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 AMERICAN HINDU COALITION

AS AMICUS CURIAE SUPPORTING PETITIONER

SUE GHOSH STRICKLETT

Legal Counsel

AMERICAN HINDU

COALITION

42618 Trade West Drive

Sterling, VA 20166

(301) 785-1041

MATTHEW T. MARTENS

Counsel of Record

MATTHEW E. VIGEANT

DONNA M. FARAG

DOUGLAS W. GATES

G. EDWARD POWELL III

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave., NW

Washington, DC 20037

(202) 663-6000

matthew.martens@

wilmerhale.com

TABLE OF CONTENTS

Page

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

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

SUMMARY OF ARGUMENT ......................................... 1

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

I.

HARDISON’S UNDUE HARDSHIP STANDARD

SHOULD BE DISAPPROVED .......................................... 3

A. Hardison’s De Minimis Standard Is

Dictum .................................................................... 4

B. The De Minimis Test Clashes With Title

VII’s Text, Structure, And History ................... 6

C. The Government And Lower Courts

Have Urged This Court To Reject The

Test.......................................................................... 7

II. THE HARDISON TEST HARMS RELIGIOUS

MINORITIES ................................................................... 9

A. The 1972 Title VII Amendment Was A

Critical Use Of Political Power To

Protect Religious Minorities ............................... 9

B. Hardison’s “De Minimis Cost” Standard

Undercuts Religious Minorities’ HardWon Protections .................................................. 12

C. Religious Minorities Need Robust AntiDiscrimination

Protections

And

Accommodations ................................................. 14

CONCLUSION ................................................................. 19

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Baker v. Home Depot, 445 F.3d 541 (2d Cir.

2006) ............................................................................... 8

Balint v. Carson City, 180 F.3d 1047 (9th Cir.

1999) ............................................................................... 8

Beadle v. City of Tampa, 42 F.3d 633 (11th Cir.

1995) ............................................................................... 8

Birdi v. UAL Corp., 2002 WL 471999 (N.D. Ill.

Mar. 26, 2002) .............................................................. 17

Bostock v. Clayton County, 140 S. Ct. 1731

(2020) .............................................................................. 6

Brener v. Diagnostic Center Hospital, 671 F.2d

141 (5th Cir. 1982)....................................................... 13

Camara v. Epps Air Service, Inc., 292 F. Supp.

3d 1314 (N.D. Ga. 2017).........................................16-17

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

(1st Cir. 2004) ................................................................ 8

Cooper v. Oak Rubber Co., 15 F.3d 1375 (6th Cir.

1994) ............................................................................... 8

Davis v. Fort Bend County, 765 F.3d 480 (5th

Cir. 2014) ........................................................................ 8

Dewey v. Reynolds Metals Co., 402 U.S. 689

(1971) ............................................................................ 11

Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th

Cir. 1970) .................................................................10-12

EEOC v. Abercrombie & Fitch Stores, Inc., 575

U.S. 768 (2015) .............................................................. 5

iii

TABLE OF AUTHORITIES—Continued

Page(s)

EEOC v. Firestone Fibers & Textiles Co., 515

F.3d 307 (4th Cir. 2008) ............................................... 8

EEOC v. GEO Group, Inc., 616 F.3d 265 (3d Cir.

2010) ............................................................................... 8

EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569

(7th Cir. 1997)................................................................ 8

EEOC v. JBS USA, LLC, 339 F. Supp. 3d 1135

(D. Colo. 2018) ............................................................. 15

EEOC v. Sambo’s of Georgia, Inc., 530 F. Supp.

86 (N.D. Ga. 1981) ....................................................... 16

EEOC v. Walmart Stores East, LP, 992 F.3d

656 (7th Cir. 2021)..........................................2, 8, 13-14

Employment Division, Department of Human

Resources of Oregon v. Smith, 494 U.S. 872

(1990) .....................................................................3, 9-11

Endres v. Indiana State Police, 349 F.3d 922

(7th Cir. 2003).............................................................. 14

Harrell v. Donahue, 638 F.3d 975 (8th Cir. 2011) ............ 8

Heller v. EBB Auto Co., 8 F.3d 1433 (9th Cir.

1993) ............................................................................. 14

Janus v. AFSCME, 138 S. Ct. 2448 (2018) ...................... 4

Kerry v. Din, 576 U.S. 86 (2015) ........................................ 5

Lee v. ABF Freight System, Inc., 22 F.3d 1019

(10th Cir. 1994)............................................................ 13

Lexmark International, Inc. v. Static Control

Components, Inc., 572 U.S. 118 (2014) ...................... 7

iv

TABLE OF AUTHORITIES—Continued

Page(s)

McDaniel v. Essex International, Inc., 571 F.2d

338 (6th Cir. 1978)....................................................... 14

McGowan v. Maryland, 366 U.S. 420 (1961) ................... 9

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

(mem.) ............................................................................ 5

Roy v. Board of Community College Trustees of

Montgomery Community College, 2015 WL

5553716 (D. Md. Sept. 18, 2015) ................................ 15

Small v. Memphis Light, Gas & Water, 141 S.

Ct. 1227 (2021) (mem.) ....................................11-12, 15

Small v. Memphis Light, Gas & Water, 952 F.3d

821 (6th Cir. 2020)................................................... 8, 13

Tabura v. Kellogg USA, 880 F.3d 544 (10th Cir.

2018) ............................................................................... 8

Trans World Airlines, Inc. v. Hardison, 432

U.S. 63 (1977) ................................................. 2-6, 10-14

United Gas Improvement Co. v. Continental Oil

Co., 381 U.S. 392 (1965) ............................................3-4

United States v. Anchor Mortgage Corp., 711

F.3d 745 (7th Cir. 2013) ............................................... 7

United States v. Ballard, 322 U.S. 78 (1944) ................... 9

United States v. Lee, 455 U.S. 252 (1982) ....................... 10

Virts v. Consolidated Freightways Corp. of

Delaware, 285 F.3d 508 (6th Cir. 2002) ................... 13

Weber v. Roadway Express, Inc., 199 F.3d 270

(5th Cir. 2000).............................................................. 13

v

TABLE OF AUTHORITIES—Continued

Page(s)

DOCKETED CASES

EEOC v. United Airlines, No. 20-cv-9110

(D.N.J.) ......................................................................... 15

Patterson v. Walgreen Co., No. 18-349 (U.S.) ................. 7

Small v. Memphis Light, Gas, & Water, No. 191388 (U.S.) ................................................................... 15

STATUTES, RULES, AND REGULATIONS

29 C.F.R. § 1605.1 (1968) .................................................... 5

42 U.S.C. § 2000e .............................................. 2-4, 6, 12-13

Equal Employment Opportunity Act of 1972,

Pub. L. No. 92-261, 86 Stat. 103 (1972) ...................... 4

OTHER AUTHORITIES

118 Cong. Rec. 705 (1972) ............................................. 6, 11

EEOC, What You Should Know: Religious and

National Origin Discrimination Against

Those Who Are, or Are Perceived to Be,

Muslim or Middle Eastern, OLC Control

No. EEOC-NVTA-0000-24 (Feb. 11, 2016),

https://www.eeoc.gov/laws/guidance/whatyou-should-know-religious-and-nationalorigin-discrimination-against-those-who ................ 18

Pew Research Center, America’s Changing

Religious Landscape (May 12, 2015), http://

www.pewforum.org/wp-content/uploads/

sites/7/2015/05/RLS-08-26-full-report.pdf .........15-16

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Press Release, Department of Justice, Justice

Departmentt Sues New York Metro

Transportation Authority and New York

City Transit Authority Alleging Religious

Discrimination (Sept. 30, 2004), https://

www.justice.gov/archive/opa/pr/2004/Septe

mber/04_crt_665.htm ................................................. 17

INTERESTS OF AMICUS CURIAE1

The American Hindu Coalition (AHC) is a nonpartisan advocacy organization based in Washington, D.C.,

with significant membership in several states. Representing Hindus, Buddhists, Jains, Sikhs, and related

members of minority religions, many of whom are federal and state government employees, AHC files this

brief because its members’ religious practices may be

unfamiliar to mainstream America, leading to instances

of workplace discrimination. Religious freedom, including the right to live, speak, and act according to one’s religious beliefs, peacefully and publicly, is an essential

component of AHC’s platform, and AHC supports petitioner in ensuring that employees’ free exercise of religion remains protected in the workplace.

SUMMARY OF ARGUMENT

In 1972, Congress amended Title VII to provide protections for members of minority religions. Those protections ensured that religious minorities, such as Hindus, Sikhs, Buddhists, and Jains, who could not rely on

prevailing cultural norms to carve out space for their religious practices, would be free to worship without having to sacrifice their livelihoods. In passing the amendment, Congress recognized that religious practice is a

fundamental good. It balanced that good against economic interests, believing that affirmative accommodation of religious practice would lead to greater human

flourishing without unnecessarily burdening employers.

1

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

and no person, other than amicus curiae or its counsel, made any

monetary contribution to the preparation or submission of this

brief.

2

Specifically, Title VII, as amended, requires that

employers accommodate an employee’s religious practice unless doing so would impose an “undue hardship”

on the employer’s business. See 42 U.S.C. § 2000e(j).

Dictum in this Court’s decision in Hardison, if it became

a holding with regard to Title VII, would quash protections hard-won by religions through enactment of that

provision. See Trans World Airlines, Inc. v. Hardison,

432 U.S. 63, 86 (1977) (Marshall, J., dissenting). In particular, equating the phrase “undue hardship” with anything more than a “de minimis cost” to an employer is

contrary to the statutory text and inconsistent with any

plausible understanding of the law’s purpose.

Even though Hardison dealt solely with tension between religious accommodations and a collective bargaining agreement, the lower courts have applied its “de

minimis cost” dictum as a bright-line rule. See, e.g.,

EEOC v. Walmart Stores E., LP, 992 F.3d 656 (7th Cir.

2021). This result has been uniquely problematic for religious minorities. Many minority religions do not mirror Christian entities in their doctrine, organization, or

practices, so employers are less likely to understand or

identify accommodations that are vital to ensuring that

these employees can continue to work without sacrificing their faith. Members of minority faiths routinely

face discrimination in the workplace. Indeed, in issues

related to religious attire or appearance, employers have

at times proposed accommodations that further burden

minorities’ religious practices or amount to de facto segregation. A “de minimis cost” test renders Title VII’s

hard-fought protections toothless, enabling employers

to disregard the traditions and practices of these devout

people.

Lower courts’ adoption of a “de minimis cost” test

has been particularly troublesome in part because this

3

Court has previously urged religious minorities to seek

their protections from Congress. In holding that the

Constitution does not exempt religious persons from

neutral, generally applicable laws that may otherwise

conflict with their religious beliefs, this Court stressed

that minority groups whose “religious practices … are

not widely engaged in” nevertheless had recourse to the

political process to obtain accommodations. Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S.

872, 890 (1990). Consistent with this endorsement, members of minority faiths were instrumental in the passage

of the Title VII amendment at issue in this case, requiring “religious accommodation, even though unequal

treatment would result.” Hardison, 432 U.S. at 89 (Marshall, J., dissenting). When Congress has taken affirmative steps to carve out space for minorities to practice

their religion in harmony with the Constitution’s guarantee of religious liberty, courts should take Congress’s

words at face value.

This Court should faithfully apply the “undue hardship” standard as enacted by Congress so that it is consistent with the same or similar language in other statutes, recognizes that religious practice is a societal good,

and requires employers to take affirmative steps to accommodate their employees’ needs.

ARGUMENT

I.

HARDISON’S UNDUE HARDSHIP STANDARD SHOULD BE

DISAPPROVED

While Hardison’s holding is entitled to stare decisis

effect, its construction of “undue hardship” is not a holding with regard to the meaning of § 2000e(j). United Gas

Improvement Co. v. Continental Oil Co., 381 U.S. 392,

404 (1965) (“Concepts of stare decisis in statutory

4

interpretation apply to the holdings with which the caseby-case method of decision surrounds a statute.”). That

is because Hardison construed a defunct EEOC guideline, not Title VII as amended, when it equated undue

hardship with “more than a de minimis cost.” There is

thus no need for this Court to evaluate the various “factors that should be taken into account in deciding

whether to overrule a past decision” and no decision has

to be overruled for this Court to endorse a more protective reading of “undue hardship” under Title VII as

amended. Janus v. AFSCME, 138 S. Ct. 2448, 2478

(2018).

A. Hardison’s De Minimis Standard Is Dictum

As originally enacted in 1964, Title VII made no express reference to the reasonable accommodation of religion or undue hardship. It was not until 1972 that Congress amended Title VII to enact these accommodations.

See Equal Employment Opportunity Act of 1972, Pub. L.

No. 92-261, § 2(7), 86 Stat. 103, 103 (1972). Congress did

so by defining “religion” to “include[] 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 or practice without undue

hardship on the conduct of the employer’s business.” 42

U.S.C. § 2000e(j).

The underlying dispute in Hardison arose in 1971,

prior to Title VII’s amendment, so the Court’s construction of “undue hardship” was premised on a 1967 EEOC

interpretive guideline to Title VII’s religious discrimination provision “in effect at the time the relevant events

occurred.” 432 U.S. at 76 & n.11 (specifying that the

Court accepted the 1967 EEOC guidelines “as a defensible construction of the pre-1972 statute” and that the

5

Court “need not consider whether [§] 701(j)”—the

amended definition of “religion”—“must be applied retroactively”). The EEOC guideline stated that Title VII

required employers “to make reasonable accommodations to the religious needs of employees and prospective

employees where such accommodations can be made

without undue hardship on the conduct of the employer’s

business.” Id. at 72 (quoting 29 C.F.R. § 1605.1 (1968)).

Applying this guideline, the Court held that its “undue

hardship” standard was satisfied by the (meager) costs

required to accommodate Hardison’s Sabbath since an

employer’s business suffers an “undue hardship” whenever accommodating an employee’s religious exercise

would require the employer “to bear more than a de minimis cost.” Id. at 72, 84. Hardison’s “de minimis” test is

thus only a judicially binding construction of the 1967

EEOC guideline, not the 1972 amendment.

This distinction controls the stare decisis analysis

here. Hardison’s “de minimis” gloss is not binding authority as to the meaning of the 1972 amendment and the

definition of “undue hardship” because the Court did not

apply that amendment or otherwise construe it in issuing its decision. Three Justices have recognized this fact.

See EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S.

768, 787 n.* (2015) (Thomas, J., concurring in part and

dissenting in part), and Patterson v. Walgreen Co., 140

S. Ct. 685, 686 n.* (2020) (Alito, J., joined by Thomas and

Gorsuch, JJ., concurring in denial of certiorari)). As “this

Court is not bound by dicta,” the question before the

Court now is not whether to adhere to Hardison as precedent, but whether to apply its reasoning to the separate

question of the meaning of “undue hardship” under Title

VII. Kerry v. Din, 576 U.S. 86, 94 (2015).

6

B. The De Minimis Test Clashes With Title VII’s

Text, Structure, And History

The Court should not follow Hardison in construing

the 1972 amendment to Title VII. Hardison’s reasoning

is a poor fit for Title VII’s text, as “undue hardship” cannot “be interpreted to mean ‘more than de minimis

cost’” as a matter of “simple English usage.” Hardison,

432 U.S. at 92 n.6 (Marshall, J., dissenting). “[T]he ordinary public meaning of Title VII’s command” thus requires departing from Hardison’s reading of “undue

hardship.” Bostock v. Clayton Cnty., 140 S. Ct. 1731,

1738 (2020).

Nor does Hardison’s reasoning faithfully implement

the structure of § 2000e(j). The 1972 Amendments expanded the definition of “religion” under Title VII to include “religious observance and practice” as well as “belief,” and it imposed a requirement of reasonable accommodation in the absence of undue hardship. To hold that

this provision, like the guideline interpreted in Hardison, is satisfied whenever an exception to a neutral work

rule carries more than a de minimis cost would “effectively nullify[]” the statute. Hardison, 432 U.S. at 89

(Marshall, J., dissenting).

Hardison’s de minimis standard also does not reflect

the congressional intent underlying § 2000e(j). In interpreting the guideline, the Court in Hardison placed significant weight on the notion that the EEOC had not departed from a position it had taken in its 1966 guidelines,

suggesting that “work schedules generally applicable to

all employees may not be unreasonable[.]” 432 U.S. at

72 n.7. This assertion was contested at the time, id. at

86 n.1 (Marshall, J., dissenting), and in any event is of no

value in interpreting the legislated text of § 2000e(j).

Rather, as noted in Justice Marshall’s dissent, the

7

“instructive” legislative history shows that the “primary

purpose of the [1972] amendment” was “to make clear

that Title VII requires religious accommodation, even

though unequal treatment would result,” and “to protect

Saturday Sabbatarians”—“‘whose religious practices

rigidly require them to abstain from work … on particular days.’” Id. at 89 (quoting 118 Cong. Rec. 705 (1972)

(statement of Sen. Jennings Randolph)).

These “traditional principles of statutory interpretation” thus counsel against extending Hardison’s rule

to this case. Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 (2014).

C. The Government And Lower Courts Have

Urged This Court To Reject The Test

For the above reasons, Hardison’s test has been

roundly criticized by the United States and a number of

judges on the Courts of Appeals. In opposing certiorari

in this case, the United States did not repudiate its prior

position that Hardison was “incorrect”; rather, it only

argued that “this case would be a poor vehicle[.]” U.S.

Amicus Br. 19, Patterson v. Walgreen Co., No. 18-349

(U.S.); BIO 8. In recommending certiorari in Patterson,

the United States noted that the de minimis test was announced without “the benefit of full briefing” and that

the rule has been undermined by this Court’s decision in

Abercrombie. Patterson U.S. Amicus Br. 21-22.

The general rule of the Courts of Appeals is not to

“ignore pertinent statements by the Supreme Court,”

United States v. Anchor Mortg. Corp., 711 F.3d 745, 750

(7th Cir. 2013), and, as a result, every circuit court to address the question has applied Hardison’s de minimis

8

test in interpreting Title VII.2 While doing so, however,

a number of judges of the Courts of Appeals have noted

Hardison’s shortcomings. Judge Frank Easterbrook

has noted that “more than a de minimis cost” is equivalent to a “slight burden,” contravening the statutory language of “undue hardship.” Walmart Stores E., 992 F.3d

at 658, 660. Judge Amul Thapar has recognized that the

statutory text, analogous provisions in the “corpus juris,” the desuetude of Hardison’s constitutional-avoidance rationale, and the “harm [to] religious minorities”

all support abandoning the de minimis test. Small v.

Memphis Light, Gas & Water, 952 F.3d 821, 826-829 (6th

Cir. 2020) (Thapar, J., concurring). And Judge Thomas

Hardiman, dissenting below, noted that “Hardison’s capacious standard” “depart[s] from Title VII’s text” and

“can effectively nullify Title VII’s promise of religious

accommodation.” Pet. App. 27a n.1 (cleaned up).

* * *

In sum, although the de minimis test is dictum that

does not rest on a reading of Title VII’s language, the

Courts of Appeals do not consider themselves free to

rectify its well-known shortcomings themselves. Accordingly, consistent with the text, structure, and history of the statute, this Court should interpret Title VII

2

See, e.g., Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 134

(1st Cir. 2004); Baker v. Home Depot, 445 F.3d 541, 548 (2d Cir.

2006); EEOC v. GEO Grp., Inc., 616 F.3d 265, 273 (3d Cir. 2010);

EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir.

2008); Davis v. Fort Bend Cnty., 765 F.3d 480, 488-489 (5th Cir.

2014); Cooper v. Oak Rubber Co., 15 F.3d 1375, 1378 (6th Cir. 1994);

EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1576 (7th Cir. 1997);

Harrell v. Donahue, 638 F.3d 975, 980 (8th Cir. 2011); Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999); Tabura v. Kellogg

USA, 880 F.3d 544, 557 (10th Cir. 2018); Beadle v. City of Tampa,

42 F.3d 633, 636 (11th Cir. 1995).

9

to impose a more protective standard for employees’ religious rights in the workplace.

II. THE HARDISON TEST HARMS RELIGIOUS MINORITIES

The centrality of religious practice and the principle

of religious pluralism lie at the heart of the American

tradition. “Religious beliefs pervade, and religious institutions have traditionally regulated, virtually all human

activity. It is a postulate of American life, reflected specifically in the First Amendment to the Constitution but

not there alone, that those beliefs and institutions shall

continue … to exist, to function, to grow, to wither, and

to exert with whatever innate strength they may contain their many influences upon men’s conduct, free of

the dictates and directions of the state.” McGowan v.

Maryland, 366 U.S. 420, 461 (1961) (op. of Frankfurter,

J.). The Founders “fashioned a charter of government

which envisaged the widest possible toleration of conflicting [religious] views.” United States v. Ballard, 322

U.S. 78, 87 (1944).

The 1972 Title VII Amendment continued this tradition of government solicitude for the diverse religious

practices of the people. But the Hardison Court’s dictum, were it to stand, would gut Congress’s protection

of religious minorities.

A. The 1972 Title VII Amendment Was A Critical

Use Of Political Power To Protect Religious

Minorities

To be sure, the First Amendment’s free exercise

protections do not give religious people free rein to do

whatever they please. In Smith, this Court reasoned

that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and

10

neutral law of general applicability on the ground that

the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” 494 U.S. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982)

(Stevens, J., concurring in the judgment)). Nevertheless, the Court stressed that even where “a nondiscriminatory religious-practice exemption” is not “constitutionally required,” religious minorities have recourse to

the political process to obtain the state’s protection. Id.

at 890. “Just as a society that believes in the negative

protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the

dissemination of the printed word, so also a society that

believes in the negative protection accorded to religious

belief can be expected to be solicitous of that value in its

legislation as well.” Id.

The Title VII Amendment was just such a law. As

Justice Marshall explained in his Hardison dissent,

there was a general concern for “the plight of adherents

to minority faiths who do not observe the holy days on

which most businesses are closed,” including “Sundays,

Christmas, and Easter, but who need time off for their

own days of religious observance.” 432 U.S. at 85 (Marshall, J., dissenting). Although the EEOC had taken

steps to alleviate that concern by adopting the “undue

hardship” standard in its regulations in the 1960s, id. at

85-86, courts failed to recognize the need for employers

to take positive steps to accommodate religious practices

and instead focused on whether work rules were facially

neutral and generally applicable to both religious and

secular employees. For example, in 1970, the Sixth Circuit opined in Dewey v. Reynolds Metals Co. that, so

long as an employer provides “a fair and equitable

method of distributing the heavy workload among the

employees without discrimination against any of

11

them”—that is, without taking religious practice into account—than the employer acts in accordance with Title

VII.3 429 F.2d 324, 329 (6th Cir. 1970). This Court affirmed without opinion by an evenly divided vote.

Dewey v. Reynolds Metals Co., 402 U.S. 689 (1971).

Dissatisfied with the result in Dewey, Senator Jennings Randolph—himself a Saturday Sabbatarian—

sponsored an amendment to Title VII to clarify that the

law required employers to take affirmative steps to accommodate religious employees. Hardison, 432 U.S. at

88-89 (Marshall, J., dissenting) (citing 118 Cong. Rec. 706

(1972)). The Amendment, in other words, was precisely

the sort of solicitous legislation that the Smith Court endorsed, featuring minority coalitions marshalling political power and using the majority’s good will to achieve

legal protections that, while not constitutionally required, advance public policies in harmony with republican values enshrined in the Constitution. See Smith, 494

U.S. at 890. In that regard, the 1972 Title VII Amendment is consistent with countless other anti-discrimination statutes protecting minorities.

It is therefore unsurprising that the “undue hardship” language the Amendment applies to balance the interests of minority employees against those of their employers appears time and again in Congress’s other antidiscrimination laws. See Small, 141 S. Ct. at 1228 (Gorsuch, J., dissenting from denial of certiorari) (comparing

Title VII’s “undue hardship” language to the same language in the Americans with Disabilities Act, the

3

The Sixth Circuit considered both a 1966 EEOC regulation

that expressly approved of “generally applicable” work schedules

that might incidentally burden religious practice and the 1967 version that was silent on the question, concluding that neither outlawed terminating an employee for refusing to work on Sunday under a facially neutral scheduling policy. Dewey, 429 F.2d at 329-330.

12

Uniformed Services Employment and Reemployment

Rights Act, and the Affordable Care Act). In each instance, Congress recognized a positive good—religious

practice, military service, and work-force participation

by disabled individuals and nursing mothers—and took

affirmative steps to promote those goods while simultaneously accounting for the interests of businesses and

other employers. In Smith’s understanding, that is how

Congress is supposed to work to protect minority rights.

B. Hardison’s “De Minimis Cost” Standard Undercuts Religious Minorities’ Hard-Won Protections

Congress’s ability is limited, however, when courts

do not accurately interpret the law. Despite a clear legislative response to Dewey that required an employer to

show that taking affirmative steps to accommodate employees’ religious practices creates an “undue hardship”

on the business, the Court’s reasoning in Hardison was

similar to the Sixth Circuit’s logic in Dewey. In both

cases, an employer scheduled its employees for weekend

work according to a collectively bargained agreement

that purported to distribute shifts equitably across all

employees. See Hardison, 432 U.S. at 78; Dewey, 429

F.2d at 330. To the extent that the 1966 EEOC guideline

led courts to believe that neutral, generally applicable

policies were sufficient, the Dewey court’s judgment in

favor of the employer was understandable. See 429 F.2d

at 330-331.

But the 1972 Title VII Amendment established that

an employer’s lack of discriminatory intent is not

enough; it clarified that an employer must “accommodate [] an employee’s … religious observance or practice” unless the employer can demonstrate that such an

accommodation would impose an “undue hardship on the

13

conduct of the employer’s business.”

42 U.S.C.

§ 2000e(j). If the 1972 Title VII Amendment has any

meaning at all, it must be the case that the policy in

Dewey—making everyone, religious and secular alike,

work on the Sabbath—is insufficient to comply with Title VII without particularized proof of a serious burden

on the business.

To be sure, the interaction of collective bargaining

agreements and Title VII obligations is complex and can

be fraught for an employer. But the Hardison opinion

went beyond the narrow issues of collective bargaining

when it said in dictum that any burden that imposes

“more than a de minimis cost” on an employer “is an undue hardship” under Title VII. 432 U.S. at 84. As explained above, the law’s text cannot support that reading. See Pet. Br. 18-22.

Even though the “de minimis cost” language appeared only in dictum, it has been converted into a holding and propelled as the standard among lower courts

evaluating Title VII claims against employers that fail

to accommodate their employees’ religious practices.

Time and again, lower courts have inquired not whether

an employee’s request for accommodation has seriously

impeded business operations, but rather whether the accommodation would require the employer to bear more

than a de minimis cost. See, e.g., Small, 952 F.3d 821 (6th

Cir. 2020); Virts v. Consolidated Freightways Corp. of

Del., 285 F.3d 508 (6th Cir. 2002); Weber v. Roadway

Exp., Inc., 199 F.3d 270 (5th Cir. 2000); Lee v. ABF

Freight Sys., Inc., 22 F.3d 1019 (10th Cir. 1994); Brener

v. Diagnostic Ctr. Hosp., 671 F.2d 141 (5th Cir. 1982).

Lower courts have gone so far as to describe the Hardison standard as relieving employers of their Title VII

duty if the accommodation would impose even a “slight

burden” or “minimal hardship” on the business—a far

14

cry from the “undue hardship” language Congress wrote

into law. See Walmart Stores E., 992 F.3d at 658-660

(“accommodating [Plaintiff’s] religious practices would

require [Defendant] to bear more than a slight burden”);

Endres v. Indiana State Police, 349 F.3d 922, 925 (7th

Cir. 2003) (“[Section 2000e(j)] does not require an accommodation that would cause more than minimal hardship

to the employer or other employees”); see also id. at 928

(Ripple, J., dissenting from denial of reh’g) (endorsing

“minimal hardship” standard).

C. Religious Minorities Need Robust Anti-Discrimination Protections And Accommodations

Courts’ abandonment of Congress’s “undue hardship” standard has been particularly troubling for members of minority religions, who cannot rely on prevailing

cultural practices and conventions to carve out space for

their unique religious practices.4 Traditionally, businesses closed or reduced their operations on Sundays

and for major Christian holy days such as Christmas and

Easter, eliminating the need for individualized accommodations. See Hardison, 432 U.S. at 85 (Marshall, J.,

dissenting). Even where, as in this case, the influence of

traditional religious practice has waned and employers

have been expanded their business hours to include Sundays, Christian employees may rely on familiar cultural

norms when they ask for time off on Sunday morning to

attend church—a practice supervisors readily recognize.

4

While most Title VII religious-accommodation litigation has

focused on requirements to work on Saturdays or Sundays for various groups of Christian and Jewish employees, Title VII “applies

to all religious observances and practices and is not limited to claims

of discrimination based on requirements of Sabbath work.” McDaniel v. Essex Int’l, Inc., 571 F.2d 338, 342 (6th Cir. 1978); see also Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993).

15

Hindus, Sikhs, Jains, Buddhists, and other religious

minorities, however, often cannot rely on either established norms or cultural familiarity. For example, an

employer may reasonably anticipate that employees will

take vacation around Christmas or Easter—or perhaps

even on familiar Jewish holy days such as Yom Kippur—

and schedule fewer business activities to take into account personnel absences. Few employers, however,

plan for employees to miss work for Diwali. A Hindu

employee, for instance, may need to schedule breaks at

particular times of prayer during the work day. Roy v.

Board of Cmty. Coll. Trs. of Montgomery Cmty. Coll.,

2015 WL 5553716 (D. Md. Sept. 18, 2015). And as Justice

Gorsuch observed in his dissent from denial of certiorari

in Small, “at least one court has held that it would be an

undue hardship to require an employer to shift a meal

break for Muslim employees during Ramadan.” 141 S.

Ct. at 1229 (citing EEOC v. JBS USA, LLC, 339 F. Supp.

3d 1135, 1181 (D. Colo. 2018)). Similarly, a Buddhist employee was required to participate in an Alcoholics

Anonymous program that incorporated Christian content, despite the fact that a similar program based on

Buddhist beliefs was available. See Compl. 4-5, EEOC

v. United Airlines, No. 20-cv-9110 (D.N.J. filed July 20,

2020); see also Christian Legal Society et al. Amicus Br.

15-17, Small v. Memphis Light, Gas, & Water, No. 191388 (U.S.) (compiling religious-accommodation cases

and finding that “claims by members of non-Christian

faiths (Muslims, idiosyncratic faiths, Jews, Hebrew Israelites, Rastafarians, Sikhs, and African religions) make

up 34.5 percent of the accommodation cases (39 of 113),

even though non-Christian faiths made up only 5.9 percent of the population in 2014 (and significantly less than

that in earlier years)” (citing Pew Research Center,

16

America’s Changing Religious Landscape, at 4 (May 12,

2015).

Beyond time off or shift changes to commemorate

less common observances and festivals, religious minorities have other unique needs that may require accommodations from their employers. Religious minorities

often have distinctive clothing or grooming styles that

may depart from a workplace dress code. Yet time and

time again, employers are not only reluctant to recognize

these needs, but propose accommodations that segregate minority employees and justify their solutions by

citing hypothetical concerns and stereotypes. Lower

courts often side with employers based on dubious reasoning that legitimizes the discrimination that people of

these minority faiths experience.

In one case, a court sided with a restaurant that refused to employ a Sikh applicant who did not shave his

beard. EEOC v. Sambo’s of Ga., Inc., 530 F. Supp. 86

(N.D. Ga. 1981). In ruling for the restaurant, the court

credited the restaurant’s “grooming standards,” which

were “based on management’s perception and experience that a significant segment of the consuming public

prefer restaurants whose managers and employees are

clean-shaven.” Id. at 89. Such “adverse customer reaction … arises from a simple aversion to, or discomfort in

dealing with, bearded people” or “from a concern that a

restaurant operated by a bearded manager might be lax

in maintaining its standards as to cleanliness and hygiene.” Id. The court thus elevated customers’ perceptions—themselves tainted by discrimination—over the

prospective employee’s religious beliefs.

Speculative concerns about customers’ perceptions

continue to plague the decisions of employers and the

lower courts. In Camara v. Epps Air Service, Inc., the

17

employer refused to permit a Muslim employee to wear

a hijab in a customer-facing position. 292 F. Supp. 3d

1314, 1330-1332 (N.D. Ga. 2017). The employer testified

that customers “might have a problem” seeing a customer service representative in a hijab, and “conceded

that negative stereotypes and perceptions about Muslims was a factor in his decision.” Id. at 1322. Drawing

on Hardison’s de minimis language and relying on the

employer’s articulated concerns, the court reasoned that

plaintiff’s request for an exemption from the company’s

appearance policy was an undue hardship. Id. at 13301331; see also Birdi v. UAL Corp., 2002 WL 471999, at

*1 (N.D. Ill. Mar. 26, 2002) (dismissing Title VII claim

brought by Sikh employee who was prohibited under

uniform code from wearing turban in customer-facing

role and holding that transfer accommodation to different role was reasonable).

To be sure, employers may have valid reasons for instituting uniforms or imposing dress codes. But what is

troubling is that many such policies tend to be unevenly

enforced and enforcement efforts are targeted against

employees of minority faiths. In 2004, the Department

of Justice sued the New York Metropolitan Transportation Authority and New York City Transit Authority for

selectively enforcing uniform policies against Sikhs and

Muslims who wear turbans or headscarves. Press Release, Dep’t of Justice, Justice Department Sues New

York Metropolitan Transportation Authority and New

York City Transit Authority Alleging Religious Discrimination (Sept. 30, 2004), https://www.justice.gov/archive/opa/pr/2004/September/04_crt_665.htm. The Justice Department specifically found that after 2002, Sikhs

and Muslims were involuntarily transferred to other

jobs where they would not interact with the public, while

18

other employees were permitted to “routinely w[ear]

non-MTA headwear, such as baseball caps.” Id.

Employers’ concerns about consumer perceptions of

employees of minority faiths have only increased. The

EEOC observed in recent guidance that “[r]ecent tragic

events at home and abroad have increased tensions with

certain communities, particularly those who are, or are

perceived to be, Muslim or Middle Eastern,” such as

Sikhs. EEOC, What You Should Know: Religious and

National Origin Discrimination Against Those Who

Are, or Are Perceived to Be, Muslim or Middle Eastern,

OLC Control No. EEOC-NVTA-0000-24 (Feb. 11, 2016).

The Commission “urge[d] employers and employees to

be mindful of instances of harassment, intimidation, or

discrimination in the workplace and to take actions to

prevent or correct this behavior.” Id.

In the initial months after the 9/11 attacks, the

EEOC saw a 250% increase in the number of religion-based discrimination charges involving

Muslims. As a result, EEOC initiated a specific

code to track charges that might be considered

backlash to the 9/11 attacks…. In the 10 years

following the attacks, EEOC received 1,036

charges using the code, out of more than 750,000

charges filed since the attacks. Of the charges

filed under the code, discharge (firing) was alleged in 614 charges and harassment in 440

charges…. Since 2001, EEOC has filed or settled a number of lawsuits alleging discrimination on the basis of national origin and religion

against the Muslim, Sikh, Arab, Middle Eastern,

and South Asian communities.

Id.

19

That members of these faiths have been harassed

and discriminated against is tragic enough. But employers and courts have used such conduct—and nebulous

theories of customer perceptions—to legitimize their

failure to accommodate employees of minority faiths. In

the face of continued, pervasive discrimination, permitting lower courts to continue to apply Hardison’s “de

minimis cost” standard flies in the face of both the plain

text of Title VII and Congress’s intent in strengthening

protections for religious minorities. This Court should

clarify that Hardison’s language is non-binding dictum

and that “undue hardship” has the same meaning in Title

VII that it has in the ADA and other statutes.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

SUE GHOSH STRICKLETT

Legal Counsel

AMERICAN HINDU

COALITION

42618 Trade West Drive

Sterling, VA 20166

(301) 785-1041

FEBRUARY 2023

MATTHEW T. MARTENS

Counsel of Record

MATTHEW E. VIGEANT

DONNA M. FARAG

DOUGLAS W. GATES

G. EDWARD POWELL III

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave., NW

Washington, DC 20037

(202) 663-6000

matthew.martens@

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