was “in no position to argue” undue

hardship).

Likewise, in Opuku-Boateng v. California, the

Ninth Circuit recognized that the employer “had an

obligation to investigate whether voluntary trading of

shifts was feasible.” 95 F.3d 1461, 1471 (9th Cir.

1996). And because the employer “failed to offer any

probative evidence that would demonstrate that a system of voluntary shift trades was infeasible” summary

judgment in its favor was inappropriate. Ibid. This

Court denied certiorari. 520 U.S. 1228 (1997).

Finally, in Tabura v. Kellogg USA, the Tenth Circuit held that the employer not only had to allow a system of voluntary shift swaps to exist, but also “had to

Davis later came before the Court on a different question. See

Fort Bend County. v. Davis, 139 S.Ct. 1843 (2019).

2

16

take a more active role in helping arrange swaps in

order for that to be a reasonable accommodation of

Plaintiffs’ Sabbath observance.” 880 F.3d 544, 556-557

(10th Cir. 2018).

Had Hedican’s case been decided in any of these

circuits, Walmart’s failure even to consider voluntary

shift swaps would have precluded summary judgment.

2. In addition to those circuits that have treated

voluntary shift-swap accommodations as required in

some cases, two other circuits have—contrary to the

decision below—treated voluntary shift swaps as reasonable accommodations satisfying Title VII’s requirements.

In Sánchez-Rodríguez v. AT&T Mobility P.R., Inc.,

the First Circuit held that voluntary shift swaps—in

conjunction with offers of other jobs and withholding

penalties for prior absences—constituted a reasonable

accommodation. 673 F.3d 1, 12-13 (1st Cir. 2012). The

Court did not reach the question of whether voluntary

shift swaps alone would constitute a reasonable accommodation. Ibid.

Similarly, in Beadle v. Hillsborough County Sheriff’s Department, the Eleventh Circuit treated a shift

swap system as a reasonable accommodation. 29 F.3d

589, 593 (11th Cir. 1994).

The Seventh Circuit’s contrary conclusion—that

voluntary swap shift systems are categorically not reasonable accommodations—thus also splits from these

two circuits.

3. The Seventh Circuit justified its novel standard

by claiming that Hardison “rejected the sort of shifttrading system that the EEOC now proposes.” App.5a.

17

That gets Hardison exactly backwards. In Hardison,

the Court based its ruling for the defendant TWA in

part on TWA’s decision to allow voluntary shift swaps.

432 U.S. 63, 77 (1977) (noting that TWA “authorized

the union steward to search for someone who would

swap shifts”). The Court credited TWA for authorizing

voluntary shift swaps, distinguishing that from TWA’s

unwillingness to deviate from its collective bargaining

agreement. Id. at 78-79. That is hardly a “reject[ion]”

of voluntary shift swaps. App.5a.

No other court of appeals has adopted the Seventh

Circuit’s anomalous understanding of Hardison. In

Pyro Mining, for example, the Sixth Circuit held that

“[u]ndoubtedly, one means of accommodating an employee who is unable to work on a particular day due

to religious convictions is to allow the employee to

trade work shifts with another qualified employee.”

827 F.2d at 1088. See also Tabura, 880 F.3d at 556557 (Title VII can require an “active role in securing a

voluntary swap for the employee”); Davis, 765 F.3d at

489 (assessing voluntary swaps). Indeed, Congress’

“stated purpose” when amending Title VII in 1972 was

“to protect Sabbath observers whose employers fail to

adjust work schedules to fit their needs.” Ithaca Indus., 849 F.2d at 118; cf. 118 Cong. Rec. 1, 705 (1972)

(Sen. Randolph: amendment designed to protect “a

steadfast observance of the Sabbath”).3 Thus both the

Seventh Circuit’s standard and its reasoning stand in

stark contrast to that of the other courts of appeals.

See also Karen Engle, The Persistence of Neutrality: The Failure of the Religious Accommodation Provision to Redeem Title

VII, 76 Tex. L. Rev. 317, 380 (1997) (“concern for Sabbatarians”

motivated 1972 amendment).

3

18

4. Moreover, it is worth noting that the Seventh

Circuit’s conclusion that voluntary shift swaps are

never reasonable accommodations under Title VII also

runs counter to the commonplace employer practice of

facilitating voluntary shift swaps. See EEOC Compl.

Man., sec. 12-IV-C (“voluntary substitutes” among

“most common methods” used by employers); 29

C.F.R. 1605.2(d)(i) (noting “[o]ne means of substitution is the voluntary swap” which, where available,

means “[r]easonable accommodation without undue

hardship is generally possible”). Indeed, Walmart’s

own nationwide policy states its understanding that

“[v]oluntary swaps” are in the category of “reasonable

accommodations[.]” App.93a; App.99a. Accordingly,

Walmart’s nationwide policy is that shift swaps for

managers like Hedican “may be necessary,” and that

it “[e]ncourage[s]” employees to “swap shifts” for “religious reasons.” App.97a-99a. The Seventh Circuit’s

decision would upend all that, both for Walmart and

other employers.

*

* *

The Seventh Circuit’s decision runs counter to the

position of other courts of appeals, to Hardison, and to

common practice by large employers, including

Walmart itself. Since only this Court can resolve the

resulting split of authority, it should grant review on

the first question presented.

II. The Court should resolve the 6-3 circuit split

over whether employers must prove

likelihood of undue hardship or merely

offer hypothetical hardships.

In assessing undue hardship, the Seventh Circuit

held Walmart could satisfy its burden by showing

19

speculative, merely possible costs—not concrete evidence that those costs were likely. App.5a (“What

would Walmart do if * * * ”); App.6a (“If, say, * * * ”;

“If Hedican became a specialist * * * ”). This adoption

of a vanishingly low evidentiary bar has deepened an

acknowledged, longstanding, and intractable circuit

split, with the Fifth, Seventh, and Eleventh Circuits

on one side, and the First, Fourth, Sixth, Eighth,

Ninth, and Tenth Circuits on the other.

1. The Fifth, Eleventh, and now Seventh Circuits

hold that an employer’s burden to show undue hardship is met by showing a “mere possibility” of a more

than de minimis cost. Weber v. Roadway Express, Inc.,

199 F.3d 270, 274 (5th Cir. 2000).

In Weber, a trucker had a religious objection to being alone with someone of the opposite sex, and requested to be excused from such paired assignments.

199 F.3d at 272. The Fifth Circuit concluded that, even

without evidence on the other employees’ preferences

on shifts, “[t]he mere possibility of an adverse impact”

was “sufficient to constitute an undue hardship” on

the employer. Id. at 274 (emphasis added). Indeed,

“hypotheticals” alone suffice. Ibid.

In Patterson v. Walgreen Co., an employee was terminated because he could not lead trainings on his

Sabbath. 727 F.App’x 581, 589 (11th Cir. 2018), cert.

denied, 140 S.Ct. 685 (2020). While Walgreens faced

no immediate hardship, the Eleventh Circuit found

Walgreens had carried its burden by showing “undue

hardship * * * in the future” based on what might

20

“have been required” if and when another trainer left

the company. Id. at 588-589.4

The Seventh Circuit has adopted the same low evidentiary bar. The panel unambiguously relied on ‘ifthen’ hypotheticals. App.5a-6a. It cited no concrete evidence. See App.8a (Rovner, J., dissenting) (noting

Ahern never “asked” as to other managers’ willingness

and availability). But without citation to any other circuit addressing the issue, the majority simply found

that that the mere possibility of future adverse impact

sufficed.

2. By contrast, six circuits addressing the question

take the view that employers showing “merely conceivable or hypothetical hardships” have not carried

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

1481, 1492 (10th Cir. 1989)).5

The Eighth Circuit addressed the issue shortly after Hardison, in Brown v. General Motors Corp. 601

F.2d 956 (8th Cir. 1979). There, General Motors was

“content to speculate on the future impact of accommodating” Sabbath observance. 601 F.2d at 961. The

Eighth Circuit concluded that if “anticipated or multiplied hardship” could satisfy the undue hardship inquiry, then “even the most minute accommodation”

would be ruled out “if sufficiently magnified through

predictions of the future behavior of the employee’s coWhile the Solicitor General took the view that Patterson did not

“turn[] on” the question of “speculative harm,” three Justices of

this Court expressed doubt on this point. Patterson, 140 S.Ct. at

686 (Alito, J., concurring) (“I am less sure about [the Solicitor

General’s] interpretation”).

4

5

See App.42a (EEOC en banc petition describing split).

21

workers.” Ibid. See also Brown v. Polk County, 61 F.3d

650, 655 (8th Cir. 1995) (en banc), cert. denied, 516

U.S. 1158 (1996). (“Any hardship asserted, furthermore, must be real rather than speculative, merely

conceivable, or hypothetical.”) (cleaned up).

The Ninth Circuit has held that “[u]ndue hardship

cannot be proved by assumptions nor by opinions

based on hypothetical facts.” Anderson v. General Dynamics Convair Aerospace Div., 589 F.2d 397, 402 (9th

Cir. 1978), cert. denied, 442 U.S. 921 (1979). And “undue hardship cannot be supported by merely conceivable or hypothetical hardships[.]” Tooley v. MartinMarietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981)

cert. denied, 454 U.S. 1098 (1981). In Opuku-Boateng,

the Ninth Circuit considered a mirror-image case. California declined to offer “voluntary shift trades” to a

Sabbatarian based on the “hypothetical difficulty”

that could arise if other workers were unwilling to

swap shifts. 95 F.3d at 1471. The Ninth Circuit

reached the opposite conclusion to the Seventh Circuit

here, holding that California had an “obligation to investigate whether voluntary trading of shifts was feasible” and that because California had not established

that other “employees were collectively unwilling to

accommodate Opuku-Boateng,” it had not met its burden. Id. at 1472.

The First, Fourth, Sixth and Tenth Circuits likewise have rejected reliance on speculative or merely

conceivable hardships:



In Toledo, the Tenth Circuit found that an employer’s concern for additional tort liability arising from an employee’s religious peyote use was

“too speculative,” noting “merely conceivable or

22

hypothetical hardships” do not carry an employer’s burden. 892 F.2d at 1492. This Court

denied certiorari. 495 U.S. 948 (1990).



In Cloutier v. Costco Wholesale Corp., the First

Circuit adopted the Toledo standard, but found

that under that standard Costco could forbid a

member of the “Church of Body Modification”

from wearing a facial piercing because of the

“specific hardship[]” that would cause based on

damage to Costco’s image. 390 F.3d 126, 128,

135 (1st Cir. 2004). This Court denied certiorari. 545 U.S. 1131 (2005).



In EEOC v. Firestone Fibers & Textiles Co., the

Fourth Circuit adopted the rule of Brown v.

Polk County, stating that the undue hardship

analysis “may not be based on mere speculation

or conjecture.” 515 F.3d 307, 317 (4th Cir.

2008). Cf. Benton v. Carded Graphics, Inc., 28

F.3d 1208 (Table), 1994 WL 249221, at *1 (4th

Cir. 1994) (hardship “cannot be proved by assumptions” or “hypothetical facts”).



In Pyro Mining, the Sixth Circuit said the employer could not “rely merely on speculation” to

treat a shift-swap accommodation as an undue

hardship. 827 F.2d at 1086. See also McDaniel

v. Essex Int’l, Inc., 571 F.2d 338, 343 (6th Cir.

1978) (“hypothetical hardships” do not suffice;

“no factual basis in the record” for undue hardship finding).

23

The rule in these circuits is with the opposite of the

approach adopted by the Seventh Circuit below.6 The

Court should therefore grant certiorari to resolve this

broad, deep, and lingering split.

III. The Court should reconsider Hardison.

While the circuits are hopelessly split on two important questions of interpretation, both splits are just

manifestations of a deeper problem: Hardison’s rewriting of Title VII. If Hardison had not constructed a

world in which courts must scrutinize cases for even

de minimis “hardships” on employers, courts would

not be splitting hairs over whether allowing voluntary

shift swaps is burdensome enough to absolve the employer of the duty to accommodate. Likewise, only

Hardison’s de minimis standard could allow unsubstantiated guesswork about the scheduling preferences of seven other assistant managers to eliminate

the duty to accommodate a Sabbath observer.

Multiple Justices and the United States have already said that the continuing validity of Hardison’s

interpretation of “undue hardship” is worthy of the

Court’s review. Three main factors support this conclusion. First, Hardison conflicts with the text, history, and purpose of Title VII. Second, Hardison has

had severe consequences, particularly for employees of

The EEOC has supported the anti-speculation side of the split.

See EEOC Compliance Manual, Sec. 12-IV-B-1 (“[a]n employer

cannot rely on hypothetical hardship when faced with an employee’s religious obligation that conflicts with scheduled work,

but rather should rely on objective information.”),

https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination; see also App.53a (EEOC argument below that its

rule tracks 42 U.S.C. 2000e(j)’s text).

6

24

minority faiths. And third, traditional stare decisis

factors recommend against retaining Hardison.

A. Hardison’s definition of undue hardship

conflicts with Title VII’s text, ordinary

statutory construction, and the 1972

amendment’s history and purpose.

Hardison’s definition of undue hardship was

flawed from the beginning. As Justice Thomas pointed

out in his separate opinion in EEOC v. Abercrombie &

Fitch Stores, 575 U.S. 768, 787 n.* (2015)—and as Justice Alito reiterated in Patterson, 140 S.Ct. at 686

n.*—Hardison’s discussion of “undue hardship” was

not directed at the statute, which was amended after

TWA terminated Hardison. But even if Hardison’s

analysis were understood to interpret Title VII, as it

was (without analysis) in Ansonia Board of Education

v. Philbrook, 479 U.S. 60, 67 (1986), and as it has been

in the lower courts, that ruling should not stand. The

analysis in Hardison disregards the plain meaning of

“undue hardship,” statutory definitions of the same

term elsewhere in the United States Code, and Title

VII’s history.

1. Whether viewed as an interpretation of the prestatute regulation, Title VII itself, or both, Hardison

went astray when it defined “undue hardship” as anything more than a “de minimis cost,” 432 U.S. at 84.

That interpretation simply cannot be squared with the

“ordinary meaning” of those words “at the time Congress enacted the statute.” New Prime Inc. v. Oliveira,

139 S.Ct. 532, 539 (2019) (cleaned up). No pre-Hardison dictionaries we are aware of defined “undue” as

just “more than de minimis.” Nor could they: “[b]y definition, de minimis costs are not hardships (much less

25

‘undue’ hardships).”7 Rather, dictionaries at the time

of the amendment’s enactment defined “undue” in the

first instance as “unwarranted,” or “excessive.” See

undue, Random House Dictionary of the English Language, College Edition (Laurence Urdang & Stuart

Berg Flexner, eds.) 1433 (1968).

By contrast, a de minimis burden is defined as one

that is “trifling” or “so insignificant that a court may

overlook [it] in deciding an issue or case[.]” De minimis

non curat lex, Black’s Law Dictionary (rev. 4th ed.

1968); De minimis, Black’s Law Dictionary (11th ed.

2019).8

Hardison’s interpretation of “undue” thus also renders that word essentially meaningless, in violation of

the principle of statutory interpretation that a word in

a statute “cannot be meaningless, else [it] would not

have been used.” United States v. Butler, 297 U.S. 1,

65 (1936).

Hardison fares no better even if one assumes “undue hardship” was a term of art when the 1972 amendment was adopted. The EEOC provided the most relevant pre-1972 interpretation when it defined “undue

Mark Storslee, Religious Accommodation, The Establishment

Clause, and Third-Party Harm, 86 U. Chi. L. Rev. 871, 936

(2019).

7

Contemporary corpus linguistics data also show that Hardison’s interpretation was anomalous. A search of the word “undue”

in its syntactic context, i.e., as an adjective modifying a noun,

from the years 1967 to 1977, shows that contemporaneous dictionaries were right: The word was virtually always synonymous

with “excessive.” Brigham Young University, Corpus of Historical American English, https://www.english-corpora.org/coha/.

8

26

hardship” as including situations “where the employee’s needed work cannot be performed by another

employee of substantially similar qualifications during the period of absence of the Sabbath observer.” 29

C.F.R. 1605.1 (1968) (codifying 1967 Guidelines).

EEOC practice in the years before Hardison similarly shows that “undue hardship” entailed a significant burden. The agency, for example, required employers to demonstrate their “inability to find a substitute employee” as well as the “economic effect of [the

employee’s] absence on its business.” EEOC Decision

No. 72-1578, 5 Fair Empl. Prac. Cas. (BNA) 960

(1972).

Given these many shortcomings, it is unsurprising

that Hardison’s stunted understanding of undue hardship has been criticized by several past and present

members of this Court. For example, Justice Marshall

dissented in Hardison because “[a]s a matter of law,”

he “seriously question[ed] whether simple English usage permits ‘undue hardship’ to be interpreted to

mean ‘more than de minimis cost[.]’” Hardison, 432

U.S. at 92 n.6 (Marshall, J., dissenting); see also Patterson, 140 S.Ct. at 686 (Alito, J., concurring in the denial of certiorari) (“Hardison’s reading does not represent the most likely interpretation of the statutory

term ‘undue hardship[.]’”). Other jurists have likewise

disagreed with Hardison’s conclusions on that ground.

E.g., Small, 952 F.3d at 828 (Thapar, J., concurring)

(“The Hardison majority never purported to justify its

test as a matter of ordinary meaning. And how could

it?”).

27

2. Nor can Hardison’s interpretation of “undue

hardship” be squared with the common-sense definition of “undue hardship” that Congress has employed

in other statutes, such as the Americans With Disabilities Act, the Uniformed Services Employment and

Reemployment Act of 1994, and the Fair Labor Standards Act. Each of those statutes defines “undue hardship” to mean hardship causing “significant difficulty

or expense,” not just a smidgen more than de minimis

harm. 42 U.S.C. 12111(10)(A); 38 U.S.C. 4303(16); 29

U.S.C. 207(r)(3). Thus, whenever Congress has expressly defined “undue hardship,” its definition has always required more than Hardison demands.

In other contexts, judges typically employ plainmeaning interpretations of “undue hardship” that contravene Hardison. As Judge Thapar recently highlighted, even where Congress has not specifically defined the term “undue hardship,” such as in the Bankruptcy Code, the courts have rejected any attempt to

constrain it with the “de minimis” test. Small, 952

F.3d at 827 (Thapar, J., concurring) (collecting cases).

And the language those courts have used underscores

what an outlier Hardison is: In all other contexts, a

hardship is “undue” when it is “intolerable,” “significant,” or “unusual.” Ibid. “[G]arden-variety hardship”

is “insufficient.” Ibid. (citing In re Frushour, 433 F.3d

393, 399 (4th Cir. 2005)).

3. Legislative history similarly confirms Hardison’s failure to adequately capture the concerns Congress sought to address. Congress passed the 1972 accommodation amendments based on concern “for the

individuals of all minority religions who are forced to

choose between their religion and their livelihood.”

Nottelson v. Smith Steel Workers D.A.L.U. 19806, 643

28

F.2d 445, 454 n.11 (7th Cir. 1981) (citing 118 Cong.

Rec. at 705-706). In addition, the principal proponent

of 42 U.S.C. 2000e(j), Senator Randolph, himself a

Seventh Day Baptist, stated that his amendment was

intended to “protect the same rights in private employment as the Constitution protects in Federal, State, or

local governments” and to “assure that freedom from

religious discrimination in the employment of workers

is for all time guaranteed by law.” 118 Cong. Rec. at

705. After Hardison, the amendment does neither of

these things.

B. Hardison has had negative consequences

for religious workers, particularly those

of minority faiths.

The real-world consequences of Hardison’s misreading of Title VII have been considerable, and the

significant harm that its standard has caused religious workers—especially members of minority

faiths—justifies this Court’s review. These harms are

hardly surprising. At the time Hardison was issued,

Justice Marshall warned that the decision would

“deal[] a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices.”

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

Thus lower courts applying Hardison have permitted employers to burden minority religions in a wide

variety of ways. For example, the Third Circuit said a

school district could forbid a Muslim teacher to wear a

headscarf because a state “religious garb” law (originally targeting Catholic nuns) might forbid wearing it.

See United States v. Bd. of Educ., 911 F.2d 882, 890891 (3d Cir. 1990). Other courts have held that allowing religious minorities to manifest their faith would

29

constitute an undue hardship. See Camara v. Epps Air

Serv., Inc., 292 F. Supp. 3d 1314, 1331-1332 (N.D. Ga.

2017) (allowing employee to wear hijab could “potentially cost it business if some customers go elsewhere”); EEOC v. Sambo’s of Georgia, Inc., 530 F.

Supp. 86, 90 (N.D. Ga. 1981) (Sikh beard could “offend[] certain customers” and employees, and also

present a “risk of noncompliance with sanitation regulations”). Cf. Abercrombie, 575 U.S. at 770 (store refused to hire Muslim woman who wore headscarf for

religious reasons).

And as our Nation becomes more religiously diverse, the harm Hardison imposes on religious minorities will only continue to increase. Indeed, an empirical study concluded that “American Muslims appear

to be at a pronounced disadvantage in obtaining accommodations for religious practices in federal court

because they are Muslims[.]”9 See also CLS Br.23-25,

Patterson v. Walgreen Co. (No. 18-349) (describing statistical data on harms to minorities).

But rather than encouraging employers to compromise when faced with requests from members of minority faiths, Hardison tells them to say no if there is

more than a de minimis cost. Cf. App.97a (“minimal

cost”). That means the employer has little to no incentive to engage in the “bilateral cooperation” this Court

urged in Ansonia, 479 U.S. at 69. And willingness to

cooperate is often at its lowest ebb when minority

faiths are involved.

Gregory C. Sisk & Michael Heise, Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal

Courts, 98 Iowa L. Rev. 231, 262 (2011).

9

30

C. Ordinary stare decisis factors do not

support retaining Hardison.

1. As an initial matter, stare decisis principles do

not even apply where the prior holding was not an interpretation of the pertinent legal text. See Cohens v.

Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821) (issues

that “go beyond the case” not binding); Humphrey’s

Ex’r v. United States, 295 U.S. 602, 627 (1935) (same);

Central Green Co. v. United States, 531 U.S. 425, 431

(2001) (same). Since Hardison interpreted an EEOC

regulation, not Title VII, its treatment of Title VII

went “beyond the case,” and thus lacks precedential

value.

Hardison himself was terminated “before the 1972

amendment to Title VII’s definition of religion.” Abercrombie, 575 U.S. at 787 n.* (Thomas, J., concurring

in part and dissenting in part); Patterson, 140 S.Ct. at

686 n.* (Alito, J., concurring in the denial of certiorari). As Justices Thomas and Alito explained, the

Hardison court thus applied “not the amended statutory definition” at issue here, but rather a “then-existing EEOC guideline.” Abercrombie, 575 U.S. at 787

n.*. Based on that understanding, Justice Thomas was

no doubt correct when he said that “Hardison’s comment about the effect of the 1972 amendment was

* * * entirely beside the point.” Ibid. See also Bryan

A. Garner, Neil M. Gorsuch, Brett M. Kavanaugh et

al., The Law of Judicial Precedent 62 (2016) (“[P]eripheral, off-the-cuff judicial remark[s]” are not “binding

under the doctrine of stare decisis.”). The “undue hardship” portion of Hardison’s analysis was thus at best

dicta as applied to the statute.

31

To be sure, this Court in Ansonia subsequently assumed that Hardison’s undue hardship interpretation

applied to the statute as well. 479 U.S. at 67. But the

Court undertook no analysis of the point, and accordingly its assumption likewise did not constitute a holding as to how Title VII should be interpreted. Where

an earlier Court has assumed an answer to an “antecedent proposition[]” not squarely addressed—as Ansonia did by citing Hardison’s treatment of Title VII—

such an assumption is “not binding in future cases

that directly raise the question[].” United States v.

Verdugo-Urquidez, 494 U.S. 259, 272 (1990); cf. Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998)

(rejecting “drive-by” rulings).

2. Even if Hardison (or Ansonia) actually constituted a holding for stare decisis purposes, “several factors” that this Court “consider[s] in deciding whether

to overrule a past decision” weigh heavily in favor of

overruling Hardison. Knick v. Township of Scott, 139

S.Ct. 2162, 2178 (2019).

First, in the 44 years since Hardison was decided,

this Court has eroded any justification for the rule it

adopted. See Knick, 139 S.Ct. at 2178 (overruling decision with “shaky foundations,” “the justification for

[which] continues to evolve”); see also Ramos v. Louisiana, 140 S.Ct. 1390, 1414 (2020) (Kavanaugh, J.,

concurring in part) (changes in law justify overturning

precedent).

Hardison grounded its erroneous interpretation of

“undue hardship” in the belief that Title VII required

no more than neutrality regarding religious practices,

and thus did not require “unequal treatment” of employees because of their religious beliefs. Hardison,

32

432 U.S. at 84. But Abercrombie rejected that premise,

recognizing that Title VII “does not demand mere neutrality with regard to religious practices,” but instead

gives such practices “favored treatment” because Congress deliberately sought to protect religious employees from workplace discrimination. Abercrombie, 575

U.S. at 775.

Second, other than the belief (since repudiated by

Abercrombie) that Title VII required equal treatment

of religious and non-protected practices, Hardison offered no reasoning. See Patterson, 140 S.Ct. at 686

(Alito, J., concurring in the denial of certiorari) (“the

Court did not explain the basis for this interpretation”). Indeed, Hardison’s only justification for its reinterpretation of Title VII was that the “privilege of

having Saturdays off would be allocated according to

religious beliefs.” 432 U.S. at 85. But that is exactly

what Title VII requires: Congress determined that religious employees should not be forced to choose between their job and their faith if a reasonable accommodation could be made without imposing an undue

hardship on their employer. Hardison upended this

careful and congressionally-mandated balance. 10

Third, Hardison’s interpretation of “undue hardship” is inconsistent with other interpretations of the

same term throughout the United States Code. This

Court has long recognized that stare decisis should

yield when one of this Court’s opinions is an “anomaly.” Janus v. AFSCME, 138 S.Ct. 2448, 2483 (2018);

see also Alleyne v. United States, 133 S.Ct. 2151, 2167

The lack of reasoning may be explained by the lack of briefing

on the point. See U.S. Br.21, Patterson v. Walgreen Co. (No. 18349)

10

33

(2013) (Breyer, J., concurring in part and concurring

in the judgment), or an “outlier.” Id. at 2165 (Sotomayor, J., concurring). Because of Hardison, the

prevailing interpretation of Title VII’s “undue hardship” provision is as anomalous as they come. 11

For all these reasons, Hardison is ripe for reconsideration.

D. Title VII’s religious accommodation

provision should be read in pari

materia with the ADA’s disability

accommodation provision.

If the Court concludes that Hardison must be overruled, there is a well-developed body of caselaw that

lower courts could easily deploy to properly interpret

Title VII’s religious accommodation provision: the law

of disability accommodations under the Americans

with Disabilities Act, 42 U.S.C. 12112.

Although the two statutes differ significantly in

other areas, they are very similar when it comes to the

text of their reasonable accommodation/undue hardship provisions. Title VII requires an employer to provide an accommodation

unless an employer demonstrates that he is unable to reasonably accommodate to an em-

Other factors that this Court traditionally considers, such as

the lack of reliance interests of the parties, also weigh in favor of

overruling Hardison. See U.S. Br.21-22, Patterson v. Walgreen

Co. (No. 18-349) (citing Payne v. Tennessee, 501 U.S. 808, 828

(1991)).

11

34

ployee’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). The ADA similarly requires accommodations

unless such covered entity can demonstrate

that the accommodation would impose an undue hardship on the operation of the business

of such covered entity[.]

42 U.S.C. 12112(b)(5)(A). The main facial distinction

between the two statutes are the phrases “the conduct

of the employer’s business” and “the operation of the

business of such covered entity.” But it is hard to imagine how that difference in diction could possibly

cash out as a true difference in practice.

Moreover, because the ADA has not labored under

the artificial constraints of a case like Hardison, the

ADA jurisprudence surrounding reasonable accommodations and undue hardship has become well-developed, with a detailed body of caselaw and scholarly

work concerning a host of fact scenarios. Indeed, as the

record in this case demonstrates, Walmart has an entire department tasked to ensure ADA compliance

across its thousands of stores. But as Ahern discovered, that department “doesn’t do religion” because

Hardison means it doesn’t have to. App.17a. In a postHardison world, companies could and would simply

use their existing ADA compliance operations to cover

Title VII compliance.

Nor is the substantive standard that would apply

post-Hardison any mystery. As Justice Gorsuch has

explained, the ADA undue hardship standard means

35

“an employer must provide an accommodation unless

doing so would impose ‘significant difficulty or expense’ in light of the employer’s financial resources,

the number of individuals it employs, and the nature

of its operations and facilities.” Small, 141 S.Ct. at

1228 (Gorsuch, J., dissenting). That is a proven, workable standard that can be used for deciding post-Hardison Title VII religious accommodation claims.

Thus, should the Court conclude that Hardison is

incorrect and must be overruled, it would hardly be

venturing into the unknown—the ADA has already

paved the way.

IV.This case is an excellent vehicle for addressing the questions presented.

This case presents the Court with a clean vehicle

to address all three questions presented. Resolved at

summary judgment after extensive discovery, this

case has a record that is detailed and clear. Emails

document Walmart’s offer, Hedican’s acceptance and

immediate request for accommodation, and Walmart’s

recission due to his request. App.102a-115a.

Walmart’s written guidance and extensive deposition

testimony confirm the considerations used to make

the decision, App.93a-101a; App.116a-136a, and the

record confirms what both courts also held: Walmart

could have accommodated Hedican by allowing for voluntary shift swaps, paying other employees overtime

to work on Saturdays, or hiring a ninth assistant manager. App.3a; App.33a.

But—instead of seeking to find a workable accommodation—Walmart deployed Hardison, saying that

these minimal-but-not-de-minimis accommodations

were “undue.” App.113a. This despite both Walmart’s

36

own internal policies encouraging accommodations

and Walmart’s substantial resources. As the Nation’s

largest private employer, and with annual operating

expenses of over $500 billion, Walmart could easily

have accommodated Hedican’s religious exercise—it

simply chose not to.

The record is particularly clear regarding voluntary shift swaps. Both courts below recognized that

such swaps were possible, but that Walmart flatly rejected this option. App.3a; App.33a. As one of eight assistant managers, Hedican could have taken on additional weekday, Sunday, or night shift work in exchange for having his Sabbath off—and he volunteered to do precisely that when he requested an accommodation. App.110a. Indeed, Walmart’s own guidance for managers like Hedican encourages shift

swaps for both religious and personal reasons,

App.99a, and even suggests that in emergencies managers may be able to fall back on PTO (vacation time)

to cover their holy days. Ibid. This clear record provides ample foundation for the Court to address the

first question presented.

Similarly, the record leaves no doubt that

Walmart’s human resources manager Lori Ahern relied on pure speculation to justify denying Hedican an

accommodation. Deposition testimony confirms that

Ahern could have, but chose not to, determine whether

voluntary shift swaps would be a workable accommodation by talking to the store’s seven other assistant

managers. App.133a-134a. But instead of making the

necessary inquiries of Hedican’s future co-workers,

Ahern simply assumed they “may have plans” or may

not want to swap Saturday shifts. App.23a; App.132a.

(“Q. Did you have any conversations in that time

37

frame with any assistant managers? A. No.”). Ahern’s

assessment of the voluntary shift swap accommodation was thus based on pure speculation; and the imagined inability or unwillingness of other employees

to work additional Saturdays was key to Ahern’s decision to reject shift swaps as a viable accommodation.

App.134a (rejecting accommodation because other

manager would “have to work more Saturdays because [Hedican] can’t”). The clarity of the evidentiary

record makes this a strong vehicle for addressing the

second question presented.

This case also squarely presents the Court with the

opportunity to reconsider Hardison. Both lower courts

expressly applied Hardison, recognizing that its “undue hardship” standard controlled. App.7a; App.31a.

Walmart also relied on Hardison: its internal religious

accommodation guidance confirmed that anything

more than a de minimis cost justified denying an accommodation request. App.97a.

The petition therefore presents a clean, robust vehicle for this Court to address all three questions presented.

*

* *

What was perhaps American history’s most famous

voluntary shift swap meant to accommodate religion

came on October 6, 1965, when Sandy Koufax did not

take the mound for the Dodgers in the first game of

the World Series. His co-worker Don Drysdale voluntarily took on the job that day so Koufax could observe

Yom Kippur. And the Catholic owner of the Dodgers

facilitated the switch because he couldn’t “let the boy

38

do that to himself.”12 Koufax’s principled stance captivated the Nation, and Koufax’s actions—and the willingness of his teammates and the Dodgers to accommodate his religious observance—have served ever

since as a kind of parable for how Americans might

live and work together in a pluralistic society.

Hardison’s pinched view of religious accommodation in the workplace runs directly counter to this vision. It was wrong the day it was decided and is still

wrong today, both as a matter of text and a matter of

justice. It contradicts the plain text of Title VII. And it

wrongly pushes companies like Walmart, who know

that religious accommodations are a good thing, to

minimize accommodations in the name of cost-cutting.

In an increasingly polarized society, it is all the more

important that the Court restore the full scope of protection Congress meant to give to Sabbath-observant

religious Americans, be they Adventist, Jewish, or

something else.

CONCLUSION

The Court should grant the petition.

Matt Rothenberg, Sandy Koufax responded to a higher calling on Yom Kippur in 1965, National Baseball Hall of Fame,

https://baseballhall.org/discover/sandy-koufax-sits-out-gameone. Although the Dodgers lost Game 1, they went on to win the

Series.

12

39

Respectfully submitted.

ERIC C. RASSBACH

Counsel of Record

MARK L. RIENZI

NICHOLAS R. REAVES

DANIEL L. CHEN

JAMES KIM

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave. NW

Suite 400

Washington, D.C. 20006

(202) 955-0095

erassbach@becketlaw.org

Counsel for Petitioner

OCTOBER 2021