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,

UNITED STATES POSTAL SERVICE,

Respondent.

__________

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

__________

BRIEF AMICI CURIAE OF FORMER EEOC

GENERAL COUNSEL AND TITLE VII

RELIGIOUS ACCOMMODATION EXPERT

IN SUPPORT OF PETITIONER

__________

RACHEL N. MORRISON

Counsel of Record

ETHICS & PUBLIC POLICY CENTER

1730 M Street, N.W., Suite 910

Washington, D.C. 20036

(202) 682-1200

rmorrison@eppc.org

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

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

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

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

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

I.

Title VII provides vital religious

accommodation protections. ...........................3

II.

Title VII requires a higher standard than

Hardison’s more than a de minimis cost

standard.........................................................10

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

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Ansonia Bd. of Educ. v. Philbrook,

479 U.S. 60 (1986) .......................................... 5, 6, 7

Bostock v. Clayton Cnty.,

140 S. Ct. 1731 (2020) .......................................... 15

Equal Emp’t Opportunity Comm’n v.

Abercrombie & Fitch Stores, Inc.,

575 U.S. 768 (2015) ............................................ 4, 5

Equal Emp’t Opportunity Comm’n v.

Walmart Stores E., L.P.,

992 F.3d 656 (7th Cir. 2021) ................................ 14

Patterson v. Walgreen Co.,

140 S. Ct. 685 (2020) ............................................ 13

Small v. Memphis Light, Gas & Water,

141 S. Ct. 1227 (2021) .......................................... 13

Small v. Memphis Light, Gas & Water,

952 F.3d 821 (6th Cir. 2020) ........................... 13-14

Thomas v. Review Bd. of Ind. Emp’t Sec. Div.,

450 U.S. 707 (1981) ................................................ 4

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) ........................................ passim

United States v. Seeger,

380 U.S. 163 (1965) ................................................ 4

iii

Welsh v. United States,

398 U.S. 333 (1970) ................................................ 4

Statutes

29 U.S.C. § 207 (1938) ............................................... 12

38 U.S.C. § 4303 (1958) ............................................. 12

42 U.S.C. § 2000e ............................................. 2, 3, 5, 8

42 U.S.C. § 2000e-2 ................................................. 3, 4

42 U.S.C. § 2000e-16 ................................................... 4

42 U.S.C. § 12101 ................................................. 11-12

42 U.S.C. § 12111 ...................................................... 12

42 U.S.C. § 12112 ...................................................... 12

Consolidated Appropriations Act, 2023, Pub. L.

No. 117-328, div. II, 136 Stat. 4459 (2022) ......... 12

Regulations

EEOC Guidelines on Discrimination

Because of Religion, 29 C.F.R. § 1605.1 ................ 4

EEOC Guidelines on Discrimination

Because of Religion, 29 C.F.R. § 1605.2 ...... passim

Other Authorities

18 Oxford English Dictionary 1010 (2d ed.

1989) ..................................................................... 11

iv

American Heritage Dictionary of the English

Language (1969) ................................................... 11

Black’s Law Dictionary (Rev. 4th ed. 1968) ............. 11

EEOC, Commission Votes: December 2019,

https://www.eeoc.gov/commission-votesdecember-2019...................................................... 13

EEOC, Compliance Manual: Religious

Discrimination § 12 (2021) .......................... passim

EEOC, Religious Discrimination in Employment:

General Counsel Listening Sessions Final

Report (Jan. 2021) ................................................ 14

H.R. Rep. No. 101-485(II) (1990) .............................. 12

S. Rep. No. 101-116 (1989) ........................................ 12

U.S. Amicus Br., Trans World Airlines, Inc.

v. Hardison, 432 U.S. 63 (1977) (No. 751126) ....................................................................... 8

U.S. Amicus Br., Patterson v. Walgreen Co.,

140 S. Ct. 685 (2020) (No. 18-349)................. 11, 13

1

INTEREST OF THE AMICI CURIAE1

Amici are former employees of the U.S. Equal Employment Opportunity Commission (EEOC) and experts in employment discrimination as it relates to

religious discrimination and accommodation. Sharon

Fast Gustafson is a former General Counsel of the

EEOC. During her tenure she established a Religious

Discrimination Work Group. She has worked to promote religious nondiscrimination and accommodation, as well as litigated these cases under Title VII

of the Civil Rights Act of 1964. Rachel Morrison was

an attorney advisor to General Counsel Gustafson at

the EEOC and a member of the General Counsel’s

Religious Discrimination Work Group, where she advised the General Counsel on religious discrimination matters. She has written and spoken as an expert on employees’ religious rights in the workplace.

Amici offer this brief to explain Title VII’s religious accommodation and undue hardship standards

and why Trans World Airlines, Inc. v. Hardison’s

“more than a de minimis cost” standard conflicts with

Title VII. Under this non-textual standard, employers will continue to feel safe to ignore religious accommodation requests, believing that they can easily

demonstrate a cost that is slightly more than de minimis; and employees of all religions, especially minority religions, will be unable to secure their vital religious protections guaranteed by Title VII.

1

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

and no person other than amici or their counsel made a monetary

contribution to fund the brief’s preparation or submission.

2

SUMMARY OF ARGUMENT

This case raises the issue of whether the “more

than a de minimis cost” standard articulated by the

Court in Trans World Airlines, Inc v. Hardison, 432

U.S. 63, 84 (1977), is the proper construction of “undue hardship” in Title VII of the Civil Rights Act of

1964, 42 U.S.C. 2000e et seq.

Under Title VII, when a workplace rule violates

an employee’s sincerely held religious belief, an employer must reasonably accommodate the employee’s

religious belief if it can do so without undue hardship

to the employer’s business. Despite Title VII’s broad

protections for religious accommodations, the Court

in Hardison “effectively nullif[ied]” those protections

by defining “undue hardship” as merely “more than a

de minimis cost.” 432 U.S. at 89 (Marshall, J., dissenting). This definition is non-textual and widely

criticized, including by Justices and judges. Under

Hardison, employers feel safe to deny religious accommodation requests, believing they can easily

demonstrate a cost that is slightly more than de minimis and judges are compelled to affirm such denials.

Without repudiation of Hardison’s non-textual

standard by the Court, Hardison will continue to effectively nullify the vital religious protections guaranteed by Title VII to Petitioner Groff and other employees, especially religious minorities, who request

religious accommodations. The Court should reverse

the Third Circuit and reject Hardison’s more than a

de minimis cost standard.

3

ARGUMENT

Petitioner Groff holds uncontested sincere religious beliefs about resting, worshiping, and not

working on his Sunday Sabbath. Pet. App.3a. His employer USPS was unsuccessful in its effort to find employees to voluntarily swap Sunday shifts. Ibid. In

accordance with his religious beliefs, Groff did not

work when he was scheduled to work on his Sunday

Sabbath. Ibid. USPS progressively disciplined Groff,

leading ultimately to this lawsuit. Ibid.

While the Third Circuit found the accommodation

unreasonable as it would not eliminate the conflict

with Groff’s religious observance, it held under Trans

World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977),

that a complete exemption from Sunday work “far

surpasses a de minimis burden.” Pet. App.22a. n.18.

Under Hardison, those whose religious beliefs prohibit them from working on one day of the week are

severely restricted in their employment opportunities.

I. Title VII provides vital religious accommodation protections.

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

2000e et seq., prohibits discrimination in the workplace on the basis of religion. Id. 2000e-2(a). By text

and by design, Congress created affirmative protections against such discrimination.

Title VII defines religion broadly to include “all

aspects of religious observance and practice, as well

as belief.” 42 U.S.C. 2000e(j). Beliefs are considered

“religious” if they are “sincerely held” and, “in the individual’s ‘own scheme of things, religious.’” EEOC,

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Compliance Manual: Religious Discrimination § 12

(2021) [hereinafter “EEOC Religion Guidance”]2

(quoting Welsh v. United States, 398 U.S. 333, 339

(1970), and United States v. Seeger, 380 U.S. 163, 185

(1965)); see also EEOC Guidelines on Discrimination

Because of Religion [hereinafter “EEOC Religion

Guidelines”], 29 C.F.R. 1605.1 (EEOC has “consistently applied” Welsh and Seeger standard to Title

VII). Title VII protects an individual’s religious beliefs regardless of whether those beliefs are common

or traditional. EEOC Religion Guidance § 12-I-A-1

(citing Thomas v. Review Bd. of Ind. Emp’t Sec. Div.,

450 U.S. 707, 714 (1981)).

Title VII forbids employers, including the federal

government, to discriminate based on religion, in hiring, promotion, discharge, “compensation, terms,

conditions, or privileges of employment.” 42 U.S.C.

2000e-2(a)(1), 2000e-16(a). Further, employers must

not “limit, segregate, or classify” employees based on

religion “in any way which would deprive or tend to

deprive any individual of employment opportunities

or otherwise adversely affect his status as an employee.” Id. 2000e-2(a)(2). Employers are prohibited

from discriminating intentionally (disparate treatment) or through policies that have a disparate impact on religious employees. See Equal Emp’t Opportunity Comm’n v. Abercrombie & Fitch Stores, Inc.,

575 U.S. 768, 771 (2015).

2

https://www.eeoc.gov/laws/guidance/section-12-religious-disc

rimination. EEOC’s religion guidance was passed by the Commission after notice and public comment. While it is not legally binding on employers, it states the EEOC’s positions and contains extensive footnotes to caselaw in support.

5

Religious accommodation requirement. In

addition to those negative proscriptions, employers

are affirmatively required to “reasonably accommodate” an employee’s religious beliefs, observances,

and practices unless the accommodation would pose

an “undue hardship on the conduct of the employer’s

business.” 42 U.S.C. 2000e(j). Absent undue hardship, an employer’s failure to reasonably accommodate religious belief constitutes unlawful discrimination. In Abercrombie, the Court held that “Title VII

requires otherwise-neutral policies to give way to the

need for an accommodation.” 575 U.S. at 775. The

Court further explained, “Title VII does not demand

mere neutrality with regard to religious practices—

that they be treated no worse than other practices.

Rather, it gives them favored treatment,” creating an

affirmative obligation on employers. Ibid.

An employee’s “sincerely held” religious objection

to a workplace policy or job duty—such as working on

the Sabbath—qualifies for a religious accommodation. EEOC Religion Guidance § 12-I-A-2 (citing Seeger, 380 U.S. at 185); id. § 12-IV; EEOC Religion

Guidelines, 29 C.F.R. 1605.2; accord Hardison, 432

U.S. at 87 (Marshall, J., dissenting) (“The accommodation issue by definition arises only when a neutral

rule of general applicability conflicts with the religious practices of a particular employee.”).

An employer is not required to provide an un-reasonable accommodation and is not necessarily required to provide the employee’s preferred accommodation. EEOC Religion Guidance § 12-IV-A-3 (citing

Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68

(1986)). For an accommodation to be reasonable, it

“must not discriminate against the employee or

6

unnecessarily disadvantage the employee’s terms,

conditions, or privileges of employment.” Ibid. (citing

Ansonia, 479 U.S. at 70). An employer’s proposed religious accommodation is not reasonable if the employer provides a more favorable accommodation to

other employees for non-religious reasons. Ibid. (citing Ansonia, 479 U.S. at 70-71).

Likewise, a religious accommodation is not reasonable “if it requires the employee to accept a reduction in pay rate or some other loss of a benefit or privilege of employment” and there is another accommodation available that would not require such a harm.

EEOC Religion Guidance § 12-IV-A-3. When there is

more than one reasonable accommodation that does

not pose an undue hardship, “the employer * * * must offer the alternative which least

disadvantages the individual with respect to his or

her employment opportunities.” EEOC Religion

Guidelines, 29 C.F.R. 1605.2(c)(2)(ii).

Employees who need religious accommodations

should generally be accommodated in their current

positions unless there is no accommodation in that

position that does not pose an undue hardship. EEOC

Religion Guidance § 12-IV-C-3 (citing EEOC Religion

Guidelines, 29 C.F.R. 1605.2(d)(iii)). Only when no

such accommodation is possible, should the employer

consider reassignment or a lateral transfer as an accommodation. Ibid. (citing EEOC Religion Guidelines, 29 C.F.R. 1605.2(d)(iii)).

Work schedule modification for Sabbath observance, the religious belief at issue in this case, is

a common religious accommodation request. Reasonable accommodations could include: (a) flexible

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scheduling, such as certain days off, early or late

start, and flexible work breaks; (b) voluntary substitutes or swaps of shifts and assignments; (c) lateral

transfers or changes in job assignment; and (d) modifying workplace practices, policies, or procedures.

EEOC Religion Guidelines, 29 C.F.R. 1605.2(d).

An accommodation that merely eliminates part of

the conflict is not reasonable, “unless eliminating the

conflict in its entirety poses an undue hardship.”

EEOC Religion Guidance § 12-IV-C-1 (citing Ansonia, 479 U.S. at 70 (referring to reasonable accommodation as one that “eliminates the conflict between

employment requirements and religious practices”)).

Compare Pet. App.4a (“Because the shift swaps

USPS offered to Groff did not eliminate the conflict

between his religious practice and his work obligations, USPS did not provide Groff a reasonable accommodation.”), with Pet. App.55a (finding USPS

“did not need to completely eliminate the conflict for

its offer of accommodation to Groff to be considered

reasonable”).

Religious accommodation process. Unless the

employer is already aware of the conflict between a

workplace requirement, policy, or practice and the

employee’s sincerely held religious belief, observance, or practice, an employee should notify the

employer of the conflict to receive a religious accommodation. EEOC Religion Guidance § 12-IV-A-1.

An employer and an employee should engage in a

“flexibl[e]” and “cooperative information-sharing process” to identify workplace accommodations that do

not impose an undue hardship on the employer.

EEOC Religion Guidance § 12-IV-A-2 & n.221. An

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employer should thoroughly consider all possible reasonable accommodations. Id. § 12-IV-B. To the extent

one accommodation would pose an undue hardship,

the employer must consider alternative accommodations. Ibid.

Undue hardship defense. Undue hardship is

not defined in Title VII. In Trans World Airlines, Inc.

v. Hardison the Supreme Court defined “undue hardship” to mean “more than a de minimis cost.”3 432

U.S. at 84. Neither the government nor any of the

parties advocated for the more than a de minimis cost

standard, and the Hardison Court failed to explain

why it unilaterally adopted a non-textual standard.

See id. at 84-85; cf. U.S. Amicus Br. at 20, Hardison,

432 U.S. 63 (No. 75-1126) (observing employer’s duty

to provide reasonable accommodation absent undue

hardship “removes an artificial barrier to equal employment opportunity * * * except to the limited extent that a person’s religious practice significantly

and demonstrably affects the employer’s business”).

Under Title VII, employers have the burden to

“demonstrate[]” undue hardship. 42 U.S.C. 2000e(j);

EEOC Religion Guidelines, 29 C.F.R. 1605.2(b). To

do so, employers must rely on “objective information,”

not speculative or “hypothetical hardship,” including

the assumption that other employees might seek

3 The Hardison Court was interpreting an EEOC guideline that

was in effect at the time of the events giving rise to the case. 432

U.S. at 66. The “reasonable accommodation” and “undue hardship” language in the guideline was adopted by Congress in the

1972 amendment to Title VII, which added the affirmative religious accommodation requirement. Nevertheless, courts have

consistently applied Hardison’s non-textual formulation of undue hardship in the EEOC guideline to Title VII.

9

accommodations. EEOC Religion Guidance § 12-IVB-1. Whether a reasonable accommodation exists

that does not pose an undue hardship is a fact-specific inquiry appropriate for a case-by-case determination. Ibid.

Title VII guidelines point to a number of factors

that are relevant: (a) the type of workplace, (b) the

nature of the employee’s duties, (c) the identifiable

cost of the accommodation in relation to the size and

operating costs of the employer, and (d) the number

of employees who will in fact need a particular accommodation. EEOC Religion Guidance § 12-IV-B-1 (citing EEOC Religion Guidelines, 29 C.F.R. 1605.2(e)).

Under the Hardison standard, undue hardship is

commonly found when an accommodation would require more than a minimal expense, violate a seniority system, infringe on the rights of other employees,

impair workplace safety, or jeopardize security.

EEOC Religion Guidance § 12-IV-B. While some of

these cases may satisfy the textual standard of undue

hardship, others would not as they merely impose

more than a de minimis cost. Demonstrating more

than a de minimis cost is a low bar for employers to

meet and a lower bar than Title VII imposes.

An accommodation’s mere impact on coworkers is insufficient to demonstrate undue hardship. While an accommodation that infringes on

coworkers’ abilities to perform their duties or subjects them to a hostile work environment will generally be considered an undue hardship on the employer, “mere subjective offense or disagreement,”

and “general disgruntlement, resentment, or jealousy of coworkers” will not rise to the level of undue

10

hardship. EEOC Religion Guidance §§ 12-IV-B-4, 12IV-C-6(a). But cf. Pet. App.22a n.19 (“A business may

be compromised, in part, if its employees and poor

morale among the work force and disruption of work

flow [sic]. This, of course, could affect an employer’s

business and could constitute undue hardship.”). Undue hardship requires more than coworkers’ complaints or offense by the alleged “special treatment”

afforded to the employee requesting the religious accommodation. EEOC Religion Guidance § 12-IV-B-4.

A mere impact on coworkers—without demonstrating harm to the business—does not suffice to establish undue hardship under Title VII. As Judge

Hardiman stated in his dissent below, “Simply put, a

burden on coworkers isn’t the same thing as a burden

on the employer’s business.” Pet. App.28a. (Hardiman, J., dissenting). Compare Pet. App.24a. (majority op.) (finding more than a de minimis cost because “it actually imposed on his coworkers, disrupted the workplace and workflow, and diminished

employee morale”), with Pet. App.26a (Hardiman, J.,

dissenting) (“[W]ithout more facts, I cannot agree

that USPS has established ‘undue hardship on the

conduct of [its] business’ by accommodating Groff’s

sincerely held religious belief.” (second alteration in

original)).

II. Title VII requires a higher standard than

Hardison’s more than a de minimis cost

standard.

In the sentence immediately following its adoption of the more than a de minimis cost standard, the

Hardison Court suggested that Title VII does not require accommodations that would result in “unequal

11

treatment of employees on the basis of their religion.”

432 U.S. at 84. However, as the EEOC and Solicitor

General have noted, Hardison’s focus on neutrality is

“irreconcilable” with Abercrombie. U.S. Amicus Br. at

22, Patterson v. Walgreen Co., 140 S. Ct. 685 (2020)

(No. 18-349).

Ordinary meaning of undue hardship. The

ordinary meaning of “undue” is “[e]xceeding what is

appropriate or normal; excessive.” American Heritage Dictionary of the English Language 1398 (1969);

see 18 Oxford English Dictionary 1010 (2d ed. 1989)

(“Going beyond what is appropriate, warranted, or

natural; excessive.”). An undue hardship, then,

would be an “excessive hardship” or a hardship that

is “more than appropriate or normal.”

In contrast, Hardison’s more than a de minimis

cost standard does not naturally follow—and is utterly divorced from—the statutory text. Accord Pet.

App.27a n.1 (Hardiman, J., dissenting) (Hardison

“obliges us to depart from Title VII’s text.”). A de minimis cost is “very small or trifling.” Black’s Law Dictionary 482 (Rev. 4th ed. 1968); cf. Hardison, 432 U.S.

at 92 n.6 (Marshall, J., dissenting) (Court found undue hardship where potential cost to employer would

be “$150 for three months.”). Something that is “very

small or trifling” is not “excessive,” “more than appropriate or normal,” or “significant.” Thus, contrary to

Hardison, undue hardship is not best—or even accurately—interpreted as more than a de minimis cost.

Congressional definitions of undue hardship. Indeed, to counter Hardison, Congress provided a definition of undue hardship in the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.

12

12101 et seq., which requires employers provide reasonable accommodations in the workplace for disability. Id. 12112(b)(5)(A); see S. Rep. No. 101-116 at 36

(1989) (“The Committee wishes to make it clear that

the principles enunciated by the Supreme Court in

[Hardison] are not applicable to this legislation.”);

H.R. Rep. No. 101-485(II) at 68 (1990) (same). The

ADA defines “undue hardship” as “an action requiring significant difficulty or expense,” and lists as several factors to consider, such as the accommodation’s

cost and the employer’s financial resources. 42 U.S.C.

12111(10)(A)-(B).

This definition is consistent with Congress’ earlier use of the phrase “undue hardship” in other employment-related statutes passed pre-Hardison. See,

e.g., 29 U.S.C. 207(r)(3) (1938) (defining “undue hardship” under the Fair Labor Standards Act as “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business”); 38 U.S.C. 4303(16)

(1958) (defining “undue hardship” for veteran employment as “significant difficulty or expense” in

light of several factors). In December 2022, Congress

incorporated the ADA’s meaning and construction of

“undue hardship” into the Pregnant Workers Fairness Act, which requires employers “make reasonable accommodations to the known limitations related

to the pregnancy, childbirth, or related medical conditions of a qualified employee,” unless “the accommodation would impose an undue hardship on the operation of the [employer’s] business.” Consolidated

Appropriations Act, 2023, Pub. L. No. 117-328, div.

II, §§ 102(7), 103(1), 136 Stat. 4459 (2022).

13

Criticism of Hardison’s more than a de minimis cost standard. Hardison’s more than a de minimis cost standard has received widespread and persistent criticism. Starting with the dissent in Hardison, Justice Marshall explained that this standard

“ma[de] a mockery” of Title VII. 432 U.S. at 88 (Marshall, J., joined by Brennan, J., dissenting).

In one recent petition for certiorari asking the

Court to revisit Hardison’s more than a de minimis

cost standard, three Justices agreed that the Court

should “consider whether Hardison’s interpretation

should be overruled,” recognizing that “more than a

de minimis burden” is not “the most likely interpretation of the statutory term ‘undue hardship.’” Patterson v. Walgreen Co., 140 S. Ct. 685, 685-86 (2020)

(Alito, J., joined by Thomas and Gorsuch, JJ., concurring in denial of certiorari); see also Small v. Memphis Light, Gas & Water, 141 S. Ct. 1227, 1228 (2021)

(Gorsuch, J., joined by Alito, J., dissenting from denial of certiorari). In that case, the EEOC voted

unanimously to request the Court review Hardison.

EEOC, Commission Votes: December 2019,

https://www.eeoc.gov/commission-votes-december2019. As the EEOC and Solicitor General told the

Court in its joint brief, “[Hardison’s] formulation is

incorrect.” U.S. Amicus Br. at 19, Patterson, 140 S.

Ct. 685 (No. 18-349).

While following the Court’s direction in Hardison,

circuit court judges, including Judge Hardiman below, have called into question Hardison’s more than

a de minimis cost standard, recognizing the Court

should restore a proper understanding of Title VII’s

text. See, e.g., Pet. App.27a n.1 (Hardiman, J., dissenting); Small v. Memphis Light, Gas & Water, 952

14

F.3d 821, 826-829 (6th Cir. 2020) (Thapar, J., concurring); cf. Equal Emp’t Opportunity Comm’n v.

Walmart Stores E., L.P., 992 F.3d 656, 660 (7th Cir.

2021) (Easterbrook, J.) (referring to Hardison’s

standard as requiring “a slight burden,” but applying

Hardison “unless the Justices themselves discard

it”).

In November and December 2020, the EEOC

hosted listening sessions on religious discrimination

in employment with a diverse group of stakeholders.

EEOC, Religious Discrimination in Employment:

General Counsel Listening Sessions Final Report 6

(Jan. 2021).4 “Participants included representatives

from a range of religions and perspectives, including,

among others, Christians, Hindus, Jews, Muslims,

and Sikhs.” Ibid. Participants shared concerns that

Hardison’s standard “hurts religious employees” and

“is an obstacle to employees receiving religious accommodations.” Id. at 10. They were also concerned

“that employees cannot win a religious accommodation case because the de minimis defense is a low bar

that is easily met by employers,” which, in turn, “discourages employees” from filing charges of discrimination with the EEOC and filing Title VII claims in

court. Ibid.

*

*

*

Hardison’s more than a de minimis cost standard

is incompatible with Abercrombie’s recognition that

religious accommodations under Title VII require favored treatment. As this Court stated in Bostock v.

4 https://eppc.org/wp-content/uploads/2023/02/Religious-Discrim

ination-in-Employment-General-Counsel-Listening-Sessions-Fi

nal-Report.pdf. The government website listed on the Report is

no longer accessible.

15

Clayton County, it is “deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution”—a “guarantee” that

“lies at the heart of our pluralistic society.” 140 S. Ct.

1731, 1754 (2020). The Court should correct Hardison’s non-textual standard and restore Title VII’s

promise of religious accommodations in the workplace for our pluralistic society.

Without action by the Court, Hardison will continue to “effectively nullify[]” the vital religious protections in the workplace guaranteed by Title VII to

Petitioner Groff and other employees, especially religious minorities. Hardison, 432 U.S. at 89 (Marshall,

J., dissenting). Judges will be compelled to follow

Hardison and employers will feel safe denying religious accommodation requests because they believe

they can easily demonstrate a cost that is slightly

more than de minimis.

CONCLUSION

The Court should reverse the Third Circuit and

reject Hardison’s more than a de minimis cost standard and restore an undue hardship standard consistent with the statutory text of Title VII.

Respectfully submitted.

RACHEL N. MORRISON

Counsel of Record

ETHICS & PUBLIC POLICY CENTER

1730 M Street, N.W., Suite 910

Washington, D.C. 20036

(202) 682-1200

rmorrison@eppc.org

FEBRUARY 2023

Counsel for Amici Curiae