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,

v.

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

FOUNDERS’ FIRST FREEDOM, INC.

IN SUPPORT OF PETITIONER

————

MICHAEL D. PEABODY

FOUNDERS’ FIRST FREEDOM

PO Box 571302

Tarzana, CA 91357

(866) 213-7333

mpeabody@

foundersfirstfreedom.org

WALTER E. CARSON

Counsel of Record

16141 Ed Warfield Rd

Woodbine, MD 21797

(301) 455-8114

wcarson@columbiaunion.net

Counsel for Amicus Curiae

February 28, 2023

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

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

ii

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

1

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

1

ARGUMENT ........................................................

2

I. Why This Court Should Reject Hardison’s

“More-Than-De-Minimis-Cost” Test in

Title VII religious Accommodation Cases

and Restore the Meaning of “Undue

Hardship” That Congress Intended............

2

II. If Employers Could establish “Undue

Hardship” Under Title VII Merely By

Showing That the Requested Accommodation May Inconvenience The Religious

Employee’s Co-Workers, It Would Enshrine

the Very Forms of Discrimination Title

VII Was Meant To Alleviate .....................

9

CONCLUSION ....................................................

11

(i)

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Dewey v. Reynolds Metal Co.,

429 F.2d 324 (6th Cir. 1970) affirmed

by an equally divided Court,

402 U.S. 689 (1971) ...................................

4

Riley v. Bendix Corp.

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

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

4

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) ...................... 2, 3, 5-7, 10, 11

CONSTITUTION

U.S. Const. amend. I .................................... 1, 10

STATUTES AND REGULATIONS

Title VII of the Civil Rights Act of 1964,

§ 701(j), 42 U.S.C. § 2000e(j) ....... 1-4, 6, 7, 9, 10

29 C.F.R. § 1605.1 (1967) .............................

3

29 C.F.R. § 1605.1 (1968) ............................. 3, 10

OTHER AUTHORITIES

De minimis, Black’s Law Dictionary (4th

ed. 1968) ....................................................

6

“Enforcement Guidance on Reasonable

Accommodation and Undue Hardship

under the ADA,” EEOC-CVG-2003-1

(10/17/2017), available at https://www.

eeoc.gov/laws/ guidance/enforcementguidance-reason able-accommodationand-undue-hardship-under-ada ...............

7

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Hardship, Random House Dictionary of the

English Language (1968) ..........................

6

James Cleith Phillips, Ordinary Meaning

as Last Resort: The Meaning of ‘Undue

Hardship’ in Title VII (February 18, 2023),

available at https://papers.ssrn.com/sol3/

papers.cfm?abstract_id=4363032 .............

6

Statement of Eleanor Holmes Norton,

Chair Hearings before the United States

Equal Employment Opportunity Commission (EEOC) on Religious Accommodation:

Hearings Held in New York, NY, Los

Angeles, CA, and Milwaukee, WI, AprilMay 1978. Washington, D.C.: United

States Equal Employment Opportunity

Commission, 1978 .....................................

7

Statement of Sen. Jennings Randolph, 118

Cong. Rec. 705-06 (1972) ..........................

5

Undue, Random House Dictionary of the

English Language (1968) ..........................

6

INTEREST OF AMICUS CURIAE

FOUNDERS’ FIRST FREEDOM1

Founders’ First Freedom, Inc. is a 501(c)(3) nonprofit

organization incorporated in 2005 that upholds liberty

of conscience and freedom from religious discrimination. The organization and its board members have

long advocated for a reasonable and consistent religious

accommodation standard at the federal and state level

throughout the nation in Congress, state legislatures,

and in the courts.

Founders’ First Freedom is the successor organization to the Council on Religious Freedom, a nonpartisan, nonprofit national advocacy group formed in

1986 to advocate for protecting and preserving the

Free Exercise and Establishment Clauses of the U.S.

Constitution.

SUMMARY OF ARGUMENT

Title VII of the Civil Rights Act of 1964 requires

employers to “reasonably accommodate” an employee’s

religious observance or practice unless the accommodation imposes an “undue hardship” on the employer.

42 U.S.C. § 2000e(j) incorporated into the Civil Rights

of 1964 in 1972.

In the words of the statute, “The term ‘religion’

includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates

that he is unable to reasonably accommodate to an

employee’s or prospective employee’s religious observance

1

No counsel for a party authored this brief, in whole or in part.

No counsel or a party made a monetary contribution intended to

fund the preparation or submission of this brief. No other person

has made such a monetary contribution.

2

or practice without undue hardship on the conduct of

the employer’s business.” Id.

Although Congress intended to bolster the rights

of employees to religious accommodation, the words

“undue hardship” were so diminished in the dicta of

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

(1977) as to render the protection useless in several

judicial circuits. The Hardison Court wrote that Title

VII does not require any kind of accommodation of an

employee’s religious practice if doing so would impose

more than a de minimis burden. Congress did not

intend that religious accommodation be turned into a

mere intellectual exercise.

We request that this Court reconsider the meaning

of the term “undue hardship” in Title VII and bring its

jurisprudence into line with the clear meaning and

intent of the language of the statute.

We also ask that the Court reject the notion that an

employer may ignore Title VII accommodation requests

merely by claiming the requested accommodation

causes an “undue hardship,” on co-workers rather

than the business itself.

ARGUMENT

I. Why This Court Should Reject Hardison’s

“More-Than-De-Minimis-Cost” Test in

Title VII religious Accommodation Cases

and Restore the Meaning of “Undue

Hardship” That Congress Intended

The Court’s 1977 decision in Trans World Airlines v.

Hardison, 432 U.S. 63 (1977) sent shockwaves through

religious communities across the United States as

people of faith learned that employers no longer had to

3

accommodate their religious practices so long as the

employer could claim that they would bear a “de

minimis cost” to accommodate them.

In his dissent, Thurgood Marshall wrote, “Today’s

decision deals a fatal blow to all efforts under Title VII

to accommodate work requirements to religious

practices.” 432 U.S. 63, 86.

At the time, Title VII of the Civil Rights Act of 1964

was the freshly minted cornerstone of American civil

liberties, giving intention and teeth to the promise

that all people “are created equal.” It prohibited

discrimination based on race, color, sex, religion, or

national origin.

But, Congress had not included specific language

requiring accommodation of religious beliefs and

practices, rather than identity or affiliation. So

employers began to refuse to accommodate religious

practices, concluding that these accommodations

amounted to “discrimination” against non-religious

employees.

In 1967, the Equal Employment Opportunity

Commission (EEOC) Guidelines declared that an

employer had an obligation under the statute to

accommodate religious needs “where such accommodation can be made without serious inconvenience to

the conduct of the business.” 29 C.F.R. § 1605.1 (1967).

The next year, the EEOC amended the guidelines to

change the term “serious inconvenience” to a more

stringent “undue hardship” standard, which “may

exist where another employee of substantially similar

qualifications cannot perform the employee’s required

work during the period of absence of the Sabbath

keeper.” 29 C.F.R. § 1605.1 (1968) [codifying the 1967

Guidelines].

4

Despite the clarity of the accommodation requirement, the courts disregarded the Guidelines. For

instance, in Dewey v. Reynolds Metal Co., 429 F.2d 324

(6th Cir. 1970) affirmed by an equally divided Court,

402 U.S. 689 (1971), the Supreme Court affirmed a

Sixth Circuit decision that failure to accommodate an

employee’s religious observance differed from religious

discrimination and even questioned whether the

EEOC could issue such guidelines. Id. at 331 n.1.

Workplace religious accommodation rights continued to slip in 1972 when the Fifth Circuit reasoned

that religious accommodation is an impossibility and

applied this rationale against a Seventh-day Adventist

who was terminated for insubordination when he

refused to work on his Sabbath. See Riley v. Bendix

Corp. 330 F. Supp. 583 (M.D. Fla. 1971), rev’d, 464

F.2d 1113 (5th Cir. 1972). The Riley court wrote, “If

one accepts a position knowing that it may in some

way impinge upon his religious beliefs, he must

conform to the working conditions of his employer or

seek other employment.” Id. at 590.

In 1972, Congress realized that the courts were

ignoring the 1967 EEOC Guidelines and that rights

for accommodation needed to be strengthened. So

Congress amended the Civil Rights Act of 1964 to

incorporate an affirmative duty to accommodate religious practice. Under § 2000e(j), designated § 701(j) of

the Civil Rights Act of 1964, Congress added language

stating, “[t]he term ‘religion’ includes all aspects of

religious observance and practice, as well as belief

unless an employer demonstrates that he is unable to

reasonably accommodate . . . an employee’s or

prospective employee’s religious observance or prac-

5

tice without undue hardship on the conduct of the

employer’s business.”

When he introduced the 1972 legislation, Senator

Jennings Randolph explained its purpose, “Unfortunately, the courts have, in a sense, come down on both

sides of this issue. The Supreme Court of the United

States, in a case involving the observance of the

Sabbath and job discrimination, divided evenly on this

question. This amendment is intended, in good purpose, to resolve by legislation – and in a way I think

was originally intended by the Civil Rights Act – that

which the courts have apparently not resolved.” 118

Cong. Rec. 705-06 (1972).

Despite the 1972 legislation, some employers continued to seek ways to avoid accommodating employees’

religious practices. In 1977, the case of Trans World

Airlines v. Hardison, 432 U.S. 63 (1977) reached the

United States Supreme Court. It involved a Worldwide

Church of God member who was terminated for

insubordination for refusing to violate his religious

beliefs and work on his Sabbath. Although the

employer had been willing for him to swap shifts, the

labor union did not approve the accommodation because

it would ostensibly violate a collective bargaining

agreement provision.

But although Congress now included the arguably

stronger term “undue hardship” language, the Hardison

Court, in dicta, redefined “undue hardship” to the

point where it all but disappeared. The message from

the Court was that no matter what Congress or the

EEOC did to shore up accommodation requirements,

if an employer were required to bear any inconvenience greater than a de minimis cost in providing an

accommodation, it would constitute an undue hardship,

id. at 84.

6

The Petitioner’s brief cites the “ordinary meaning”

method of determining what “undue hardship” means.

It observes that, according to The Random House

Dictionary of the English Language, p. 602, “undue”

means “unwarranted,” “excessive,” “unjustifiable,” or

“improper. “Hardship” means “a condition that is

difficult to endure,” “suffering,” or “something hard to

bear.” Id.

It also notes that Black’s Law Dictionary 482 (4th

ed. 1968) defines “de minimis” as involving “very small

or trifling matters” that “[t]he law does not concern

itself” about.

Yet Congress did not leave the definition of “undue

hardship” to the writers of dictionaries. Instead, as

James Cleith Phillips points out in his paper, “Ordinary

Meaning as Last Resort: The Meaning of “Undue

Hardship” in Title VII” (February 18, 2023). SSRN:

https://ssrn.com/abstract=43563032) and, as noted in

Petitioner’s brief filed in this matter that ‘Congress

has typically defined undue hardship throughout the

U.S. Code according to its plain meaning,’ in the

Americans with Disabilities Act (1990), the Uniformed

Services Employment and Reemployment Rights Act

(1994), and the Affordable Care Act (2010).” Id. at 28

(quoting No. 22-174, available at https://www.supreme

court.gov/DocketPDF/22/22-174/234280/20220823143

151190_Groff%20Cert%20Petition.pdf).

Congress has not created a multiple-tier structure

where the term “undue hardship” means dramatically

different things to different classes that enjoy

protection under Title VII. The EEOC has been clear

about its meaning, the only divergence being the dicta

of Hardison.

7

“De minimis” cost or expense means the opposite of

“undue hardship,” yet, since 1977, many good employees

who have sought religious accommodations have held

so tightly to their religious convictions that they have

walked away from their livelihoods or been fired,

knowing that their financial well-being was placed in

jeopardy because their employers relying on Hardison

dicta found “very small or trifling” reasons to refuse

their requests for an accommodation.

After the sweeping Hardison decision, many employers believed they were now relieved of any affirmative

duty to accommodate religious beliefs under §2000e(j),

a situation that the EEOC addressed in a series

of meetings held across the United States in 1978.

Hearings before the United States Equal Employment

Opportunity Commission (EEOC) on Religious Accommodation: Hearings Held in New York, NY, Los

Angeles, CA, and Milwaukee, WI, April-May 1978.

Washington, D.C.: United States Equal Employment

Opportunity Commission, 1978, p.2 (statement of

commissioner Eleanor Holmes Norton, Chair).

While the term “undue hardship” no longer had

substantive meaning when it came to religious

accommodation post-Hardison, it still maintains its

traditional meaning in other contexts. For example

the EEOC promulgates a very workable and reasonable “undue hardship” definition and standard in

its “Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA”

https://www.eeoc.gov/laws/guidance/enforcement-guid

ance-reasonable-accommodation-and-undue-hardshipunder-ada EEOC-CVG-2003-1 issued 10/17/2017. It

states while “[a]n employer does not have to provide

a reasonable accommodation that would cause an

‘undue hardship’ to the employer. Generalized conclu-

8

sions will not suffice to support a claim of undue

hardship. Instead, undue hardship must be based on

an individualized assessment of current circumstances

that show that a specific reasonable accommodation

would cause significant difficulty or expense.” These

particular EEOC Guidelines state:

“A determination of undue hardship should

be based on several factors, including:

• The nature and cost of the accommodation

needed;

• The overall financial resources of the

facility making the reasonable accommodation; the number of persons employed at

this facility; the effect on expenses and

resources of the facility;

• the overall financial resources, size, number of employees, and type and location of

facilities of the employer (if the facility

involved in the reasonable accommodation

is part of a larger entity);

• the type of operation of the employer,

including the structure and functions of

the workforce, the geographic separateness, and the administrative or fiscal

relationship of the facility involved in

making the accommodation to the employer;

• the impact of the accommodation on the

operation of the facility

These EEOC Guidelines provide a template that considers whether an individual accommodation proposal

causes significant difficulty or expense, considering

the individual circumstances that employers and their

employees face. Should these Guidelines be applied to

9

religious accommodation situations, this method would

provide a workable, consistent, and defensible rubric

for employers who seek to determine whether a religious

accommodation request can be granted. Such an

approach would be consistent with the Congressional

intent in religious accommodation settings; and would

certainly be preferred to the disastrous de minimis

standard of Hardison.

II. If Employers Could establish “Undue

Hardship” Under Title VII Merely By

Showing That the Requested Accommodation May Inconvenience The Religious

Employee’s Co-Workers, It Would Enshrine

the Very Forms of Discrimination Title VII

Was Meant To Alleviate

In many cases, co-workers may feel a burden when

an employer thoughtfully evaluates a situation and

determines that a religious accommodation is possible.

It is easy to understand the frustration that coworkers may feel when their religious co-workers are

granted a desirable Title VII scheduling accommodation consistent with their sincerely held religious beliefs.

But if non-religious co-workers’ dissatisfaction with

a religious employee’s lawfully asserted and awarded

Title VII accommodation were enough to render the

accommodation unavailable, it would increase the

very forms of discrimination that Title VII was meant

to alleviate. An employer’s good faith effort to provide

religious accommodation would be redefined as

discrimination against non-religious employees.

This claim of reverse discrimination is not novel.

Soon after Title VII was implemented in 1964,

employers who did not wish to accommodate religious

employees tried to argue that providing accommoda-

10

tion was equivalent to discriminating against nonreligious employees. The EEOC observed this and

issued Guidelines in 1966 that made it clear that

employers should attempt to accommodate “where

such accommodation can be made without serious

inconvenience to the conduct of the business.” It then

changed the term “serious inconvenience” to “undue

hardship,” which “may exist where the employee’s

required work cannot be performed by another employee of substantially similar qualifications during

the period of absence of the Sabbath keeper.” 29 C.F.R.

§ 1605.1 (1968).

Then Congress itself, fully aware of the employer’s

claims that non-religious employees could make a

claim for reverse discrimination, incorporated the

original undue hardship language in its 1972

amendment to the Civil Rights Act in § 2000e(j).

To draw an analogy from the First Amendment

speech field, affording non-religious employees the

right to claim discrimination when religious employees

were accommodated would create a kind of heckler’s

or co-employee’s veto, and Title VII would be rendered

nearly useless as to religious practices.

If the “de minimis” standard of Hardison were to

survive, and this Court accepted burdens on coworkers as equivalent to those on the employer’s

business, then a “de minimis” burden to a co-worker

would be enough to scrap the required religious

accommodation. This outcome would open the employer

who attempted to provide a Title VII accommodation

to a new string of lawsuits from non-religious coworkers.

11

CONCLUSION

America is enriched by its tradition and diversity of

faith. Since 1977, many people of faith have been

routinely denied employment opportunities or been

forced to resign or be terminated because employers

have refused to make reasonable attempts to accommodate their religious beliefs, relying on a cursory

conclusion that such an accommodation need not

require more than a “de minimis” cost.

As Justice Marshall observed in Hardison, “The

ultimate tragedy is that despite Congress’ best efforts,

one of this nation’s pillars of strength – our hospitality

to religious diversity – has been seriously eroded. All

Americans will be a little poorer until today’s decision

is erased.” 423 U.S. 63, 97.

The Court now has an opportunity to correct this

error and restore Congress’ original intent that an

employer must provide an accommodation “unless an

employer demonstrates that he is unable to reasonably accommodate . . . an employee’s or prospective

employee’s religious observance or practice without

undue hardship on the conduct of the employer’s

business.”

Respectfully submitted,

MICHAEL D. PEABODY

FOUNDERS’ FIRST FREEDOM

PO Box 571302

Tarzana, CA 91357

(866) 213-7333

mpeabody@

foundersfirstfreedom.org

WALTER E. CARSON

Counsel of Record

16141 Ed Warfield Rd

Woodbine, MD 21797

(301) 455-8114

wcarson@columbiaunion.net

Counsel for Amicus Curiae

February 28, 2023