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 OF AMICUS CURIAE

OVER 400 PHYSICIANS, SURGEONS, NURSES,

AND MEDICAL PROFESSIONALS WHO

SUPPORT RELIGIOUS LIBERTY

IN SUPPORT OF PETITIONER

__________________

ERIN ELIZABETH MERSINO

Counsel of Record

RICHARD THOMPSON

THOMAS MORE LAW CENTER

24 Frank Lloyd Wright Drive

P.O. Box 393

Ann Arbor, MI 48105

(734) 827-2001

emersino@thomasmore.org

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

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

STATEMENT OF IDENTITY AND INTERESTS

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

BACKGROUND........................................................... 3

SUMMARY OF THE ARGUMENT ............................ 7

ARGUMENT ................................................................ 9

I.

Hardison’s “De Minimis” Test is a

Frankenstein Created by the Judiciary, Not

the Result of Title VII’s Statutory

Construction .......................................................... 9

II. Hardison’s De Minimis Cost Test Degrades

the Principles of Religious Liberty That

Congress Sought to Protect by Amending

Title VII, It Endangers Religious Pluralism,

and It Yields Unjust Outcomes .......................... 12

CONCLUSION .......................................................... 15

ii

TABLE OF AUTHORITIES

Cases

Am. Legion v. Am. Humanist Ass'n,

139 S. Ct. 2067 (2019) ............................................ 12

Bostock v. Clayton Cty., Georgia,

140 S. Ct. 1731 (2020) .......................................... 7, 9

Brown v. F.L. Roberts & Co.,

419 F. Supp. 2d 7 (D. Mass. 2006)......................... 14

Crider v. Univ. of Tenn.,

492 Fed. Appx. 609 (6th Cir. 2012) ....................... 14

Dewey v. Reynolds Metals Co.,

429 F.2d 324 (6th Cir. 1970), aff'd,

402 U.S. 689 (1971) .................................... 4, 5, 6, 11

EEOC v. Univ. of Detroit,

904 F.2d 331 (6th Cir. 1990) .................................. 14

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

135 S. Ct. 2028 (2015) ............................................ 14

Groff v. Dejoy,

35 F.4th 162 (3d Cir. 2022) .................................... 14

Kennedy v. Bremerton Sch. Dist.,

991 F.3d 1004 (9th Cir. 2021), rev'd,

142 S. Ct. 2407 (2022) ............................................ 14

iii

Patterson v. Walgreen Co.,

140 S. Ct. 685 (2020) .............................................. 11

Peterson v. Hewlett-Packard Co.,

358 F.3d 599 (9th Cir. 2004) .................................. 14

Riley v. Bendix Corp.,

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

464 F.2d 1113 (5th Cir. 1972) .................... 4, 5, 6, 11

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) ........................................... 3, 6-15

Turpen v. Missouri K. T. R. Co.,

736 F.2d 1022 (5th Cir. 1984) ................................ 14

West Virginia Bd. of Ed. v. Barnette,

319 US 624 (1943) .................................................. 12

Wilshin v. Allstate Ins. Co.,

212 F. Supp. 2d 1360 (M.D. Ga. 2002) .................. 14

Wisconsin Dep't of Revenue v. William Wrigley, Jr.,

Co., 505 U.S. 214 (1992)......................................... 12

Statutes

28 U.S.C. § 1869(j) ..................................................... 11

29 U.S.C. § 207(r)(3) .................................................. 11

38 U.S.C. § 4303(15) .................................................. 11

42 U.S.C. § 2000e(j) ............................................... 4, 13

iv

42 U.S.C. § 2000e-2(a)(1) ............................................. 3

42 U.S.C. § 2000e-2(a)(2) ............................................. 3

42 U.S.C. § 12112(b)(5)(A) ......................................... 11

42 U.S.C. § 12112(b)(5)(A)(10) .................................. 11

118 Cong. Rec. 705 (1972) ................................. 4, 6, 13

Other Authorities

Black’s Law Dictionary (4th ed. 1968) ...................... 10

Karen Engle, The Persistence of Neutrality: The

Failure of the Religious Accommodation

Provision To Redeem Title VII, 76 Tx. L. REV.

317 (1997) ............................................................... 13

Michael W. McConnell, Accommodation of

Religion: An Update and a Response to the

Critics, 60 Geo. Wash. L. Rev. 685 (1992) ............. 13

The American Heritage Dictionary of the English

Language (1969)..................................................... 10

1

STATEMENT OF IDENTITY

AND INTERESTS OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Amicus

Curiae, Over 400 Physicians, Surgeons, Nurses, and

Medical Professionals Who Support Religious

Liberty, submits this brief. 1 Amicus Curiae is an

organization devoted to medical decisions only being

made within the bounds of the Constitution, its

principles which are protected by federal statutes,

and based upon reliable scientific and medical

evidence. Amicus Curiae cares deeply about the impact

of employers improperly punishing and usurping an

individual’s control over his/her sincerely held

religious beliefs and moral convictions and his/her

decisions grounded upon those beliefs and convictions.

Indeed, the physicians, surgeons, nurses, and

medical professionals have faced the loss of their

careers, unpaid suspensions from work, and the

denial of religious exemptions—not based on the

sincerity of their religious convictions or any real

impact on their workplace, but due to categorical

denials of any religious exemptions at their places of

work and unfair discriminatory practices. Many

support their families with their paychecks and fear

if they will be able to earn a living due to being

publicly ostracized by their government and their

employers for following their sincerely held religious

1 Pursuant to this Court’s Rule 37.6, counsel for Amicus Curiae

certifies that this brief was not authored in whole or in part by

counsel for any party and that no person or entity other than

Amicus Curiae’s counsel has made a monetary contribution to

the preparation or submission of this brief.

2

convictions. Many have experienced their employers

sharing confidential medical information with their

co-workers.

Many have faced rigorous and

inappropriate questioning and insults from their

employers regarding their religious beliefs. Some

have even been denied religious accommodations

when they work remotely, without any effect on coworkers. All have faced unjust persecution.

Amicus Curiae has personally felt the backlash of

draconian employer mandates. The ongoing debate

regarding how sincere religious objections to COVID19 policies should be treated has exacerbated the

discrimination and hardship Amicus Curiae have

faced and continue to face. It has also revealed how

hostile some Americans can be toward minority

religious beliefs and religious beliefs to which they

disagree. Ironically, it is Amicus Curiae’s religious

beliefs that drew them to careers of service in the

medical field and inspire them to care for sick

individuals despite the potential risk doing so could

pose to themselves and their families. Amicus Curiae

is concerned by the ongoing irreparable harm to the

healthcare field by forcing physicians, surgeons,

nurses, and medical professionals to work in and

undergo conditions that violate their religious

conscience. Amicus Curiae believes that decisions

regarding one’s adherence to his/her religious tenets

should not be defined by the demands or bullying of

their employer but should be informed by the bounds

of one’s religious conscience.

Amicus Curiae has undergone rigorous schooling,

boards, residencies, and have significant debt to pay

3

for their schooling. Yet, due to forced employer

mandates, they have faced the inability to earn an

income. Amicus Curiae oppose the punishment of

individuals due to exercising one’s sincerely held

religious beliefs. Doing so minimizes the importance

of religious liberty and welcomes religious

discrimination. Indeed, Amicus has experienced this

firsthand and is living it presently.

Amicus Curiae files this brief to encourage this

Honorable Court to not justify the legal fiction

created by Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977)—which ultra vires abated the

“undue hardship” standard of Title VII, causing

unjust, and at times even absurdly hostile treatment

of religious exercise in the workplace. The holding in

Hardison was wrong when it was decided, it is still

wrong over forty years later, and, undoubtedly, it

continues to catalyze religious discrimination for not

just Amicus Curiae and the Petitioner, but for all

privately employed people of faith.

BACKGROUND

Title VII of the Civil Rights Act of 1964 deems it

“unlawful . . . for an employer to fail or refuse to hire

or to discharge any individual, or otherwise to

discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1), (2). In 1972, Congress broadened Title VII’s

definition of religion to protect “all aspects of

religious observance and practice, as well as belief,

4

unless an employer demonstrates that he is unable to

reasonably accommodate to an employee’s or

prospective employee’s religious observance or

practice without undue hardship on the conduct of

the employer’s business.” Pub. L. No. 92-261, § 2, 86

Stat. 103, 103 (codified as amended at 42 U.S.C.

§ 2000e(j)). The 1972 amendment issued a legislative

response to the courts, which Congress believed had

curtailed the religious exercise of employees too far in

two recent decisions. See 118 Cong. Rec. 705-06

(1972) (citing that Dewey v. Reynolds Metals Co., 429

F.2d 324 (6th Cir. 1970), aff’d, 402 U.S. 689 (1971)

and Riley v. Bendix Corp., 330 F. Supp. 583 (M.D.

Fla. 1971), rev’d, 464 F.2d 1113 (5th Cir. 1972)

“clouded”

the

understanding

of

religious

discrimination).

In Dewey, the plaintiff alleged

wrongful discharge and sought reinstatement and

backpay. 429 F.2d at 327. As part of his collective

bargaining agreement, plaintiff was required to work

overtime on Sunday or find another qualified worker

to do so. Id. at 327-28. Plaintiff asserted that his

religious beliefs prevented him from working on

Sundays as it was his Sabbath, and he could also not

participate in others working on the Sabbath by

requesting that his co-workers cover his shift. Id.

Plaintiff’s employer eventually discharged him for

non-compliance with his overtime work obligations.

Id. at 328. And although the Sixth Circuit found that

the plaintiff did not work on Sundays “because of his

religious beliefs,” it held that the employer’s failure

to accommodate the plaintiff’s religious exercise did

not violate Title VII. A divided Court upheld the

Sixth Circuit’s decision. 402 U.S. 689.

5

In Riley, the plaintiff was a Seventh Day

Adventist who held religious beliefs forbidding him

from working after sundown on Friday until

sundown on Saturday. 330 F. Supp. 583, 584 (M.D.

Fla. 1971). After working for six months without

issue, the defendant re-scheduled plaintiff to work

Fridays after sun-down. Id. Plaintiff advised his

employer of his religious objections and was informed

that company policy required him to work during this

time. Id. After leaving during his shifts to observe

this tenet of his faith, plaintiff’s employer fired him

for insubordination. Id. The District Court applied

the holding in Dewey and reached the same outcome,

but by the time the Fifth Circuit heard the appeal

Congress had passed the 1972 Amendment. 464 F.2d

1113, 1116-18 (5th Cir. 1972). The Fifth Circuit,

citing to Senator Randolph who sponsored the

amendment, stated that “it was designed to resolve

the issue left open by the equal division of” this Court

in Dewey. Riley, 464 F.2d at 1116. The amendment

aimed to clarify that “[f]ailure to make [a religious]

accommodation would be unlawful unless an

employer can demonstrate that he cannot reasonably

accommodate such beliefs, practices, or observances

without undue hardship on the conduct of his

business.” Id. at 1117. Senator Randolph espoused:

The term “religion” as used in the Civil Rights

Act of 1964 encompasses, as I understand it,

the same concepts as are included in the first

amendment—not merely belief, but also

conduct; the freedom to believe, and also the

freedom to act. I think in the Civil Rights Act

we thus intended to protect the same rights in

6

private employment as the Constitution

protects

in

Federal,

State,

or

local

governments.

118 Cong. Rec. 705 (1972).

The amendment

sought to protect First Amendment liberty and

passed unanimously in the Senate and similarly in

the House. Riley, 464 F.2d at 1117. “Title VII

require[d] religious accommodation, even though

unequal treatment would result.” Hardison, 432 U.S.

at 89 (Marshall, J., dissenting). But a mere five

years later, this Court reverted to “the Dewey

decision in direct contravention of congressional

intent.” Hardison, 432 U.S. at 91 (Marshall, J.,

dissenting).

Larry Hardison worked at the Trans World

Airlines (TWA) maintenance base in Kansas City,

Missouri. Id. at 66. Like the plaintiffs in Riley and

Dewey, Hardison had signed a collective bargaining

agreement. Id. at 67. TWA’s agreement required

scheduling be based on employee seniority and

recognized that TWA’s base needed manpower

twenty-four hours a day, seven days a week. Id.

Hardison’s

faith

required

a

scheduling

accommodation—his Sabbath began at sunset on

Friday and lasted through sunset on Saturday. Id.

Hardison agreed to work holidays in exchange for

having Saturdays off for the Sabbath. Id. at 67-68.

However, when Hardison’s employment switched to a

different building that worked day shifts, he worked

with more experienced employees who had more

seniority, and TWA was no longer able to

accommodate his religious beliefs due to its seniority-

7

based scheduling policy. Id. at 68. In reaching its

holding, this Court stated that while Senator

Randolph generally sought for the 1972 amendment

“to assure that religious discrimination in the

employment of workers is for all time guaranteed by

law, . . . he made no attempt to define the precise

circumstances

under

which

the

‘reasonable

accommodation’ requirement would be applied.” Id.

at 74-75. Then, toward the end of its opinion, this

Court determined that “[t]o require TWA to bear

more than a de minimis cost in order to give

Hardison Saturdays off is an undue hardship.” Id. at

84. The standard adopted by the Court is not in the

text of Title VII, nor was it advocated for by either

TWA or Hardison. It is nothing more than an

anomaly. In his scathing dissent, Justice Marshall

characterized majority’s opinion in Hardison as

“def[ying] both reason and common sense.” Id. at 91

(Marshall, J., dissenting). And Hardison has not

improved with the passage of time.

SUMMARY OF THE ARGUMENT

This Amicus Curiae brief addresses two reasons

why Hardison’s “de minimis” test should be

overruled.

First, the test bears no relationship to the text of

Title VII. Under this Court’s analysis in Bostock,

Title VII’s terms are to be construed in context with

their plain meaning at the time it was amended in

1972. Bostock v. Clayton Cty., Georgia, 140 S. Ct.

1731, 1738 (2020). Accordingly, the term “undue

hardship” would not have been understood to have

8

meant “de minimis cost.” Furthermore, no other

statutory scheme interprets the “undue burden”

standard in a capacity that renders it as meaningless

as in Hardison. There is no viable method of

statutory analysis that supports the creation of

Hardison’s de minimis test. The test is a judicially

constructed legal fiction that is inapposite to the text,

meaning, and purpose of Title VII.

Second, Hardison’s “de minimis” cost standard

has proven detrimental to the exercise of religious

liberty. It runs counter to the principle at the heart

of the First Amendment—the preservation of

religious pluralism. Congress, when amending Title

VII in 1972, sought to preserve First Amendment

freedoms and expand employer accommodations of

religious exercise. To the contrary, Title VII under

Hardison has allowed employers to discriminate

against religious individuals without requiring

employers to make any real attempt to accommodate

religion in the workplace. The “de minimis” cost

standard negates the statutory requirement of

showing an undue hardship and has been used by the

courts to perpetuate religious discrimination in the

workplace. Employees are left with no recourse.

In sum, the “de minimis” cost standard has no

basis in law, enables religious discrimination in the

workplace, and should be abandoned.

9

ARGUMENT

I.

Hardison’s “De Minimis” Test is a

Frankenstein Created by the Judiciary, Not

the Result of Title VII’s Statutory

Construction.

In Mary Shelley’s Frankenstein, she describes the

origin of Dr. Frankenstein’s creature as assembled

from old body parts and strange chemicals, animated

by a mysterious spark. This could also characterize

the origin of Hardison’s “de minimis” test. The test is

not derived from Title VII, defies traditional

notations of statutory interpretation, and seems to

appear at the end of the Hardison decision with an

impromptu spark, almost like the scientific myths of

spontaneous generation.

The origin of Hardison’s “de minimis costs” seems

as much open for debate as it is prone to intense

criticism. The test directly conflicts with the words of

Title VII. In Bostock, this Court affirmed that a

statute must be construed “in accord with the

ordinary public meaning of its terms at the time of its

enactment.” Bostock v. Clayton Cty., Georgia, 140 S.

Ct. 1731, 1738 (2020). This is because “only the

words on the page constitute the law adopted by

Congress and approved by the President.” Id. By

deviating from the original meaning of the words in a

statute, judges risk engaging themselves in the

legislative process by deviating from Congress’

meaning and intent. Id. In Title VII, Congress did

not define the term “undue hardship,” therefore the

term must be interpreted according to its ordinary

10

meaning when Congress amended Title VII in 1972.

Id. At that time, Black’s Law Dictionary defined de

minimis as “very small or trifling,” even comparable

to “a fractional part of a penny.” Black’s Law

Dictionary 482 (4th ed. 1968). The definition of “de

minimis” stands in stark opposition to the meaning of

“undue hardship. Hardison, 432 U.S. at 92 n.6

(Marshall, J., dissenting) (“I seriously question

whether simple English usage permits ‘undue

hardship’ to be interpreted to mean ‘more than de

minimis cost.’”). Indeed, a dictionary available in

1972 would have defined “hardship” as “suffering” or

“a thing hard to bear.” The American Heritage

Dictionary of the English Language 601 (1969). And

“undue” meant “exceeding what is appropriate or

normal . . . excessive.” Id. at 1398. Therefore, the

understood definition of “undue hardship” would

mean something more along the lines of “excessively”

“hard to bear.” Id. at 601, 1398. The plain meaning

of Title VII’s “undue hardship” is inapposite of

Hardison’s holding, which only requires an employer

to undergo a cost so miniscule as to have no legal

importance. In Hardison, this Court held that the

monetary

impact

of

offering

a

religious

accommodation that would cost TWA $150 met this

low burden, even though TWA was one of the largest

airlines in the world at the time. 432 U.S. at 92, n. 6

(Marshall, J., dissenting).

For Petitioner Groff, the Respondent claims

accommodating Sundays would create “more than a

de minimis cost on USPS because it actually imposed

on his coworkers, disrupted the workplace and

workflow, and diminished employee morale at both

11

the Holtwood Post Office and the Lancaster Annex

hub.” Pet. App. at 24a. Yet, Respondent was not

required to prove these claims by providing evidence.

Pet. App. at 30a n. 4. The lower court also held that

providing an accommodation would violate the

USPS’s seniority-based scheduling policy. Pet. App.

at 56a, 58a-59a. In sum, the lower courts treated the

“undue hardship” requirement in Title VII as if it did

not exist and issued decisions mirroring Dewey and

Riley which pre-date the 1972 amendment. Justice

Marshall was correct to opine that Hardison’s de

minimis standard “effectively nullif[ies]” the purpose

of Title VII’s 1972 amendment. 432 U.S. at 88-89

(Marshall, J., dissenting).

In no other context, other than under the guise of

the protection of religious liberty in Title VII, is the

“undue

hardship”

standard

translated

so

meaninglessly.

After Hardison, Congress has

defined the term “undue hardship” to mean “an

action requiring significant difficulty or expense,” 42

U.S.C.

§

12112(b)(5)(A),

(10),

“extreme

inconvenience,” 28 U.S.C. § 1869(j), and “significant

difficulty or expense,” 29 U.S.C. § 207(r)(3), see also

38 U.S.C. § 4303(15).

Given the Hardison Court’s definition of “undue

hardship”, one might even ask why Congress would

have bothered to amend Title VII if its intent were

only to protect religious exercise in the event it did

not impose a de minimis burden on an employer. The

most reasonable answer is: it did not. See Patterson

v. Walgreen Co., 140 S. Ct. 685, 686 (2020) (Alito, J.,

joined by Thomas and Gorsuch, JJ., concurring in the

12

denial of certiorari). Congress is not in the practice

of amending federal statutes to address de minimis

costs. Wisconsin Dep’t of Revenue v. William Wrigley,

Jr., Co., 505 U.S. 214, 231 (1992) (“de minimis non

curat lex (‘the law cares not for trifles’) is part of the

established background of legal principles against

which all enactments are adopted, and which all

enactments (absent contrary indication) are deemed

to accept.”).

There is no indication in the words of Title VII, in

its legislative history, or in comparable statutes that

Congress intended Title VII to be bound by

Hardison’s de minimis cost standard. Hardison was

decided wrongly and should be overruled.

II. Hardison’s De Minimis Cost Test Degrades

the Principles of Religious Liberty That

Congress Sought to Protect by Amending

Title VII, It Endangers Religious Pluralism,

and It Yields Unjust Outcomes.

One of the hallmarks of the human condition in

America is religious pluralism.

The First

Amendment guarantees that “no official, high or

petty, can prescribe what shall be orthodox in”

matters of religious faith and exercise. West Virginia

Bd. of Ed. v. Barnette, 319 US 624, 642 (1943). There

is truly “much to admire” about “respect and

tolerance for differing views, an honest endeavor to

achieve inclusivity and nondiscrimination, and a

recognition of the important role that religion

plays in the lives of many Americans.” Am. Legion v.

Am. Humanist Ass’n, 139 S. Ct. 2067, 2094 (2019)

13

(Kagan, J., concurring) (quoting majority opinion at

2088). Our laws are at their best when interpreted

with “sensitivity to and respect for this Nation’s

pluralism, and the values of . . . inclusion that the

First Amendment demands.” Id. at 2094 (Kagan, J.,

concurring).

Congress sought to continue the

inheritance of First Amendment pluralism by

amending Title VII in 1972. 42 U.S.C. § 2000e(j); 118

Cong. Rec. 705 (1972). The 1972 amendment was

meant to codify religious accommodation for faithful

employees to celebrate the Sabbath. In Hardison,

however, the Supreme Court “seriously eroded”

Congress’s efforts to protect “one of this Nation’s

pillars of strength” which is “our hospitality to

religious diversity.” Hardison, 432 U.S. at 97

(Marshall, J., dissenting).

The Hardison Court’s narrow interpretation of

undue hardship has made it exceptionally difficult

for an employee of faith to prevail on a religious

discrimination claim. See, e.g., Karen Engle, The

Persistence of Neutrality: The Failure of the Religious

Accommodation Provision To Redeem Title VII, 76

Tx. L. REV. 317, 386 (1997). And it has hurt

employees who practice minority religions more than

those who celebrate “holy days on which most

businesses are closed.” Hardison, 432 U.S. at 85

(Marshall, J., dissenting); see also Michael W.

McConnell, Accommodation of Religion: An Update

and a Response to the Critics, 60 Geo. Wash. L. Rev.

685, 693, 721–22 (1992).

14

At times, this Court has departed from Hardison

and required accommodation under Title VII in the

face of unjust discrimination.

See EEOC. v.

Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028,

2034 (2015) (stating that Title VII does not simply

preserve neutrality but “give[s] way to the need for

an accommodation.”). But other times, Title VII has

resulted in the untenable choice: violate your

sincerely held religious beliefs or exit the workforce. 2

2 See, e.g., Groff v. Dejoy, 35 F.4th 162 (3d Cir. 2022) (finding the

employer would have endured undue hardship by changing the

employees’ schedules to accommodate Petitioner’s observance of

the Sabbath); Brown v. F.L. Roberts & Co., 419 F. Supp. 2d 7 (D.

Mass. 2006) (employer did not violate Title VII by requiring an

employee, who could not shave his beard for religious reasons,

to work only as a mechanic in the lower bay to minimize his

contact with customers); Kennedy v. Bremerton Sch. Dist., 991

F.3d 1004 (9th Cir. 2021), rev’d, 142 S. Ct. 2407 (2022) (holding

that a football coach’s Title VII failure to accommodate claim

against school district failed because allowing the coach to pray

on the 50-yard line immediately following a game, in full view of

students and spectators, would violate the Establishment

Clause, and therefore, the school district could not reasonably

accommodate the coach’s religious exercise without undue

hardship); EEOC v. Univ. of Detroit, 904 F.2d 331, 332–33 (6th

Cir. 1990) (discussing accommodation for employee to abstain

from funding a union that used his money to campaign for

abortion rights); Peterson v. Hewlett-Packard Co., 358 F.3d 599

(9th Cir. 2004) (holding it would have been an undue hardship

to allow an employee to post a biblical verse in his cubical);

Crider v. Univ. of Tenn., 492 Fed. Appx. 609 (6th Cir. 2012)

(discussing termination of plaintiff because she could not work

on Saturdays due to the Sabbath); Wilshin v. Allstate Ins. Co.,

212 F. Supp. 2d 1360 (M.D. Ga. 2002) (employer did not need to

give employee choice among accommodations, nor was employer

required to demonstrate that alternative accommodations

proposed by employee would have entailed undue hardship);

Turpen v. Missouri K. T. R. Co., 736 F.2d 1022 (5th Cir. 1984)

15

Title VII was never meant to be construed in that

way. Justice Marshall’s objurgation was correct.

Hardison “deals a fatal blow to all efforts under Title

VII to accommodate work requirements to religious

practices. . .. As a question of social policy, [Hardison]

is deeply troubling, for a society that truly values

religious pluralism cannot compel adherents of

minority religions to make the cruel choice of

surrendering their religion or their job. And as a

matter of law [it] is intolerable.” 432 U.S. at 86-87

(Marshall, J., dissenting).

CONCLUSION

Hardison’s de minimus cost standard has been

wrong for decades. Time and time again, the holding

in Hardison has required employees to choose

between following their sincerely held religious

beliefs or earning a livelihood. It is time to overrule

Hardison. “All Americans will be a little poorer until

[the] decision is erased.” 432 U.S. at 97 (Marshall, J.,

dissenting).

(allowing employers to prioritize seniority-based scheduling

over religious based accommodation).

16

Respectfully submitted,

THOMAS MORE LAW CENTER

ERIN ELIZABETH MERSINO

Counsel of Record

RICHARD THOMPSON

24 Frank Lloyd Wright Drive

P.O. Box 393

Ann Arbor, MI 48105

(734) 827-2001

emersino@thomasmore.org

Counsel for Amicus Curiae Over

400 Physicians, Surgeons, Nurses,

and Medical Professionals Who

Support Religious Liberty