Amicus Curiae Brief — Gerald E. Groff, Petitioner v. Louis DeJoy, Postmaster General

No. 22-174

In the Supreme Court of the United States

GERALD E. GROFF,

Petitioner,

V.

LOUIS DEJOY, POSTMASTER GENERAL,

UNITED STATES POSTAL SERVICE,

Respondent.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF AMICI CURIAE STATES OF

WEST VIRGINIA, LOUISIANA,

AND 15 OTHER STATES

IN SUPPORT OF PETITIONER

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

MICHAEL R. WILLIAMS

Senior Deputy Solicitor

General

GRANT A. NEWMAN*

Special Counsel

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed after signature page]

QUESTIONS PRESENTED

Title VII of the Civil Rights Act of 1964 generally

prohibits an employer from discriminating against an

individual “because of such individual’s * * * religion.” 42

U.S.C. §§ 2000e-2(a)(1), (2). The statute defines “religion”

to include “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.” Id. § 2000e(j).

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

(1977), this Court stated that an employer suffers an

“undue hardship” in accommodating an employee’s

religious exercise whenever doing so would require the

employer “to bear more than a de minimis cost.” Id. at 84.

The questions presented are:

1. Whether this Court should disapprove the morethan-de-minimis-cost test for refusing Title VII religious

accommodations stated in Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63 (1977).

2. Whether an employer may demonstrate “undue

hardship on the conduct of the employer’s business” under

Title VII merely by showing that the requested

accommodation burdens the employee’s co-workers

rather than the business itself.

II

TABLE OF CONTENTS

Questions Presented ............................................................ I

Introduction and Interests of Amici Curiae ..................... 1

Summary of Argument ........................................................ 3

Reasons for Granting the Petition...................................... 4

I.

The Damage Hardison Inflicts Has Spread

To State Courts ............................................................. 4

II. The States’ Religious-Freedom Traditions

And Laws Show A Workable Alternative To

Hardison ........................................................................ 9

III. Hardison’s Religious Accommodation Standard

Is Wrong....................................................................... 16

Conclusion ........................................................................... 18

III

TABLE OF AUTHORITIES

Page(s)

Cases

Brener v. Diagnostic Ctr. Hosp.,

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

City of Boerne v. Flores,

521 U.S. 507 (1997) ......................................................... 9

EEOC v. JBS USA, LLC,

339 F. Supp. 3d 1135 (D. Colo. 2018) ............................ 5

EEOC v. Sunbelt Rentals, Inc.,

521 F.3d 306 (4th Cir. 2008) ........................................... 5

Franks v. Nat’l Lime & Stone Co.,

740 N.E.2d 694 (Ohio Ct. App. 2000) ............................ 6

Gillette v. United States,

401 U.S. 437 (1970) ......................................................... 1

King v. Iowa Civ. Rts. Comm’n,

334 N.W.2d 598 (Iowa 1983) .......................................... 6

Ky. Comm’n on Hum. Rts. v. Lesco Mfg. &

Design Co., Inc.,

736 S.W.2d 361 (Ky. Ct. App. 1987) .............................. 7

Mass. Bay Transp. Auth. v. Mass.

Comm’n Against Discrimination,

879 N.E.2d 36 (Mass. App. Ct. 2008) ............................ 6

Me. Human Rts. Comm’n v. Local 1361,

United Paperworks Int’l Union

AFL-CIO,

383 A.2d 369 (Me. 1978) ................................................. 6

IV

TABLE OF AUTHORITIES

(continued)

Page(s)

N. Shore Univ. Hosp. v. State Hum. Rts.

Appeal Bd.,

82 A.D.2d 799 (1981) ..................................................... 14

Nakashima v. Or. Bd. of Educ.,

131 P.3d 749 (Or. Ct. App. 2006) ................................... 8

New Hanover Hum. Rels. Comm’n v. Pilot

Freight Carriers. Inc.,

351 S.E.2d 560 (N.C. 1987) ............................................ 7

Olin Corp. v. Fair Emp. Pracs. Comm’n,

367 N.E.2d 1267 (Ill. 1977)............................................. 6

Pa. State Univ. v. Com., Pa. Hum. Rels.

Comm’n,

505 A.2d 1053 (Pa. Commw. Ct. 1986) .......................... 6

Patterson v. Walgreen Co.,

140 S. Ct. 685 (2020) ....................................................... 8

Sedalia No. 200 Sch. Dist. v. Mo. Comm’n

on Hum. Rts.,

843 S.W.2d 928 (Mo. Ct. App. 1992) ............................. 7

Shaw v. Delta Air Lines, Inc.,

463 U.S. 85 (1983) ........................................................... 5

Small v. Memphis Light, Gas & Water,

141 S. Ct. 1227 (2021) ............................................... 8, 18

Small v. Memphis Light, Gas & Water,

952 F.3d 821 (6th Cir. 2020) ..................................... 8, 17

Soldinger v. Nw. Airlines, Inc.,

58 Cal. Rptr. 2d 747 (Cal. Ct. App. 1996) ..................... 6

V

TABLE OF AUTHORITIES

(continued)

Page(s)

Swanner v. Anchorage Equal Rts.

Comm’n,

874 P.2d 274 (Alaska 1994) .......................................... 11

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) ...... 2, 3, 4, 6, 7, 8, 9, 13, 15, 16, 17, 18

United States v. Bd. Of Educ. for Sch. Dist.

of Phila.,

911 F.2d 882 (3d Cir. 1990) ............................................ 4

Van Orden v. Perry,

545 U.S. 677 (2005) ....................................................... 10

W. Va. Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ................................................. 11, 12

Wondzell v. Alaska Wood Prods., Inc.,

583 P.2d 860 (Alaska 1978) ........................................ 6, 8

Constitutional Provisions

ARK. CONST. art. 2, § 24 ..................................................... 12

GA. CONST. art. 1, § I, ¶ III................................................ 12

W. VA. CONST. art. 3, § 15 .................................................. 12

Statutes

42 U.S.C. § 2000e-2 ............................................................... 1

42 U.S.C. § 2000e ............................................................ 2, 17

ALASKA STAT. § 18.80.210 .................................................... 5

VI

TABLE OF AUTHORITIES

(continued)

Page(s)

ARIZ. REV. STAT. § 41-1461 ............................................... 15

COLO. CODE. REGS. § 708-1-50.1 ....................................... 14

COLO. REV. STAT. § 24-34-402 ........................................... 14

OFFICIAL GA. CODE ANN. § 10-1-573 ............................... 15

IOWA CODE § 216.6 ............................................................... 5

KAN. STAT. § 44-1009.......................................................... 14

MASS. GEN. LAWS ch. 151B § 4 ............................................ 5

ME. STAT. tit. 5 § 4572 .......................................................... 5

MINN. STAT. § 15A.22 ................................................... 15, 16

N.D. CENT. CODE § 14-02.4-03 .......................................... 15

N.J. STAT. § 10:5-12 ............................................................ 14

N.Y. EXEC. LAW § 296........................................................ 14

OR. REV. STAT. § 659A.003 ................................................ 14

43 PA. CONS. STAT. § 955...................................................... 5

Regulations

3 COLO. CODE. REGS. § 708-1-50.1 .................................... 14

KAN. ADMIN. REGS. § 21-33-1............................................ 14

VII

TABLE OF AUTHORITIES

(continued)

Page(s)

Other Authorities

ALEXIS DE TOCQUEVILLE, DEMOCRACY IN

AMERICA (Francis Bowen & Phillips

Bradley eds., Henry Reeve trans.,

Vintage Books 1990) ............................................... 10, 11

Anton Sorkin, A “Cruel Choice” Made

Law: Freewheelin’ Accommodation

Claims and Harms of Conviction

Endemic to Adverse Action,

U. MEM. L. REV. 703 (2022) ........................................... 7

BLACK’S LAW DICTIONARY (11th ed. 2019) ...................... 17

Dalian F. Flake, Restoring Reasonableness

to Workplace Religious

Accommodations,

95 WASH. L. REV. 1673 (2020) ..................................... 13

Debbie N. Kaminer, Religious

Accommodation in the Workplace:

Why Federal Courts Fail to Provide

Meaningful Protection of Religious

Employees,

20 TEX. REV. L. & POL. 107 (2015) ................................ 4

THE FEDERALIST NO. 51 ................................................... 10

THE FOUNDERS’ CONSTITUTION

(P. Kurland & R. Lerner eds., 1987) ...................... 1, 10

VIII

TABLE OF AUTHORITIES

(continued)

Page(s)

Harry T. Edwards & Joel H. Kaplan,

Religious Discrimination and the Role

of Arbitration Under Title VII,

69 MICH. L. REV. 599 (1971) ........................................ 13

James A. Sonne, Firing Thoreau:

Conscience and At-Will Employment,

9 U. PA. J. LAB. & EMP. L. 235 (2007) ......................... 12

Jason Despain, A Peculiar Clause of

Political Compromise for California’s

Religious Minorities,

21 RUTGERS J. L. & RELIGION 390

(2021) ............................................................................... 6

JEFFREY S. SUTTON, 51 IMPERFECT

SOLUTIONS: STATES AND THE MAKING

OF AMERICAN CONSTITUIONAL LAW

(2018) .............................................................................. 12

John Witte, Jr. & Joel A. Nichols, “Come

Now Let Us Reason Together”:

Restoring Religious Freedom in

America and Abroad,

92 NOTRE DAME L. REV. 427 (2016) ........................... 11

Major Christopher D. Jones, Redefining

“Religious Beliefs” Under Title VII:

The Conscience As the Gateway to

Protection,

72 A.F. L. REV. 1 (2015) ................................................. 7

IX

TABLE OF AUTHORITIES

(continued)

Page(s)

Mark Storslee, Religious Accommodation,

the Establishment Clause, and ThirdParty Harm,

86 U. CHI. L. REV. 871 (2019) ...................................... 17

Michael W. McConnell, The Origins and

Historical Understanding of Free

Exercise of Religion,

103 HARV. L. REV. 1409 (1990) ................................ 9, 11

Michael W. McConnell, Why Protect

Religious Freedom?,

123 YALE L.J. 770 (2013) ............................................... 1

RANDOM HOUSE DICTIONARY (1973) ............................... 17

Scott Dodson, The Gravitational Force of

Federal Law,

164 U. PA. L. REV. 703 (2016) ........................................ 5

Thomas D. Brierton, An Unjustified

Hostility Toward Religion in the

Workplace,

34 CATH. LAW. 289 (1991) ............................................ 13

WILLIAM WARREN SWEET, RELIGION IN

COLONIAL AMERICA (1965) ......................................... 11

INTRODUCTION AND INTERESTS

OF AMICI CURIAE*

The amici States of West Virginia, Louisiana,

Alabama, Arkansas, Florida, Kansas, Kentucky,

Mississippi, Montana, Nebraska, New Hampshire,

Oklahoma, South Carolina, Tennessee, Texas, Utah, and

Virginia are deeply concerned with protecting their

residents’ right to earn a living while “avoiding

unnecessary clashes with the dictates of conscience.”

Gillette v. United States, 401 U.S. 437, 453 (1970).

“Conscience,” James Madison said, constitutes a “most

sacred” thing, often growing from “religious opinions” and

“the profession and practice” they dictate. James

Madison, Property (Mar. 29, 1792), in 1 THE FOUNDERS’

CONSTITUTION 598, 598 (P. Kurland & R. Lerner eds.,

1987).

And over our history, “many hundreds of

thousands of real people have regarded their religious

beliefs as so important that they sacrificed” (among other

things) “opportunities for career advancement … to

worship in accordance with their convictions.” Michael W.

McConnell, Why Protect Religious Freedom?, 123 YALE

L.J. 770, 791 (2013).

When Congress passed Title VII of the Civil Rights Act

of 1964, it aimed to take career sacrifices for the sake of

religious practice off the board. Title VII expressly

prohibits employers from “discriminat[ing] against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual’s ... religion.” 42 U.S.C. § 2000e-2(a)(1). The

statute also compels employers to “reasonably

accommodate” “all aspects” of an “employee’s religious

Under Supreme Court Rule 37.2(a), amici notified counsel of record

of their intent to file this brief.

*

2

observance or practice” so long as the accommodation

does not impose “undue hardship on the conduct of the

employer’s business.” Id. § 2000e(j). The hard tradeoffs

made by the “hundreds of thousands” before should thus

have become far less common.

But just a short time after Congress enacted Title VII’s

promise of religious liberty, Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63 (1977), stripped the heft of its

reasonable-accommodation provision. In Hardison, the

Court declared that an employer suffers an “undue

hardship”—obviating the need to offer accommodation—

whenever the accommodation would impose “more than a

de minimis cost.” Id. at 84. And that de minimis cost can

be mighty small. The requested accommodation in

Hardison would have cost the company just “$150 for

three months, at which time [the employee] would have

been eligible to transfer” out of the conflicting

circumstances. Id. at 92 n.6 (Marshall, J., dissenting).

Amici States believe this unjust standard demands a

remedy. And while Petitioner has shown the issues that

Hardison created in lower federal courts, the problem

extends even farther, seeping deep into the state judiciary

as well. The Hardison test brought to state courts the

same disregard for believers seeking workplace

accommodations that the federal courts have seen too

often. This dismissive approach cuts against the States’

longstanding interests in safeguarding the country’s

tradition of religious liberty. The States have fought to

ensure that this tradition stays alive at home and in the

office. Congress did its part, too, in passing Title VII’s

protections. This Court should now do its part in

upholding them.

Religious liberty should not fall away whenever its

respect costs employers a few dollars and cents. The

3

Court should therefore take this case and dispense with

Hardison’s more-than-de-minimis-cost standard.

SUMMARY OF ARGUMENT

Petitioner is right: This case “presents an ideal

opportunity” to do away with the more-than-de-minimiscost test that Hardison set loose 45 years ago. Pet.4. The

Court should grant the petition and bury that standard for

at least three reasons:

I. Hardison’s reach extends beyond federal courts.

Yes, it is not hard to find problematic rulings in many

federal forums. But state courts often follow federal

courts’ lead when interpreting their own workplace antidiscrimination statutes. As a result, the Hardison

standard has found its way into state-court decisions,

bringing the same confusion and disregard for religious

liberty that the federal courts struggled with first. This

case is the right vehicle to consider that standard afresh,

stop the damage it inflicts, and help ensure that no court—

federal or state—applies it to an American employee

again.

II. Hardison also chafes with some of our country’s

most fundamental values. Before the Founding and after,

the colonies and then the States spoke with a single voice

about the importance of religious freedom. Workplace

freedom-of-conscience

protections—including

Title

VII’s—stem from this history. Similarly, the States that

have continued in this vein despite Hardison’s setback

show that robust religious freedom at the office is

workable and economically viable.

III. The more-than-de-minimis-cost test conflicts with

Title VII itself.

The statute requires religious

accommodations unless an employer can prove undue

4

hardship. But one tick above de minimis is not even a

hardship—much less an undue one. Honoring the States’

tradition of religious liberty honors Title VII’s text and

context as well.

REASONS FOR GRANTING THE PETITION

I.

The Damage Hardison Inflicts Has Spread To

State Courts.

Over the past decades, the “de minimis” test has

evolved into an escape hatch for employers that has very

nearly muted a whole provision of Title VII. And the test

has weaseled its way into similar state laws, too, showing

that the issue is not just a federal court problem. With

state courts following Hardison’s lead, the test’s

pervasiveness at every level is another reason to grant

review.

It did not take long for Hardison to shape lower federal

court decisions.

Federal courts have “almost

unanimously” found that “any economic costs” produce an

undue hardship.

Debbie N. Kaminer, Religious

Accommodation in the Workplace: Why Federal Courts

Fail to Provide Meaningful Protection of Religious

Employees, 20 TEX. REV. L. & POL. 107, 139-40 (2015).

This standard injures religious adherents of all stripes—

each of them weighing the same impossible choice Mr.

Hardison faced years earlier. So, like him, many devout

practitioners have left the courthouse with their

consciences intact but their accommodation requests

denied.

Those rejections stacked up fast, from a Muslim

teacher wishing to wear religious attire, United States v.

Bd. Of Educ. for Sch. Dist. of Phila., 911 F.2d 882 (3d Cir.

1990); to an Orthodox Jew seeking to observe Shabbat,

5

Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141 (5th Cir.

1982); to Muslim employees asking to move a meal break

during Ramadan to coincide with sunset, EEOC v. JBS

USA, LLC, 339 F. Supp. 3d 1135 (D. Colo. 2018). And on

and on. Employees’ “[f]ree religious exercise” thus

became increasingly “restricted to places of worship or

days of observance, only to disappear the next morning at

work.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319

(4th Cir. 2008).

It would be bad enough if Hardison’s damage were

limited to these federal courts. But it is not.

Several States have modeled their own religious

discrimination statutes after the language of Title VII.

See, e.g., ALASKA STAT. § 18.80.210, et seq.; IOWA CODE

§ 216.6; ME. STAT. tit. 5 § 4572; MASS. GEN. LAWS ch. 151B

§ 4; 43 PA. CONS. STAT. § 955. And “[m]any States look to

Title VII law as a matter of course in defining the scope of

their own laws.” Shaw v. Delta Air Lines, Inc., 463 U.S.

85, 106 (1983). This mimicry does not always reflect

careful deliberation and agreement with the federal

courts’ analyses. Instead, many state courts seem driven

by an instinct to keep federal and state statutes on the

same track. See, e.g., Scott Dodson, The Gravitational

Force of Federal Law, 164 U. PA. L. REV. 703, 721 (2016)

(“[S]tate courts typically conform to federal court

interpretations of federal [anti-discrimination] statutes

with relatively paltry analysis of countervailing

considerations.”).

What issued on the state side in Hardison’s wake, then,

should have surprised no one. State courts nationwide

have repeatedly relied on the decision in interpreting their

own state anti-discrimination laws:

6



Courts in four States applied Hardison to requests

from Seventh-Day Adventists to observe the Sabbath.

See Olin Corp. v. Fair Emp. Pracs. Comm’n, 367

N.E.2d 1267, 1268, 1270-71 (Ill. 1977); Mass. Bay

Transp. Auth. v. Mass. Comm’n Against

Discrimination, 879 N.E.2d 36, 40, 45 (Mass. App. Ct.

2008); Franks v. Nat’l Lime & Stone Co., 740 N.E.2d

694, 696, 699-700 (Ohio Ct. App. 2000); Pa. State Univ.

v. Com., Pa. Hum. Rels. Comm’n, 505 A.2d 1053, 1054,

1056 (Pa. Commw. Ct. 1986). Two other States applied

Hardison to Seventh-Day Adventists’ religious

conflicts involving labor unions. See Wondzell v.

Alaska Wood Prods., Inc., 583 P.2d 860, 861, 864

(Alaska 1978); Me. Human Rts. Comm’n v. Local 1361,

United Paperworks Int’l Union AFL-CIO, 383 A.2d

369, 372, 381 (Me. 1978). The Massachusetts decision,

in particular, shows how Hardison has even warped

state statutes that do not mirror Title VII. There, the

state high court deployed the de minimis test even

though “the Massachusetts undue hardship

standard … is noticeably different and allows for

slightly broader protection.” Mass. Bay Transp.

Auth., 879 N.E.2d at 337 (cleaned up).



Jewish employees in California and Iowa trying to

observe religious holidays faced the standard, too. See

Soldinger v. Nw. Airlines, Inc., 58 Cal. Rptr. 2d 747,

752-53, 762 (Cal. Ct. App. 1996); King v. Iowa Civ. Rts.

Comm’n, 334 N.W.2d 598, 600-02 (Iowa 1983). Here

again, the California court applied Hardison even

though California’s statute called for a higher

standard: “significant burden or expense.” Jason

Despain, A Peculiar Clause of Political Compromise

for California’s Religious Minorities, 21 RUTGERS J.

L. & RELIGION 390, 419 (2021).

7



For Jehovah’s Witnesses, state courts in Kentucky and

North Carolina said that Hardison applied when

employees refused to say “Merry Christmas” when

answering the phone or when they asked to attend a

weekly religious meeting. See Ky. Comm’n on Hum.

Rts. v. Lesco Mfg. & Design Co., Inc., 736 S.W.2d 361,

362, 364 (Ky. Ct. App. 1987); New Hanover Hum. Rels.

Comm’n v. Pilot Freight Carriers. Inc., 351 S.E.2d

560, 561, 564 (N.C. 1987).



And when a Pentecostal interpreter in Missouri

refused to sign words or statements against her

religion, the court said that Hardison applied. Sedalia

No. 200 Sch. Dist. v. Mo. Comm’n on Hum. Rts., 843

S.W.2d 928, 929-30 (Mo. Ct. App. 1992).

These Hardison-driven state cases run the gamut,

from remands for further factual development or remands

to consider the new legal standard, to affirmances or

reversals of an accommodation decision. The varied

outcomes show that not only have state courts taken on

Hardison’s water, but they are just as confused applying

the standard as the “bewilder[ed] … litigants” in front of

them. See Major Christopher D. Jones, Redefining

“Religious Beliefs” Under Title VII: The Conscience As

the Gateway to Protection, 72 A.F. L. REV. 1, 36-37 (2015)

(discussing “the confusion among judges” and litigants

over how to apply Hardison). The more-than-de-minimiscost test provides courts with “no practical guidance” in

assessing burdens—and “at times even allow[s]

clairvoyance to carry the day.” Anton Sorkin, A “Cruel

Choice” Made Law: Freewheelin’ Accommodation

Claims and Harms of Conviction Endemic to Adverse

Action, 52 U. MEM. L. REV. 703, 715-16 (2022).

For reasons like these, courts—again, federal and

state—have shown an increasing disdain for Hardison’s

8

effects. The test eats away at the tradition of religious

diversity and pluralism baked into our Constitution and

“[t]he American story.” Small v. Memphis Light, Gas &

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

concurring), cert. denied, 141 S. Ct. 1227 (2021). Members

of this Court, too, have added their voices to the growing

consensus against Hardison. See Small v. Memphis

Light, Gas & Water, 141 S. Ct. 1227, 1228 (2021) (Gorsuch

J., dissenting from denial of certiorari) (Hardison

“dramatically revised—really, undid—Title VII’s undue

hardship test”); Patterson v. Walgreen Co., 140 S. Ct. 685,

687 (2020) (Alito, J., concurring in denial of certiorari)

(“[W]e should reconsider the proposition … that Title VII

does not require an employer to make any accommodation

for an employee’s practice of religion if doing so would

impose more than a de minimis burden.”).

State judges are also (rightly) concerned about the

chaos Hardison unleashed and the damage it can inflict on

employees’ rights.

After all, depriving religiously

observant employees of their jobs without making a

“suitable effort” to accommodate them is a “drastic

result.” Wondzell, 583 P.2d at 867 (Boochever, C.J.,

dissenting) (“I also am mindful of the considerations

eloquently expressed by Justice Marshall in his dissent in

[Hardison].”)

In short, Hardison’s spillover effects extend beyond

the federal courts. True, some state courts have correctly

chosen to go their own way. Cf. Nakashima v. Or. Bd. of

Educ., 131 P.3d 749, 759-62 (Or. Ct. App. 2006) (reasoning

that the state law uses “the term ‘undue hardship’ in a

fashion clearly at odds with the de minimis standard” and

interpreting it to mean “a significant or substantial

burden taking into account all relevant circumstances”),

aff’d on other grounds sub nom., 185 P.3d 429, 442 (Or.

9

2008) (holding that lower tribunal erred in applying a “de

minimis burden test” to a statute barring religious

discrimination in state-funded school activities). But too

many have not. Hardison left religious employees “to

make the cruel choice of surrendering their religion or

their job,” a dilemma that “seriously erode[s]” our

tradition of “hospitality to religious diversity.” Hardison,

432 U.S. at 87, 97 (Marshall, J., dissenting). That the

erosion has extended to the States’ courts makes the

problem more urgent. It is time for this Court to step in.

II.

The States’ Religious-Freedom Traditions And

Laws Show A Workable Alternative To

Hardison.

Our country’s abiding respect for religious liberty is a

deep part of who we are. Hardison offends that identity.

But since before they were States, the States have played

a central role holding our tradition together. Though

Hardison’s error has spread to many of our States’ courts,

those States that have resisted it and chosen more robust

protections for religious employees can point the way to

its cure. Renewed freedom of conscience is workable for

Title VII, too.

1. America’s commitment to freedom of religion and

religious pluralism runs deep. See City of Boerne v.

Flores, 521 U.S. 507, 551-52 (1997) (O’Connor, J.,

dissenting) (discussing the history of free exercise of

religion in the colonies). The colonies had long insisted

“that freedom to pursue one’s chosen religious beliefs was

an essential liberty.” Id. at 552. When “religious beliefs

conflicted with civil law,” “religion prevailed unless

important state interests militated otherwise.” Id.; see

also Michael W. McConnell, The Origins and Historical

Understanding of Free Exercise of Religion, 103 HARV.

10

L. REV. 1409, 1422-25 (1990) (discussing the colonies’

diverse religious traditions).

This fondness for religious freedom took even greater

hold as we transformed from colonies to country. The

Founders recognized early that the Republic’s long-term

success depended on greater religious diversity, not less.

Madison told us, for instance, that “security” “for religious

rights” must match that for “civil rights”—meaning that

we need a “multiplicity of sects” the same as a

“multiplicity of interests.” THE FEDERALIST NO. 51, at

321 (Madison) (Clinton Rossiter ed., 1961). Hamilton

stressed that “a perfect equality of religious privileges”

would prompt workers to “flock … from Europe” in

droves to “pursue their own trades or professions.”

Alexander Hamilton, Report on Manufactures (Dec. 5,

1791), in 5 THE FOUNDERS’ CONSTITUTION, supra, at 95.

In fact, the “religious aspect of the country” was the

“first thing that struck” Alexis de Tocqueville during his

visit in the early nineteenth century. 1 ALEXIS DE

TOCQUEVILLE, DEMOCRACY IN AMERICA 308 (Francis

Bowen & Phillips Bradley eds., Henry Reeve trans.,

Vintage Books 1990).

He was taken aback—

“astonish[ed],” actually—by the “phenomenon” of

“intimate[] unit[y]” between the “spirit[s] of

religion … [and] freedom” that “reigned in common over

the same country” instead of “marching in opposite

directions.” Id.; accord Van Orden v. Perry, 545 U.S. 677,

698 (2005) (Breyer, J, concurring in the judgment)

(quoting de Tocqueville’s description of religion and

freedom “reigning together but in separate spheres on the

same soil” (cleaned up)).

America was home to

“innumerable” religious sects with different objects of

worship, but all “agree[d] in respect to the duties which

11

are due from man to man.” DEMOCRACY IN AMERICA,

supra, at 303.

The States, specifically, have pressed for religious

liberty for as long as the country is old. As the eighteenth

century ended, every state constitution but one included

robust safeguards for religious freedom. See John Witte,

Jr. & Joel A. Nichols, “Come Now Let Us Reason

Together”: Restoring Religious Freedom in America and

Abroad, 92 NOTRE DAME L. REV. 427, 436 (2016) (“[T]he

founding generation … defend[ed] religious freedom for

all peaceable faiths, and wove multiple principles of

religious freedom into the new state and federal

constitutions of 1776 to 1791”). Putting to paper the

“colonial experience” as “the fundamental law of the land,”

WILLIAM WARREN SWEET, RELIGION IN COLONIAL

AMERICA 339 (1965), the U.S. Constitution and the state

constitutions alike thus secured religious freedom as “an

unalienable right.” McConnell, Origins, supra, at 145556.

Since then, the States have carried their commitment

to religious freedom with pride. Many state constitutions

“provide greater protection to the free exercise of

religion … than is now provided under the United States

Constitution.”

Swanner v. Anchorage Equal Rts.

Comm’n, 874 P.2d 274, 280 (Alaska 1994). Perhaps for

that reason, several of the principles this Court has

embraced in its First Amendment cases are traceable to

earlier state-court decisions.

Take West Virginia Board of Education v. Barnette,

319 U.S. 624 (1943), for example. Its declaration of liberty

has become an axiom: “If there is any fixed star in our

constitutional constellation, it is that no official, high or

petty, can prescribe what shall be orthodox in … religion,

or matter of opinion or force citizens to confess by word or

12

act their faith therein.” Id. at 642. Lesser known is an

earlier ruling issued from the Hancock County courthouse

in the northern panhandle of West Virginia—the “same

State that would produce Barnette.” JEFFREY S. SUTTON,

51 IMPERFECT SOLUTIONS: STATES AND THE MAKING OF

AMERICAN CONSTITUTIONAL LAW 164 (2018). Five

Jehovah’s Witnesses were indicted after their children

refused to salute the American flag. Id. But citing the

state constitution’s religious liberty guarantees, Judge J.

Harold Brennan invalidated the indictments and the state

law under which they issued. “[F]reedom of religion,” he

explained, means “unpopular minorities may hold views

unreasonable in the opinion of the majorities”; forcing

children to violate their and their parents’ consciences

“ha[d] not been done in America hitherto” and he would

not “begin it here.” Id. (quoting Mem. Op. at 6, State v.

Mercante (W. Va. Cir. Ct. June 1, 1942) (cleaned up)).

West Virginia’s constitutional promise that no person

may be “enforced, restrained, molested or burthened”

because of his or her “religious opinions or belief,” W. VA.

CONST. art. 3, § 15, is not unique. The Arkansas

Constitution is just one other example—it proclaims that

“[a]ll men have a natural and indefeasible right to worship

Almighty God according to the dictates of their own

consciences” and “[n]o human authority” can “control or

interfere with the right of conscience.” ARK. CONST. art.

2, § 24; see also, e.g., GA. CONST. art. 1, § I, ¶ III (similar).

So it is not that surprising that—Hardison’s effect on

state courts aside—federal law has often chased behind

state law when it comes to religious liberty and conscience.

In fact, the pattern is particularly bright “when it comes

to conscience protection in the workplace”; there, “the

states have been the chief trailblazers.” See James A.

Sonne, Firing Thoreau: Conscience and At-Will

Employment, 9 U. PA. J. LAB. & EMP. L. 235, 267 (2007).

13

This legacy all means that Title VII’s “reasonable

accommodation” guarantee did not spring to life from

nothing. It is “deeply rooted” in the State-based

commitments to religious pluralism that informed the

First Amendment itself. Thomas D. Brierton, An

Unjustified Hostility Toward Religion in the Workplace,

34 CATH. LAW. 289, 292 (1991); see also Dalian F. Flake,

Restoring Reasonableness to Workplace Religious

Accommodations, 95 WASH. L. REV. 1673, 1700 (2020)

(recounting accommodation amendment sponsor’s

statements that the law “flow[ed] from the original

Constitution of the United States”). In other words,

including religious discrimination in Title VII “reflects a

recognition that the exercise of religious freedom in the

United States has always been considered a fundamental

right that lies at the heart of a free society.” Harry T.

Edwards & Joel H. Kaplan, Religious Discrimination

and the Role of Arbitration Under Title VII, 69 MICH. L.

REV. 599, 602 (1971).

Hardison, then, stands as an aberration among the

otherwise robust commitments that the States and the

federal government have always made to religious

adherents—at home, at worship, and at work.

2. And just as the States’ tradition of religious

pluralism helped inform the decision to include religious

freedom among Title VII’s protections in the first place,

their varied experience applying workplace religious

freedom laws show that more-than-de-minimis-cost is not

the only workable way.

Some States have demonstrated their commitment to

religious freedom through laws subjecting employers to a

stricter “undue hardship” standard than the one in

Hardison:

14

Laws in New York, New Jersey, and Oregon, for

example, bar employers from imposing conditions that

would violate certain religious observance. Employers in

those States cannot keep an employee at work during the

Sabbath or other holy religious days unless the alternate

schedule would cause the employer a “significant”

“expense” or “difficulty,” N.J. STAT. § 10:5-12, et seq.; OR.

REV. STAT. § 659A.003, et seq., or a “significant expense or

difficulty,” N.Y. EXEC. LAW § 296, et seq.; accord N. Shore

Univ. Hosp. v. State Hum. Rts. Appeal Bd., 82 A.D.2d 799,

799-800 (1981) (holding that employer failed to

accommodate employee’s observance of the Sabbath by

requiring the employee to find co-workers to cover her

shift).

Colorado’s Anti-Discrimination Act bars employers

from refusing to hire or from firing an employee based on

religion. COLO. REV. STAT. § 24-34-402, et seq. The

employer must talk with the employee to find an

appropriate religious accommodation and then show that

it would suffer an undue hardship from each available

accommodation before denying them. 3 COLO. CODE.

REGS. § 708-1-50.1, et seq. Kansas’s law is similar. KAN.

STAT. § 44-1009, et seq. Its related regulations require

employers to make reasonable accommodations for

employees to observe the Sabbath or other holy days in

the absence of specifically delineated types of “undue

hardship”—like where the work “cannot be performed by

another employee of substantially similar qualifications

during the period of absence.” KAN. ADMIN. REGS. § 2133-1(b). Meanwhile, North Dakota employers must grant

a reasonable accommodation so long as it does not

“disrupt or interfere with the employer’s normal business

operations; threaten an individual’s health or safety;

contradict a business necessity of the employer; or impose

an undue hardship on the employer” based on factors like

15

cost and the business’s size. N.D. CENT. CODE § 14-02.403(2). And Arizona uses similar factors to determine what

counts as an “undue hardship” that presents “significant

difficulty or expense.” ARIZ. REV. STAT. § 41-1461(15).

Other States have tailored their laws even more

specifically to the kind of accommodation Petitioner

sought here. Georgia’s Common Day of Rest Act of 1974,

for example, states that “[a]ny business or industry which

operates on … Saturday or Sunday” with employees

“whose habitual day of worship has been chosen by the

employer as a day of work shall make all reasonable

accommodations to the religious, social, and physical

needs of such employees so that those employees may

enjoy the same benefits as employees in other

occupations.” OFFICIAL GA. CODE ANN. § 10-1-573. And

in Minnesota, public employees who “observe[] a religious

holiday on days which do not fall on a Sunday or a legal

holiday” can take those days off. MINN. STAT. § 15A.22.

Each of these laws shows that fears of a “floodgate” or

“steamroller” effect—that is, concerns that with a more

permissive standard employers would be overwhelmed by

religious accommodation requests—are overblown. See

Sorkin, supra, at 715-16 (quoting Hardison, 432 U.S. at 85

n.15). These state laws are still on the books despite

Hardison’s effect in so many other States. If the freedom

these laws afford employees came at the expense of their

States’ businesses or economies more generally, one

would expect the people living there would have pushed

for new laws. Instead, catastrophe averted, laws like

these show that Justice Marshall was right when he said

“floodgate” worries were both “contrary to the record”

and “irrelevant [to] the real question.” Hardison, 432 U.S.

at 92 n.6 (Marshall, J., dissenting). A diverse set of

employees with different religious practices and needs, he

16

reasoned, would lessen the costs of religious

accommodations by making shift “trades … more

feasible.” Id.

The States’ experiences confirm the truth in that. And

they help set aside any similar concern now that the costs

of jettisoning more-than-de-minimis may be too high.

State practice shows that religious freedom at work is

worth protecting, and Hardison is not the only option to

do it.

III.

Hardison’s Religious Accommodation Standard

Is Wrong.

So rejecting more-than-de-minimis-cost would do more

than follow our States’ broad path of religious freedom. It

would also close off the Hardison detour too many have

taken. And it would honor Title VII on its own terms, too.

Beginning with Hardison itself, Justice Marshall

wrote in dissent that the more-than-de-minimis-cost test

“deal[t] a fatal blow to all efforts under Title VII to

accommodate work requirements to religious practices.”

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

employers free to reject “even the most minor special

privilege to religious observers to enable them to follow

their faith.” Id. at 87. This approach is the opposite of our

tradition of religious freedom. After all, “a society that

truly values religious pluralism cannot compel adherents

of minority religions to make the cruel choice”—your

conscience or your job—that the Court’s decision put to

Mr. Hardison with so little justification on the employer’s

side of the scale. Id.

These effects are unnecessary, as Title VII’s text—and

the state laws that mirror it—shows that costs just above

17

“de minimis” are not enough to excuse employers from

accommodating religious practice.

Before refusing to “reasonably accommodate” any

“aspect” of an employee’s “religious observance or

practice,” Congress demanded a showing that the

requested accommodation will impose “undue hardship.”

42 U.S.C. § 2000e(j). In Hardison, this Court said “undue

hardship” meant scarcely anything. Likewise, the federal

Equal Employment Opportunity Commission insists that

“undue hardship” means less than “significant difficulty or

expense.” Sorkin, supra, at 715 n.31 (quoting Section 12:

Religious

Discrimination,

U.S.

EQUAL

EMP.

OPPORTUNITY COMM’N § 12-IV (Jan. 15, 2021)). But

Black’s Law Dictionary defines “de minimis” to mean

“[t]rifling” or “negligible”—a “fact or thing[] so

insignificant that a court may overlook it in deciding an

issue or case.” De minimis, BLACK’S LAW DICTIONARY

(11th ed. 2019). Does “trifling” and “negligible” not

“seem[] like the opposite of an ‘undue hardship’?” Small,

952 F.3d at 828 (Thapar, J., concurring) (emphasis added).

Put another way, de minimis costs “[b]y definition” “are

not hardships … and the statutory context provides no

reason to think that Congress meant otherwise.” Mark

Storslee, Religious Accommodation, the Establishment

Clause, and Third-Party Harm, 86 U. CHI. L. REV. 871,

936 (2019). These plain-text problems become even more

evident read against dictionary definitions from the time

Congress enacted the accommodation amendment. One

of those dictionaries defined “hardship” as “a condition

that is difficult to endure; suffering; deprivation;

oppression.” RANDOM HOUSE DICTIONARY 646 (1973).

And “undue” meant “unwarranted” or “excessive.” Id. at

1433. Those descriptions hardly sound “trifling,” either.

18

In short, Hardison undid Congress’s work.

It

announced the more-than-de-minimis-cost “standard in a

single sentence with little explanation or supporting

analysis”—and “[n]either party before the Court had even

argued for” it. Small, 141 S. Ct. at 1228 (Gorsuch J.,

dissenting from denial of certiorari). That standard

“cannot be reconciled with the plain words of Title VII,

defies simple English usage, and effectively nullifies the

statute’s promise.” Id. (cleaned up) (quoting Hardison,

432 U.S. at 88, 89, 92 n.6 (Marshall, J., dissenting)). And

“time [has not] been kind to” it. Id. Enough is enough.

Title VII’s protections flowed from an expansive, statelaw-grounded view of religious liberty. Its text embodies

the same. It is time to bring “Title VII’s right to religious

exercise” back into the fold. Id.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted.

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

MICHAEL R. WILLIAMS

Senior Deputy Solicitor

General

GRANT A. NEWMAN*

Special Counsel

*admitted in Michigan;

practicing under supervision of

West Virginia attorneys

Counsel for Amicus Curiae State of West Virginia

19

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

DOUGLAS J. PETERSON

Attorney General

State of Nebraska

LESLIE RUTLEDGE

Attorney General

State of Arkansas

JOHN FORMELLA

Attorney General

State of New Hampshire

ASHLEY MOODY

Attorney General

State of Florida

JOHN M. O’CONNOR

Attorney General

State of Oklahoma

DEREK SCHMIDT

Attorney General

State of Kansas

ALAN WILSON

Attorney General

State of South Carolina

DANIEL CAMERON

Attorney General

State of Kentucky

JONATHAN SKRMETTI

Attorney General and

Reporter

State of Tennessee

JEFF LANDRY

Attorney General

State of Louisiana

LYNN FITCH

Attorney General

State of Mississippi

AUSTIN KNUDSEN

Attorney General

State of Montana

KEN PAXTON

Attorney General

State of Texas

SEAN D. REYES

Attorney General

State of Utah

JASON MIYARES

Attorney General

State of Virginia