Amicus Curiae Brief — Gerald E. Groff, Petitioner v. Louis DeJoy, Postmaster General

Supreme Court briefFeb 28, 2023

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No. 22-174

IN THE

Supreme Court of the United States

>>>>

GERALD E. GROFF,

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 OF AMICUS CURIAE

AIRLINE EMPLOYEES FOR HEALTH FREEDOM

IN SUPPORT OF PETITIONER

JOHN C. SULLIVAN

Counsel of Record

KRISTINA M. WILLIAMS

S|L LAW PLLC

610 Uptown Boulevard

Suite 2000

Cedar Hill, Texas 75104

469-523-1351 T

469-613-0891 F

john.sullivan@the-sl-lawfirm.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

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

iii

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

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

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

An Employer’s Hardship Must Be

Genuine, Significant, And Necessary

In Order To Avoid Accommodating

An Employee’s Religious Observance

Or Practice .........................................

A. The Employer’s Hardship must

be Genuine ...................................

B. The Employer’s Hardship must

be Significant ...............................

C. The Employer’s Hardship must

be Necessary to the Conduct of

the Business ................................

II. An Employer Should Not Be Allowed

To Voluntarily Manufacture Its Own

Undue Hardship .................................

Page

A. Allowing Employers to Create

Their Own Undue Hardship

Thwarts Title VII’s Fundamental

Purpose ........................................

B. Case Study: Air Canada’s

Prohibition on Pilot Beards .........

C. Allowing Employers to Create

Their Own Undue Hardship

Defies Abercrombie’s Teaching

that Religion is Preferred ............

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

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adeyeye v. Heartland Sweeteners, LLC,

721 F.3d 444 (7th Cir. 2013) ...................... 10, 16

Advocate Health Care Network v. Stapleton,

581 U.S. 468 (2017) ....................................

Cloutier v. Costco Wholesale Corp.,

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

Davis v. Fort Bend Cnty.,

765 F.3d 480 (5th Cir. 2014) ......................

EEOC v. Abercrombie & Fitch Stores, Inc.,

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

EEOC v. Firestone Fibers & Textiles Co.,

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

Farah v. A-1 Careers,

No. 12-2692-SAC, 2013 WL 6095118

(D. Kansas Nov. 20, 2013) .........................

Holt v. Hobbs,

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

Perrin v. United States,

444 U.S. 37 (1979) ......................................

Sambrano v. United Airlines, Inc.,

45 F.4th 877 (5th Cir. 2022) ......................

3, 14

Page(s)

Sambrano v. United Airlines, Inc.,

No. 21-1159, 2022 WL 486610

(5th Cir. Feb. 17, 2022) ..............................

Small v. Memphis Light, Gas & Water,

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

Small v. Memphis Light, Gas & Water,

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

8, 13

Trans World Airlines, Inc. v. Hardison,

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

Trinity Lutheran Church of Columbia, Inc.

v. Comer,

137 S. Ct. 2012 (2017) ................................

Van Buren v. United States,

141 S. Ct. 1648 (2021) ................................

Virts v. Consol. Freightways Corp. of Delaware,

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

Weber v. Roadway Exp., Inc.,

199 F.3d 270 (5th Cir. 2000) ......................

Whitmore v. Arkansas,

495 U.S. 149 (1990) ....................................

Wis. Cent. Ltd. v. United States,

138 S. Ct. 2067 (2018) ................................

Statutes

42 U.S.C. § 12111(10) ......................................

Page(s)

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

Affordable Care Act,

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

Title VII, Civil Rights Act of 1964

42 U.S.C. § 2000e, et seq. ..........................passim

Uniformed Services Employment

and Reemployment Rights Act,

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

Rules

Sup. Ct. R. 37 ..................................................

Regulations

29 C.F.R. Appendix § 1630.9 (2019) ...............

29 C.F.R. § 37.4 ...............................................

32 Fed. Reg. 10,298-99 ....................................

Other Authorities

118 Cong. Rec. 706 (1972) ...............................

THE AMERICAN HERITAGE DICTIONARY OF

THE ENGLISH LANGUAGE (1969)..................

ANTONIN SCALIA & B. GARNER,

READING LAW (2012) ..................................

BLACK’S LAW DICTIONARY (5th ed. 1979) .........

Page(s)

Dallan F. Flake, Restoring Reasonableness to

Workplace Religious Accommodations,

95 WASH. L. REV. 1673 (2020) ....................

7, 15

Facial Hair on Pilots: Study Busts Myth,

ScienceDaily (Sept. 21, 2018),

http://www.sciencedaily.com/releases/

2018/09/180921140157.htm .......................

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

Jehovah’s Witnesses Around the World,

United States of America, Fast Facts,

United States of America: How Many

Jehovah’s Witnesses Are There

(last visited Feb. 24, 2023),

http://jw.org ................................................

Michael Lipka, A Closer Look at Seventh-day

Adventists in America, Pew Research

Center (Nov. 3, 2015),

http://www.pewresearch.org/fact-tank/

2015/11/03/a-closer-look-at-seventhday-adventists-in-america/ ........................

Religious Garb and Grooming in the Workplace:

Rights and Responsibilities, U.S. E.E.O.C.

Guidance (last visited Feb. 24, 2023),

http://www.eeoc.gov/laws/guidance/

religious-garb-and-grooming-workplacerights-and-responsibilities ......................... 17, 20

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

vii

Page(s)

SFU Study Busts Myth About Facial Hair

On Pilots, Simon Fraser University

(Sept. 14, 2018),

https://www.sfu.ca/science/news/2018news/sfu-study-busts-myth-about-facialhair-on-pilots.html .....................................

Sherri Ferguson & Dan Warkander,

The Efficacy of Oxygen Delivery Masks

for Commercial Pilots with Facial Hair,

Simon Fraser University ...........................

The Size of the U.S. Jewish Population,

Pew Research Center (May 11, 2021),

http://www.pewresearch.org/religion/

2021/05/11/the-size-of-the-u-s-jewishpopulation/ .................................................

WEBSTER’S NEW TWENTIETH CENTURY

DICTIONARY OF THE ENGLISH

LANGUAGE (2d ed. 1975) .............................

INTEREST OF AMICUS CURIAE 1

Amicus curiae Airline Employees for Health Freedom (AE4HF) is a 501(c)(4) organization committed

to protecting Americans’ rights to bodily autonomy

and working to ensure reasonable accommodations

from employer-mandated medical treatments. The

group is composed primarily of airline employees

across the United States who believe that individual

medical decisions are not the purview of employers—

whether private or public—and that any intrusion

into personal health decisions requires the highest

justification. Employers should not be assumed to

hold such authority.

Unfortunately, religious rights are too often subservient to employer directives in the marketplace.

Following Trans World Airlines, Inc. v. Hardison,

432 U.S. 63, 84 (1977), employers believe that they

may voluntarily choose certain job requirements and

then refuse religious accommodations if the selfimposed requirement would cause the employer the

slightest burden. This not only conflicts with the text

of Title VII of the Civil Rights Act of 1964 and common-sense, it also opens the door for pretextual discrimination by employers.

As discussed below, such discrimination previously

took place when the airline Air Canada issued a

Rule 37 Statement: No attorney for any party authored

any part of this brief, and no one apart from amicus curiae and

its counsel made any financial contribution toward the preparation or submission of this brief.

strict prohibition on pilots having beards—even

those doing so because of religious beliefs. No law

prompted the airline’s requirement, but the airline

claimed it was imposing the rule (without exception)

for hypothetical safety reasons related to the oxygen

masks used on the flight deck. A comprehensive

study on mask effectiveness, however, later revealed

that the safety rationale was false. Air Canada was

merely implementing a preferred aesthetic look.

But even when false motivations are eventually

exposed, those revelations often occur after religious

employees have endured discrimination for years. A

retreat from Hardison and a return to the text of

Title VII—prohibiting companies from voluntarily

manufacturing “undue hardship”—will prevent such

discrimination and increase religious freedom in the

workplace. Amicus thus has a direct interest in the

outcome of this case because it addresses AE4HF’s

mission: protecting the right to free exercise of religion in the aviation workspace.

SUMMARY OF ARGUMENT

They tie up heavy burdens, hard to bear,

and lay them on people’s shoulders, but

they themselves are not willing to move

them with their finger.

Matthew 23:4

In exposing the Pharisees’ hypocrisy, Jesus explained that they were the very ones responsible for

the burdens that were causing others to fall. In other

words, they created the problem but were unwilling

to help solve it. The same thing happens in the

workplace today.

In the wake of Hardison, employers infringe on

the religious beliefs of their employees—often with

impunity—if there is any conceivable justification

that supports refusing an accommodation for a certain job requirement. A company may voluntarily

create a hardship for religious workers that the employer then claims is more than a “de minimis”

hardship to accommodate. Like the Pharisees, the

employer creates the hardship that it is then unwilling to help move.

Even more troubling, courts rarely pause to consider whether the “hardship” was actually necessary

or was created for other purposes, such as marketing

goals or engaging in “ ‘virtue signaling’ and ‘currying

political favor.’ ” Sambrano v. United Airlines, Inc.,

45 F.4th 877, 879 (5th Cir. 2022) (Ho, J., concurring

in denial of rehearing en banc) (internal quotations

and citation omitted). Hardison has created a

climate where an employer need only proffer a hypothetical, self-serving “hardship” to avoid accommodating even the most innocuous religious practice of

an employee. This reality is inconsistent with Title

VII’s protection of religious liberty in the workplace.

Not only should this Court disavow Hardison’s de

minimis exclusion, it should also clarify that employers cannot manufacture their own “hardship” to

evade religious accommodation.

First, the plain text of Title VII indicates that any

“undue hardship” on the employer must be genuine,

significant, and necessary to the conduct of the business. A mere possibility of hardship is not enough;

there must be actual, considerable costs before an

accommodation becomes unreasonable. Moreover,

the underlying job requirement at issue must be a

business necessity, not a tangential objective unrelated to how the business runs.

Second, because of the textual requirements of

Title VII, employers should not be allowed to manufacture their own insurmountable hardship through

voluntary impositions on religious employees. Such a

system thwarts the plain meaning of Title VII and

its fundamental aim of favoring religion. See EEOC

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

775 (2015).

As discussed below, some airlines’ requirement

that pilots shave their beards is a useful example.

See infra Part II.B. That requirement may help the

company achieve a desired “look”, but it is not central to running an airline, as evidenced by the fact

that many airlines do not have that requirement.

Yet an airline might hide behind the veil of safety to

avoid providing an accommodation. And it would

likely not matter whether the policy was actually

safer—just that the company could argue it was.

Setting aside the procedural hurdles in processing a

claim through the Equal Employment Opportunity

Commission,2 current caselaw makes it difficult for

the religious pilot seeking an accommodation to suc2

See 42 U.S.C. § 2000e-5(e)(1), (f)(1).

ceed in court. (This reality is in stark contrast to an

employee entitled to a reasonable accommodation

under the Americans with Disabilities Act (ADA),

further confirming that Title VII’s protections should

not be artificially limited by Hardison.)

A ready solution is to prevent employers from voluntarily choosing burdens that supposedly cannot

be accommodated, or, at minimum, to treat selfimposed burdens as suspect when evaluating an employer’s undue hardship. That would enforce the text

of Title VII and help prevent companies from deploying pretextual excuses against accommodations.

For all these reasons, this Court should reject

Hardison and disavow the resulting per se rule that

naturally favors employers’ whims over religious

freedom. The judgment of the court of appeals

should be reversed.

ARGUMENT

The unfortunate reality created by Hardison is

inconsistent with the plain language of Title VII,

not to mention the First Amendment’s promise of

religious freedom. This Court should disavow the

de minimis loophole and make clear that an employer must incur real, significant expense, that is necessary to the conduct of the business itself—and not

a voluntary burden—before an employer is excused

from providing a religious accommodation.

An Employer’s Hardship Must Be Genuine, Significant, And Necessary In Order

To Avoid Accommodating An Employee’s

Religious Observance Or Practice.

In statutory construction cases, this Court always

“[s]tart[s] * * * with the statutory language[.]”

Advocate Health Care Network v. Stapleton, 581 U.S.

468, 475 (2017). “The text must be construed as a

whole.” ANTONIN SCALIA & B. GARNER, READING LAW

167 (2012). Title VII provides:

It shall be an unlawful employment practice 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 * * * religion

* * *.

42 U.S.C. § 2000e-2(a)(1). Congress added the

phrase “undue hardship” when it defined “religion”

in its 1972 amendments:

The term “religion” includes all aspects of

religious observance and practice, as well

as belief, unless an employer demonstrates

that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice

without undue hardship on the conduct of

the employer’s business.

Id. § 2000e(j) (emphasis added). The statute is thus

designed to provide a “reasonable accommodation”

for an employee’s religious belief where possible.

Id. While “undue hardship” was left undefined, the

plain meaning of the phrase suggests that an employer must incur real, significant costs or difficulty “on the conduct of the employer’s business”

before it is excused from offering an accommodation. See infra Part I.C. While courts have followed

that plain reading of the phrase in the ADA context, religious beliefs under Title VII have suffered

after Hardison.

In juxtaposition to the plain language of Title VII,

Hardison’s dicta has led courts to impose a much

lower standard, allowing employers to deny religious

accommodations that impose “more than a de minimis cost.” See Hardison, 432 U.S. at 84. “In fact,

some courts have gone so far as to grant employers

summary judgment, not because of any actual hardship, but because of the mere possibility of hardship

in the future.” Dallan F. Flake, Restoring Reasonableness to Workplace Religious Accommodations, 95

WASH. L. REV. 1673, 1683 (2020). In other words,

Hardison has evolved into a per se rule that virtually

any cost to an employer—real or fictitious—

constitutes undue hardship.

This Court can correct Hardison’s error by interpreting Title VII’s words—“undue hardship”—“as

taking their ordinary, contemporary, common meaning * * * at the time Congress enacted the statute.”

Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067,

2074 (2018) (quoting Perrin v. United States, 444

U.S. 37, 42 (1979)). Contemporaneous dictionaries

define “hardship” in a manner that would “imply

some pretty substantial costs.” Small v. Memphis

Light, Gas & Water, 952 F.3d 821, 826–27 (6th Cir.

2020) (Thapar, J., concurring) (citing THE AMERICAN

HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE

601 (1969); BLACK’S LAW DICTIONARY 646 (5th ed.

1979); WEBSTER’S NEW TWENTIETH CENTURY DICTIONARY OF THE ENGLISH LANGUAGE 826 (2d ed.

1975)). “Undue hardship” is hardship that “must be

‘excessive.’ ” Id. at 827 (citation omitted). This is

consistent with Congress’s intent that a “very, very

small percentage of cases” would result in no accommodation. 118 Cong. Rec. 706 (1972).

In correcting Hardison, the Court should make

clear that an employer’s claimed hardship must be:

(1) genuine; (2) significant; and (3) necessary to the

conduct of the business itself.

A. The Employer’s Hardship must be

Genuine.

First, the employer’s claimed hardship must be real, not hypothetical. This aligns with Title VII’s instruction that avoiding an accommodation requires a

“hardship.” Just as a speculative harm cannot provide standing for a plaintiff,3 a speculative or fictitious hardship should not excuse an employer from

See Whitmore v. Arkansas, 495 U.S. 149, 157 (1990)

(speculative harm is insufficient to support Article III standing).

offering an accommodation. There must be a genuine

hardship.

Correctly, some “[c]ourts are somewhat skeptical

of hypothetical hardships that an employer thinks

might be caused by an accommodation that never

has been put into practice.” Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 135 (1st Cir. 2004) (internal citation and quotation omitted). Other courts,

however, have held that a hypothetical hardship can

constitute an undue hardship. See Weber v. Roadway Exp., Inc., 199 F.3d 270, 274–75 (5th Cir. 2000)

(“Roadway’s hypotheticals regarding the effects of

accommodation on other workers are not too remote

or unlikely to accurately reflect the cost of accommodation.”); see also EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307, 317 (4th Cir. 2008) (relying

on Weber in explaining that “an employer is not required to wait until it feels the effects of a proposed

accommodation before determining its reasonableness” (internal citation and quotation marks omitted)); Virts v. Consol. Freightways Corp. of Delaware,

285 F.3d 508, 519–21 (6th Cir. 2002) (applying

Weber’s rationale). This is inconsistent with Title

VII’s placement of the obligation on the employer

to show an undue hardship. See 32 Fed. Reg. 10,29899.

The Court should clarify that employers must show

actual—as opposed to hypothetical or speculative—

hardship to avail themselves of Title VII’s safe harbor. This is especially true given the statute’s explicit direction that an employer must “demonstrate[ ]”

any claimed hardship. 42 U.S.C. § 2000e-2(a)(1).

B. The Employer’s Hardship must be

Significant.

Second, the hardship in question must involve a

significant cost. “When Congress amends legislation,

courts must presume it intends the change to have

real and substantial effect.” See Van Buren v. United

States, 141 S. Ct. 1648, 1660 (2021) (internal quotation marks and citation omitted). Here, Congress

purposefully used the term “undue” to modify “hardship” in Title VII. See 42 U.S.C. § 2000e(j). Thus, as

amended, “Title VII requires proof not of minor inconveniences but of hardship, and ‘undue’ hardship

at that.” Adeyeye v. Heartland Sweeteners, LLC, 721

F.3d 444, 455 (7th Cir. 2013).

Under ordinary rules of statutory construction,

“undue hardship” means that an employer must incur significant difficulty or expense in light of the

employer’s financial resources and the nature of its

operations and facilities before it is excused from accommodating an employee’s religious exercise. PostHardison, however, the interpretation of “undue

hardship” in Title VII is fundamentally at odds with

both the phrase’s ordinary meaning and the courts’

interpretation of “undue hardship” in seemingly every other context.

For example, the ADA incorporates the undue

hardship standard but defines “undue hardship” as

“an action requiring significant difficulty or expense”

in light of certain enumerated factors. 42 U.S.C.

§§ 12111(10), 12112(b)(5)(A). In reaffirming the plain

meaning of the statutory text, the ADA explicitly re-

jected “the principles enunciated by the Supreme

Court in [Hardison]” for interpreting an “undue

hardship.” S. Rep. No. 101-116 at 33 (1989); H.R.

Rep. No. 101-485(II) at 68 (1990) (same). Congress

enacted other civil rights laws with similarly defined

“undue hardship” defenses. Small v. Memphis Light,

Gas & Water, 141 S. Ct. 1227, 1228 (2021) (Gorsuch,

J., dissenting from denial of certiorari) (citing Uniformed Services Employment and Reemployment

Rights Act, 38 U.S.C. § 4303(15); Affordable Care

Act, 29 U.S.C. § 207(r)(3)).

In contrast, “[f]or purposes of religious accommodation only, ‘undue hardship’ [currently] means any

additional, unusual costs, other than de minimis

costs.” 29 C.F.R. § 37.4. Not only is Hardison’s

de minimis standard textually wrong, it effectively

“single[s] out the religious for disfavored treatment”—something this Court has rejected as unconstitutional. Trinity Lutheran Church of Columbia,

Inc. v. Comer, 137 S. Ct. 2012, 2020 (2017).

It has been suggested that a factor in determining

whether a hardship is “undue” should be whether an

employer may be forced to offer the same accommodation to a large number of employees—an aggregation of hardship. For example, an employer may

argue that although accommodating one SaturdaySabbatarian is a minor cost, it would be a significant

economic hardship to accommodate 1,000 SaturdaySabbatarians. This oversimplification, however,

glosses over the word “undue” by ignoring that an

employer naturally scales up operations to meet

business demands already. Consider that an em-

ployer—like an airline—large enough to have 1,000

Saturday-Sabbatarians should be expected to have

over 30,000 employees, if not more. 4 And this estimate does not consider the fact that not all those

employees would necessarily seek to take the Sabbath off work. Thus the difficulty in scheduling a

substitute employee for Saturday work is likely minimal. Consider also that Title VII covers companies

with as few as 15 employees. 42 U.S.C. § 2000e(b). If

the smallest Title VII employers must accommodate

religious employees (and they do), then surely the

largest companies can accommodate at least one out

of every 15 employees in the same manner without

encountering “undue” hardship. In short, larger

companies that would be concerned about the aggregation of hardship are also the employers best posi-

At most, it appears that around 3% of the U.S. population observes the Sabbath on Saturday. Approximately 2.4%

of Americans are Jewish. The Size of the U.S. Jewish Population, Pew Research Center (May 11, 2021), http://www.

pewresearch.org/religion/2021/05/11/the-size-of-the-u-s-jewishpopulation/. Approximately 0.5% of Americans identified as

Seventh-day Adventists, the largest church known for its observance of the Sabbath on Saturdays. Michael Lipka, A Closer

Look at Seventh-day Adventists in America, Pew Research

Center (Nov. 3, 2015), http://www.pewresearch.org/fact-tank/

2015/11/03/a-closer-look-at-seventh-day-adventists-in-america/.

Other Saturday-Sabbatarians include Jehovah’s Witnesses,

who make up approximately 0.3% of the American population.

Jehovah’s Witnesses Around the World, United States of America, Fast Facts, United States of America: How Many Jehovah’s

Witnesses Are There (last visited Feb. 24, 2023), http://jw.org.

tioned to absorb such scaled costs without it becoming an undue hardship.5

C. The Employer’s Hardship must be

Necessary to the Conduct of the

Business.

Third, an employer’s claimed hardship must involve a business necessity; it cannot be a tangential

objective unrelated to operating the company. This

rule is directly tied to the statute’s direction that

any “undue hardship” must be on the “conduct of the

employer’s business”—i.e., what it takes to carry on

the business of the company, not some aspirational

goal.

As noted above, core religious freedom principles

dictate that nothing less than a true “hardship”—

“some pretty substantial costs”—can justify refusing

a religious accommodation. Small, 952 F.3d at 827

(Thapar, J., concurring). Allowing an employer to

quash an employee’s free exercise of religion in the

name of some vague “business purpose” is a far cry

from the “undue hardship” contemplated by Congress in enacting Title VII.

Because Title VII demands that any burden unnecessary to the conduct of the business cannot constitute an undue hardship, courts should focus on

The ADA’s interactive process for accommodations

demonstrates that a more robust Title VII accommodation

requirement would not be an “undue burden” to employers. See

29 C.F.R. app. § 1630.9 (2019).

determining what is within the core “conduct” of a

business rather than offering blind deference to the

“sensibilities of the executives who populate the

C-suite.” See Sambrano, 45 F.4th at 878 (Ho, J., concurring in denial of rehearing en banc). Several tests

are readily apparent. First, a court could consider

how the business was historically conducted to determine if a current job requirement is inconsistent

with traditional requirements. Second, a court might

examine other businesses in the same industry to

determine if the job requirement is universal. Third,

a court could consider whether the challenged

requirement is new (i.e., implemented after employment commenced). In that case, it is far less likely

that the job requirement is essential to the conduct

of the business because it did not previously exist.

Where it is apparent that the job requirement is not

part of the “conduct of the employer’s business,” an

employer may not claim an undue hardship to avoid

providing an accommodation.

In sum, this Court should reject Hardison and

make clear that an employer’s claimed hardship

must be: (1) genuine; (2) significant; and (3) necessary to the conduct of the business itself.

II. An Employer Should Not Be Allowed To

Voluntarily Manufacture Its Own Undue

Hardship.

It has become apparent that courts’ application of

Hardison—a per se rule that virtually any impediment named by an employer is an undue hardship—

has undermined Congress’s efforts to safeguard the

Constitution’s first liberty. “[E]mployers today have

near carte blanche over whether and how to provide

religious accommodations—a power imbalance that

often forces employees into the precise dilemma from

which Congress sought to protect them.” Flake,

supra at 1673.

But even more problematic is allowing employers

to create their own undue hardship. Because Hardison’s de minimis test functionally eliminates judicial

review of an employer’s rationale for implementing a

job requirement, employers can more easily argue

“undue hardship” for pretextual reasons. This is

most apparent when a company voluntarily takes on

a burden that it then claims would be unreasonable

to accommodate. Though the new job requirement is

obviously not necessary to the conduct of the business, the self-imposed hardship is used against the

religious employee. This end run around the text

and purpose of Title VII—allowing an employer to

create a burden so big they cannot lift it—should be

eliminated.

A. Allowing Employers to Create Their

Own Undue Hardship Thwarts Title

VII’s Fundamental Purpose.

Allowing employers to voluntarily create hardships that they are unwilling to bear “make[s] a

mockery” of Title VII. See Hardison, 432 U.S. at 88

(Marshall, J., dissenting). After all, “[a]t the risk of

belaboring the obvious, Title VII was aimed to en-

sure that employees would not have to sacrifice their

jobs to observe their religious practices.” Adeyeye,

721 F.3d at 456. Giving teeth to the undue-hardship

standard better reflects Title VII’s requirement to

provide “favored treatment,” not “mere neutrality,”

toward religious practices. Abercrombie, 575 U.S. at

775.

The problem arises because employers generally

may fashion any number of job requirements for employees that are facially neutral toward religion but

nevertheless interfere with the free exercise thereof.

Title VII requires that the employer consider the religious rights of its employees and justify its policies

with more than just desiring a certain “look” or some

other goal tangential to the business model. Ibid.

But, under Hardison, the employer can enforce those

tangential goals even against religious objectors

with a pretextual justification. Because courts have

not enforced Title VII’s textual directives, see supra

Part I, employers have discriminated against religious employees by failing to provide accommodations when the enforced job requirement was not

necessary as part of the conduct of the business.

For example, an airline might want to combat sexism in the workplace by requiring that all flight attendants—women and men alike—wear the same

pants, not skirts or dresses. This would pose a profound problem for a Muslim, Pentecostal Christian,

or Orthodox Jewish woman whose religion dictates

that she wears skirts, not slacks. 6 But at the same

time, the airline might articulate some business

rationale such as: flight attendants wearing pants

can move about the cabin more easily during an

emergency or deal with unruly passengers more

effectively. The “pants-only” rule would be an otherwise-neutral policy with a reasonable safety-related

rationale attached to it. The accommodation question, however, should still consider whether it has an

actual effect on the conduct of the business or

whether the rationale was overstated (or worse,

invented out of whole cloth) to covertly implement a

desired look policy.

This type of concern is magnified because an

employer will have superior knowledge of how its

business runs and can easily proffer a reasonable

sounding—though potentially pretextual—justification for rejecting an accommodation. See Davis v.

Fort Bend Cnty., 765 F.3d 480, 488 (5th Cir. 2014).

Courts have come close to saying as much: “[The

employer] was in a better position than [the employee] to know whether [an accommodation could be

made and] * * * the Court does not substitute the

speculation of an employee for the judgment of an

employer.” Farah v. A-1 Careers, No. 12-2692-SAC,

2013 WL 6095118, at *9 (D. Kansas Nov. 20, 2013).

Religious Garb and Grooming in the Workplace: Rights

and Responsibilities, U.S. E.E.O.C. Guidance (last visited

Feb. 24, 2023), http://www.eeoc.gov/laws/guidance/religiousgarb-and-grooming-workplace-rights-and-responsibilities.

As noted above, however, courts should make an

explicit determination on the legitimacy of the employer’s accommodation denial rather than showing

blind deference to employers. This may take place by

considering factors such as: (1) how the business was

historically conducted; (2) whether other businesses

in the same industry have the same requirement;

and (3) whether the challenged requirement was implemented after the employee’s employment began.

Tellingly, all of these factors will likely indicate that

a job requirement is not essential to the conduct of

the business where the employer has invented a new

burden that it now claims would be an “undue hardship” to accommodate. Such voluntarily-assumed

hardships should thus be rejected outright or, at the

least, treated as suspect under the text of Title VII.

Not only is preventing employers from manufacturing their own “undue hardship” a textual corollary to Title VII, such a rule is rooted in fundamental fairness to the employee. If the employer chooses

a new job requirement, it is hardly equitable to allow

a manufactured hurdle to overcome the religious

freedom rights of an employee already working for

the company. (And, again, it is hard to say the hardship is “undue” if the company did not enact the job

requirement against the employee from the beginning of the relationship.)

To be sure, courts are often reluctant to substitute

their judgment for that of employers. See Sambrano

v. United Airlines, Inc., No. 21-1159, 2022 WL

486610, at *10 (5th Cir. Feb. 17, 2022) (Smith, J.,

dissenting). But Congress made a policy decision to

allow courts to do exactly that in the Title VII context. Title VII requires employers to accommodate

an employee’s religious beliefs unless the employer

“demonstrates that he is unable to [do so] without

undue hardship on the conduct of the employer’s

business.” 42 U.S.C. § 2000e(j). Congress thus rejected any notion that employers be left solely to

their own judgment in running their businesses in

the face of competing religious claims, and certainly

did not intend to let the fox guard the henhouse. After all, a company must “demonstrate[ ]” any alleged

undue hardship—courts are meant to monitor employer actions in this space.

Title VII was designed to protect employees from

being “forced to live on welfare as the price they

must pay for worshipping their God.” Hardison, 432

U.S. at 96–97 (Marshall, J., dissenting). Permitting

employers to self-impose their own insurmountable

burdens thwarts the core purpose of Title VII. Thus,

for both textual and equitable reasons, the Court

should hold that employers may not voluntarily

choose burdens that supposedly cannot be accommodated, or, at minimum, that self-imposed burdens

are suspect when evaluating the undue hardship of

an employer.

B. Case Study: Air Canada’s Prohibition

on Pilot Beards.

In arguing that voluntarily-assumed burdens

should be an explicit consideration for what is an

“undue hardship” under Title VII, Amicus is not ar-

guing, of course, that employers should be foreclosed

from ever creating additional job requirements.

Instead, Amicus is merely asking the Court to recognize that a company’s ability to discriminate is

enhanced when an employer can self-select their

“hardship.”

A ready example is some airlines’ requirement

that all pilots be clean shaven. As one would expect,

such a policy would adversely affect Orthodox Jewish, Sikh, and Muslim pilots who must maintain

facial hair as part of their religious beliefs. 7 And

so while a clean-shaven policy may ensure “the look”

that an airline believes pilots should have,

Abercrombie confirms that religious rights trump

company branding concerns. 575 U.S. at 775 (“Title

VII does not demand mere neutrality with regard

to religious practices * * * * Rather, it gives them

favored treatment * * * * Title VII requires otherwise-neutral policies to give way to the need for an

accommodation.”).

But perhaps the policy is (at least nominally) not

just about the look. An airline might claim a “safety”

concern based on the oxygen masks used in cockpits

across their fleet. Indeed, Air Canada historically

required that pilots be clean shaven for this exact

reason. The company argued that because their pi7

See Brief for Islamic Law Scholars as Amici Curiae at 2,

Holt v. Hobbs, 574 U.S. 352 (2015) (No. 13-6827) (“[H]adith

requiring beards * * * are widely followed by observant

Muslims across the various schools of Islam.”); Religious Garb

and Grooming, supra note 6.

lots’ oxygen masks would not seal correctly if an individual had a beard, all pilots would have to shave

—even those with religious reasons not to do so. 8

For an American airline seeking to enforce the

same policy against Orthodox Jewish, Sikh, or

Muslim male pilots, the current question is whether

there is a de minimis hardship on the employer to

accommodate a beard. And at first glance, given the

argument advanced by Air Canada, it might appear

that an airline could enforce the requirement despite

the religious beliefs of its pilots. Hardison has provided employers with cover in that situation if they

are able to claim a need for uniformity in cockpits

regarding safety equipment. When this is compounded with courts granting deference to employers

on questions related to their business, employers

have wide latitude to deny religious accommodations.

A closer look, however, would reveal that the policy should not be enforced over religious objections.

As an initial matter, there is no anti-beard “safety”

concern mandated by the Federal Aviation Administration or otherwise forced on any airline. Indeed,

many carriers allow pilots to wear beards. It is thus

apparent that a no-beard policy is merely a choice

that an individual airline makes for its own reasons.

And this indicates that the requirement is unneces-

See Facial Hair on Pilots: Study Busts Myth, ScienceDaily (Sept. 21, 2018), http://www.sciencedaily.com/releases/

2018/09/180921140157.htm.

sary to the conduct of the business. As a result, the

policy could be implemented, but the requirement

should not be entitled to Title VII’s safe harbor. See

supra Part I.C.

Importantly, as was seen in the case of Air Canada, the safety rationale was wrong. Beards do not actually hinder pilot oxygen masks from sealing. SFU

Study Busts Myth About Facial Hair On Pilots,

Simon Fraser University (Sept. 14, 2018), https://

www.sfu.ca/science/news/2018-news/sfu-study-bustsmyth-about-facial-hair-on-pilots.html. The airline

wanted clean-shaven pilots for aesthetic reasons and

adopted a false safety concern concerning flight deck

masks. It took a study years later disproving the

need to have pilots without beards for Air Canada to

stop enforcing that policy against religious pilots.

See Sherri Ferguson & Dan Warkander, The Efficacy

of Oxygen Delivery Masks for Commercial Pilots

with Facial Hair, Simon Fraser University. In the

meantime, religious employees faced discrimination

for decades because of management’s marketing

agenda.

It is true that courts may not always be in the best

position to evaluate an employer’s rationale(s) in

creating a job requirement. The straightforward

solution—as shown in this case study—is to require

the employer to offer religious accommodations when

the job requirement in question is voluntarily chosen

by the company. This prevents the employer from

self-selecting a hardship that is too great for the

employer to bear and, by so doing, shield “otherwiseneutral policies” from religious accommodations.

C. Allowing Employers to Create Their

Own Undue Hardship Defies Abercrombie’s Teaching that Religion is

Preferred.

Finally, as explained in Abercrombie, “Title VII

does not demand mere neutrality with regard to religious practices—that they be treated no worse than

other practices.” 575 U.S. at 775. “Rather, it gives

them favored treatment.” Id.; see also id. at 772 n.2

(noting that “accommodate” “means nothing more

than allowing the plaintiff to engage in her religious

practice despite the employer’s normal rules to the

contrary”).

Hardison—and employers’ ability to fashion their

own insurmountable burdens—sharply contradicts

Abercrombie’s command to give “favored treatment”

to employees’ religious practices. That is because

Hardison deems virtually any departure from neutral workplace rules an “undue hardship” under its

de minimis test. Hardison reasoned that “Title VII

does not contemplate” the “prefer[ential]” treatment

of “religious needs” over “nonreligious[ ] reasons for

not working on weekends.” 432 U.S. at 81, 84–85. In

the Hardison Court’s view, enforcing the plain

meaning of “undue hardship” would “involve unequal treatment of employees on the basis of their

religion.” Id. at 84–85. But Hardison’s reflexive deference to “neutral” rules, id. at 78–79, ignores Title

VII’s unique treatment of religion.

Not only is Hardison itself problematic, the further flattening of its de minimis test to a per se rule

that any “hardship” is “undue” presents an even

greater affront to Abercrombie. Title VII establishes

a balancing test under which courts consider both a

job requirement’s burden on an employee’s religion

and an accommodation’s toll on an employer’s business. 42 U.S.C. § 2000e(j). Abercrombie counsels that

this balance must tilt in favor of the employee’s religion. 575 U.S. at 775. A per se rule that presumes

that an employer’s hardship is always legitimate is

directly contrary to the plain language of Title VII

and Abercrombie’s mandate of favored treatment.

Under Hardison, the employee already starts behind in the analysis with assumed acceptance of the

employer’s “hardship.” The harm is even more egregious when the employer’s “hardship” is self-selected

and unnecessary to the conduct of the business.

Abercrombie confirms that this is error under Title

VII.

Justices, judges, scholars, amici, and (previously)

even the United States have all agreed that Hardison’s de minimis test is incongruent with the plain

text of Title VII. Indeed, the existing per se rule that

virtually any hardship articulated by an employer is

automatically deemed “undue” defies Abercrombie’s

directive that religion is favored. This Court should

reject Hardison and make clear that an employer

must incur real, significant costs, directly related to

the necessary “conduct of the employer’s business”—

not just a voluntary, aspirational company goal—

before it is excused from offering a religious accommodation.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

JOHN C. SULLIVAN

Counsel of Record

KRISTINA M. WILLIAMS

S|L LAW PLLC

610 Uptown Boulevard

Suite 2000

Cedar Hill, Texas 75104

john.sullivan@the-sl-lawfirm.com

469-523-1351 T

469-613-0891 F

Counsel for Amicus Curiae

February 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.