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 Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

─────  ─────

BRIEF FOR THE SIKH COALITION, MUSLIM

ADVOCATES, THE ISLAM AND RELIGIOUS

FREEDOM ACTION TEAM, SUR LEGAL

COLLABORATIVE, AND LEGAL AID AT WORK AS

AMICI CURIAE IN SUPPORT OF PETITIONER

─────  ─────

HORVITZ & LEVY LLP

JONATHAN Z. MORRIS

Counsel of Record

SCOTT P. DIXLER

3601 W. OLIVE AVENUE

8TH FLOOR

BURBANK, CA 91505

(818) 995-0800

jmorris@horvitzlevy.com

HORVITZ & LEVY LLP

JEREMY B. ROSEN

505 SANSOME STREET

SUITE 375

SAN FRANCISCO, CA 94111

Counsel for Amici Curiae

The Sikh Coalition, Muslim Advocates, The Islam and

Religious Freedom Action Team, Sur Legal Collaborative,

and Legal Aid at Work

(additional counsel listed on inside cover)

THE SIKH COALITION

AMRITH KAUR AAKRE

MARISSA ROSSETTI

165 BROADWAY STREET

SUITE 2539

NEW YORK, NY 10006

SUR LEGAL COLLABORATIVE

SHELLEY ANAND

P.O. BOX 1606

DECATUR, GA 30031

MUSLIM ADVOCATES

STEPHANIE CORREA

P.O. BOX 34440

WASHINGTON, D.C. 20043

LEGAL AID AT WORK

CHRISTOPHER HO

ALEXIS ALVAREZ

180 MONTGOMERY STREET

SUITE 600

SAN FRANCISCO, CA 94104

i

TABLE OF CONTENTS

Page

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

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

SUMMARY OF ARGUMENT ..................................... 4

ARGUMENT ................................................................ 7

As shown by the experiences of Sikh and Muslim

employees, the de minimis standard causes

serious harm to adherents of minority faiths. ............ 7

A. Sikh employees routinely face exclusion

from employment and segregation in the

workplace under the de minimis rule. .......... 7

B. Muslim employees are routinely denied

accommodations for trivial reasons under

Hardison’s de minimis standard. ............... 15

C. The accommodations denied to Muslim

and Sikh employees under Title VII are

available in other contexts. ......................... 21

CONCLUSION .......................................................... 25

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abdelwahab v. Jackson State University,

No. 09CV41TSL–JCS, 2010 WL 384416

(S.D. Miss. Jan. 27, 2010) .................................... 19

Bhatia v. Chevron U.S.A., Inc.,

734 F.2d 1382 (9th Cir. 1984) .............................. 13

Birdi v. UAL Corp.,

No. 99 C 5576, 2002 WL 471999 (N.D.

Ill. Mar. 26, 2002) ................................................... 9

Bracey v. Mich. Bell Tel. Co.,

No. 14-12155, 2015 WL 9434496 (E.D.

Mich. Dec. 24, 2015) ............................................. 21

Camara v. Epps Air Service, Inc.,

292 F.Supp.3d 1314 (N.D. Ga. 2017) ............. 17, 18

Cheema v. Thompson,

67 F.3d 883 (9th Cir. 1995) .................................. 22

Cloutier v. Costco Wholesale Corp.,

390 F.3d 126 (1st Cir. 2004)................................... 9

EEOC v. Abercrombie & Fitch Stores, Inc.,

575 U.S. 768 (2015) ................................................ 4

EEOC v. Abercrombie & Fitch Stores, Inc.,

966 F.Supp.2d 949 (N.D. Cal. 2013) ...................... 3

iii

EEOC v. GEO Group, Inc.,

616 F.3d 265 (3d Cir. 2010)............................ 20, 21

EEOC v. JBS USA, LLC,

339 F.Supp.3d 1135 (D. Colo. 2018) .................... 18

EEOC v. JBS USA, LLC,

No. 10CV318, 2013 WL 6621026 (D. Neb.

Oct. 11, 2013)........................................................ 18

EEOC v. Sambo’s of Georgia, Inc.,

530 F.Supp. 86 (N.D. Ga. 1981) ......................... 8, 9

El-Amin v. First Transit, Inc.,

No. 04-CV-72, 2005 WL 1118175 (S.D.

Ohio May 11, 2005) .............................................. 19

Holt v. Hobbs,

574 U.S. 352 (2015) .............................................. 23

Kaganovich v. McDonough,

547 F.Supp.3d 248 (E.D.N.Y. 2021)..................... 21

Kalsi v. N.Y.C. Transit Auth.,

62 F.Supp.2d 745 (E.D.N.Y. 1998)....................... 14

McGregor v. United Healthcare Servs., Inc.,

No. H-09-2340, 2010 WL 3082293 (S.D.

Tex. Aug. 6, 2010)................................................. 22

Parker v. Ark. Dep’t of Corr.,

No. 05CV00850, 2006 WL 8445187 (E.D.

Ark. Apr. 26, 2006) ............................................... 21

Searls v. Johns Hopkins Hosp.,

158 F.Supp.3d 427 (D. Md. 2016) ........................ 22

iv

Singh v. Berger,

No. 22-5234 (D.C. Dec. 23, 2022) ......................... 22

Singh v. Carter,

168 F.Supp.3d 216 (D.D.C. 2016) ........................ 23

State v. Hardesty,

214 P.3d 1004 (Ariz. 2009) ................................... 22

Tagore v. United States,

735 F.3d 324 (5th Cir. 2013) .......................... 14, 15

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) ...... 3, 4, 5, 6, 8, 9, 11, 16, 19, 20

United States v. Board of Education for

School District of Philadelphia,

911 F.2d 882 (3d Cir. 1990).................................. 17

Webb v. City of Philadelphia,

562 F.3d 256 (3d Cir. 2009).................................. 17

Werner v. McCotter,

49 F.3d 1476 (10th Cir. 1995) .............................. 15

v

Statutes

42 U.S.C.

§ 2000bb-1(a), (b) .................................................. 15

§ 2000cc-1(a) ......................................................... 23

§§ 2000e–2000e-17 ................................................. 4

California Government Code § 12926(q)

(West 2018) ........................................................... 23

Rules

Sup. Ct. R. 37.6 ............................................................ 1

Regulations

29 C.F.R. § 1910.134(g)(1)(i)(A) (2021) ..................... 12

Miscellaneous

A Brief Introduction to the Beliefs and

Practices of the Sikhs, The Sikh Coalition

(2008),

https://tinyurl.com/sikhcoalition2008 .................... 7

Accommodating Sikhs in the Workplace: An

Employer’s Guide, The Sikh Coalition

(2022),

https://tinyurl.com/sikhcoalition2022 .................... 7

An Employer’s Guide to Islamic Religious

Practices, Council on American-Islamic

Relations (2005),

https://tinyurl.com/cair2005........................... 15, 16

vi

AutoZone Settles Religious Discrimination

Suit with Winthrop Man, WBUR News

(Apr. 3, 2012),

https://tinyurl.com/wbur040312 .......................... 11

Ben Kesling, Army Eases Uniform

Regulations to Allow More Religious

Exemptions, Wall St. J. (Jan. 6, 2017,

2:22 PM), https://tinyurl.com/wsj010617 ............ 23

Brad Dress, Appeals Court Rules Sikh

Recruits Can Keep Beards at Marine

Boot Camp, The Hill (Dec. 26, 2022, 3:01

PM), https://tinyurl.com/hill122622 .................... 23

Dan Weikel, Sikh Truck Drivers Reach

Accord in Religious Discrimination Case

Involving a Major Shipping Company,

L.A. Times (Nov. 15, 2016, 6:10 PM),

https://tinyurl.com/latimes111516....................... 11

Dawinder S. Sidhu, Out of Sight, Out of

Legal Recourse: Interpreting and

Revising Title VII to Prohibit Workplace

Segregation Based on Religion, 36 N.Y.U.

Rev. L. & Soc. Change 103 (2012) ....................... 10

Emil Guillermo, Disney Desegregates Sikh

Employee After Civil Rights Groups

Intervene, NBC News (Jul. 13, 2015,

11:52 AM),

https://tinyurl.com/nbc071315 ............................... 9

vii

Eugene Volokh, The EEOC, Religious

Accommodation Claims, and Muslims,

Wash. Post (June 21, 2016, 4:39 PM),

https://tinyurl.com/washpost062116 ................... 16

Letter of Interpretation for Respiratory

Protection Standard from Kimberly A.

Stille, Acting Director, Directorate of

Enforcement Programs, OSHA, to

Amrith Kaur Aakre, Legal Director, The

Sikh Coalition (Dec. 16, 2021),

https://tinyurl.com/osha121621 ........................... 12

Press Release, CAIR, CAIR Files EEOC

Complaint Over Southwest Airlines

Denial of Prayer Rights, Wrongful

Termination of Maryland Muslim

Worker (Feb. 14, 2023, 2:01 PM),

https://tinyurl.com/cair021423............................. 20

Press Release, EEOC, EEOC Sues Global

Medical Response and American Medical

Response for Religious and Disability

Discrimination (Oct. 26, 2022),

https://tinyurl.com/eeoc102622 ............................ 13

R. Singh et al., Under-Mask Beard Cover

(Singh Thattha Technique) for Donning

Respirator Masks in COVID-19 Patient

Care, 106 J. Hosp. Infection 782 (2020),

https://tinyurl.com/ncbi100320 ............................ 12

viii

Religious Freedom and Accommodation:

Hearing on Assemb. B. 1964 Before the

Assemb. Comm. on the Judiciary, 2011–

12 Reg. Sess. (Cal. 2012),

https://tinyurl.com/leginfo2012 ............................ 23

S. Prince, et al., Assessing the Effect of

Beard Hair Lengths on Face Masks Used

as Personal Protective Equipment During

the COVID-19 Pandemic, 31 J. Exposure

Sci. Env’t Epidemiology 953 (2021),

https://tinyurl.com/nature051821 ........................ 12

Stephen Losey, Air Force Officially OKs

Beards, Turbans, Hijabs for Religious

Reasons, Air Force Times (Feb. 11, 2020),

https://tinyurl.com/airforcetimes021120 ............. 23

Tanner Bean, “To the Person”: RFRA’s

Blueprint for a Sustainable Exemption

Regime, 2019 BYU L. Rev. 1 (2019) .................... 15

Update: Sikh Medical Professionals and

PPE, The Sikh Coalition (May 13, 2020),

https://tinyurl.com/sikhcoalition051320 .. 11, 12, 13

Written Testimony of Amrith Kaur, Legal

Director, The Sikh Coalition, Written

Testimony from the EEOC Meeting on

Workplace Civil Rights Implications of

the COVID-19 Pandemic (Apr. 28, 2021),

https://tinyurl.com/eeoc042821 ...................... 11, 12

1

──────────

INTEREST OF AMICI CURIAE 1

The Sikh Coalition is the largest communitybased Sikh civil rights organization in the United

States working to defend civil rights and liberties for

all people, empower the Sikh community, create an

environment where Sikhs can lead a dignified life

unhindered by bias or discrimination, and educate the

broader community about Sikhism. For almost two

decades, the Sikh Coalition has also led efforts to

combat and prevent discrimination against Sikhs in

the workplace, including by advocating for religious

rights. Since its inception, the Sikh Coalition has

litigated numerous cases to protect the rights of Sikhs

who have been discriminated against in both the

public and private sector workplaces including

retaliation, hostile work environments, segregation,

and the denial of religious accommodations. The Sikh

Coalition continues to work towards a world where

Sikhs may have equal access to employment and a safe

workplace environment across America.

Muslim Advocates is a national civil rights

organization litigating, educating, and advocating for

equality of all people in America regardless of their

faith background. Muslim Advocates also serves as a

legal resource for the American Muslim community,

1 Pursuant to Supreme Court Rule 37.6, amici state that no

counsel for any party authored this brief in whole or in part and

that no entity or person, aside from amici, their members, and

their counsel, made any monetary contribution toward the

preparation or submission of this brief.

2

promoting the full and meaningful participation of

Muslims in American public life.

The Islam and Religious Freedom Action

Team (IRF) of the Religious Freedom Institute

amplifies Muslim voices on religious freedom, seeks a

deeper understanding of the support for religious

freedom inside the teachings of Islam, and protects the

religious freedom of Muslims. To this end, the IRF

engages in research, education, and advocacy on core

issues including freedom from coercion in religion and

equal citizenship for people of diverse faiths. The IRF

explores and supports religious freedom by

translating resources by Muslims about religious

freedom, fostering inclusion of Muslims in religious

freedom work both where Muslims are a majority and

where they are a minority, and by partnering with the

Institute’s other teams in advocacy.

The Sur Legal Collaborative was founded to

address the need for community-based legal advocacy

at the intersection of immigrant and worker rights in

the Deep South. Sur seeks to empower immigrant and

working-class communities with the resources

necessary to advocate for their rights. Sur’s Labor

Rights Program provides representation and legal

education on workers’ rights regardless of legal status.

Legal Aid at Work (LAAW) is a San Franciscobased, nonprofit legal services organization whose

mission is to protect and expand the employment

rights of low-wage and other underrepresented

workers. In a case litigated with the EEOC in the

Northern District of California, LAAW represented an

observant Muslim woman who was fired from her job

with a national clothing retailer because she refused

3

to remove her hijab in compliance with the employer’s

“Look Policy.” EEOC v. Abercrombie & Fitch Stores,

Inc., 966 F.Supp.2d 949 (N.D. Cal. 2013). LAAW has

an interest in the instant matter in that Hardison’s

“more than de minimis” standard has limited its

ability to vindicate the rights of the communities it

represents to have their religious practices reasonably

accommodated in the workplace.

Amici are deeply concerned by the ability of

employers to discriminate against those requiring

accommodations—including discrimination in such a

manner that allows for segregation, failure to hire,

and situations creating a retaliatory or hostile work

environment—and how this workplace discrimination

disproportionately affects minority communities by

failing to provide for equal access to employment

opportunities. The issues at stake in this case relate

directly to the right of practitioners of minority faiths

in America to avail themselves of employment

opportunities on equal terms. Amici submit this brief

in support of Petitioner Gerald E. Groff in the hope

that this Court will protect the religious rights of all

Americans in the workplace.

──────────

4

SUMMARY OF ARGUMENT

Under Title VII of the Civil Rights Act of 1964,

employers are prohibited from discriminating against

employees on the basis of religion and have a duty to

reasonably accommodate an employee’s sincerely held

religious

beliefs

or

practices

unless

such

accommodation would impose an “undue hardship” on

the employer’s business. 42 U.S.C. §§ 2000e–2000e-17.

In 1977, a majority of this Court held that an

“undue hardship” exists whenever an accommodation

would require “more than a de minimis cost” to the

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

U.S. 63, 84 (1977). Hardison is undeniably incorrect,

and a growing chorus of judges and commentators—

including three current members of this Court—have

recognized that the de minimis rule has no grounding

in the statutory language of “undue hardship.” This

misreading of Title VII “effectively nullif[ied]” the

accommodation scheme Congress created to protect

religious employees. Id. at 89 (Marshall, J.,

dissenting).

More recently, this Court explained that Congress

created Title VII to extend “favored treatment” to

religious employees and “affirmatively obligat[e]

employers” to alter “otherwise-neutral policies to give

way to the need for an accommodation.” EEOC v.

Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 775

(2015). However, Hardison’s de minimis standard

offers no such protective mandate. Rather, it allows

employers to override their employees’ need for

religious accommodations for almost any perceived

cost or inconvenience, no matter how small or trivial.

5

While Hardison’s misinterpretation of Title VII

eviscerates the right to workplace accommodations for

practitioners of all faiths, it has especially damaging

effects for religious minorities. Adherents to minority

faiths more often require workplace accommodations

because their religious traditions are not already

accommodated. As Justice Marshall accurately

predicted in his dissent, the de minimis standard is

“[p]articularly troublesome” for “adherents to

minority faiths who do not observe the holy days on

which most businesses are closed,” like Sunday,

Easter, and Christmas, but instead “need time off for

their own days of religious observance.” Hardison,

432 U.S. at 85 (Marshall, J., dissenting). Further,

employees who are members of minority faiths are

more likely to wear religious clothing, like a headscarf

or turban, that conflicts with a company’s uniform

policy. See id. at 88. Because Hardison strips Title VII

of any meaningful accommodation requirement,

employees whose religious practices include a certain

appearance or attire may be forced “to give up either

the religious practice or the job.” Id.

The experiences of Muslim and Sikh employees

epitomize this struggle. Both groups have distinct

practices that may require modest accommodations in

some workplaces. Yet, pursuant to Hardison, courts

and employers have rejected Sikh and Muslim

workers’ requests for reasonable accommodations in

case after case under the de minimis rule—often

because of a speculative harm or small financial cost.

The scope of this discrimination and the burden it

places on Sikh and Muslim employees is

immeasurable; however, in many cases, it is avoidable

given the protections these employees should be

6

afforded. Far too many Muslims, Sikhs, and other

religious minorities will continue to face the “cruel

choice of surrendering their religion or their job”

unless

this

Court

corrects

Hardison’s

misinterpretation of Title VII. Id. at 87. This has been

especially true for Sikhs, Muslims, and other religious

minority groups throughout the COVID-19 pandemic.

As a result of the pandemic, many employers have put

in place updated religious accommodation policies to

address changing health and safety needs that, in

practice, do not actually make reasonable

accommodations for members of minority religious

faiths. Rather, members of these communities are too

often forced to choose between practicing their faith

and staying employed.

Reasonable

accommodations

for

religious

practices are feasible in the workplace. In fact, the

kinds of modest accommodations the de minimis

standard often denies members of minority faiths—

such as an exemption from a uniform policy; the

purchase of suitable, alternative personal protective

or other equipment; or an adjustment to the ordinary

break

schedule—are

provided

under

other

accommodation schemes, like the Americans with

Disabilities Act (ADA) of 1990 and federal and state

religious freedom restoration acts. If this Court

corrects Hardison’s error and applies the plain

language of Title VII, then these other accommodation

schemes show that employers will not be forced to

shoulder a burden greater than that which is already

imposed and afforded to other employees.

──────────

7

ARGUMENT

As shown by the experiences of Sikh and Muslim

employees, the de minimis standard causes

serious harm to adherents of minority faiths.

A. Sikh employees routinely face exclusion

from employment and segregation in the

workplace under the de minimis rule.

Sikhism is the fifth largest religion in the world,

and its followers are guided by three daily principles:

work hard and honestly, always share your bounty

with the less fortunate, and remember God in

everything you do. A Brief Introduction to the Beliefs

and Practices of the Sikhs, The Sikh Coalition (2008),

https://tinyurl.com/sikhcoalition2008.

Sikhs outwardly display their commitment to

these principles and beliefs by wearing the Kakaars,

or the five articles of faith: uncut hair, which men

cover with a turban and which women may cover with

a scarf or turban (Kesh); a small comb usually placed

within one’s hair (Kanga); soldier shorts traditionally

worn as an undergarment (Kachera); a swordlike

instrument worn with a shoulder strap (Kirpan); and

a bracelet worn on one’s wrist (Kara). Accommodating

Sikhs in the Workplace: An Employer’s Guide, The

Sikh

Coalition

(2022),

https://tinyurl.com/sikhcoalition2022.

These articles of faith sometimes require modest

workplace accommodations. But employers often deny

Sikh employees’ requests for accommodations because

of image-based objections and safety-based concerns—

which have each qualified as undue hardships under

the de minimis standard. Because the de minimis

standard is so easy to satisfy, courts have permitted

8

paltry theories of undue hardship—based on the

negative feelings of customers or other employees,

insignificant financial costs, and hypothetical

“threats” to safety—to override the religious needs of

Sikh employees. The examples below illustrate how

Hardison’s de minimis standard forces adherents of

minority faiths to choose between their religion and

their job—the “cruel choice” that Title VII was

intended to prevent. Hardison, 432 U.S. at 87

(Marshall, J., dissenting).

Image-based objections. The Sikh articles of

faith rarely, if ever, prevent Sikh employees from

performing their jobs. Instead, employers much more

often object to a Sikh employee’s appearance, which

they believe violates the company’s desired public

image and will lead to an adverse reaction by

customers. Applying Hardison, courts have said that

the risk of harm to public perception or a possible

violation of customer preference can impose more than

a de minimis cost.

For example, in EEOC v. Sambo’s of Georgia, Inc.,

a restaurant denied a Sikh man’s application for a

managerial position because his turban and beard

violated the restaurant’s grooming policy. 530 F.Supp.

86, 88 (N.D. Ga. 1981), superseded on another ground,

Civil Rights Act of 1991, Pub. L. No. 102-166, § 105,

105 Stat. 1071, 1074. The court approved this rejection

of employment because “the wearing of a beard . . . or

headwear” did “not comply with the public image that

Sambo’s ha[d] built up over the years.” Id. at 89. The

court relied on the restaurant’s belief in the public’s

“aversion to, or discomfort in dealing with, bearded

people.” Id. Thus, the possibility of an “[a]dverse

9

customer reaction” to the Sikh applicant’s appearance

imposed more than a de minimis cost on the

restaurant. Id. at 89–91.

This case illustrates how the de minimis standard

can lead to a segregated workplace, which is contrary

to Title VII’s intended protections. Under Hardison,

a request for an accommodation can be overridden by

“nothing more than an appeal to customer preference.”

Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 136

(1st Cir. 2004) (quoting Sambo’s, 530 F.Supp. at 91).

Thus, the visible presence of Sikhs (or other employees

whose faith informs their appearance) can “be an

undue hardship because it would adversely affect the

employer’s public image.” Id. Under the de minimis

standard, it is quite simple for an employer to show it

is “too costly” for Sikhs to be seen in the workplace.

And so Sikh employees are all too often sent to work

where they are hidden from the public eye.

Such workplace segregation was upheld in Birdi

v. UAL Corp., where a district court concluded that it

was reasonable for an airline to fire a Sikh ticket agent

who wore a turban after he refused to move to a

position where customers could not see him. No. 99 C

5576, 2002 WL 471999, at *1 (N.D. Ill. Mar. 26, 2002).

More recently, Walt Disney Parks and Resorts

segregated a Sikh employee for seven years (until the

Sikh Coalition intervened) because his turban and

beard violated the company’s “Look Policy.” Emil

Guillermo, Disney Desegregates Sikh Employee After

Civil Rights Groups Intervene, NBC News (Jul. 13,

2015, 11:52 AM), https://tinyurl.com/nbc071315.

Such a dynamic—where perceived public bias can

relegate practitioners of minority faiths to less

10

desirable or visible positions—causes real harm.

“Segregated positions isolate a person; limit that

person’s ability to interact with co-workers,

customers, and the public at large; and validate public

or employer bias as to who is worthy of representing a

company.” Dawinder S. Sidhu, Out of Sight, Out of

Legal Recourse: Interpreting and Revising Title VII to

Prohibit Workplace Segregation Based on Religion, 36

N.Y.U. Rev. L. & Soc. Change 103, 125 (2012).

Further, if there is no out-of-view position available,

members of minority faiths like Sikhism may be

excluded from employment entirely. See id.

Safety-based concerns. Employers frequently

deny Sikh workers accommodations because of safety

concerns. While actual risks of danger to health or

well-being could amount to an undue hardship, the de

minimis standard sets the bar too low and allows

employers to deny religious accommodations because

of incorrect perceptions of danger, a biased

interpretation of policies, or because safe alternatives

are deemed to be more expensive.

To be sure, correctly interpreting Title VII does

not demand an unsafe workplace. But the de minimis

standard imposes such a low threshold for denying an

exemption that employers have almost no incentive to

develop safe alternative processes or purchase safe

alternative equipment if doing so would impose any

meaningful cost. As a result, Title VII rarely requires

accommodations for safety protocols, even when safe

11

and affordable alternatives are available or possible. 2

This practical reality leads to serious barriers for

Sikhs seeking employment—especially in sectors that

typically use safety equipment, like construction,

emergency services, law enforcement, or medicine.

As an example, Sikh healthcare professionals

during the early stages of the COVID-19 pandemic

struggled under Hardison’s de minimis standard. See

Update: Sikh Medical Professionals and PPE, The

Sikh

Coalition

(May

13,

2020),

https://tinyurl.com/sikhcoalition051320. A significant

challenge resulted from an interpretation of

regulations issued by the Centers for Disease Control

(CDC) and Occupational Safety and Health

Administration (OSHA) on the wearing of certain

types of Personal Protective Equipment (PPE), such as

the N95 respirator, by bearded people. See Written

Testimony of Amrith Kaur, Legal Director, The Sikh

Coalition, Written Testimony from the EEOC Meeting

on Workplace Civil Rights Implications of the

2 The paltry de minimis standard emboldens employers to deny

accommodations imposing no costs at all. For example, a trucking

company denied Sikh applicants employment for declining to give

hair samples for a drug test (a violation of the commandment to

maintain unshorn hair), even though urine and nail tests were

also available; it took eight years to settle the case. See Dan

Weikel, Sikh Truck Drivers Reach Accord in Religious

Discrimination Case Involving a Major Shipping Company, L.A.

Times

(Nov.

15,

2016,

6:10

PM),

https://tinyurl.com/latimes111516. Similarly, it required years of

litigation in federal court for a national automotive parts retailer

to grant a Sikh employee a minor accommodation of wearing a

turban and kara (bracelet). See AutoZone Settles Religious

Discrimination Suit with Winthrop Man, WBUR News (Apr. 3,

2012), https://tinyurl.com/wbur040312.

12

COVID-19

Pandemic

(Apr.

28,

2021),

https://tinyurl.com/eeoc042821. While both the CDC

and OSHA regulations require certain employees to be

fitted for N95 respirators prior to being able to wear

them in the workplace, neither agency’s regulations

allow individuals to be fit tested if they have any

amount of facial hair coming between the face and the

seal of the mask/respirator. Id.; see 29 C.F.R.

§ 1910.134(g)(1)(i)(A) (2021) (OSHA’s Respiratory

Protection Standard). This posed a problem because

medical professionals are often required to wear PPE

to prevent the virus’s spread and many are required to

use the low-cost N95 mask. See Written Testimony of

Amrith Kaur, supra.

However, some employers continue to disallow

male healthcare workers, corrections officers, and

others with religiously mandated facial hair from

working because they cannot properly wear N95

masks, even though reasonable alternatives and

workable solutions exist. For example, powered air

purifying respirators and controlled air purifying

respirators or beard-bands 3 work just as well as N95s,

but may cost more, and thus may be found to impose

more than a de minimis burden on employers to

provide. See Sikh Medical Professionals and PPE,

supra; see also Letter of Interpretation for Respiratory

Protection Standard from Kimberly A. Stille, Acting

See R. Singh, et al., Under-Mask Beard Cover (Singh Thattha

Technique) for Donning Respirator Masks in COVID-19 Patient Care,

106 J. Hosp. Infection 782 (2020), https://tinyurl.com/ncbi100320;

S. Prince et al., Assessing the Effect of Beard Hair Lengths on Face

Masks Used as Personal Protective Equipment During the COVID-19

Pandemic, 31 J. Exposure Sci. Env’t Epidemiology 953 (2021),

https://tinyurl.com/nature051821.

3

13

Director, Directorate of Enforcement Programs,

OSHA, to Amrith Kaur Aakre, Legal Director, The

Sikh

Coalition

(Dec.

16,

2021),

https://tinyurl.com/osha121621 (acknowledging that

loose-fitting powered air-purifying respirators are

effective for workers with facial hair). As a result,

employers have threatened Sikh doctors, nurses,

technicians, and corrections officers with suspension

or termination if they refuse to violate their faith by

shaving or cutting their hair. Sikh Medical

Professionals and PPE, supra; 4 see also Bhatia v.

Chevron U.S.A., Inc., 734 F.2d 1382, 1383–84 (9th Cir.

1984) (affirming summary judgment for employer who

refused to exempt a Sikh employee from the

requirement that all machinists be clean-shaven,

where the policy was based on the necessity of being

4 In October 2022, the EEOC sued several emergency transport

companies for failing to accommodate first responders with

beards for religious reasons. See Press Release, EEOC, EEOC

Sues Global Medical Response and American Medical Response

for Religious and Disability Discrimination (Oct. 26, 2022),

https://tinyurl.com/eeoc102622. Since at least December 2018,

applicants and employees in the Emergency Medical Technician

(EMT) and paramedic positions requested accommodations from

the emergency transport companies to be allowed to wear facial

hair due to their religious beliefs. Id. These employers have a “no

facial hair” policy for their EMTs and paramedics related to their

wearing of respirators that the employers contend will not fit

properly if the employee has facial hair. Id. However, these

employers denied the applicants and employees the use of a

respirator that would have allowed them to maintain their facial

hair and perform their jobs safely. Id. As a result of this denial of

accommodations to these first responders, some were forced to

shave in violation of their religious beliefs to keep their jobs,

while those who would not shave or complained their rights were

being violated due to the companies’ policy were fired. Id.

14

able to wear a respirator with a gas-tight face seal due

to potential exposure to toxic gases); Kalsi v. N.Y.C.

Transit Auth., 62 F.Supp.2d 745, 760 (E.D.N.Y. 1998)

(affirming summary judgment for employer after

concluding that a turban created an undue hardship

because it prevented wearing a hard hat during

hazardous work), aff’d, 189 F.3d 461 (2d Cir. 1999).

Other Sikh articles of faith have also caused

safety-based concerns, with a common example

involving the kirpan, which is the Sikh article of faith

resembling a knife or sword that obligates a Sikh to

uphold justice for all people. Many kirpans are not

dangerous (usually, they are not sharp and are kept in

a tight sheath under a Sikh’s shirt). Yet employers

have mistakenly viewed them as illegal weapons or

unsafe (even when other objects found in the

workplace are objectively as or more dangerous). And

courts have found that the perceived risk of danger

amounts to more than a de minimis burden.

For instance, in 2013, the Fifth Circuit held that

permitting a Sikh federal employee to wear a threeinch, dulled kirpan to her job at the Internal Revenue

Service was an undue hardship. Tagore v. United

States, 735 F.3d 324, 329–30 (5th Cir. 2013). Even

though her kirpan was indisputably safe because it

was dull, the court held it still would be more than a

de minimis cost to ask security “to ascertain whether

a blade is sharp or dull” every day when the employee

came to work. Id. at 330. The court disregarded the

Sikh employee’s testimony that other objects in her

workplace—like scissors and box cutters—were

objectively more dangerous than her small, dull

kirpan. See id. at 326. To add insult to injury, the

15

government even had a security protocol for allowing

kirpans pursuant to applicable Religious Freedom

Restoration Act statutes 5 permitting an employee to

carry one—Title VII’s de minimis standard was just

too weak to require the accommodation. See id. at 331.

In sum, the de minimis standard eliminates any

meaningful mandate to accommodate Sikh practices

in the workplace and forces Sikh workers to choose

between their livelihood and their faith.

B. Muslim employees are routinely denied

accommodations for trivial reasons

under Hardison’s de minimis standard.

Many Muslims believe that their faith requires

them to engage in certain practices. Observances

include praying five times a day at set times (Salat),

attending weekly congregational worship on Fridays

(Jum’ah), fasting from dawn to sunset for a month

each year (Ramadan), and observing two annual days

of festivity (Eid). An Employer’s Guide to Islamic

5 Religious freedom statutes, found at the federal level and in

twenty-one states, offer an example of a more demanding, yet

workable, religious accommodation scheme. See Tanner Bean,

“To the Person”: RFRA’s Blueprint for a Sustainable Exemption

Regime, 2019 BYU L. Rev. 1, 2 n.4 (2019). Most resemble the

Religious Freedom Restoration Act (RFRA) of 1993, which

mandates that the federal government cannot “substantially

burden a person’s exercise of religion” unless the burden “is in

furtherance of a compelling governmental interest” and “is the

least restrictive means of furthering that compelling

governmental interest.” 42 U.S.C. § 2000bb-1(a), (b). Under such

schemes, the federal government (and state governments in

states with RFRA statutes) must “accommodate the exercise of

actual religious convictions” of religious individuals. Werner v.

McCotter, 49 F.3d 1476, 1479 n.1 (10th Cir. 1995).

16

Religious Practices, Council on American-Islamic

Relations (2005), https://tinyurl.com/cair2005. Islam

prescribes that both men and women dress modestly.

Many Muslim men wear beards for religious reasons,

and some wear a small head covering called a kufi. Id.

Likewise, many Muslim women wear a head covering,

such as a hijab, while some others may cover their

face. See id.

Like Sikhs, some observant Muslims also display

commitment to their religious principles in an

outwardly visible manner, which results in Muslim

employees similarly being vulnerable to workplace

discrimination. When applying Hardison, courts

routinely allow employers to deny workplace

accommodations for these Islamic religious practices.

Astonishingly, while Muslim Americans comprise just

1% of the U.S. population, from 2009 to 2015, Muslim

workers submitted 19.6% of all EEOC complaints, and

26% of EEOC lawsuits were brought on behalf of

Muslim employees. Eugene Volokh, The EEOC,

Religious Accommodation Claims, and Muslims,

Wash.

Post

(June

21,

2016,

4:39

PM),

https://tinyurl.com/washpost062116.

Because the de minimis standard is so easy to

satisfy, courts have permitted tenuous theories of

undue hardship to override the religious needs of

Muslim employees. Some of these theories have been

based on the negative feelings of customers or other

employees, trivial financial cost to the employer, or

hypothetical “threats” to safety. The examples below

show how the de minimis standard fails to achieve

Title

VII’s

goal

of

eradicating

workplace

17

discrimination and, instead, can lead to unfair (and

sometimes outrageous) results for Muslim employees.

Impact on customers or other employees.

Under the de minimis standard, negative reactions of

customers or other employees to the appearance of

Muslim employees can amount to an undue hardship.

See Webb v. City of Philadelphia, 562 F.3d 256, 260 (3d

Cir. 2009) (“Both economic and non-economic costs can

pose an undue hardship upon employers . . . .”).

For instance, in United States v. Board of

Education for School District of Philadelphia, a

Muslim public school teacher was denied a teaching

assignment on the basis of an 1895 “Pennsylvania

Garb Statute” that was enacted with the objective of

preserving an “atmosphere of religious neutrality” in

the public school system. 911 F.2d 882, 885, 890 (3d

Cir. 1990). The Third Circuit rejected the teacher’s

Title VII claim on the ground that requiring the school

board to accommodate her would constitute an undue

hardship. Id. at 890–91.

As another example, in Camara v. Epps Air

Service, Inc., an employer denied a Muslim woman’s

request to wear a hijab while employed as a customer

service representative and then fired her when she

insisted on adhering to her faith. 292 F.Supp.3d 1314,

1318–19 (N.D. Ga. 2017). The district court approved

this termination after the employer argued that the

hijab “did not project the image he sought for his

company” and that customers may have “negative

reactions” when seeing a woman in a hijab. Id. at

1319. The court ruled that allowing the hijab could

have harmed the “image” the company sought “to

present to the public” and might have cost the

18

company “business if some customers [went]

elsewhere.” Id. at 1331–32. The court reasoned that

such possible costs were “more than de minimis” and

therefore ruled against the Muslim employee. Id. at

1332. Thus, the de minimis standard led to possible

customer perceptions, even those potentially rooted in

animus, overriding the employee’s obligation to don a

hijab.

The current rule also permits employers to deny

an accommodation if it might impact the “morale” of

other employees. For instance, in 2018, a district court

denied Muslim employees’ request for a meal break

that coincided with sunset during Ramadan, finding

that the possible effect on employee morale was more

than a de minimis cost. See EEOC v. JBS USA, LLC,

339 F.Supp.3d 1135, 1182 (D. Colo. 2018). The court

relied, in part, on testimony that moving the break

“hurt non-Muslim employee morale because many

employees prefer[red] a late break.” Id. at 1181. And

the change could have hurt morale if employees

became “more tired and hungry” because of the earlier

break—even though the Muslim employees had

nothing to eat or drink all day due to their religious

observance. Id.

Similarly, another district court ruled that

altering Muslim employees’ break schedule to allow

for their daily prayer imposed more than a de minimis

cost, in part because the “extra breaks could have a

negative impact on employee morale.” EEOC v. JBS

USA, LLC, No. 10CV318, 2013 WL 6621026, at *19 (D.

Neb. Oct. 11, 2013). In these cases, the de minimis

standard allowed the hypothetical impact on the

“morale” of non-Muslim workers to override Muslim

19

employees’ requests for a reasonable accommodation,

without regard for the Muslim employees’ own

“morale” or religious obligations.

Minor financial costs to employers. Under

Hardison, even large, well-financed employers can

avoid paying overtime or incurring minimal costs to

provide religious accommodations. Instead, the

burden is shifted to Muslim employees to incur the

immense cost of either surrendering their religious

practices or their employment.

To illustrate, in El-Amin v. First Transit, Inc., a

district court ruled it an undue hardship to provide an

alternative training time to a Muslim employee who

had missed trainings to attend prayer. No. 04-CV-72,

2005 WL 1118175, at *6–8 (S.D. Ohio May 11, 2005).

Despite the employee suggesting that the large

company retain the trainer at another time to

accommodate his religious needs, the court reasoned

that requiring the company to pay overtime was more

than a de minimis cost—thus sanctioning the Muslim

employee’s termination. Id. at *8.

Similarly, in Abdelwahab v. Jackson State

University, a district court rejected a Muslim

employee’s request that his employer arrange for

another employee to cover plaintiff’s midnight shift to

allow him his obligatory nightly worship. No.

09CV41TSL–JCS, 2010 WL 384416, at *2 (S.D. Miss.

Jan. 27, 2010). The court held that Title VII required

no accommodation because the logistics of identifying

another available employee and the possibility of

overtime pay imposed more than de minimis cost. Id.

These cases illustrate how the de minimis

standard emboldens employers to deny reasonable

20

accommodation requests in order to save money. In a

more recent example, the Council on AmericanIslamic Relations (CAIR) has alleged that Southwest

Airlines refused to allow a Muslim ramp agent to

attend obligatory Friday prayers and then terminated

his employment rather than allowing him to work a

different shift. Press Release, CAIR, CAIR Files

EEOC Complaint Over Southwest Airlines Denial of

Prayer Rights, Wrongful Termination of Maryland

Muslim Worker (Feb. 14, 2023, 2:01 PM),

https://tinyurl.com/cair021423.

Unfounded or hypothetical threats to safety.

An accommodation imposes an undue hardship if it

would put others in harm’s way. Unfortunately,

religious practices and customs of minority faiths may

appear “threatening” to the unfamiliar, which has

resulted in courts finding essentially any degree of

hypothetical risk imposes more than a de minimis

cost. While perhaps faithful to Hardison, that narrow

view of religious freedom in the workplace is

irreconcilable with Title VII and allows unspoken bias

to taint an employer’s decision-making.

Consider the example of EEOC v. GEO Group,

Inc., where the Third Circuit held that accommodating

several Muslim female employees’ need to wear head

coverings at a private prison posed the chance of

danger and thus imposed more than a de minimis cost

on the employer. 616 F.3d 265, 267, 274–75 (3d Cir.

2010). Even though the employees had worn head

coverings without issue before, the prison claimed the

head coverings posed various hypothetical risks: they

could cast a shadow on the employee’s face or could be

used to smuggle contraband or strangle someone. Id.

21

at 267–68, 272, 274. While the Third Circuit observed

that this was a “close case,” it reasoned that, even if

the head coverings posed “only a small threat of the

asserted dangers,” allowing Muslim employees to

wear them imposed more than a de minimis cost on

the prison. Id. at 274–75; accord Parker v. Ark. Dep’t

of Corr., No. 05CV00850, 2006 WL 8445187, at *8

(E.D. Ark. Apr. 26, 2006) (declining to accommodate a

correctional officer’s hijab that may “potentially create

a safety risk” (citation omitted)).

C. The accommodations denied to Muslim

and Sikh employees under Title VII are

available in other contexts.

The denial of Muslim and Sikh employees’

common requests for religious accommodations in the

workplace under Title VII is especially unfair and

anomalous because other statutes routinely grant the

same or similar accommodations in other contexts.

As an example, while Muslim employees often do

not receive alternative break schedules that allow fast

breaking or their daily prayer, the ADA regularly

requires altered break schedules. See, e.g.,

Kaganovich v. McDonough, 547 F.Supp.3d 248, 270

n.7 (E.D.N.Y. 2021) (noting that breaks are a

recognized form of reasonable accommodation for

diabetic employees); see also Bracey v. Mich. Bell Tel.

Co., No. 14-12155, 2015 WL 9434496, at *2, *6 (E.D.

Mich. Dec. 24, 2015) (providing an altered break

schedule for employee with irritable bowel syndrome).

Likewise, although Title VII does not currently

require

healthcare

organizations

and

other

workplaces that similarly require the wear of masks

and respirators to purchase more costly respirators for

22

their Sikh professionals, the ADA mandates

meaningful expenditures to allow disabled employees’

inclusion in the workplace. See Searls v. Johns

Hopkins Hosp., 158 F.Supp.3d 427, 438–39 (D. Md.

2016) (ruling that an accommodation costing $120,000

was not undue hardship when hospital’s budget was

$1.7 billion); McGregor v. United Healthcare Servs.,

Inc., No. H-09-2340, 2010 WL 3082293, at *10 (S.D.

Tex. Aug. 6, 2010) (ruling that an expenditure of

$2,375 to install automated door openers was not an

undue hardship).

Moreover, while some adult Sikh employees

cannot bring their kirpans, which resemble a knife, to

work due to “safety concerns,” the RFRA has

permitted even Sikh children to bring their kirpans to

school. Cheema v. Thompson, 67 F.3d 883, 885–86 (9th

Cir. 1995). 6 And while Sikhs regularly are denied

accommodations for beards and head coverings that

violate a company’s uniform policy, RFRA suits

compelled the United States Marine Corps to

accommodate Sikhs during bootcamp and the United

States Army to alter its thirty-year policy of banning

beards and adopt regulations that allowed service

members to wear religious turbans, unshorn hair, and

beards if their faith so requires. See Singh v. Berger,

6 Although Cheema was decided before this Court limited the

federal RFRA to federal government action, its analysis still

applies to states with their own state-level RFRA. See State v.

Hardesty, 214 P.3d 1004, 1007 (Ariz. 2009) (citing Cheema when

applying Arizona’s Free Exercise of Religion Act).

23

No. 22-5234 (D.C. Dec. 23, 2022) 7, see also Singh v.

Carter, 168 F.Supp.3d 216, 233–34 (D.D.C. 2016); Ben

Kesling, Army Eases Uniform Regulations to Allow

More Religious Exemptions, Wall St. J. (Jan. 6, 2017,

2:22 PM), https://tinyurl.com/wsj010617; Stephen

Losey, Air Force Officially OKs Beards, Turbans,

Hijabs for Religious Reasons, Air Force Times (Feb.

11, 2020), https://tinyurl.com/airforcetimes021120.

A related statute, the Religious Land Use and

Institutionalized Persons Act (RLUIPA), requires

faith-based accommodation even in prisons—a place

where safety concerns are at their zenith. See

42 U.S.C. § 2000cc-1(a). For instance, eight years ago,

this Court held that a Muslim prisoner’s beard must

be accommodated despite the State’s undisputed

“compelling interest in prison safety and security”

because the prison grooming policy was not narrowly

tailored to the government’s safety interest. Holt v.

Hobbs, 574 U.S. 352, 361–69 (2015).

These other religious accommodation schemes do

not only exist on the federal level. For instance, the

California Workplace Religious Freedom Act of 2012

clarified that protected religious observance includes

wearing religious clothing and hairstyles, and that

these practices are entitled to reasonable

accommodation at work, although not in a manner

that would impose undue hardship on employers. See

Cal. Gov’t Code § 12926(q) (West 2018). The act also

specifies that segregation is not a reasonable

accommodation. See Religious Freedom and

7 Brad Dress, Appeals Court Rules Sikh Recruits Can Keep

Beards at Marine Boot Camp, The Hill (Dec. 26, 2022, 3:01 PM),

https://tinyurl.com/hill122622.

24

Accommodation: Hearing on Assemb. B. 1964 Before

the Assemb. Comm. on the Judiciary, 2011–12 Reg.

Sess. 2 (Cal. 2012), https://tinyurl.com/leginfo2012.

As these examples illustrate, greater religious

protections for adherents to minority religions are

possible without imposing unworkable burdens on

employers.

──────────

25

CONCLUSION

For the foregoing reasons, this Court should

reverse the judgment of the Court of Appeals.

Respectfully submitted,

HORVITZ & LEVY LLP

JONATHAN Z. MORRIS

Counsel of Record

SCOTT P. DIXLER

3601 W. OLIVE AVENUE

8TH FLOOR

BURBANK, CA 91505

(818) 995-0800

jmorris@horvitzlevy.com

THE SIKH COALITION

AMRITH KAUR AAKRE

MARISSA ROSSETTI

165 BROADWAY STREET

SUITE 2539

NEW YORK, NY 10006

SUR LEGAL COLLABORATIVE

SHELLEY ANAND

P.O. BOX 1606

DECATUR, GA 30031

HORVITZ & LEVY LLP

JEREMY B. ROSEN

505 SANSOME STREET

SUITE 375

SAN FRANCISCO, CA 94111

MUSLIM ADVOCATES

STEPHANIE CORREA

P.O. BOX 34440

WASHINGTON, D.C. 20043

LEGAL AID AT WORK

CHRISTOPHER HO

ALEXIS ALVAREZ

180 MONTGOMERY STREET

SUITE 600

SAN FRANCISCO, CA 94104

Counsel for Amici Curiae

The Sikh Coalition, Muslim Advocates, The Islam and

Religious Freedom Action Team, Sur Legal Collaborative,

and Legal Aid at Work

February 28, 2023