Amicus Curiae Brief — Edward Hedican, Petitioner v. Walmart Stores East, L.P., et al.

Supreme Court briefDec 23, 2021

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No. 21-648

In the Supreme Court of the United States

EDWARD HEDICAN,

Petitioner,

WALMART STORES EAST, L.P., et al.

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF OF AMICUS CURIAE THE JEWISH

COALITION FOR RELIGIOUS LIBERTY

IN SUPPORT OF PETITIONERS

HOWARD SLUGH

2400 Virginia Ave. NW,

Apt. C619

Washington, D.C. 20037

(954) 328-9461

hslugh@jcrl.org

BRADLEY J. LINGO

Counsel of Record

MICHAEL G. SCHIETZELT

ROBERTSON CENTER FOR

CONSTITUTIONAL LAW

Regent University School

of Law

1000 Regent University

Dr., Ste. 303

Virginia Beach, VA 23464

blingo@regent.edu

(757) 352-4337

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ........................... 1

INTRODUCTION & ARGUMENT SUMMARY ...... 1

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

Hardison Has Prevented Jewish Americans

From Fully Realizing Title VII’s Promise Of

A Workplace Free Of Needless

Discrimination.................................................. 3

A. A long history of religious discrimination

has plagued Jewish immigrants seeking

work in America ........................................... 3

B. Shortly after Congress strengthened Title

VII’s protections for religious workers,

including Jews, Hardison’s error

effectively erased them ................................ 5

II. The Court Should Not Ask Millions Of

Religious Americans To Wait Longer Before

It Corrects Hardison’s Mistake ....................... 6

A. Hardison disproportionately harms

religious minorities least able to absorb

economic hardship ....................................... 6

B. Hardison’s sting has been particularly

painful for Jews seeking to honor the

Sabbath ........................................................ 9

C. Hardison’s error also imposes terrible

dilemmas upon other religious

minorities ................................................... 11

III. This Court Should Not Rely On Congress

To Correct Hardison’s Error .......................... 13

A. Stare decisis does not counsel this Court to

preserve Hardison...................................... 13

B. Mr. Hedican’s petition offers an excellent

vehicle to revisit Hardison ........................ 15

CONCLUSION ......................................................... 16

iii

TABLE OF AUTHORITIES

Cases

Page

Cloutier v. Costco Wholesale Corp.,

390 F.3d 126 (1st Cir. 2004) ................................... 8

Dalberiste v. GLE Assocs., Inc.,

814 Fed. App’x 495 (11th Cir. 2020), cert. denied,

141 S. Ct. 2463 (Apr. 5, 2021) (No. 19-1461) ......... 6

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

Paving, & Utils., Inc.,

793 F. Supp. 2d 738 (E.D.N.C. 2011) ................. 7, 8

Finnie v. Lee Cty., Miss.,

907 F. Supp. 2d 750 (N.D. Miss. 2012) .................. 7

Fraternal Order of Police Newark Lodge No. 12 v.

City of Newark,

170 F.3d 359 (3d Cir. 1999) .................................. 12

Hobbie v. Unemployment Appeals Comm’n,

480 U.S. 136 (1987) ................................................ 9

In re Palmer,

386 A.2d 1112 (R.I. 1978) ..................................... 12

Jiglov v. Hotel Peabody, G.P.,

719 F. Supp. 2d 918 (W.D. Tenn. 2010) ................. 7

Kimble v. Marvel Ent., LLC,

576 U.S. 446 (2015) .............................................. 13

Leonce v. Callahan,

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

(N.D. Tex. Jan. 3, 2008).......................................... 8

Miller v. Port Auth. of New York & New Jersey,

351 F. Supp. 3d 762 (D.N.J. 2018) ......................... 6

Mohamed v. 1st Class Staffing, LLC,

286 F. Supp. 3d 884 (S.D. Ohio 2017) .................... 7

O’Lone v. Est. of Shabazz,

482 U.S. 342 (1987) .............................................. 11

Patterson v. Walgreen Co.,

727 Fed. App’x 581 (11th Cir. 2018), cert. denied,

140 S. Ct. 685 (Feb. 24, 2020) (No. 18-349) ........... 6

Prach v. Hollywood Supermarket, Inc.,

No. 09-13756, 2010 WL 3419461

(E.D. Mich. Aug. 27, 2010) ..................................... 7

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) .................................... 13, 14

Sherbert v. Verner,

374 U.S. 398 (1963) ................................................ 9

Small v. Memphis Light, Gas & Water,

952 F.3d 821 (6th Cir. 2020), cert. denied,

141 S. Ct. 1227 (Apr. 5, 2021) (No. 19-1388) ......... 6

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) .......................................... 2, 5, 8

Statutes & Session Laws

42 U.S.C. § 2000e(j) .................................................... 5

H.R. 1431, 110th Cong. (2007) ................................. 14

S. 893, 108th Cong. (2003) ....................................... 14

Other Authorities

Alexander Hamilton, Report on Manufactures

(Dec. 5, 1791), in 5 The Founders’ Constitution 95

(Philip B. Kurland & Ralph Lerner eds., 1986) .... 3

Aron Moss, Why Do Jewish Women Cover Their

Hair, Chabbad.org

(last visited Dec. 14, 2021) ................................... 11

Aryeh Kaplan, Sabbath: Day of Eternity, in

2 The Aryeh Kaplan Anthology 107 (1998) ........... 9

Exodus 31:14 ............................................................ 10

Identity, Sikh Coal.

(last visited Dec. 15, 2021) ................................... 12

James Madison, Memorial and Remonstrance

Against Religious Assessments (June 20, 1785), in

5 The Founders’ Constitution 82

(Philip B. Kurland & Ralph Lerner eds., 1986) .... 9

James Madison, Property (Mar. 29, 1792), in

1 The Founders’ Constitution 598

(Philip B. Kurland & Ralph Lerner eds., 1986) .... 3

Jason Despain, A Peculiar Clause of Political

Compromise for California’s Religious Minorities,

21 Rutgers J. L. & Religion 390 (2021).................. 4

Jews in America: Shabbat as Social Reform (1925),

Jewish Virtual Library

(last visited Dec. 17, 2021) ..................................... 4

Jonathan D. Sarna,

American Judaism: A History (2004) ............ 3, 4, 5

Koran 62:9 ................................................................ 11

Leviticus 19:27.......................................................... 11

3 Rabbi Yosef Karo,

Shulchan Aruch Orach Chayim (1977) ........... 9, 10

Remarks on Signing the Religious Freedom

Restoration Act of 1993,

2 Pub. Papers 2000 (Nov. 16, 1993) ..................... 13

Sampson Raphael Hirsch,

Hirsch Siddur (1969) ............................................ 11

The 39 Categories of Sabbath Work Prohibited by

Law, Orthodox Union (July 17, 2006) ................. 10

U.S. Comm’n on Civil Rights, Peaceful Coexistence:

Reconciling Nondiscrimination Principles with

Civil Liberties (2016) ............................................ 14

What Adventists Believe About the Sabbath,

Seventh-day Adventist Church

(last visited Dec. 15, 2021) ................................... 12

Why the Sabbath?,

Orthodox Union (July 17, 2006) ........................... 10

INTEREST OF AMICUS CURIAE1

The Jewish Coalition for Religious Liberty

(“JCRL”) is an interdenominational association of

rabbis, lawyers, and professionals who practice Judaism. Jewish practices sometimes conflict with the

standard work calendar and expectations for grooming and dress. Accordingly, Jews are among the many

diverse religious communities that seek shelter under

Title VII’s prohibition on religious discrimination in

the workplace.

Hardison’s erroneous understanding of Title VII

requires many Americans—including those who practice Judaism—to make the Hobson’s choice between

honoring the requirements of their religion and keeping their jobs. JCRL thus has a strong interest in ensuring that Americans of all faiths receive the full protection afforded by the plain language of Title VII.

INTRODUCTION &

ARGUMENT SUMMARY

In the early 20th Century, workers across this

country routinely lost job opportunities because their

religious practices inconvenienced their employers.

Immigrants, including many Jewish families, sought

opportunity in America only to face a choice between

their faith and their jobs. A generation ago, against

1 No counsel for any party authored this brief in whole or in

part, and no entity or person, aside from amicus, their members,

and their counsel, made a monetary contribution intended to

fund the preparation or submission of this brief. Both parties

were timely notified and have consented to the filing of this brief.

this backdrop, Congress attempted to protect religious Americans through Title VII. But because of

this Court’s interpretive error in Hardison, Americans unfortunately still suffer loss of employment for

requesting time off for their Sabbath. Americans still

lose jobs for attending worship services. And they still

lose jobs for requesting variances from dress and

grooming requirements. Even more tragically, other

Americans—forced to choose between their faith and

feeding their families—have forsaken their religious

practices to keep their jobs.

This is the devastating legacy of Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), which concluded that employers need not incur anything more

than a “de minimis cost” to accommodate an employee’s religious practice under Title VII. That understanding sits at odds with the text of Title VII,

which requires that the employer suffer “undue hardship” before he may refuse to accommodate an employee’s religious observance and practice.

Mr. Hedican’s petition is the latest in a growing

stack imploring this Court to revisit Hardison. Hardison’s “de minimis” gloss on Title VII’s “undue hardship” standard has wrought hardship upon untold religious Americans—especially those from minority

faith traditions. This Court should grant certiorari,

correct Hardison’s error, and allow Title VII to safeguard religious minorities as was always intended.

ARGUMENT

Hardison Has Prevented Jewish Americans From Fully Realizing Title VII’s

Promise Of A Workplace Free Of Needless

Discrimination.

A long history of religious discrimination has plagued Jewish immigrants

seeking work in America.

Americans have long connected the freedom to

work and the freedom to worship. For example, Alexander Hamilton believed that “a perfect equality of religious privileges,” more than “mere religious toleration,” would encourage skilled workers to “flock from

Europe to the [U]nited [S]tates to pursue their own

trades or professions.” Alexander Hamilton, Report

on Manufactures (Dec. 5, 1791), in 5 The Founders’

Constitution 95, 95 (Philip B. Kurland & Ralph Lerner eds., 1986); see also James Madison, Property

(Mar. 29, 1792), in 1 The Founders’ Constitution 598,

598 (describing the freedom to work and freedom of

worship as property rights).

These dual promises have proven elusive for many

immigrants who sought equality and opportunity on

American soil.

The combination of a Mondaythrough-Saturday work week and “strictly enforced”

Sunday closure laws had a particularly devastating

effect on the lives of Jewish immigrants. Jonathan D.

Sarna, American Judaism: A History 162 (2004).

“[U]nsympathetic employers” told their Jewish employees, “if you don’t come in on Saturday, don’t

bother coming in on Monday.” Id. at 162–63; see also

Jason Despain, A Peculiar Clause of Political Compromise for California’s Religious Minorities, 21 Rutgers

J. L. & Religion 390, 393–94 (2021) (describing how

one rabbi’s pleas to secure accommodations for Russian Jewish immigrants in West Hollywood “often fell

on deaf ears”); Jews in America: Shabbat as Social Reform (1925), Jewish Virtual Library (last visited Dec.

17, 2021) (“Almost no employers—even Jewish employers—honored Saturday as a day of rest.”).2

Though some Jewish workers “preserve[d] their

Sabbath at all costs,” many more succumbed to the

need “to feed themselves and their families.” Sarna,

supra, at 163. “[T]he decline of Sabbath observance”

indicated “spiritual collapse within the Jewish immigrant community.” Id. at 162.

A heartrending Yiddish prayer (techinah) written in America for women to recite privately when they lit their Sabbath candles, and printed in a widely

distributed prayer book . . . laments that

in “this diaspora land” where the “burden of making a living is so great,” resting on Sabbath and holidays had become

impossible, and it pleads for divine compassion. “Grant a bountiful living to all

Jewish children,” it entreats, “that they

should not have to desecrate your holy

day.”

https://www.jewishvirtuallibrary.org/shabbat-as-social-reform-1925

Id. at 164 (quoting Shas Tehinah Hadashah 38–41

(1916)).

Shortly after Congress strengthened

Title VII’s protections for religious

workers, including Jews, Hardison’s

error effectively erased them.

Title VII took a critical step toward answering

these prayers and alleviating suffering among Jewish

immigrants and their descendants. Congress reinforced protections for religious minorities by amending Title VII to require employers “to reasonably accommodate an employee’s or prospective employee’s

religious observance without undue hardship on the

conduct of the employer’s business.” 42 U.S.C. §

2000e(j).

But that relief was short-lived. Only five years after Congress strengthened Title VII’s protections for

religious workers, Hardison eviscerated those protections. The Hardison majority concluded that requiring an employer “to bear more than a de minimis cost”

to accommodate an employee’s religious observance

“is an undue hardship.” See 432 U.S. at 84.

Hardison places American Jews and other religious minorities back in the position of their immigrant ancestors—at the mercy of their employers.

America has undisputedly grown more tolerant and

welcoming over the decades, and such difficulties are

not as widespread as they were in the past. But Congress passed Title VII to eliminate such cruelty and

discrimination. Title VII cannot serve that function

while Hardison remains in place. Today,

notwithstanding the remarkable cultural progress,

some Jews still must choose between the demands of

their job and the demands of their faith. See, e.g., Miller v. Port Auth. of New York & New Jersey, 351 F.

Supp. 3d 762 (D.N.J. 2018), aff’d, 788 F. App’x 886 (3d

Cir. 2019). This should not be. This Court should

grant review and restore the promise embedded in Title VII’s “undue hardship” standard.

II.

The Court Should Not Ask Millions Of Religious Americans To Wait Longer Before

It Corrects Hardison’s Mistake.

Hardison disproportionately harms religious minorities least able to absorb

economic hardship.

The sting of Hardison is particularly painful to

working-class Americans who belong to minority religious groups. Consider the petitioners in recent cases

asking this Court to overrule Hardison: a Jehovah’s

Witness service dispatcher;3 a Sabbatarian industrial

hygienist;4 a Sabbatarian trainer at Walgreens;5 and,

in this case, a Sabbatarian who hoped to become an

assistant manager at Walmart. Calls to overrule

3 Small v. Memphis Light, Gas & Water, 952 F.3d 821 (6th

Cir. 2020), cert. denied, 141 S. Ct. 1227 (Apr. 5, 2021) (No. 191388).

4 Dalberiste v. GLE Assocs., Inc., 814 Fed. App’x 495 (11th

Cir. 2020), cert. denied, 141 S. Ct. 2463 (Apr. 5, 2021) (No. 191461).

5 Patterson v. Walgreen Co., 727 Fed. App’x 581 (11th Cir.

2018), cert. denied, 140 S. Ct. 685 (Feb. 24, 2020) (No. 18-349).

Hardison have come from Jews, Sikhs, Hindus, Adventists, and Lutherans, among others. See generally, e.g., Br. for Jewish Coalition for Religious Liberty; The Coalition for Jewish Values; The Sikh Coalition; The International Society for Krishna Consciousness; Ethics & Religious Liberty Commission of

the Southern Baptist Convention; The Lutheran

Church–Missouri Synod; and Church Of God In

Christ, Inc. as Amici Curiae Supporting Petitioner,

Dalberiste v. GLE Assocs., Inc., No. 19-1461 (July 31,

2020).

One can also look to the lower courts for examples

of Hardison’s pernicious effect on the lives of workingclass Americans including: Muslim factory production

workers, Mohamed v. 1st Class Staffing, LLC, 286 F.

Supp. 3d 884 (S.D. Ohio 2017); a Pentecostal juvenile

detention officer, Finnie v. Lee Cty., Miss., 907 F.

Supp. 2d 750 (N.D. Miss. 2012); a Jewish dump truck

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

Paving, & Utils., Inc., 793 F. Supp. 2d 738 (E.D.N.C.

2011); a Russian Orthodox Christian hotel kitchen

mechanic, Jiglov v. Hotel Peabody, G.P., 719 F. Supp.

2d 918 (W.D. Tenn. 2010); and an Adventist part-time

grocery store clerk, Prach v. Hollywood Supermarket,

Inc., No. 09-13756, 2010 WL 3419461 (E.D. Mich.

Aug. 27, 2010). The list goes on.

And this list excludes the untold number of Americans who—understanding, or informed by counsel,

that Hardison has stacked the deck against them—

capitulate rather than challenge the discriminatory

practice. See, e.g., Br. for Appellant at 13, Hobbie v.

Unemployment Appeals Comm’n, 480 U.S. 136 (1987)

(No. 85-993) (arguing that an Adventist fired for

keeping her Sabbath should not be denied unemployment benefits because Hardison already foreclosed an

employment discrimination claim).

Hardison permits employers to “compel” workers

from minority religions “to make the cruel choice of

surrendering their religion or their job.” 432 U.S. at

87 (Marshall, J., dissenting). And it permits them to

do so over relatively small matters.

That is, Hardison allows the employer to turn its

molehill into the employee’s mountain. For example,

employers may discriminate against religious employees for requesting minor departures from a dress

and appearance policy, e.g., Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 134–37 (1st Cir. 2004), for

requesting time off before completing the new-hire

probationary period, Thomson Contracting, Grading,

Paving, & Utils., Inc., 793 F. Supp. 2d at 741, or for

requesting an accommodation that might create

“hard feelings” among coworkers if granted, Leonce v.

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

(N.D. Tex. Jan. 3, 2008). Hardison itself presents a

prime example of this: a global airliner fired the respondent over an accommodation request that would

have cost $150 over three months. 432 U.S. at 92 n.6

(Marshall, J., dissenting).

Each of these situations creates a minor inconvenience for the employer. But for the employees, their

very conscience and relationship with their creator is

at stake. Small wonder that many employees choose

to honor their faith despite the financial hardships

that result. E.g., Hobbie v. Unemployment Appeals

Comm’n, 480 U.S. 136, 138 (1987) (“[T]he general

manager informed appellant that she could either

work her scheduled shifts or submit her resignation

to the company. When Hobbie refused to do either,

[the company] discharged her.”); Sherbert v. Verner,

374 U.S. 398, 399 (1963) (explaining that Adell Sherbert was fired for keeping her Sabbath and could not

find work because of her Sabbath observance); cf.

James Madison, Memorial and Remonstrance Against

Religious Assessments (June 20, 1785), in 5 The

Founders’ Constitution 82, 82 (arguing that the demands of faith are “precedent, both in order of time

and in degree of obligation, to the claims of Civil Society”).

Hardison’s sting has been particularly

painful for Jews seeking to honor the

Sabbath.

Consider Sabbath observance—the issue in this

case, in the other petitions on this issue that have recently come before this Court, and in Hardison. The

Torah and Oral Law forbid Orthodox Jews working on

the Jewish Sabbath (sundown on Friday to nightfall

on Saturday) and designated Jewish holy days. See

generally 3 Rabbi Yosef Karo, Shulchan Aruch Orach

Chayim 242–365 (1977) (Sabbath prohibitions); id. at

495–529 (holy day prohibitions); see also Aryeh

Kaplan, Sabbath: Day of Eternity, in 2 The Aryeh

Kaplan Anthology 107, 128 (1998). These restrictions

extend beyond paid employment to encompass thirtynine categories of prohibited activity. See The 39

Categories of Sabbath Work Prohibited by Law, Orthodox Union (July 17, 2006).6

“The Sabbath is the most important institution of

Judaism. It is the primary ritual, the very touchstone

of our faith.” Why the Sabbath?, Orthodox Union

(July 17, 2006).7 The Torah commands severe punishment for those who violate the Sabbath. See Exodus 31:14 (“You shall keep the Sabbath, for it is holy

to you; any one who profanes it shall be put to death.

For whoever does any work on that day shall be cut

off from his people.”).

The gravity of this obligation commands that halfmeasures cannot reasonably accommodate Sabbath

observance. It’s no accommodation at all to relieve

the Jewish worker of only some types of prohibited

work or give her the day off on alternating Saturdays.

The choice between employment and the Sabbath for

that person is illusory—the Jewish employee must be

willing to lose her job rather than violate the Sabbath.

See 3 Karo, supra, at 308. This is precisely the dilemma the amendment to Title VII sought to avoid.

Though Sabbath accommodation claims arise

most frequently, Orthodox Jewish employees may

also require accommodation from dress codes and

grooming policies. Jewish men and married women

don head coverings, Aron Moss, Why Do Jewish

Women Cover Their Hair, Chabbad.org (last visited

6 https://www.ou.org/holidays/shabbat/the_thirty_nine_cate-

gories_of_sabbath_work_prohibited_by_law/

7 https://www.ou.org/holidays/why_the_sabbath/

Dec. 14, 2021),8 in the case of a yarmulke or kippah,

to express submission to the Almighty, Sampson

Raphael Hirsch, Hirsch Siddur 14 (1969). Orthodox

and Hasidic Jewish males also let their sideburns

grow to a certain length, and some wear beards to

honor the commandment of Leviticus 19:27: “You

shall not round off the edge of your scalp and you shall

not destroy the edge of your beard.”

Hardison’s error also imposes terrible

dilemmas upon other religious minorities.

Of course, Sabbath observance is not unique to the

Jewish faith. Muslims and some Christian denominations require similar weekly accommodations.

Jumu’ah is “a weekly Muslim congregational service

. . . commanded by the Koran and . . . held every Friday after the sun reaches its zenith.” O’Lone v. Est.

of Shabazz, 482 U.S. 342, 345 (1987) (citing Koran

62:9–10). Believers are commanded to “leave trade”

and attend these weekly services. Koran 62:9. Seventh-day Adventists observe the Sabbath from sundown Friday until sundown Saturday and cannot

work during that time. What Adventists Believe

About the Sabbath, Seventh-day Adventist Church

(last visited Dec. 15, 2021).9

8 https://www.chabad.org/theJewishWoman/arti-

cle_cdo/aid/336035/jewish/Why-Do-Jewish-Women-Cover-TheirHair.htm

9 https://www.adventist.org/the-sabbath/

As with Sabbath observance, other religious traditions also command certain forms of dress and grooming. Many Muslims believe men must grow beards if

they are able, see Fraternal Order of Police Newark

Lodge No. 12 v. City of Newark, 170 F.3d 359, 360 (3d

Cir. 1999) (explaining that refusal to grow a beard “is

a major sin” in that religious tradition), and don a

taqiyya to symbolize that the “wearer is in constant

prayer,” see In re Palmer, 386 A.2d 1112, 1113 (R.I.

1978). Sikhs must maintain five articles of faith that

represent the fundamental tenets of their religion.

Identity, Sikh Coal. (last visited Dec. 15, 2021).10 One

of these articles of faith is unshorn hair, or kesh. Ibid.

Many Sikhs wear a turban as well to “assert[ ] a public commitment to maintaining the values and ethics

of the tradition, including service, compassion, and

honesty.” Ibid.

These practices can be accommodated, often with

little cost to the employer. But under Hardison, employers need not take on that minor inconvenience or

risk offending customers. Until Title VII is afforded

its plain meaning, Jews, Muslims, Sikhs, Adventists,

Witnesses, and many others will continue to face irreconcilable conflicts in the workplace.

10 https://www.sikhcoalition.org/about-sikhs/identity/

III.

This Court Should Not Rely On Congress

To Correct Hardison’s Error.

Stare decisis does not counsel this

Court to preserve Hardison.

As faith-inspired employees challenge Hardison’s

atextual gloss on “undue hardship,” employers recite

a unified defense: this Court should leave any changes

to Congress. Dalberiste Br. in Opp’n at 17–18; Small

Br. in Opp’n at 27–28; Patterson Br. in Opp’n at 28–

29. True, stare decisis is generally stronger when reconsidering statutory interpretations. Kimble v. Marvel Ent., LLC, 576 U.S. 446, 456 (2015). But that

stronger stare decisis is not absolute. “[E]nacting new

legislation is difficult—and far more difficult than the

Court’s cases sometimes seem to assume.” Ramos v.

Louisiana, 140 S. Ct. 1390, 1413 (2020) (Kavanaugh,

J., concurring in part).

That’s particularly true when the subject of the

legislation is religious liberty. Much has changed

since the Senate approved RFRA by a vote of 97 to 3

and that same law received “such broad support it

was adopted on a voice vote in the House.” Remarks

on Signing the Religious Freedom Restoration Act of

1993, 2 Pub. Papers 2000, 2000 (Nov. 16, 1993). Today, some view “religious liberty” and “religious freedom” as “code words for discrimination, intolerance,

racism, [and] sexism.” U.S. Comm’n on Civil Rights,

Peaceful Coexistence: Reconciling Nondiscrimination

Principles with Civil Liberties 29 (2016).11 And diverse Americans who want merely to consecrate the

Sabbath or adorn themselves with an outward manifestation of their faith are caught in the crossfire.

For almost two decades after RFRA’s passage,

members of Congress have introduced legislation to

reverse Hardison. Some of these attempts have garnered impressive bipartisan rosters of cosponsors.

E.g., H.R. 1431, 110th Cong. (2007); S. 893, 108th

Cong. (2003). Nevertheless, these bills have failed to

gain much traction, struggling to “find[ ] room in a

crowded legislative docket.” See Ramos, 140 S. Ct. at

1413 (Kavanaugh, J., concurring in part). Any such

proposal seems destined to fail in our present political

climate, which may explain why no similar bill has

been filed in nearly a decade. Continued reliance on

Congress to correct Hardison’s error will almost certainly leave countless Jews, Muslims, Sikhs, and Hindus as collateral damage in the religious liberty culture-wars.

This suffering is unnecessary. Congress has already acted to protect the rights of such religious employees. Given the plain text of Title VII, employers

cannot claim a legitimate reliance interest in the right

to discriminate against religious employees and prospective employees. “[S]tare decisis isn’t supposed to

be the art of methodically ignoring what everyone

knows to be true.” Id. at 1405 (opinion of the Court).

11 Available at https://www.usccr.gov/files/pubs/docs/Peace-

ful-Coexistence-09-07-16.PDF.

Hardison is wrong. And it wrongly breaks a fundamental American promise and places impossible

burdens on religious minorities. This Court should

not rely on Congress to correct this Court’s own demonstrably erroneous case law.

Mr. Hedican’s petition offers an excellent vehicle to revisit Hardison.

This case provides the opportunity the Court has

been waiting for to reconsider Hardison. One can

hardly argue that accommodating Mr. Hedican would

impose an undue hardship on his employer. Walmart

is one of the largest employers in America. It hired

Mr. Hedican as an assistant manager in its Hayward,

Wisconsin branch. App.102a. Mr. Hedican asked for

time off to observe his Sabbath from Friday evening

to Saturday evening. And he volunteered to work any

schedule that accommodated this request. App.110a.

Walmart’s policies provide guidelines for granting

accommodations, and they encourage managers “to

work collaboratively” and to “be flexible, supportive

and positive” in accommodating their colleagues’ religious beliefs. App.98a-99a. But these guidelines

amounted to lip service in this case. Walmart made

no effort to accommodate Mr. Hedican beyond inviting him to apply for a lower-paying job. App.113a,

132-133a. The message was clear: if you want the assistant-manager position we offered you, either come

in on Saturday or don’t bother coming in on Monday.

This petition cleanly presents a legal question of

national significance: the scope of an employer’s duty

to accommodate its employee’s religious practice

under Title VII. There are no material factual disputes. This petition offers a straightforward vehicle

to revisit and correct Hardison’s tragic mistake.

CONCLUSION

This Court should grant the petition for certiorari

and correct this long-festering error.

Respectfully submitted,