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

Supreme Court briefFeb 27, 2023

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NO. 22-174

IN THE

Supreme Court of the United States

GERALD E. GROFF,

Petitioner,

LOUIS DEJOY, Postmaster General,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Third Circuit

BRIEF OF AMICUS CURIAE

CATHOLICVOTE.ORG EDUCATION FUND

IN SUPPORT OF PETITIONER

ANTONY B. KOLENC

Counsel of Record

707 Vineyards Blvd.

Naples, FL 34119

(239) 687-5396

tkolenc@avemarialaw.edu

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

INTERESTS OF THE AMICUS CURIAE .................1

SUMMARY OF THE ARGUMENT ............................2

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

I. TITLE VII’S “FAVORED TREATMENT” FOR RELIGIOUS

ACCOMMODATIONS IN THE WORKPLACE, RECOGNIZED

BY THIS COURT IN ABERCROMBIE, AFFIRMS THE

DIGNITY OF WORKERS OF ALL FAITHS ..........................3

A. This Court’s interpretation of Title VII in

Abercrombie requires that employers grant

“favored treatment” to religious practices in

workplace accommodations..............................4

B. Notions of the “dignity of work” emanate from

American history and tradition, as well as

from religious social teachings.........................6

C. Title VII’s purpose and text aim to provide

equal access to the dignity of work ................10

II. ABERCROMBIE’S RECOGNITION THAT TITLE VII

FAVORS ACCOMMODATION OF RELIGIOUS PRACTICES

IS IRRECONCILABLE WITH HARDISON’S HARMFUL

DE MINIMIS STANDARD FOR UNDUE HARDSHIP ..........12

A. Hardison’s hasty, unsupported dicta has

created a hollow “undue hardship” test.........12

B. Hardison’s unfortunate dicta singularly

denies the dignity of work to those who

request religious accommodations that

require more than a de minimis cost .............15

C. Hardison’s disfavor toward religious

accommodations cannot be reconciled

with Abercrombie’s recognition that Title VII

favors religious practices................................18

Hardison was birthed in woebegone days

to solve a non-existent problem ................18

Hardison exiles religious workers by

injecting “disfavor” into Title VII .............21

Hardison encourages a heckler’s veto ......24

CONCLUSION ..........................................................29

iii

TABLE OF AUTHORITIES

CASES

American Legion v. American Humanist Assn.,

139 S. Ct. 2067 (2019) .....................................20, 22

Boureslan v. Aramco,

857 F.2d 1014 (5th Cir. 1988)) .............................10

Brener v. Diagnostic Ctr. Hosp.,

671 F.2d 141 (5th Cir. 1982).................................26

Brown v. Polk Cnty, Iowa,

61 F.3d 650 (8th Cir. 1995)...................................26

Bruff v. N. Miss. Health Servs., Inc.

244 F.3d 495 (5th Cir. 2001).................................27

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) .................................................9

Capitol Square Review Bd. v. Pinette,

515 U.S. 753 (1995) ...............................................20

Carson v. Makin,

142 S. Ct. 1987 (2022) ...........................................22

Dewey v. Reynolds Metals Co.,

429 F.2d 324 (6th Cir. 1970), aff’d by an equally

divided Court, 402 U.S. 689 (1971) ................22, 23

EEOC v. Abercrombie & Fitch Stores, Inc.,

575 U.S. 768 (2015) .... 1-6, 12, 14, 15, 18, 21-25, 27

EEOC v. JBS USA, LLC,

339 F. Supp. 3d 1135 (D. Colo. 2018) .............16, 17

EEOC v. Walmart Stores E., L.P.,

992 F.3d 656 (7th Cir. 2021)...........................26, 27

Espinoza v. Montana Dep’t of Revenue,

140 S. Ct. 2246 (2020) ...........................................22

Farah v. A-1 Careers, No. 12-2692-SAC,

2013 WL 6095118 (D. Kan. Nov. 20, 2013) ..........16

Fulton v. City of Philadelphia,

141 S. Ct. 1868 (2021) ...........................................28

Good News Club v. Milford Central School,

533 U.S. 98 (2001) .................................................27

Griffith v. City of Des Moines,

387 F.3d 733 (8th Cir. 2004).................................10

Groff v. DeJoy,

35 F.4th 162 (3d Cir. 2022)...............................1, 26

Harrell v. Donahue,

638 F.3d 975 (8th Cir. 2011).................................27

Hostettler v. Coll. of Wooster,

895 F.3d 844 (6th Cir. 2018).................................11

Kennedy v. Bremerton Sch. Dist.,

142 S. Ct. 2407 (2022) ......................... 20, 21, 22, 27

King v. Hillen,

21 F.3d 1572 (Fed. Cir. 1994) ...............................10

Lamb’s Chapel v. Ctr. Moriches Union Free Sch.

Dist., 508 U.S. 384 (1993) .....................................21

Lemon v. Kurtzman,

403 U.S. 602 (1971) ......................... 2, 19, 20, 24, 28

Masterpiece Cakeshop v. Colorado Civil Rights

Commission, 138 S. Ct. 1719 (2018) ....................28

Nat’l Treas. Employees Union v. Von Raab,

489 U.S. 656 (1989) .................................................3

Patterson v. Walgreen Co.,

140 S. Ct. 685 (2020) .......................................14, 15

Riley v. Bendix Corp.,

330 F. Supp. 583 (M.D. Fla. 1971), rev’d

464 F.2d 1113 (5th Cir. 1972).........................22, 23

Small v. Memphis Light, Gas & Water,

141 S. Ct. 1227 (2021) ............................... 14, 15, 17

Spiteri v. AT&T Holdings, Inc.,

40 F. Supp. 3d (E.D. Mich. 2014) .........................17

Thomas v. Review Bd., Ind. Empl. Sec. Div.,

450 U.S. 707 (1981) ...............................................28

Town of Greece v. Galloway,

572 U.S. 565 (2014) .........................................20, 22

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) ........................ 1-3, 12-25, 27, 28

Trinity Lutheran Church of Columbia, Inc. v.

Comer, 137 S. Ct. 2012 (2017) ..............................22

Van Orden v. Perry,

545 U.S. 677 (2005) ...............................................21

Virts v. Consol. Freightways Corp. of Del.,

285 F.3d 508 (6th Cir. 2002)...........................26, 27

Wilson v. U.S. W. Commc’ns,

58 F.3d 1337 (8th Cir. 1995).................................26

Statutes

29 U.S.C. § 207(r)(3)..................................................16

38 U.S.C. § 4303(15)..................................................16

42 U.S.C. § 2000e(j) .....................................................4

42 U.S.C. § 12111(10)(A) ...........................................16

Civil Rights Act of 1964, 78 Stat. 253 ........................4

Regulations

Proclamation No. 7600, 67 Fed. Reg. 62167 (Oct. 1,

2002) ......................................................................11

Other Authorities

Kade Allred, Giving Hardison the Hook: Restoring

Title VII’s Undue Hardship Standard, 36 BYU J.

PUB. L. 263 (2022) .................................................12

Amicus Br. of Amer. Cornerstone Instit., Kennedy v.

Bremerton School District, 142 S. Ct. 2407 (2022)

...............................................................................11

Amicus Br. of Foundation for Gov’t Accountability,

Azar v. Gresham, 141 S. Ct. 890 (2020) ...............11

Amicus Br. of Thomas More Society and The Jewish

Coalition for Religious Liberty, Groff, 143 S. Ct.

646 (2023) ..............................................................16

Centesimus Annus: Encyclical Letter of the Holy

Father Pope John Paul II (May 1, 1991)................9

C. John Cicero, Tns, Inc. - the National Labor

Relations Board’s Failed Vision of Worker SelfHelp to Escape Longterm Health Threats from

Workplace Carcinogens and Toxins, 24 STETSON L.

REV. 19 (1994) .........................................................6

118 Cong. Rec. 705 (1972) ...................................14, 23

vii

118 Cong. Rec. 706 (1972) ...................................14, 23

David L. Gregory, Catholic Labor Theory and the

Transformation of Work, 45 WASH. & LEE L. REV.

119 (1988) ................................................................7

H.R. Rep. No. 1370, 87th Cong., 2d Sess. 2156

(1962) .....................................................................10

Leslie Meltzer Henry, The Jurisprudence of Dignity,

160 U. PA. L. REV. 169 (2011) .................................3

Thomas Jefferson, First Inaugural Address, March

4, 1801 .....................................................................6

President Lyndon B. Johnson’s Radio and Television

Remarks Upon Signing the Civil Rights Bill, PUB.

PAPER OF LYNDON B. JOHNSON 1963–64, Vol. 2

(1965) .....................................................................10

Kenneth L. Karst, The Coming Crisis of Work in

Constitutional Perspective, 82 CORNELL L. REV.

523 (1997) ................................................................6

Rev. Martin Luther King, Jr., Remarks Delivered at

the American Federation of State, County, and

Municipal Employees mass meeting, Bishop

Charles Mason Temple, Church of God in Christ,

Memphis, Tennessee, March 18, 1968 ...................7

Laborem Exercens: Encyclical Letter of the Holy

Father Pope John Paul II (May 14, 1981)..............9

Laudate Si’: Encyclical Letter of the Holy Father

Pope Francis (May 24, 2015) ..................................9

viii

Mary-Lauren Miller, Inoculating Title VII: the

“Undue Hardship” Standard and EmployerMandated Vaccination Policies, 89 FORDHAM L.

REV. 2305 (2021) ...................................................16

Octogesima Adveniens: Encyclical Letter of the Holy

Father Pope Paul VI (May 14, 1971)......................8

Rerum Novarum: Encyclical Letter of the Holy

Father Pope Leo XIII (May 15, 1891) ................7, 8

Nathaniel Romano, Subsidiarity & Vulnerability

Theory: A Case Study for Deepening the

Relationship Between Catholic Social Teaching

and the Responsive State, 71 CATH. U. L. REV. 731

(2022) .......................................................................7

Charles A. Sullivan, Retaliation and Requesting

Religious Accommodation, 70 CASE W. RES. L.

REV. 381 (2019) .....................................................19

Alix Valenti and Vanessa L. Johnson, The Real

Impact of EEOC v. Abercrombie & Fitch Stores,

Inc.: “Look Policies”—Effective Business Strategies

or Legal Liabilities?, 36 CORP. COUNS. REV. 1

(2017) .....................................................................25

Steven L. Winter, Bridges of Law, Ideology, and

Commitment, 37 TOURO L. REV. 1981 (2022) .......11

INTERESTS OF THE AMICUS CURIAE 1

Amicus curiae CatholicVote.org Education Fund

(“CVEF”) is a nonpartisan voter education program

that serves the Nation by supporting educational

activities that promote an authentic understanding of

ordered liberty and the common good. In keeping with

its mission, CVEF supports laws that protect the Godgiven natural right to free exercise of religion to the

full extent consistent with civil order. It believes that

Title VII of the Civil Rights Act of 1964 was enacted

for this purpose and should be interpreted to further

the religious liberty of employees in the workplace.

Given its focus on human dignity, CVEF is deeply

concerned about the threat Trans World Airlines, Inc.

v. Hardison, 432 U.S. 63 (1977), poses to the rights of

workers seeking religious accommodations, as

illustrated by Groff v. DeJoy, 35 F.4th 162 (3d Cir.

2022). CVEF believes this Court’s decision in EEOC

v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768

(2015), is more consistent with the goals of Title VII.

Accordingly, CVEF asks this Court to resolve the

tension between Abercrombie and Hardison by

clarifying that an employer’s duty to accommodate

cannot be shirked because of near-de minimis

burdens. Proper application of this Court’s decision in

Abercrombie will result in employers taking their

duty seriously, so that workers will not need to

renounce their religious convictions to keep their jobs.

1 Under Rule 37.6, amicus curiae affirm that no counsel for

a party authored this brief in whole or in part and that no person

other than amicus and its counsel made a monetary contribution

to the preparation or submission of this brief.

SUMMARY OF THE ARGUMENT

This Court’s decision in Abercrombie clarified that

religious practices are given “favored treatment”

under Title VII, furthering the promise of equal

access to the dignity of work for persons of all faiths.

The traditions of this nation have long affirmed

the idea that work is a blessing that can bring dignity

to the human person. Religious social teachings also

offer useful insights in this area, urging employers to

seek the common good of workers in their many

aspects of life—even in religious duties that intersect

with the workplace. One reason Title VII was enacted

was to ensure that workers of all creeds had access to

employment and the dignity of earning a living.

Sadly, this Court’s ill-advised dicta in Hardison

has eroded Title VII’s goal of equal access for religious

persons. Lower courts have attached undeserved

importance to a single phrase of dicta implying that

an employer suffers “undue hardship” whenever a

religious accommodation bears more than de minimis

cost. This reading of Title VII—wrong from the start

and inconsistent with other civil rights regimes—

singled out “religion” for disfavored treatment among

the many protected characteristics insulated from

discrimination. Worse still, Hardison was a byproduct

of this Court’s repudiated test in Lemon v. Kurtzman,

which itself wrought terrible consequences.

The good news is that this Court’s rejection of

Lemon in favor of a more historical approach to its

religion jurisprudence provides good reason to discard

Hardison’s dicta in in favor of Abercrombie’s “favored

treatment” approach, which is more consistent with

the origins and intent of Title VII.

The time is right for this Court to bury Hardison’s

legacy and return the promise of dignity to religious

workers offered by its decision in Abercrombie.

ARGUMENT

Consistent with Title VII’s goal of providing

religious employees with equal access to the dignity of

work, this Court in Abercrombie recognized that Title

VII favors religious accommodations. Now this Court

should jettison the senseless “undue hardship”

standard drawn from dicta in Hardison, which defies

Abercrombie’s analysis and Title VII itself by limiting

an employer to “de minimis” accommodation costs.

I. TITLE VII’S “FAVORED TREATMENT” FOR

RELIGIOUS ACCOMMODATIONS IN THE WORKPLACE,

RECOGNIZED BY THIS COURT IN ABERCROMBIE,

AFFIRMS THE DIGNITY OF WORKERS OF ALL FAITHS.

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

Court explained that Title VII grants “religious

practices” in the workplace “favored treatment” when

considering accommodations, allowing workers to

practice their religion “despite the employer’s normal

rules to the contrary.” 2 This affirming view of

accommodations—supported by the statute’s text—

imbues employees of all faiths with the dignity of

work, 3 a concept woven into the fabric of Title VII.

2 575 U.S. 768, 772 n.2, 775 (2015).

3 While discussions about “dignity” may be overworked in

some circles, and mistaken in others, this Court has not

eschewed the term, invoking it in over 900 opinions. See Leslie

Meltzer Henry, The Jurisprudence of Dignity, 160 U. PA. L. REV.

169, 178–79 (2011). See, e.g., Nat’l Treas. Employees Union v.

Von Raab, 489 U.S. 656, 685 (1989) (Scalia, J., dissenting).

A. This Court’s interpretation of Title VII in

Abercrombie requires that employers

grant “favored treatment” to religious

practices in workplace accommodations.

In Abercrombie, a Muslim woman who wore a

religious headscarf to her hiring interview sued the

store for “disparate treatment” under Title VII when

it failed to hire her due to its neutral “Look Policy,”

which prohibited employees from wearing “caps”

because they were “too informal for Abercrombie’s

desired image.” 4 In reversing summary judgment for

the store, this Court rejected Abercrombie’s argument

that an employee could not advance a disparatetreatment claim under Title VII if an employer applied

a “neutral” policy because such policies could only be

attacked using a disparate-impact theory. 5

This Court began its analysis by noting that Title

VII—expanded in 1972 to define “religion” to mean

more than mere “belief” 6—now set forth “religious

practice” as “one of the protected characteristics that

cannot be accorded disparate treatment and must be

accommodated.” 7

4 Abercrombie, 575 U.S. at 770.

5 Id. at 774.

6 Civil Rights Act of 1964, §§ 701, 703(a), 78 Stat. 253–255.

See also Abercrombie, 575 U.S. at 785 (Thomas, J., concurring in

part and dissenting in part) (discussing the changes to Title VII).

7 Id. at 774–75 (citing 42 U.S.C. § 2000e(j)).

This Court then went on to explain why a

“neutral” policy that does not “treat religious practices

less favorably than similar secular practices” can still

be assailed under a disparate-treatment theory: 8

Title VII does not demand mere neutrality with

regard to religious practices—that they be treated

no worse than other practices. Rather, it gives

them favored treatment, affirmatively obligating

employers not “to fail or refuse to hire or discharge

any individual ... because of such individual’s”

“religious observance and practice.” 9

It is critical to the proper resolution of the

question presented by the Petitioner that this

analysis in Abercrombie be honored. This Court’s

recognition that Title VII gives favored treatment to

religious practices is also a promise that laborers of

all faiths will not be deprived of the dignity of work.

8 Id. at 775.

9 Id.

B. Notions of the “dignity of work” emanate

from American history and tradition, as

well as from religious social teachings.

As interpreted by this Court in Abercrombie, Title

VII’s requirement to favor religious accommodations

in the workplace expands equal access to the “dignity

of work.” This concept—that labor is both an

individual blessing and a societal good—stems from

this nation’s history and traditions, from faith-based

insights about human nature, and from the Civil

Rights Act itself.

“As far back as the colonial era, New Englanders

invested work with an almost religious character, and

white Americans generally spoke of the dignity of

work, recognizing that work had much to do with

defining the person.” 10 Many scholars have

recognized that labor “instill[s] a purpose to life” that

“allows us to gain self-respect from the dignity that

meaningful work allows us to achieve.” 11

In his first inaugural address, Thomas Jefferson

argued that people were “happy and prosperous”

when Government left them “free to regulate their

own pursuits of industry,” and did not “take from the

mouth of labor the bread it has earned.” 12 Dr. Martin

Kenneth L. Karst, The Coming Crisis of Work in

Constitutional Perspective, 82 CORNELL L. REV. 523, 531 (1997).

11 C. John Cicero, Tns, Inc. - the National Labor Relations

Board’s Failed Vision of Worker Self-Help to Escape Longterm

Health Threats from Workplace Carcinogens and Toxins, 24

STETSON L. REV. 19, 80 (1994).

1801.

Thomas Jefferson, First Inaugural Address, March 4,

Luther King, Jr., put a similar concept this way:

“[O]ur society will come to respect the sanitation

worker if it is to survive, for the person who picks up

our garbage … is as significant as the physician, for if

he doesn’t do his job, diseases are rampant. All labor

has dignity.” 13

While many religious traditions have “eloquently

… supported the dignity of work,” 14 Catholic social

teaching 15 has been especially prescient in the area of

workplace accommodations. Its insights illuminate

why continued strong support for religious

accommodations is critical to furthering the dignity of

labor inherent in Title VII.

In 1891, as industrialization transformed the

world’s workforce, Pope Leo XIII’s groundbreaking

encyclical, Rerum Novarum, appealed to “natural

reason” while lauding gainful work, which “enables [a

13 Rev. Martin Luther King, Jr., Remarks Delivered at the

American Federation of State, County, and Municipal

Employees mass meeting, Bishop Charles Mason Temple,

Church of God in Christ, Memphis, Tennessee, March 18, 1968.

David L. Gregory, Catholic Labor Theory and the

Transformation of Work, 45 WASH. & LEE L. REV. 119, 128 (1988)

(citing Jewish scholars, such as Professor Robert Cover).

15 Unlike faith instruction, Catholic social teachings take

the “lived experience of Church communities across time and

locale and apply them broadly,” making them “accessible to

anyone, believer or not … as a tool for public policy across a wide

variety of social, political, and economic systems.” Nathaniel

Romano, Subsidiarity & Vulnerability Theory: A Case Study for

Deepening the Relationship Between Catholic Social Teaching

and the Responsive State, 71 CATH. U. L. REV. 731, 734 (2022).

person] to earn an honorable livelihood.” 16 The

document urged employers “to respect in every man

his dignity as a person,” and to ensure “that the

worker has time for his religious duties; [and] that he

be not exposed to corrupting influences and

dangerous occasions….” 17

Rerum Novarum’s surprisingly modern view of

labor recognized that, to respect the dignity of work,

an employer must respect both the secular and

religious aspects of the worker’s life. Periodic

reflections on the teachings in that document have led

later popes to discuss additional concepts that reveal

the importance of accommodating religious practices

in the workplace.

First, government has a duty to “the common

good” to create “the conditions required for attaining

man’s true and complete good, including his spiritual

end.” 18 This includes the passage of laws protecting

the rights of workers. Title VII has fulfilled this duty

with its robust “favored treatment” in workplace

accommodations.

16 Rerum Novarum: Encyclical

Letter of the Holy Father

Pope Leo XIII, para. 20 (May 15, 1891), available at

https://www.vatican.va/content/leo-xiii/en/encyclicals/documen

ts/hf_l-xiii_enc_15051891_rerum-novarum.html.

17 Id.

Octogesima Adveniens: Encyclical Letter of the Holy

Father Pope Paul VI, para. 46 (May 14, 1971), available at

https://www.vatican.va/content/paul-vi/en/apost_letters/docu

ments/hf_p-vi_apl_19710514_octogesima-adveniens.html.

Further—because gainful labor helps workers to

“become[] ‘more a human being’” 19—employers must

develop “an authentic culture of work and help

workers to share in a fully human way in the life of

their place of employment,” through “‘humane’

working hours” and “the right to express one’s own

personality at the work-place without suffering any

affront to one’s conscience or personal dignity.” 20

Finally, the workplace is where “many aspects of

life enter into play: creativity, planning for the future,

developing our talents, living out our values, relating

to others, giving glory to God.” 21

In sum, expanding access to the dignity of work

for laborers of all faiths is consistent with “our

constitutional tradition,” which affirms that the “free

exercise” of religion “is essential in preserving [a

person’s] own dignity and in striving for a selfdefinition shaped by their religious precepts.” 22

19 Laborem Exercens: Encyclical Letter of the Holy Father

Pope John Paul II, para. 9 (May 14, 1981), available at

https://www.vatican.va/content/john-paul-ii/en/encyclicals/docu

ments/hf_jp-ii_enc_14091981_laborem-exercens.html.

20 Centesimus Annus: Encyclical Letter of the Holy Father

Pope John Paul II, para. 15 (May 1, 1991), available at

https://www.vatican.va/content/john-paul-ii/en/encyclicals/docu

ments/hf_jp-ii_enc_01051991_centesimus-annus.html.

21 Laudate Si’: Encyclical Letter of the Holy Father Pope

Francis, para. 127 (May 24, 2015), available at

https://www.vatican.va/content/francesco/en/encyclicals/docume

nts/papa-francesco_20150524_enciclica-laudato-si.html.

22 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 736

(2014) (Kennedy, J., concurring).

C. Title VII’s purpose and text aim to provide

equal access to the dignity of work.

One of the underlying purposes of Title VII was to

give laborers of all backgrounds and creeds equal

access to the dignity of work. That purpose is woven

into the very fabric of Title VII itself.

On July 2, 1964, the Civil Rights Act of 1964 was

enacted “to promote a more abiding commitment to

freedom, a more constant pursuit of justice, and a

deeper respect for human dignity.” 23 The legislative

history of Title VII reveals Congress’s judgment that

“continued employment discrimination in the United

States casts doubt upon our sincerity in furthering

the cause of individual liberty and human dignity.” 24

Title VII sought “to implement the goals of human

dignity and economic equality in employment.” 25

Even a “conservative reading” of the statute reveals

its vision of “a world in which the opportunity to work

and contribute to the economy is determined by merit

rather than prejudice. This benefits the individual

worker, who has access to the dignity of work and the

President Lyndon B. Johnson’s Radio and Television

Remarks Upon Signing the Civil Rights Bill, PUB. PAPERS OF

LYNDON B. JOHNSON 1963–64, VOL. 2 at 842–44 (1965) (quoted in

Griffith v. City of Des Moines, 387 F.3d 733, 739–40 (8th Cir.

2004) (Magnusson, J., concurring)).

H.R. Rep. No. 1370, 87th Cong., 2d Sess. 2156 (1962)

(discussed in Boureslan v. Aramco, 857 F.2d 1014, 1027–28 (5th

Cir. 1988)).

King v. Hillen, 21 F.3d 1572, 1582 (Fed. Cir. 1994)

(discussing sex discrimination).

ability to support themselves.” 26 Further, it benefits

society by ensuring that the nation derives the

advantages that can be gained from the diligence and

creativity of all its members.

Additionally, Congress has often extolled gainful

work as a bedrock principle, declaring that “citizens

should have the opportunity to live and work with

dignity.” 27 When requiring accommodations in the

Americans with Disabilities Act (ADA), Congress saw

“that the benefits of gainful employment for

individuals with disabilities—dignity, financial

independence, and self-sufficiency, among others—

outweigh simple calculations of ease or efficiency.” 28

Likewise, “many state workers’-rights provisions and

civil-rights acts spotlight the importance of

employment that fosters dignity and diminishes the

worry of discrimination, particularly on the basis of

religious adherence.” 29

In sum, Title VII stands within a long line of

legislative efforts designed to expand access to the

Steven L. Winter, Bridges of Law, Ideology, and

Commitment, 37 TOURO L. REV. 1981, 2005–06 (2022).

See generally Amicus Br. of Foundation for Gov’t

Accountability, Azar v. Gresham, 141 S. Ct. 890 (2020)

(dismissed from merits docket) (quoting Proclamation No. 7600,

67 Fed. Reg. 62167 (Oct. 1, 2002), and many other declarations).

28 Hostettler v. Coll. of Wooster, 895 F.3d 844, 857 (6th Cir.

2018).

Amicus Br. of Amer. Cornerstone Instit., Kennedy v.

Bremerton School District, 142 S. Ct. 2407 (2022) (discussing

statutes from Louisiana, Texas, Idaho, and Kentucky).

dignity of work, to include favoring religious practices

so that they can be accommodated in the workplace.

II. ABERCROMBIE’S RECOGNITION THAT TITLE VII

FAVORS ACCOMMODATION OF RELIGIOUS PRACTICES

IS IRRECONCILABLE WITH HARDISON’S HARMFUL DE

MINIMIS STANDARD FOR UNDUE HARDSHIP.

Ill-conceived dicta in Trans World Airlines, Inc. v.

Hardison has led a generation of lower courts to raze

Title VII’s goal of expanding equal access to the

dignity of work. The manifest result of decisions by

lower courts applying Hardison’s de minimis

standard has allowed employers to deny religious

accommodations that do not impose undue hardships

on their business operations. Thankfully, this Court’s

analysis in Abercrombie has undermined the morethan-de-minimis standard and laid out an approach

that is truer to the text and purpose of Title VII. 30

A. Hardison’s hasty, unsupported dicta has

created a hollow “undue hardship” test.

In Hardison, a clerk subject to a collectivebargaining seniority system sought a religious

accommodation to avoid working on his Saturday

sabbath. 31 When TWA failed to accommodate his

request, purportedly due to its seniority system,

Hardison refused to violate his religious principles by

See generally Kade Allred, Giving Hardison the Hook:

Restoring Title VII’s Undue Hardship Standard, 36 BYU J. PUB.

L. 263 (2022) (arguing Abercrombie’s impact on Hardison).

31 432 U.S. 63, 66–68 (1977).

working on the sabbath, and he was subsequently

fired for insubordination. 32

In ruling for TWA, this Court’s majority opinion

found that it would cause “an undue hardship within

the meaning of the statute as construed by the EEOC

guidelines” to force TWA to violate its collective

bargaining agreement. 33 In so doing, the majority

explained that the only guidance “in effect at the time

the relevant events occurred” was the “EEOC

guidelines” written in 1967. 34

The majority recognized that Congress had added

§ 701(j) to Title VII in 1972, re-defining “religion” “[i]n

part ‘to resolve by legislation’ some of the issues

raised in” prior cases involving the accommodation of

religion. 35 Despite this recognition, the majority

appeared to opine about the “undue hardship”

standard contained not only in the EEOC Guidelines,

but also in § 701(j), the amended language not at issue

in the case. 36 Then, in a single hasty reference, the

majority stated, “To require TWA to bear more than a

de minimis cost in order to give Hardison Saturdays

off is an undue hardship.” 37

32 Id. at 69–70.

33 Id. at 77.

34 Id. at 76–77.

35 Id. at 73 (citing 118 Cong. Rec. 706 (1972) (quoting from

Senator Jennings Randolph in support of adding § 701(j)).

36 Id. at 74–75.

37 Id. at 84.

The dissenting Justices proved the error in the

majority’s comment. They recounted the history of the

1972 re-definition of “religion” and pointed out that

the majority was acting “in direct contravention of

congressional intent” by “effectively nullifying” Title

VII in “rejecting any accommodation that involves

preferential treatment.” 38 Further, they “seriously

question[ed] whether simple English usage permits

‘undue hardship’ to be interpreted to mean ‘more than

de minimis cost,’ especially when the examples the

[EEOC] guidelines give of possible undue hardship is

the absence of a qualified substitute.” 39

In recent years, at least three Justices on this

Court have openly acknowledged that the majority’s

more-than-de-minimis language—which has worked

such mischief in lower courts—was dicta, and that the

“proposition endorsed by [Hardison]” should be

“reconsider[ed].” 40 This is so because the majority’s

loose de minimis language “does not represent the

most likely interpretation of the statutory term”; “the

parties’ briefs in Hardison did not focus on the

meaning of that term; no party in that case advanced

38 Id. at 89 (Marshall, J., dissenting) (quoting 118 Cong. Rec.

705–06, and recounting Senator Randolph’s introduction of

§ 701(j) “to make clear that Title VII requires religious

accommodation, even though unequal treatment would result”).

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

40 Patterson v. Walgreen Co., 140 S. Ct. 685, 686 n.* (2020)

(Alito, J., joined by Thomas and Gorsuch, JJ., concurring in

denial of certiorari). See also Small v. Memphis Light, Gas &

Water, 141 S. Ct. 1227, 1228 (2021) (Gorsuch, J., joined by Alito,

J., dissenting); Abercrombie, 575 U.S. at 787 n.* (Thomas, J.,

concurring in part and dissenting in part).

the de minimis position; and the Court did not explain

the basis for this interpretation.” 41

Thankfully, Hardison’s ruinous legacy—which

undermines Title VII’s goal of granting equal access

to the dignity of work—cannot survive Abercrombie’s

erosion of its central, tenuous “endorsed proposition.”

B. Hardison’s unfortunate dicta singularly

denies the dignity of work to those who

request religious accommodations that

require more than a de minimis cost.

Hardison’s groundless dicta allows employers to

claim an undue hardship under Title VII for any

religious accommodation that carries with it more

than a de minimis cost. This has resulted in a

corrosion of the statute’s goal of providing religious

employees with equal access to the dignity of work.

Even before the Abercrombie decision, Hardison’s

peculiar reading of “undue hardship” was making

Title VII’s maltreatment of religious accommodations

an anomaly among civil rights statutes.

Perhaps Justice Gorsuch put it best: “Title VII’s

right to religious exercise has become the odd man

out. Alone among comparable statutorily protected

civil rights, an employer may dispense with it nearly

at whim.” 42 To illustrate, he noted that more recent

civil rights acts—the Americans with Disabilities Act

Patterson, 140 S. Ct. at 686 n.* (Alito, J., joined by

Thomas and Gorsuch, JJ., concurring in denial of certiorari).

42 Small, 141 S. Ct. at 1228–29 (2021) (Gorsuch, J., joined

by Alito, J., dissenting from denial of certiorari).

(ADA), the Uniformed Services Employment and

Reemployment Rights Act (USERRA), and the

Affordable Care Act (ACA)—each defined “undue

hardship,” as “an action requiring significant

difficulty or expense, when considered in light of

[several statutory] factors.” 43 These standards are all

much higher than Hardison’s suggestion that any cost

more than de minimis poses an undue hardship.

Nor has this anomaly gone without unjust impact

on those seeking equal access to the dignity of work.

Amici in the instant case have collected examples to

demonstrate how Hardison’s unsupported dicta often

has assisted employers in denying accommodations in

situations where the notion of an “undue” hardship

strains credulity: providing an employee even an

ounce of space to pray in an entire office building, or

slightly shifting a meal break for Muslim employees

during Ramadan, to recount only two of their many

examples. 44 Justice Gorsuch has contrasted that Title

VII Muslim-break case with a similar ADA case,

where a court found that the employer of a disabled

See id. at 1228–29 (quoting from ADA, 42 U.S.C.

§ 12111(10)(A) (added 1990); USERRA, 38 U.S.C. § 4303(15)

(added 1994); ACA, 29 U.S.C. § 207(r)(3) (added 2010)).

Congressional attempts to statutorily fix Hardison’s mistake

have thus far failed. See Mary-Lauren Miller, Inoculating Title

VII: the “Undue Hardship” Standard and Employer-Mandated

Vaccination Policies, 89 FORDHAM L. REV. 2305, 2315–18 (2021).

Amicus Br. of Thomas More Society and The Jewish

Coalition for Religious Liberty, Groff, 143 S. Ct. 646 (2023)

(discussing Farah v. A-1 Careers, No. 12-2692-SAC, 2013 WL

6095118, at *23–25 (D. Kan. Nov. 20, 2013), and EEOC v. JBS

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

diabetic worker could “alter the snack break

schedule” without any undue hardship. 45

The peculiarities began in Hardison itself. Justice

Marshall noted that, although TWA was “one of the

largest air carriers in the nation,” it claimed an undue

hardship to pay “$150 [in overtime] for three months,

at which time [Hardison] would have been eligible to

transfer back to his previous department.” 46

Nor have the inane oddities lessened over the

years. Hardison’s dicta recently led to the perverse

workplace situation where even “subpar employees”

could “receiv[e] more favorable treatment than highly

performing employees who seek only to attend

church.” 47

Thus, a law intended to provide equal access to

the dignity of work for religious persons now restricts

their access due to Hardison’s hasty turn-of-phrase.

45 Small, 141 S. Ct. at 1229 (Gorsuch, J., joined by Alito, J.,

dissenting from denial of certiorari) (contrasting JBS, 339

F. Supp. 3d at 1181, with Spiteri v. AT&T Holdings, Inc., 40

F. Supp. 3d 869, 878 (E. D. Mich. 2014)).

46 Hardison, 432 U.S. at 91, 92 n.6 (Marshall, J., dissenting).

47 Small, 141 S. Ct. at 1228–29 (Gorsuch, J., joined by Alito,

J., dissenting from denial of certiorari).

C. Hardison’s disfavor toward religious

accommodations cannot be reconciled

with Abercrombie’s recognition that Title

VII favors religious practices.

In addition to furthering inconsistent treatment

among comparable civil rights—with accompanying

injustices in lower courts—Hardison’s anomalous

reading of Title VII is also contrary to this Court’s

modern understanding of Title VII and the proper

place of religious practice in the public sphere, as

confirmed by Abercrombie. In at least three areas,

then, Hardison’s feeble position has been hopelessly

eroded by developments in religious-liberty law.

First, Hardison’s compromise, attempting to solve

a non-existent problem, is now a useless remnant of a

by-gone era. Second, Hardison’s anomalous de

minimis “solution” leads to workplaces that disfavor

religious practices—the opposite goal of Title VII.

Finally, Hardison’s reasoning is grounded on the

faulty premise that religious accommodation in the

workplace cannot inconvenience other employees.

1. Hardison was birthed in woebegone days

to solve a non-existent problem.

Hardison did not arrive at this Court as a case

seeking an interpretation of “undue hardship” in the

1967 EEOC Guidelines. Rather, the first question

presented asked whether Title VII violated the First

Amendment “by requiring an employer to grant

preferential treatment to an employee solely because

of his religious practices by” either “depriving … more

senior employees … of their seniority rights,” or

“financing an employee’s religious observances

through payment of overtime wages….” 48

In other words, the Hardison petitioner’s efforts

to dodge Title VII’s duty of religious accommodation—

a duty meant to protect the free exercise of religion—

was grounded in the fatally flawed decision in Lemon

v. Kurtzman, 49 which purported to address the law

respecting the establishment of religion. In fact, that

thorny issue constituted the key discussion in the

parties’ briefs. 50

The majority opinion in Hardison skillfully

sidestepped the petitioner’s arguments raising the

unprincipled Lemon test. 51 Sadly, the price to pay for

the compromise of dodging Lemon was too high: an

overly cautious and poorly reasoned take on Title

VII’s “undue hardship” standard. 52 As Justice

Marshall put it, “The Court’s interpretation of the

statute, by effectively nullifying it, has the singular

Br. for Petitioner Trans World Airlines, Inc., p. 4

Hardison, 432 U.S. 63. See also Hardison, 432 U.S. at 70.

49 403 U.S. 602 (1971).

50 See Br. for Petitioner Trans World Airlines, Inc., pp. 21–

46, and Br. for Respondent, pp. 23–38, Hardison, 432 U.S. 63.

51 See Hardison, 432 U.S. at 70 (noting the issue in passing).

See Charles A. Sullivan, Retaliation and Requesting

Religious Accommodation, 70 CASE W. RES. L. REV. 381, 397

(2019) (recounting arguments by commentators that the

majority’s “strained interpretation was driven by Establishment

Clause concerns should Congress be held to have imposed a toorobust duty to accommodate”).

advantage of making consideration of petitioners’

constitutional challenge unnecessary.” 53

But with “2023 hindsight,” it is now clear that,

what the majority thought was the path of least

resistance, was actually a blind alley. At the time of

the decision in Hardison, this Court had embarked on

an interpretive approach to the First Amendment

that expanded the reach of the text prohibiting “laws

respecting the establishment” of religion at the

expense of the clause protecting the “free exercise

thereof.” The majority did not know then what

became painfully clear over time: Lemon’s “attempt”

to craft a “‘grand unified theory’ for assessing

Establishment Clause claims” was an “‘ambitiou[s],’

abstract, and ahistorical approach” riddled with

“shortcomings” that “‘invited chaos’ in lower courts,

led to ‘differing results’ in materially identical cases,

and created a ‘minefield’ for legislators.” 54 That is why

this Court replaced Lemon with an approach that

interprets the Establishment Clause by “‘reference to

historical practices and understandings.” 55

This Court should be equally bold in discarding

Hardison’s shoddy analysis and dicta as a vestige of

the woebegone days when Lemon “stalked” the Court

53 Id. at 89–91 (Marshall, J., dissenting) (discussing why

Title VII does not violate the Lemon test).

54 Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2427–

28 (2022) (quoting American Legion v. American Humanist

Assn., 139 S. Ct. 2067, 2101 (2019) (plurality opinion), and

Capitol Square Review Bd. v. Pinette, 515 U.S. 753, 768–769, n.3

(1995) (plurality opinion)).

55 Id. (quoting Town of Greece v. Galloway, 572 U.S. 565,

576 (2014)).

“like some ghoul in a late-night horror movie” 56—a

time when some worried unnecessarily about whether

the Establishment Clause required this Court “‘to

purge from the public sphere’ anything an objective

observer could reasonably infer endorses or ‘partakes

of the religious.’” 57 The Clause requires no such

purge. Because this is so, there is nothing to be feared

from applying Abercrombie’s analysis to find that

Title VII protects the dignity of work for employees of

faith by favoring the accommodation of religious

practices unless there is a truly “undue” hardship to

employers.

2. Hardison exiles religious workers by

injecting “disfavor” into Title VII.

In its effort to avoid a perceived Lemon problem,

the majority in Hardison inserted an element of

“disfavor” toward religious practices into Title VII.

Remarkably, it accomplished this result through a

murky reference in a single line of dicta, creating a

previously non-existent standard without either an

explanation or a justification. The lasting result of

this hasty dicta has been the exile of persons of faith

from the workplace due to failures to accommodate

their religious practices.

Thus far, this Court has not returned to Hardison

to resolve the problem that its dicta created. But as

the 21st century wheels of justice turned in favor of

56 Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508

U.S. 384, 399 (1993) (Scalia, J., concurring in the judgment).

57 Kennedy, 142 S. Ct. at 2428 (quoting Van Orden v. Perry,

545 U.S. 677, 699 (2005) (Breyer, J., concurring in the

judgment)).

religious freedom, Hardison became further isolated

and alienated from the rest of this Court’s religion

jurisprudence, which has marched steadily toward

greater religious liberty in the public sphere and less

fear of imagined establishments of religion. 58 After

Abercrombie, it is clear that Hardison’s misreading of

the “undue hardship” standard is ripe for correction.

By watering down the term “undue hardship” to

mean no more than a de minimis cost to the employer,

the majority in Hardison effectively negated a fix that

Congress had made to Title VII in the wake of cases

involving failed accommodations. Specifically, in

amending the definition of “religion” in 1972,

Congress sought to repair the results of two decisions:

Dewey v. Reynolds Metals Company, and Riley v.

Bendix Corporation—both cases affirming the action

of employers in firing employees whose religious

practices were not accommodated due to neutral work

rules. 59 In introducing the amended language,

Senator Jennings Randolph referenced Dewey and

Riley by name, arguing that those cases “clouded”

Title VII’s intent regarding religious discrimination,

58 See, e.g., Galloway, 572 U.S. 565; Abercrombie, 575 U.S.

768; Trinity Lutheran Church of Columbia, Inc. v. Comer, 137

S. Ct. 2012 (2017); American Legion, 139 S. Ct. 2067; Espinoza

v. Montana Dep’t of Revenue, 140 S. Ct. 2246 (2020); Carson v.

Makin, 142 S. Ct. 1987 (2022); Kennedy, 142 S. Ct. 2407.

59 See generally Dewey v. Reynolds Metals Co., 429 F.2d 324

(6th Cir. 1970), aff’d by an equally divided Court, 402 U.S. 689

(1971); Riley v. Bendix Corp., 330 F. Supp. 583 (M.D. Fla. 1971),

rev’d 464 F.2d 1113 (5th Cir. 1972). The court in Riley had gone

so far as to suggest that religious employees should “seek other

employment” if they could not abide by neutral work rules—

essentially exiling them from the workplace. Id. at 590.

and explaining that his proposed change would clarify

that religious accommodations are required “even

though unequal treatment would result.” 60

Incredibly, the majority’s reasoning and dicta in

Hardison adopted a stance that directly contradicted

Congress’s intent, essentially reaffirming Dewey and

Riley despite the attempted legislative repair. The

tragic result of this mistake is the current situation,

where employers routinely disfavor religious

practices in the workplace without consequence,

severely undermining one of the key goals of Title VII.

This Court in Abercrombie had a much better

grasp of the reasons why Title VII had been amended.

Indeed, it was because of the 1972 amendment to Title

VII that this Court found that “religious practice”

cannot be treated disparately and “must be

accommodated.” 61 This Court rebuffed the idea that

neutral rules could defeat requested accommodations,

eviscerating the majority’s position in Hardison by

declaring that Title VII “does not demand mere

neutrality” but rather “favored treatment,” and that

“Title VII requires otherwise-neutral policies to give

way to the need for an accommodation.” 62

In sum, what Hardison perceived as a threat to

Title VII—the appearance of favoring religion—turns

out after Abercrombie to have been the saving grace

of the statute. Read properly, Title VII’s amended text

protects persons of all faiths by allowing them access

60 118 Cong. Rec. 705, 706 (1972).

61 Abercrombie, 575 U.S. at 775.

62 Id.

to the dignity of work without requiring them to check

their religious convictions at the workplace door.

3. Hardison encourages a heckler’s veto.

A further shortcoming caused by Hardison’s

Lemon-tainted thinking was the majority’s concern

that accommodating the religious practices of some

employees would result in treating others unequally.

Instead of pitting Title VII against Lemon, the

majority avoided the conflict and created the current

chaos, where employers are rewarded for disfavoring

religious practices and empowering hecklers.

Clearer thinking after Abercrombie reveals the

mistake in the majority’s zero-sum framing of the

issue as the “unequal” favoring of religious employees

over non-religious ones. 63 The majority declared,

“[W]e will not readily construe the statute to require

an employer to discriminate against some employees

in order to enable others to observe their Sabbath.” 64

But this position failed to appreciate the very nature

of granting accommodations in the workplace.

As Justice Marshall explained in dissent, “The

accommodation issue by definition arises only when a

neutral rule of general applicability conflicts with the

religious practices of a particular employee.” 65 Noting

that work schedules are often the neutral rules at

issue, he pointed out that exempting an employee

from such a rule “will always result in a privilege

63 Hardison, 432 U.S. at 81.

64 Id. at 85.

65 Id. at 87 (Marshall, J., dissenting).

being ‘allocated according to religious beliefs’ …

unless the employer gratuitously decides to repeal the

rule in toto.” 66 He then pinpointed the majority’s blind

spot: “[I]f an accommodation can be rejected simply

because it involves preferential treatment, then the

regulation and the statute, while brimming with

‘sound and fury,’ ultimately ‘signif(y) nothing.’” 67

Justice Marshall’s sentiment would later be

echoed in Abercrombie, with this Court recognizing

that a “neutral” policy does not protect an employer

from an allegation of intentional discrimination

under Title VII. 68 Indeed, Abercrombie eroded the

foundation of the Hardison majority by declaring that

“Title VII does not demand mere neutrality with

regard to religious practices … [but r]ather, it gives

them favored treatment…” 69 And what does “favored

treatment” mean if not favored over other employees

who do not need a religious accommodation?

The true harm caused by Hardison’s worry about

“unequal treatment” is the application of that concern

in lower courts, which have twisted the religious

accommodation mandate by shifting the focus from

the undue hardship of the employer to the

inconvenience of co-workers, who (understandably)

66 Id. at 88 (Marshall, J., dissenting).

67 Id. (Marshall, J., dissenting).

68 Abercrombie, 575 U.S. at 775.

69 Id. See also Alix Valenti and Vanessa L. Johnson, The

Real Impact of EEOC v. Abercrombie & Fitch Stores, Inc.: “Look

Policies”—Effective Business Strategies or Legal Liabilities?, 36

CORP. COUNS. REV. 1, 28–29 (2017) (arguing that the reasoning

in Abercrombie weakens Hardison’s de minimis standard).

often are upset by another employee’s perceived

“special treatment” in avoiding a neutral rule of

general applicability. This reality was on full display

in the instant case.

Although the Third Circuit had found that the

Postal Service had not reasonably accommodated

Groff, it ruled for the employer by turning to the

“undue hardship” inquiry and considering factors

such as “negative impacts” on personnel, “increased

workload on other employees, and reduced employee

morale.” 70 The court catalogued cases from across

seven federal circuits where an undue hardship on the

employer actually had been based on “the impact [the

accommodation] would have on other employees.” 71

This survey of cases revealed a host of reasons

related to co-workers that purportedly justified a

finding of undue hardship for the employer. Most

notably, hardships were found where the requested

accommodations would create the “potential for

polarization amongst staff,” or a “‘lowering of morale’

among coworkers,” or even a perception that it would

“impose” the employee’s beliefs “on coworkers and

disrupt[ the] workplace.” 72 Other surveyed cases

involved denials of accommodations where fewer

Groff v. DeJoy, 35 F.4th 162, 174 (3d Cir. 2022), cert.

granted, 143 S. Ct. 646 (2023) (quoting EEOC v. Walmart Stores

E., L.P., 992 F.3d 656, 659 (7th Cir. 2021)).

71 Id. (quoting Virts v. Consol. Freightways Corp. of Del., 285

F.3d 508, 520–21 (6th Cir. 2002)).

72 Id. (quoting Brown v. Polk Cnty, Iowa, 61 F.3d 650, 656–

57 (8th Cir. 1995); Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141,

147 (5th Cir. 1982); and Wilson v. U.S. W. Commc’ns, 58 F.3d

1337, 1341–42 (8th Cir. 1995)).

employees were available due to “vacations, illnesses,

and vacancies,” or where an employer would need to

“overschedule” other employees, or “burden[] coworkers with more weekend work” or “less time off

between routes.” 73

In dissent, Judge Hardiman rightly protested

that measuring an employer’s undue hardship by

asking whether an accommodation placed “any

burden” on other employees was, in effect, “subjecting

Title VII religious accommodation to a heckler’s veto

by disgruntled employees.” 74 If this were the proper

standard, then this Court’s declaration about Title

VII’s “favored treatment” in Abercrombie would be yet

another example of words “brimming with ‘sound and

fury,’ [but] ultimately ‘signif(ying]) nothing.’” 75

A heckler’s veto is inappropriate in religion cases,

whether under the Constitution or under Title VII. As

recently as last term, this Court emphasized that “the

Establishment Clause does not include anything like

a ‘modified heckler’s veto, in which ... religious

activity can be proscribed’ based on ‘ ‘perceptions’ ’ or

‘ ‘discomfort.’” 76 That logic also applies to the free

exercise protection provided by the First Amendment,

which permits individuals to live according to their

73 Id. (quoting Walmart, 992 F.3d at 659; Bruff v. N. Miss.

Health Servs., Inc., 244 244 F.3d 495, 501 (5th Cir. 2001); Harrell

v. Donahue, 638 F.3d 975, 980–81 (8th Cir. 2011); and Virts, 285

F.3d at 520–21).

74 Id. at 177 (Hardiman, J., dissenting).

75 Hardison, 432 U.S. at 88 (Marshall, J., dissenting).

76 Kennedy, 142 S. Ct. at 2427–28 (quoting Good News Club

v. Milford Central School, 533 U.S. 98, 119 (2001)).

faith regardless of whether the majority approves of

their religious convictions. 77

Without doubt, Title VII’s protection against

religious discrimination also is intended to serve this

same purpose. Unfortunately, the exact opposite

result is promoted and, indeed, produced when courts

rely on co-workers’ disgruntled views about an

employee’s request for a religious accommodation. In

essence, as interpreted in lower courts, Hardison has

empowered hecklers in the workplace to veto religious

accommodations. If allowed to stand, employers will

continue to make end-runs around Title VII’s

accommodation mandate by reference to the

displeasure of others—a tactic that would never pass

muster based on the employer’s own displeasure with

the same requested religious accommodation.

In sum, if religious employees are to have equal

access to the dignity of work, Hardison’s harmful

vestiges from the days of Lemon must be pruned from

the tree of Title VII in the same way this Court has

pruned them from the Establishment Clause itself.

77 See, e.g., Thomas v. Review Bd., Ind. Empl. Sec. Div., 450

U.S. 707 (1981); Masterpiece Cakeshop v. Colorado Civil Rights

Commission, 138 S. Ct. 1719 (2018); and Fulton v. City of

Philadelphia, 141 S. Ct. 1868 (2021).

CONCLUSION

For the foregoing reasons, the judgment below

should be reversed.

Respectfully submitted,