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,
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 ROBERT P. ROESSER
AS AMICUS CURIAE
IN SUPPORT OF PETITIONER
––––––––––––––––––––––––
BRUCE N. CAMERON
Counsel of Record
BLAINE L. HUTCHISON
RAYMOND J. LAJEUNESSE, JR.
JAMES C. DEVEREAUX
c/o NATIONAL RIGHT TO
WORK LEGAL DEFENSE
FOUNDATION, INC.
8001 Braddock Road, Ste. 600
Springfield, VA 22160
(703) 321-8510
bnc@nrtw.org
Counsel for Amicus
TABLE OF CONTENTS
Page
INTEREST OF AMICUS CURIAE............................. 1
INTRODUCTION AND SUMMARY
OF ARGUMENT ......................................................... 2
ARGUMENT ............................................................... 4
I. There is no contractual bargaining exception or
coworker defense for discrimination ..................... 4
A. Standards that exclude religious employees
violate Title VII even if they are otherwise
neutral ............................................................... 4
1. Congress rejected uniform standards that
discriminate against religion ...................... 5
2. Congress amended Title VII to require religious accommodation and reject preamendment neutrality ................................ 9
3. Hardison defied Congress by rejecting accommodation and reinforcing pre-amendment neutrality ........................................ 10
i.
The majority wrongly claimed that
neutral rules excuse the duty to accommodate ...................................... 10
ii.
The majority wrongly claimed that a
collective bargaining agreement excuses the duty to accommodate...... 12
i
TABLE OF CONTENTS—Continued
Page
iii.
The majority wrongly claimed that
accommodation is discrimination .. 19
B. Title VII has one exception for undue hardship
on the employer’s business ............................. 20
1. Title VII requires accommodations that impose significant expense ............................ 21
i.
Hardison’s de minimis standard contradicts Title VII ............................. 21
ii.
Hardison’s de minimis standard
eliminates the duty to accommodate.................................................. 25
2. Title VII does not include a coworker or union discrimination defense ........................ 27
CONCLUSION .......................................................... 30
ii
TABLE OF AUTHORITIES
Page(s)
CASES
Adeyeye v. Heartland Sweeteners, LLC,
721 F.3d 444 (7th Cir. 2013) .......................... 11, 24
Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974) ............................................ 3, 14
Am. Tobacco Co. v. Patterson,
456 U.S. 63 (1982) ................................................ 16
Anderson v. Gen. Dynamics Convair Aerospace Div.,
589 F.2d 397 (9th Cir. 1978) .................... 14, 15, 24
Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680 (1946) .............................................. 25
Bostock v. Clayton Cnty.,
140 S. Ct. 1731 (2020) .................................... 15, 23
Burns v. S. Pac. Transp. Co.,
589 F.2d 403 (9th Cir. 1978) .......................... 14, 15
Cooper v. Gen. Dynamics,
533 F.2d 163 (5th Cir. 1976) .......................... 14, 15
Dewey v. Reynolds Metals Co.,
429 F.2d 324 (6th Cir. 1970) ........................ 7, 8, 17
Draper v. U.S. Pipe & Foundry Co.,
527 F.2d 515 (6th Cir. 1975) ................................ 24
EEOC v. Abercrombie & Fitch Stores,
575 U.S. 768 (2015) .................. 6, 11–13, 16, 22, 28
iii
TABLE OF AUTHORITIES —Continued
Page(s)
EEOC. v. Univ. of Detroit,
904 F.2d 331 (6th Cir. 1990) .................................. 1
Franks v. Bowman Transp. Co.,
424 U.S. 747 (1976) .............................................. 16
IAM, Lodge 751 v. Boeing Co.,
833 F.2d 165 (9th Cir. 1987) ................................ 14
Int’l Bhd. of Teamsters v. United States,
431 U.S. 324 (1977) .............................................. 16
Marbury v. Madison,
5 U.S. 137 (1803) .................................................. 23
McDaniel v. Essex Int’l,
571 F.2d 338 (6th Cir. 1978) .......................... 14, 15
Newman v. Piggie Park Enterprises, Inc.,
390 U.S. 400 (1968) .............................................. 14
Nottelson v. Smith Steel Workers DALU 19806,
643 F.2d 445 (7th Cir. 1981) .......................... 14, 15
Patterson v. Walgreen Co.,
140 S. Ct. 685 (2020) ...................................... 20, 21
Riley v. Bendix Corp.,
330 F. Supp. 583 (M.D. Fla. 1971) .................... 6–8
Sandifer v. U.S. Steel Corp.,
571 U.S. 220 (2014) ........................................ 23, 25
iv
TABLE OF AUTHORITIES —Continued
Page(s)
Sherbert v. Verner,
374 U.S. 398 (1963) ................................................ 6
Small v. Memphis Light, Gas & Water,
952 F.3d 821 (6th Cir. 2020) .............. 19, 21, 22, 25
Tooley v. Martin-Marietta Corp.,
648 F.2d 1239 (9th Cir. 1981) ........................ 14, 15
Trans World Airlines, Inc. v. Hardison,
432 U.S. 63 (1977) .......... 2, 3, 10, 12–23, 25–27, 30
Wis. Dep’t of Revenue v. William Wrigley, Jr., Co.,
505 U.S. 214 (1992) .............................................. 24
Wondzell v. Alaska Wood Prods., Inc.,
601 P.2d 584 (Alaska 1979) ........................... 14, 15
Wooden v. United States,
142 S. Ct. 1063 (2022) .......................................... 23
Yott v. N. Am. Rockwell Corp.,
501 F.2d 398 (9th Cir. 1974) ................................ 14
STATUTES AND RULES
29 U.S.C. §§ 158(a), 159(a)…………………………….18
42 U.S.C. § 2000e(j) ............................... 2, 5, 23, 27–28
42 U.S.C. § 2000e-2(c) ............................................... 13
Supreme Court Rule 37.6............................................ 1
v
TABLE OF AUTHORITIES —Continued
Page(s)
REGULATIONS AND GUIDELINES
29 C.F.R. pt. 1630, App. § 1630.15(d) (2016) ............ 28
EEOC Religious Discrimination Guidelines (1966) .. 6
EEOC Religious Discrimination Guidelines (1967) .. 6
LEGISLATIVE MATERIALS
118 Cong. Rec. 705 (1972) ..................................... 9, 17
BOOKS AND ARTICLES
Black’s Law Dictionary(4th ed. 1968)................. 24, 25
Black’s Law Dictionary (5th ed. 1979)...................... 24
Blaine L. Hutchison & Bruce N. Cameron, Janus’s
Solution for Title VII Religious Objectors (forthcoming 2023)) ................................................. 14, 15
Bruce N. Cameron & Blaine L. Hutchison, Thinking
Slow About Abercrombie & Fitch: Straightening
Out the Judicial Confusion in the Lower Courts,
46 Pepp. L. Rev. 471 (2019) ............................. 6, 11
Blaine L. Hutchison, Revisiting Employment Division v. Smith, 91 U. Cin. L. Rev. 396, 414–15,
418–19 (2022) ......................................................... 5
Debbie N. Kaminer, Religious Accommodation in the
Workplace: Why Federal Courts Fail to Provide
Meaningful Protection of Religious Employees,
20 Tex. Rev. L. & Pol. 107 (2015) .......................... 5
vi
TABLE OF AUTHORITIES —Continued
Page(s)
Douglas Laycock, Regulatory Exemptions of Religious
Behavior and the Original Understanding of the
Establishment Clause, 81 Notre Dame L. Rev.
1793 (2006) ........................................................... 17
Douglas Laycock, Substantive Neutrality Revisited,
110 W. Va. L. Rev. 51, 55 (2007) ........................... 4
Karen Engle, The Persistence of Neutrality: The
Failure of the Religious Accommodation Provision
to Redeem Title VII, 76 Tex. L. Rev. 317 (1997) ... 5
Michael W. McConnell, Accommodation of Religion:
An Update and a Response to the Critics,
60 Geo. Wash. L. Rev. 685 (1992) ........................ 22
Peter Zablotsky, After the Fall: The Employer’s Duty
to Accommodate Employee Religious Practices Under Title VII After Ansonia Board of Education v.
Philbrook, 50 U. Pitt. L. Rev. 513 (1989) ............ 26
Random House Dictionary (1973) ............................. 24
Webster’s New American Dictionary (1965).............. 24
BRIEFS
Br. in Opp’n, Small v. Memphis Light, Gas & Water,
141 S. Ct. 1227 (2021) (No. 19-1388) .................. 22
Pet. Br., Trans World Airlines, Inc. v. Hardison,
432 U.S. 63 (1977) (No. 75-1126) ......................... 22
vii
TABLE OF AUTHORITIES —Continued
Page(s)
Resp’t Br., Trans World Airlines, Inc. v. Hardison,
432 U.S. 63 (1977) (No. 75-1126) ......................... 22
U.S. Amicus Br., Patterson v. Walgreen Co.,
140 S. Ct. 685 (2020) (No. 18-349) ................... 5, 21
U.S. Amicus Br., Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) (No. 75-1126) ................. 22
OTHER MATERIALS
USPS, 515 Absence for Family Care or Illness of Employee, https://about.usps.com/manuals/elm/html
/elmc5_005.htm .................................................... 29
viii
INTEREST OF AMICUS CURIAE1
The University of Detroit fired Amicus Dr. Robert P. Roesser for his religious convictions. Dr.
Roesser refused to fund a union that promoted views
contrary to his religious beliefs. As a result, his employer terminated his engineering professorship.
The Equal Employment Opportunity Commission
sued Dr. Roesser’s employer and union after it found
that they violated Title VII. Dr. Roesser intervened.
The district court ruled against the EEOC and Dr.
Roesser, but the Sixth Circuit reversed. EEOC v.
Univ. of Detroit, 904 F.2d 331 (6th Cir. 1990). It remanded the case to determine whether accommodation was possible without undue hardship.
On remand, Dr. Roesser faced at least two problems: First, a collective bargaining agreement
prompted his discharge. Second, the defendants argued that a court must consider coworkers who might
be inspired to claim protection for their faith because
Dr. Roesser taught at a Jesuit school. These questions
were never resolved because the case settled.
Dr. Roesser files this brief to highlight the inherent
conflict between minority rights and the collective and
underscore this case’s importance for all employees
who depend on Title VII to practice their faith.
Under Supreme Court Rule 37.6, no counsel for any party authored this brief in whole or in part, and no person or entity aside
from the National Right to Work Legal Defense Foundation,
which provided Dr. Roesser’s counsel, made a monetary contribution to this brief’s preparation or submission.
1
1
INTRODUCTION AND SUMMARY
OF ARGUMENT
Congress passed Title VII, in part, to protect employees from religious discrimination. Yet shortly after its enactment, courts interpreted Title VII to allow
employers to fire employees for following their faith.
Congress responded by adding Section 701(j) to Title VII to further protect religious employees. The
amendment clarifies that religious-practice discrimination—even through otherwise neutral rules—is unlawful. Employers and unions must reasonably accommodate employees’ religious beliefs and practices.
Congress made one exception: accommodation is not
required if it would impose an “undue hardship on . . .
the employer’s business.” 42 U.S.C. § 2000e(j).
But Trans World Airlines, Inc. v. Hardison, 432
U.S. 63 (1977), gutted these vital protections for religious employees. It rejected religious accommodation
to avoid supposedly unequal treatment. And so it let
the defendants fire the plaintiff for his faith. Because
the majority embraced formal neutrality, it denied
what it saw as special religious privileges. It thus subjected employees’ individual religious needs to uniform employment rules and collective bargaining
agreements. The majority encapsulated its holding by
stating that an accommodation imposes an undue
hardship if it entails “more than a de minimis cost.”
Id. at 84.
This holding means that an employer “need not
grant even the most minor special privilege to religious observers to enable them to follow their faith.”
2
Id. at 87 (Marshall, J., dissenting). As a result, employers may fire religious employees for simply practicing their faith. In effect, Hardison “nullif[ied]” critical protections that Congress granted religious employees. Id. at 89.
Despite Congress’s efforts to protect religion, Hardison requires many employees to make a cruel
choice: surrender your faith or your job. This ultimatum harms religious minorities in particular. Individuals in the majority do not need accommodation because rules reflect their cultural and religious beliefs.
Congress passed Title VII and required religious accommodation to protect minorities from the majority.
As this Court recognized, Title VII protects “an individual’s right to equal employment opportunities”
from “majoritarian processes.” Alexander v. GardnerDenver Co., 415 U.S. 36, 51 (1974). Thus, this Court
held that a contractual bargaining agreement cannot
waive an employee’s Title VII rights. Id. Yet Hardison
says that collective bargaining agreements and other
majoritarian rules supplant Title VII rights.
This case illustrates Hardison’s harsh results. The
United States Postal Service discriminated against
Groff when it could have easily accommodated him.
USPS could have scheduled another employee for the
few weeks needed during peak season so Groff could
observe his Sabbath. Pet. App. 31a. Indeed, USPS admitted that this would not have harmed USPS. Id.
But it refused, undoubtedly based on Hardison. So
Groff could not work for USPS and keep his faith.
This is the ignoble path that Hardison demands
others follow. The courts below obeyed. They sanctioned religious discrimination to avoid marginally
3
impacting Groff’s coworkers and slightly adjusting a
collective bargaining agreement.
* * *
Simply put, Hardison contradicts Title VII and
harms religious employees. This Court should overrule Hardison and affirm that religious employees’
civil rights do not depend on the majority.
ARGUMENT
I. There is no contractual bargaining exception
or coworker defense for discrimination.
Congress found that accommodation is necessary
to protect religious employees, and so it amended Title
VII to require it. Without accommodation, religious
employees are subject to punishment for practicing
their faith. Hardison, however, rejected religious accommodation.
A. Standards that exclude religious employees violate Title VII even if they are otherwise neutral.
The Hardison majority denied religious accommodation because it embraced a competing framework—
formal (category) neutrality. See Douglas Laycock,
Substantive Neutrality Revisited, 110 W. Va. L. Rev.
51, 55 (2007) (defining formal neutrality). The majority believed that Title VII requires religion blindness
and thus prohibits decisions based on protected class.
So the Court rewrote the statute to avoid different
treatment based on religion. This is the animating
idea behind Hardison. It sacrifices accommodation
(and religious minorities) on the collective altar and
reverses Congress’s Title VII amendment.
4
1. Congress rejected uniform standards that
discriminate against religion.
Congress amended Title VII because courts applied formal neutrality and refused to protect religion.
Congress clarified that failure to provide religious accommodation is also discrimination. Debbie N. Kaminer, Religious Accommodation in the Workplace:
Why Federal Courts Fail to Provide Meaningful Protection of Religious Employees, 20 Tex. Rev. L. & Pol.
107, 116–17 (2015). In its amendment, Congress
added that religion includes “all aspects of religious
observance and practice, as well as belief.” 42 U.S.C.
§ 2000e(j). And so it collapsed the distinction between
belief and conduct.
Congress intended to prevent employers from firing religious employees just as the statute protects
other employees from discrimination. Religious employees simply have different needs. Religion at its
core involves belief and conduct in a way that other
protected classes do not. Kaminer, supra, at 116–17;
Karen Engle, The Persistence of Neutrality: The Failure of the Religious Accommodation Provision to Redeem Title VII, 76 Tex. L. Rev. 317, 357–59 (1997); see
also Blaine L. Hutchison, Revisiting Employment Division v. Smith, 91 U. Cin. L. Rev. 396, 414–15, 418–
19 (2022) (showing how uniform rules harm religion).
In effect, no accommodation means that religious
employees, like Groff and Hardison, must choose between their job and their God. Accommodation simply
allows these employees the same opportunity to earn
a living as other employees who do not share the same
religious beliefs. For this reason, the Court elsewhere
called accommodation “nothing more than . . . neutral5
ity in the face of religious differences.” Sherbert v. Verner, 374 U.S. 398, 409 (1963). See also U.S. Amicus Br.
at 21, Patterson v. Walgreen Co., 140 S. Ct. 685 (2020)
(No. 18-349) (Section 701(j) “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.”).
Thus, when an employer and union refuse to accommodate, they discriminate because of religion.
Bruce N. Cameron & Blaine L. Hutchison, Thinking
Slow About Abercrombie & Fitch: Straightening Out
the Judicial Confusion in the Lower Courts, 46 Pepp.
L. Rev. 471, 482 (2019). As this Court recently explained, refusal to accommodate is disparate treatment because religion under Title VII includes both
belief and behavior. EEOC v. Abercrombie & Fitch
Stores, Inc., 575 U.S. 768, 771–72 (2015). Employers
may not fire employees for following their faith when
they could accommodate them.
The EEOC first realized that Title VII must protect religious practice and require accommodation. It
first interpreted Title VII through formal neutrality.
EEOC Religious Discrimination Guidelines (1966),
quoted in Riley v. Bendix Corp., 330 F. Supp. 583, 591
(M.D. Fla. 1971), rev’d, 464 F.2d 1113 (5th Cir. 1972).
Although it suggested that employers should accommodate employees’ religious needs, it stated that employers may institute a uniform schedule—even if
that unevenly affects employees’ religion.
But the EEOC fully adopted a contrary, accommodation approach one year later. EEOC Religious Discrimination Guidelines (1967), quoted in Riley, 330 F.
Supp. at 592. Those Guidelines state that the duty not
6
to discriminate includes an obligation to accommodate
religious needs, absent “undue hardship on the conduct of the employer’s business.” Id.
Yet many courts ignored the EEOC Guidelines and
applied formal neutrality. These courts ignored employees’ religious needs and treated religious practice
like a personal choice—rather than a protected trait.
Two cases in particular made this error and motivated
Congress to amend Title VII: Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th Cir. 1970), aff’d by an
equally divided court, 402 U.S. 689 (1971), and Riley,
330 F. Supp. 583.
In Dewey and Riley, the plaintiffs were fired for following their religion. Yet both courts held that their
employers did not discriminate because they merely
enforced policies that applied to all employees. Dewey,
429 F.2d at 328; Riley, 330 F. Supp. at 589. Even
though the policies discriminated against religious beliefs that require Sabbath observance, the courts ignored this religious disparity.
The Sixth Circuit reinforced its neutrality holding
by relying on a collective bargaining agreement. The
plaintiff in Dewey (like Riley) believed that he must
refrain from work on the Sabbath. Dewey, 429 F.2d at
331. But the employer refused to accommodate because a collective bargaining agreement required Sabbath work and allocated labor, in part, according to
seniority. Id. at 327–28. Because Dewey could not
work on the Sabbath, the employer fired him based on
that agreement. Id. at 328.
The court reasoned that an employee is not entitled to religious accommodation that alters a collective
bargaining agreement. Id. at 330–31. Absent intent to
discriminate, the court held, a union and employer
7
may enforce a bargaining agreement that prohibits an
employee’s religious exercise. Id. at 329. The court
held: “The reason for Dewey’s discharge was not discrimination on account of his religion; it was because
he violated the provisions of the collective bargaining
agreement.” Id. at 330.
Although the collective bargaining agreement prohibited Dewey’s religious practice, the court found
“nothing discriminatory in [it].” Id. at 329. Based on
formal neutrality, the court praised the agreement. It
wrote that the collective bargaining agreement “provided a fair and equitable method of distributing the
heavy workload among the employees without discrimination against any of them.” Id. According to the
court, an employer may fire all Sabbatarians if a collective bargaining agreement requires Sabbath work.
In essence, Dewey and Riley held that Title VII
does not protect religious practice—it only protects religious status or belief. Id. at 330. Employees may believe their religion, but they cannot practice it. Riley
emphasized that employees with conflicting religious
practices must either conform to the workplace or
“seek other employment.” 330 F. Supp. at 590. Thus,
employers and unions need not alter formally neutral
rules to allow religious practice.
In fact, the Sixth Circuit in Dewey went further. It
called accommodation discrimination and therefore
rejected it. The court reasoned that accommodating
the plaintiff would “discriminate against . . . other employees” and “constitute unequal administration of
the collective bargaining agreement.” 429 F.2d at 330.
The court cited possible personnel problems and grievances if it unequally allocated work based on religion.
8
Id. The Supreme Court equally divided and thus affirmed the Sixth Circuit decision. 402 U.S. at 689.
2. Congress amended Title VII to require religious accommodation and reject preamendment neutrality.
These decisions motivated Congress to amend Title VII. Senator Jennings Randolph proposed an
amendment to clarify that Title VII requires religious
accommodation. 118 Cong. Rec. 705 (1972). Senator
Randolph appreciated the problem for religious employees because he was a Sabbatarian. Id. On the Senate floor, he explained his religious beliefs and articulated the acute problem that many Sabbatarians face.
Senator Randolph stated that Dewey and Riley
clouded religious discrimination’s meaning and did
not protect religion as Congress intended. Id. at 706.
And he cited the Supreme Court’s even split in Dewey.
He urged Congress to amend Title VII and require religious accommodation.
The Senate unanimously passed Senator Randolph’s amendment—now Section 701(j)—and the
House similarly approved it. Senator Randolph explained that this amendment “assure[s] that freedom
from religious discrimination in the employment of
workers is for all time guaranteed by law.” Id. at 705.
It requires accommodation in most cases and only permits refusal in “a very, very small percentage of
cases.” Id. at 706. The purpose, as Senator Randolph
put it, is to protect employees’ religious freedom “insofar as possible” and their “opportunity to earn a livelihood” regardless of religious belief. Id.
9
As a guidepost, Congress included copies of Dewey
and Riley in the record. Those decisions thus represent interpretations that Congress specifically rejected by amending Title VII.
3. Hardison defied Congress by rejecting
accommodation and reinforcing preamendment neutrality.
Even though Congress repudiated Dewey and Riley, Hardison still applied those decisions’ logic. As
Justice Marshall charged, the majority defied Congress by “follow[ing] the Dewey decision.” Hardison,
432 U.S. at 89 (Marshall, J., dissenting). Based on preamendment formal neutrality, the majority rejected
accommodation for three reasons.
i.
The majority wrongly claimed that neutral
rules excuse the duty to accommodate.
The Hardison majority held that the defendant
employer and union did not discriminate when they
fired the plaintiff for his religious beliefs. The majority
reasoned that no (unlawful) discrimination occurred
because the employer and union treated all protected
groups equally. Id. at 78 (majority opinion). In an
amazing statement, the majority described the seniority policy that caused the plaintiff to lose his job as “a
significant accommodation,” because it equally applied to protected groups. Id. In other words, the policy was an accommodation because it was formally
neutral. It did not (on its face) allocate work based on
religion and the majority thought that it treated all
protected classes equally.
The majority derided any uniquely religious accommodation. It argued that the union and employer
10
could “adopt a neutral system, such as seniority, a lottery, or rotating shifts; or allocate days off in accordance with the religious needs of its employees.” Id. at
80–81 (emphasis added). The majority thus commended the seniority policy as a fair, neutral choice.
The Court claimed that a religious accommodation
policy is unfair because it discriminates based on religion. Id. at 81. But despite the majority’s recommendation, it called these choices “a matter for collective
bargaining.” Id. at 80. Unions and employers, not Congress, determine whether accommodation is necessary. In short, they may hire or fire Sabbatarians.
This holding contradicts Title VII and undermines
essential protections for religious employees. Congress required unions and employers to allocate work
based on religion. It did not praise otherwise neutral
rules. Nor did it endorse systems that prefer time—or
other features—over conscience. Congress amended
Title VII because otherwise neutral rules often discriminate against religious minorities. As the Seventh
Circuit put it, Congress required accommodation from
otherwise neutral rules “to ensure that employees
would not have to sacrifice their jobs to observe their
religious practices.” Adeyeye v. Heartland Sweeteners,
LLC, 721 F.3d 444, 456 (7th Cir. 2013).
Neutrality is not a defense. A neutral rule that prevents religious practice is a trigger that requires accommodation. As Justice Alito observed: “If neutral
work rules . . . precluded liability, there would be no
need to provide [a] defense, which allows an employer
to escape liability for refusing to make an exception to
a neutral work rule.” Abercrombie, 575 U.S. at 779
(Alito, J., concurring). Accommodation is relevant only
11
when an otherwise neutral rule conflicts with a person’s religious practice. Hardison, 432 U.S. at 87
(Marshall, J., dissenting).
In fact, Congress determined that otherwise neutral rules that prohibit religious exercise are discriminatory. Thus, they violate Title VII. Congress collapsed the distinction cases made between belief and
conduct. Cameron & Hutchison, Abercrombie & Fitch,
supra, at 482. Thus, work rules that prohibit religious
conduct (e.g., no headwear) are the same as work rules
that prohibit religious belief (e.g., no Muslims). Abercrombie, 575 U.S. at 775. Both are unlawful because
they discriminate against religion. In short, Congress
prohibited Hardison’s construction.
ii.
The majority wrongly claimed that a collective bargaining agreement excuses the duty
to accommodate.
The Hardison majority argued that the neutral
(seniority) rules were special because they came from
a collective bargaining agreement. Hardison, 432 U.S.
at 81. As a practical matter, Hardison made a super
exception for formally neutral rules in a collective bargaining agreement. It suggested it is always an undue
hardship for a union or employer to deviate from such
rules. Id. at 83. But Title VII does not say that a union
and employer must accommodate religious employees
unless the collective decides otherwise.
Indeed, the majority conceded “that neither a collective-bargaining contract nor a seniority system
may be employed to violate the statute.” Id. at 79. Yet
it did not find a statutory violation because it rejected
Title VII’s duty to accommodate. Rules that prohibit
12
religious practice discriminate against religion. Abercrombie, 575 U.S. at 775. And an employer that enforces such rules and refuses to accommodate violates
Title VII.
A rule that discriminates against religion is not a
defense regardless of its source. Title VII trumps collective agreements and other rules that discriminate
against religion and prohibit religious practice. It is
logically irrelevant whether the offending policy
comes from a bargaining agreement, negotiated by a
union and employer, or an employer unilaterally.
Rules in a collective bargaining agreement that prohibit religious exercise are just as discriminatory as
employer mandates that prohibit religious exercise.2
Both prevent employees from practicing their religion.
(a)
The majority wrongly claimed that labor
law trumps Title VII.
The majority suggested that labor law insulates
collective bargaining agreements from Title VII. The
majority argued that collective bargaining “lies at the
core of our national labor policy, and seniority provisions are universally included in these contracts.”
Hardison, 432 U.S. at 79. It refused to require any accommodation that conflicts with a collective bargaining agreement until Congress approves such accommodations. Yet Congress not only approved religious
accommodation but also required it—no less through
congressional amendment.3 And Congress stated that
2 Title VII also prohibits unions from discriminating against em-
ployees’ religious beliefs and practices. 42 U.S.C. § 2000e-2(c).
3 Congress also did so after it passed and amended the National
Labor Relations Act and the Railway Labor Act.
13
the policy behind Title VII to protect minorities from
discrimination is “of the ‘highest priority.’” Alexander,
415 U.S. at 47 (quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968)).
What’s more, every circuit court that considered
the relationship between Title VII and labor law in the
union dues context rejected Hardison’s position. IAM,
Lodge 751 v. Boeing Co., 833 F.2d 165, 169–70 (9th
Cir. 1987); Tooley v. Martin-Marietta Corp., 648 F.2d
1239, 1242–44 (9th Cir. 1981); Nottelson v. Smith
Steel Workers DALU 19806, 643 F.2d 445, 450–53 (7th
Cir. 1981); Anderson v. Gen. Dynamics, 589 F.2d 397,
402 (9th Cir. 1978); Burns v. S. Pac. Transp. Co., 589
F.2d 403 (9th Cir. 1978); McDaniel v. Essex Int’l, 571
F.2d 338, 344 (6th Cir. 1978); Cooper v. Gen. Dynamics, 533 F.2d 163, 166–70 (5th Cir. 1976); Yott v. N.
Am. Rockwell Corp., 501 F.2d 398, 403 (9th Cir. 1974);
see also Wondzell v. Alaska Wood Prods., Inc., 601
P.2d 584, 586 (Alaska 1979). These courts all held that
a contractual bargaining agreement does not excuse
Title VII’s duty to accommodate.
Thus, Title VII forbids unions and employers from enforcing collective bargaining agreements that require
individuals to fund a union that conflicts with their
religion. E.g., Tooley, 648 F.2d at 1244; see also Blaine
L. Hutchison & Bruce N. Cameron, Janus’s Solution
for Title VII Religious Objectors (forthcoming 2023),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4371781 (surveying the conflict between religion and labor law and analyzing Title VII’s protections for religious objectors). Like union seniority, union fees are a mandatory bargaining subject, and
14
many collective bargaining agreements require employees to fund the union to keep their job. Yet appeals
courts all agree that Title VII protects employees with
religious objections from this common collective bargaining requirement. E.g., Boeing, 833 F.2d at 70;
Tooley, 648 F.2d at 1244; Nottelson, 643 F.2d at 451;
Anderson, 589 F.2d at 402; Burns, 589 F.2d at 407;
McDaniel, 571 F.2d at 344; Cooper, 533 F.2d at 171;
Yott, 501 F.2d at 403; Wondzell, 601 P.2d at 586.
These courts reasoned that Title VII, not labor law,
addresses employees’ religious needs and requires religious accommodation. E.g., McDaniel, 571 F.2d at
341–43; see also Hutchison & Cameron, Janus’s Solution, supra, at 12 (analyzing the union dues cases under Title VII). Accommodation does not undermine labor law. As the Fifth Circuit explained, when the law
permits forced union fees, unions and employers may
still enforce so-called union security clauses “in all except the unusual [case] where compliance would run
counter to a particular employee’s religious conviction.” Cooper, 533 F.2d at 170. But given a direct conflict, Title VII controls. No labor policy is more important than eliminating employment discrimination.
Nottelson, 643 F.2d at 451; McDaniel, 571 F.2d at 343.
See also Bostock v. Clayton Cnty., 140 S. Ct. 1731,
1737 (2020) (“In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of
1964.”). For these reasons, appeals courts all held that
“Title VII creates an exception to . . . union security
clauses.” Nottelson, 643 F.2d at 450.
15
(b)
The majority wrongly claimed that Section
703(h) immunizes collective bargaining
agreements and seniority rules.
Section 703(h) does not support Hardison’s conclusion. That section provides that employers may establish seniority and merit systems that do not discriminate based on protected class. It does not create a discrimination safe harbor. Franks v. Bowman Transp.
Co., 424 U.S. 747, 758 (1976).4 The majority in Hardison agreed. Hardison, 432 U.S. at 79. At most, Section
703(h) immunizes seniority agreements from disparate-impact challenges. But it does not prevent disparate treatment challenges. Am. Tobacco Co. v. Patterson, 456 U.S. 63, 75 (1982) (“703(h) exempts from Title
VII the disparate impact of a bona fide seniority system”); see also Int’l Bhd. of Teamsters v. United States,
431 U.S. 324, 335, 348 n.30 (1977) (same but distinguishing disparate treatment). Because refusal to accommodate is disparate treatment, Section 703(h) is
not an obstacle. See Abercrombie, 575 U.S. at 771.
When a union and employer create a system that discriminates against religion, and they refuse to accommodate, they act with “an intention to discriminate”
under Section 703(h).
At any rate, seniority is a poor discrimination defense. As the majority itself recognized in Hardison:
4 Section 703(h)’s legislative history suggests that Congress in-
tended that section to only prevent challenges to pre-act seniority
and merit systems. Franks, 424 U.S. at 761–62. See also Am. Tobacco, 456 U.S. at 77–78 (Brennan, J., dissenting) (Section 703(h)
“reflects Congress’ desire to protect vested seniority rights; Congress did not seek to ensure the vesting of new rights that are
the byproduct of discrimination.”). But see Am. Tobacco Co., 456
U.S. at 77-78 (majority opinion).
16
“This Court has long held that employee expectations
arising from a seniority system agreement may be
modified by statutes furthering a strong public policy
interest.” Hardison, 432 U.S. at 79 n.12 (quoting
Franks, 424 U.S. at 778). Our society recognizes many
reasons to deviate from a seniority system.
A seniority agreement in a CBA is essentially a
queue. It creates a preference based on time. But preferences for time generally give way to the disabled,
the elderly, those in the military, and those with small
children, to name a few. Favoring time over conscience
contradicts the theory behind the Free Exercise
Clause and Title VII’s application of that theory.5
Moreover, Congress rejected Hardison’s collective
bargaining agreement and seniority arguments. In
Dewey the Sixth Circuit refused to accommodate
based on a collective agreement that assigned work.
429 F.2d at 329. The court found no discriminatory intent and held that the agreement did not discriminate
on its face or in its application against religion. Id. So
it sanctioned the employer’s decision to fire the plaintiff under the collective bargaining agreement.
Congress renounced the decision in Dewey. It
amended Title VII because Dewey misapplied the statute and failed to protect religion. Congress added Section 701(j) to require the opposite result. 118 Cong.
Rec. 706 (1972). Thus, Congress repudiated these arguments and in essence legislatively overturned
Dewey. As a result, Congress foreclosed a seniority
and collective bargaining agreement defense.
5 Hutchison & Cameron, Janus’s Solution, supra, at 12 (arguing
that Title VII enforces the Free Exercise Clause).
17
When Congress amended Title VII, it particularly
had Sabbatarians in mind. Senator Randolph explained the problem that many Sabbatarians face,
like the plaintiffs in Dewey and Riley. Id. at 705. Sabbatarians often have religious conflicts with collective
bargaining agreements and seniority provisions because these devices often control work. Congress intended to protect these individuals. Id. A collective
bargaining agreement exception would undermine
Congress’s intent. It would allow employers to continue to fire Sabbatarians despite Congress’s efforts to
protect them.
(c)
The collective bargaining agreement exception contradicts Title VII.
Above all, a collective bargaining agreement exception undermines Title VII’s effort to protect vulnerable minorities. At its core, accommodation shields individuals from uncaring and sometimes hostile
groups. Douglas Laycock, Regulatory Exemptions of
Religious Behavior and the Original Understanding of
the Establishment Clause, 81 Notre Dame L. Rev.
1793, 1802 (2006). And it often protects minorities
who cannot enact policies to protect their beliefs.
A union exclusive bargaining representative eliminates an individual’s right to negotiate his own working conditions and by law represents the majority at
the minority’s expense. See National Labor Relations
Act, 29 U.S.C. §§ 158(a), 159(a). That increases, not
decreases, the need for accommodation. Thus, if anything, a collective bargaining agreement worsens the
problem Congress tried to solve.
Simply put, unions and employers cannot discard
employees’ civil rights—even if they agree to do so in
18
a collective bargaining agreement. As Justice Marshall recognized, “an employer cannot avoid his duty
to accommodate by signing a contract that precludes
all reasonable accommodations.” Hardison, 432 U.S.
at 96 (Marshall, J., dissenting). Work rules that prohibit religious exercise violate the statute—even when
a union also agrees to the discrimination.
iii.
The majority wrongly claimed that accommodation is discrimination.
The Hardison majority further argued—in “language strikingly similar” to Dewey and Riley—that accommodation would “discriminate against . . . other
employees” and thus conflicts with Title VII. Id. at 89.
Because Congress intended to prevent discrimination,
the majority asserted that “it would be anomalous” to
interpret “reasonable accommodation” to require
“such unequal treatment.” Id. at 81 (majority opinion).
Thus, the majority rejected accommodation.
This reasoning presumes that Congress did not really mean what it said when it amended Title VII and
required religious accommodation. And taken to its
logical end, it negates any duty to accommodate since
all accommodation (from this viewpoint) is discriminatory. As Justice Marshall wrote, “if an accommodation can be rejected simply because it involves preferential treatment, then . . . the statute, while brimming
with ‘sound and fury,’ ultimately ‘signif[ies] nothing.’”
Id. at 87 (Marshall, J., dissenting).
Accommodation, moreover, does not discriminate
against other employees. Hardison’s charge, according to Judge Thapar, is “unreasonable on its face.”
Small v. Memphis Light, Gas and Water, 952 F.3d
19
821, 828 (6th Cir. 2020) (Thapar, J., concurring). Consider the Americans with Disabilities Act, which requires accommodations for disabled employees. “No
right-minded person would call such accommodations
a form of impermissible discrimination against nondisabled employees.” Id. The singular opposition toward religious accommodation reflects our society’s
increasing hostility toward religion—and the urgent
need to protect it.
Refusing to accommodate causes inequality: employers may exclude religious employees from the
workforce while others are protected. Hardison and
Groff—and others who have similar religious beliefs—
suffer employment capital punishment for their faith.
Employees who have different or no beliefs do not suffer so. After Dewey and Riley, Congress determined
that accommodation is necessary to protect religious
employees. Hardison “disregard[s] [these] congressional choices” and permits religious discrimination.
Hardison, 432 U.S. at 87 (Marshall, J., dissenting).
Thus, under Hardison, USPS may fire Groff when it
could just as easily accommodate him.
B. Title VII has one exception for undue hardship on the employer’s business.
Based on formal neutrality, Hardison held that
unions and employers need not accommodate religion.
Employees may work within the system available to
all employees to swap shifts and use seniority to
observe their religion, if possible. But unions and
employers, under Hardison, need not make any
special exceptions for religion.
With that in mind the Court invented two rules.
First, an employer need not accommodate if
20
accommodation requires more than a de minimis cost.
And second, an employer need not accommodate if
accommodation impacts coworkers or alters a
collective bargaining agreement. Both rules conflict
with Title VII.
1. Title VII requires accommodations that
impose significant expense.
Congress required unions and employers to accommodate employees’ religious beliefs and practices unless accommodation is impossible without undue
hardship. Yet the Hardison majority asserted in its
penultimate paragraph—“almost as an afterthought”—that any accommodation that requires
“more than a de minimis cost” is “an undue hardship.”
Small, 952 F.3d at 828 (Thapar, J., concurring). In effect, the Court redefined undue hardship.
i.
Hardison’s de minimis standard contradicts
Title VII.
Hardison’s de minimis standard is untenable. As
three Justices recently observed, “Hardison’s reading
does not represent the most likely interpretation of
the statutory term ‘undue hardship.’” Patterson, 140
S. Ct. at 686 (Alito, J., concurring in denial of certiorari). Indeed, Hardison’s reading is implausible. Justice Marshall rightly objected in dissent that this
standard conflicts with “simple English usage” and Title VII’s “plain words.” Hardison, 432 U.S. at 88, 92
n.6 (Marshall, J., dissenting).
21
On that basis, circuit judges,6 scholars,7 and the
United States Solicitor General8 have all agreed that
Hardison’s de minimis standard is wrong. In fact, it is
hard to find anyone who thinks that Hardison is
right—including respondents forced to defend it. One
recently admitted before this Court that “the Hardison equation very likely is not the best possible gloss
on the phrase ‘undue hardship.’” Br. in Opp’n at 23,
Small, supra (No. 19-1388).
The Hardison majority did not claim that its de
minimis rule came from Title VII’s text.9 Id. The majority gave no reason for its impromptu rule—likely
because it follows the majority’s neutrality logic. No
party endorsed it. Pet. Br. at 40–41, 47, Hardison, supra (No. 75-1126); Resp’t Br. at 8, 21, Hardison, supra
(No. 75-1126); U.S. Amicus Br. at 20–22, Hardison,
supra (No. 75-1126). To the contrary, the briefs in
Hardison did not question undue hardship’s meaning.
The parties—including the United States as amicus—
all agreed that the term means far more than any nonde-minimis cost.
Title VII provides robust protection for religion.
The text is plain: it requires unions and employers to
6 E.g., Small, 952 F.3d at 828–29 (Thapar, J., concurring).
7 E.g., Michael W. McConnell, Accommodation of Religion: An
Update and a Response to the Critics, 60 Geo. Wash. L. Rev. 685,
704 (1992).
8 U.S. Amicus Br. at 19–23, Patterson, supra (No. 18-349).
9 Although Hardison referenced Title VII’s text, the case started
before Congress amended Title VII. So it only applied the existing EEOC guidelines and does not control Title VII’s meaning.
Abercrombie, 575 U.S. at 787 n.3 (Thomas, J., concurring in part
and dissenting in part).
22
accommodate employees’ religious beliefs and practices unless doing so would impose an “undue hardship on the conduct of the employer’s business.” 42
U.S.C. § 2000e(j). Congress said nothing more and
made no other exception.
Because Congress did not define the term undue
hardship, the term retains its original, public meaning. Bostock, 140 S. Ct. at 1738 (affirming this is the
normal rule); Sandifer v. U.S. Steel Corp., 571 U.S.
220, 227 (2014) (affirming this is a “fundamental
canon of statutory construction”)(citation omitted).
The reason is that “only the words on the page constitute the law adopted by Congress and approved by the
President.” Bostock, 140 S. Ct. at 1738. These words
have accepted meaning that Congress chose, and the
President approved. Judges are, therefore, not free to
deviate from words’ original meaning. They usurp the
legislative process and destabilize the law when they
do.
Yet the Hardison majority did just that. It ignored
and rewrote the law “effectively nullifying it.” Hardison, 432 U.S. at 89 (Marshall, J., dissenting). Hardison created its own law on religious accommodation—
it did not “say what the law is,” Marbury v. Madison,
5 U.S. 137, 177 (1803). And it imposed its own values
contrary to the peoples’ values expressed through
their representatives. So there is little, if any, stare
decisis reason to uphold it. The opinion is left over
from a “bygone era” that did not focus on text and instead applied “a more freewheeling approach to statutory construction.” Wooden v. United States, 142 S.
Ct. 1063, 1085 (2022) (Gorsuch, J., concurring).
No pre-Hardison dictionary defined undue hardship as simply “more than de minimis.” And for good
23
reason. A de minimis burden—one that is “very small
or trifling,” comparable to “a fractional part of a
penny”—is no hardship. Black’s Law Dictionary 482
(4th ed. 1968). For another thing, the reading conflicts
with the established legal principle that applies to “all
enactments”—“de minimis non curat lex (‘the law
cares not for trifles.’)” Wis. Dep’t of Revenue v. William
Wrigley, Jr., Co., 505 U.S. 214, 231 (1992).
Dictionaries at the time defined hardship as “a
condition that is difficult to endure; suffering; deprivation; oppression.” Random House Dictionary 646
(1973). Webster’s and Black’s law dictionaries from the
time agree. Webster’s New American Dictionary 379
(1965) (defining hardship as “something that causes
or entails suffering or privation”); Black’s Law Dictionary 646 (5th ed. 1979) (defining hardship as “privation, suffering, adversity”). By itself, hardship requires accommodations that are “difficult to endure.”
But hardship is not enough. Congress also required that the hardship be “undue.” E.g., Adeyeye,
721 F.3d at 455 (“Title VII requires proof not of minor
inconveniences but of hardship, and ‘undue’ hardship
at that”); Anderson, 589 F.2d at 402 (“Undue hardship
means something greater than hardship.”); Draper v.
U.S. Pipe & Foundry Co., 527 F.2d 515, 520 (6th Cir.
1975) (same). So the hardship must exceed conditions
that are “difficult to endure.”
Dictionaries largely defined undue as “unwarranted” or “excessive.” Random House Dictionary, supra, at 1433. See also Webster’s New American Dictionary, supra, at 968 (defining undue as “not due,” as
“inappropriate” or “unsuitable,” and as “exceeding or
violating propriety or fitness.”); Black’s Law Dictionary, supra, at 1370 (defining undue as “[m]ore than
24
necessary; not proper; illegal”); Black’s Law Dictionary 1697 (4th ed. 1968) (same). Thus, undue hardship
requires “a condition that is difficult to endure” and
serious enough to be called “excessive.” That means
that “the accommodation must impose significant
costs on the company” to qualify. Small, 952 F.3d at
827 (Thapar, J., concurring).10
Hardison stated the opposite. Many costs are neither hardships—difficult to endure—nor undue—excessive. Yet Hardison allows these costs to negate critical protections for religious employees. Simply put,
Hardison makes a “mockery of the statute”—“effectively nullifying it.” Hardison, 432 U.S. at 88–89
(Marshall, J., dissenting).
ii.
Hardison’s de minimis standard eliminates
the duty to accommodate.
Almost any cost, by definition, is more than de
minimis. As the Supreme Court wrote elsewhere: de
minimis costs are “trifles,” mere “[s]plit second absurdities” or inconveniences. Sandifer, 571 U.S. at
233–34 (quoting Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680, 692 (1946)). Such costs are so trivial, the
law does not recognize them. Id. Yet the Hardison majority claimed that Title VII does.
And Hardison goes further still. While the majority stated that an employer need not accept more than
a de minimis cost, it held, in effect, that an employer
need not bear any cost. No cost options were available
10 In Hardison, the cost would have had to have been considera-
ble, indeed, to impose an undue hardship on the employer—one
of the largest airlines in the United States.
25
in Hardison. 432 U.S. at 92 n.6 (Marshall, J., dissenting). Another employee could have done Hardison’s
work, but the Court rejected this option out of hand
based on “efficiency loss”—without evidence showing
that efficiency would be lost. Id.
Accommodation for Hardison simply required that
his employer pay overtime wages for three months—
$150—until he could transfer. Id. Justice Marshall
aptly noted that $150 for a major airline is a de minimis cost. Id. And Hardison offered to reimburse the
airline—eliminating any cost. Yet the majority held
that these options imposed an undue hardship.
As a result, many courts predictably apply Hardison as a per se rule: “virtually all cost alternatives”—
no matter how large or small—are “unduly harsh.” Peter Zablotsky, After the Fall: The Employer’s Duty to
Accommodate Employee Religious Practices Under Title VII After Ansonia Board of Education v. Philbrook,
50 U. Pitt. L. Rev. 513, 547 (1989); see also Kaminer,
supra, at 139–40 (“[C]ourts have almost unanimously
held that employers” need not bear “any economic
costs or [efficiency] costs . . . to accommodate a religious employee.”). It is immaterial whether the costs
are direct—like paying a temporary replacement or
additional wage—or indirect—like lost efficiency or
increased administrative work. Zablotsky, supra, at
544–45. Accommodation is considered an undue hardship “if it requires an employer to bear any additional
cost whatsoever.” Id. at 544.
At its core, Hardison eviscerates religious accommodation. If taken seriously, Hardison means that an
employer need not tolerate any cost or inconvenience
to accommodate an employee’s religion. Little if any
duty to accommodate remains.
26
2. Title VII does not include a coworker or
union discrimination defense.
Hardison’s second rule eliminates what little is left
of the duty to accommodate. To avoid special treatment, the majority also rejected accommodations that
impact coworkers or affect a collective bargaining
agreement. 432 U.S. at 81. Hardison stressed that religious accommodation discriminates against coworkers and benefits religious employees at others’ expense. Id. On that basis, many courts have inferred an
atextual rule from Hardison: “an accommodation that
causes more than a de minimis impact on co-workers
creates an undue hardship.” Pet. App. 26a. Based on
that rule, the courts below sanctioned USPS’s refusal
to accommodate Groff’s religious beliefs. Id. at 24a.
The rule derived from Hardison contradicts Title
VII’s text. As Judge Hardiman ably explained, Title
VII requires an undue hardship on the employer’s
business. Id. at 28a (citing 42 U.S.C. § 2000e(j)). And
“a burden on coworkers isn’t the same thing as a burden on the employer’s business.” Id. The Hardison
rule, moreover, means that “any burden on employees
[is] sufficient to establish undue hardship.” Id. In essence, it subjects religious accommodation “to a heckler’s veto by disgruntled employees.” Id.
Congress provided only one exception to the otherwise absolute duty to accommodate: undue hardship
on the employer’s business. Outside that exception, unions and employers must accommodate. Congress did
not include a union or coworker exception. So there is
no basis to infer or create one.
As this Court recently noted, courts may not “add
words to the law to produce what is thought to be a
27
desirable result. That is Congress’s province.” Abercrombie, 575 U.S. at 774. Thus, this Court should
“construe Title VII’s silence” about unions and
coworkers “as exactly that: silence.” Id. The text therefore excludes a union or coworker exception. It requires unions and employers to show that accommodation would impose an undue hardship on the employer’s business. 42 U.S.C. § 2000e(j). Like Judge
Hardiman noted, coworker and bargaining agreement
impact are not the same as a burden on the employer’s
business.
Congress enacted Title VII to protect unpopular
minorities. Yet Hardison counts coworkers’—and unions’—unwillingness to accept and accommodate religious employees as a defense rather than a defect.
Consider any other protected class: Title VII prohibits
discrimination based on race, for example, even if the
collective prefers it. Hardison’s coworker rule simply
discriminates against religion. Accommodation under
Title VII is particularly needed when unions and
coworkers disfavor it. A legal duty is unneeded when
accommodation is favored.
Hardison’s rule likewise conflicts with civil rights
statutes generally. Take the ADA. It is immaterial under the statute whether unions and coworkers disfavor accommodating a disabled employee. In fact, employers may not claim undue hardship based on “employees’ fears or prejudices toward [an] individual’s
disability.” 29 C.F.R. pt. 1630, App. § 1630.15(d)
(2016). Nor may employers base undue hardship on
accommodations that might have “a negative impact
on the morale of its other employees.” Id. Employers
must show that the accommodation would unduly disrupt coworkers “ability . . . to perform their jobs.” Id.
28
Or take the Family Medical Leave Act (“FMLA”).
The FMLA applies to the USPS, and the USPS states
that employees may use “up to 12 workweeks of leave
within a Postal Service leave year” under the Act.
USPS, 515 Absence for Family Care or Illness of Employee, https://about.usps.com/manuals/elm/html/elm
c5_005.htm (last visited Feb. 23, 2023). This leave requires coworkers to do more work or employers to wait
(at least) 12 weeks until the employee returns to work.
Leave does not depend on its impact on coworkers.
And employers may not refuse FMLA leave by signing
a contract with a union.
Coworker preferences are just as immaterial when
they are expressed by a collective representative. It is
irrelevant whether a union and employer agree to
comply with the ADA and FMLA. Employers may not
waive these statutory rights by creating uniform rules
under a collective bargaining agreement that preclude
ADA accommodation or FMLA leave. A bargaining
agreement is not a defense.
Groff only needed religious accommodation or
leave for a few days each year—six according to Judge
Hardiman. Pet. App. 31a. USPS could have simply
scheduled another employee. Id. USPS even conceded
that scheduling an extra employee to take Groff’s
place would not harm USPS. Id. Yet the courts below
rejected accommodation because it supposedly impacted coworkers and may require USPS to alter its
collective bargaining agreement. By contrast, if Groff
had requested FMLA leave, no court would have allowed USPS to refuse based on coworkers’ preferences
or a collective bargaining agreement.
29
In short, religious employees’ civil rights do not depend on the collective. There is no Title VII exception
for unions and coworkers.
CONCLUSION
“All Americans will be a little poorer until [Hardison] is erased”—particularly those who must sacrifice
their job to follow their faith. Hardison, 432 U.S. at 97
(Marshall, J., dissenting). This Court should overturn
Hardison in full and restore our nation’s commitment
to religious liberty.
Respectfully submitted,
BRUCE N. CAMERON
Counsel of Record
BLAINE L. HUTCHISON
RAYMOND J. LAJEUNESSE, JR.
JAMES C. DEVEREAUX
c/o NATIONAL RIGHT TO
WORK LEGAL DEFENSE
FOUNDATION, INC.
8001 Braddock Road
Springfield, VA 22160
(703) 321-8510
bnc@nrtw.org
Counsel for Amicus
February 28, 2023
30
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.