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

No. 22-174

In The

Supreme Court of the United States

GERALD E. GROFF,

v.

Petitioner,

LOUIS DEJOY, POSTMASTER GENERAL,

Respondent

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF THE THOMAS MORE SOCIETY AND

THE JEWISH COALITION FOR RELIGIOUS LIBERTY

AS AMICI CURIAE IN SUPPORT OF PETITIONER

Thomas Brejcha

Counsel of Record

Stephen M. Crampton

Thomas More Society

309 W. Washington St.

Suite 1250

Chicago, IL 60606

Telephone: (312) 782-1680

Facsimile: (312) 782-1887

tbrejcha@thomasmoresociety.org

Howard Slugh

Jewish Coalition

for Religious Liberty

2400 Virginia Ave, N.W., C619

Washington, D.C. 20037

Telephone: (954) 328-9461

hslugh@jcrl.org

B. Tyler Brooks

Thomas More Society

100 E. Lake Drive, Suite 6

Greensboro, NC 27403

Telephone: (336) 707-8855

Facsimile: (336) 900-6535

tbrooks@thomasmoresociety.org

Counsel for Amicus Curiae

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

i

TABLE OF CONTENTS

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

IDENTITY AND INTEREST OF AMICI

CURIAE .............................................................. 1

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

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

I.

RELIGION SHOULD NOT BE

TREATED AS A “LESSER” CATEGORY

OF PROTECTION UNDER TITLE VII. ........... 3

II.

THE DE MINIMIS STANDARD HAS

UNDERMINED THE SCOPE OF

RELIGIOUS LIBERTY PROTECTIONS

UNDER TITLE VII BY PERMITTING

THE MOST MINOR OF

INCONVENIENCES TO QUALIFY AS

AN “UNDUE HARDSHIP” FOR AN

EMPLOYER. ....................................................... 6

III. THIS COURT SHOULD RETURN TO A

DEFINITION OF “UNDUE HARDSHIP”

THAT IS FAITHFUL TO THE TEXT OF

TITLE VII AND THUS SHOULD GIVE

EFFECT TO THE BALANCE

CONGRESS ATTEMPTED TO STRIKE

FOR AMERICA’S DIVERSE AND

PLURALISTIC SOCIETY. ............................... 8

A.

Hardison Improperly Tips the

Scales Against Employees of Faith. .......... 8

ii

B.

Societal Changes Make the Need

for Title VII’s Protections All the

More Necessary. ....................................... 16

CONCLUSION .......................................................... 17

iii

TABLE OF AUTHORITIES

CASES

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

(1986) .................................................................. 9

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

126 (1st Cir. 2004) ............................................ 11

Dalberiste v. GLE Assocs., Inc., 814 Fed. App'x

495 (11th Cir. 2020), cert. denied, 141 S.

Ct. 2463 (Apr. 5, 2021) (No. 19-1461) .............. 10

Dalberiste v. GLE Assocs., Inc., No. 19-1461

(July 31, 2020) .................................................. 10

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

Cir. 2014) ............................................................ 9

Davis v. Mich. Dep't of Treasury, 489 U.S. 803

(1989) .................................................................. 4

EEOC v. Abercrombie & Fitch Stores, Inc.,

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

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

1135 (D. Colo. 2018)............................................ 7

EEOC v. Oak-Rite Mfg. Corp., No. IP 99-1962C H/G, 2001 U.S. Dist. LEXIS 15621

(S.D. Ind. Aug. 27, 2001) .................................... 7

iv

E.E.O.C. v. Thompson Contracting, Grading,

Paving, & Utils., Inc., 793 F. Supp. 2d

738 (E.D.N.C. 2011) .................................... 11, 12

EEOC v. Walmart Stores East, L.P., No. 201419, 2021 U.S. App. LEXIS 33263 (7th

Cir. June 4, 2021) ............................................. 10

Espinoza v. Mont. Dep't of Revenue, 140 S. Ct.

2246 (2019)........................................................ 17

Farah v. A-1 Careers, No. 12-2692-SAC, 2013

WL. 6095118, 2013 U.S. Dist. LEXIS

164930 (D. Kan. Nov. 20, 2013) ..................... 7, 9

Finnie v. Lee Cty., Miss., 907 F. Supp. 2d 750

(N.D. Miss. 2012) .............................................. 10

Fraternal Order of Police Newark Lodge No.

12 v. City of Newark, 170 F.3d 359 (3d

Cir. 1999) .......................................................... 15

George v. Home Depot, 2001 U.S. Dist. LEXIS

20627 (E.D. La. Dec. 6, 2001) ............................. 7

Gustafson v. Alloyd Co., 513 U.S. 561 (2015)............. 4

Hedican v. Walmart Stores East, L.P., 142 S.

Ct. 1357 (2022).................................................. 10

Hobbie v. Unemployment Appeals Comm'n,

480 U.S. 136 (1987) .................................... 11, 12

Jiglov v. Hotel Peabody, G.P., 719 F. Supp. 2d

918 (W.D. Tenn. 2010) ...................................... 11

v

Leonce, No. 7:03-C 2008 WL. 58892 (N.D. Tex.

Jan. 3, 2008)........................................................ 7

Mohamed v. 1st Class Staffing, LLC, 286 F.

Supp. 3d 884 (S.D. Ohio 2017) ......................... 10

O'Lone v. Est. of Shabazz, 482 U.S. 342 (1987) ....... 14

In re Palmer, 386 A.2d 1112 (R.I. 1978) ................... 15

Patterson v. Walgreen Co., 727 F. App'x 581

(11th Cir. 2018), cert. denied, 140 S. Ct.

685 (Feb. 24, 2020) (No. 18-349) ...................... 10

Patterson v. Walgreen Co., 140 S. Ct. 685

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

Prach v. Hollywood Supermarket, Inc., No. 0913756, 2010 U.S. Dist. LEXIS 88738

(E.D. Mich. Aug. 27, 2010) ............................... 11

Sherbert v. Verner, 374 U.S. 398 (1963) ................... 12

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

Ct. 1227 (2021).................................................... 5

Small v. Memphis Light, Gas & Water, 952

F.3d 821 (6th Cir. 2020), cert. denied,

141 S. Ct. 1227 (Apr. 5, 2021) (No. 191388) .................................................................. 10

Trans World Airlines, Inc. v. Hardison, 432

U.S. 63 (1977) ........................ 3, 5, 6, 8-12, 15, 17

Zorach v. Clauson, 343 U.S. 306 (1952) ..................... 9

vi

STATUTES

42 U.S.C. § 1981a(b)(3) ....................................... 3, 4, 8

42 U.S.C. § 2000e ........................................................ 1

OTHER AUTHORITIES

3 Rabbi Yosef Karo, Shulchan Aruch Orach

Chayim 242-365 (1977) .................................... 13

5 The Founders' Constitution 82, 82 ........................ 12

A. Scalia & B. Garner, READING LAW 167

(2012) .................................................................. 4

Aron Moss, Why Do Jewish Women Cover

Their Hair, Chabbad.org .................................. 14

Aryeh Kaplan, Sabbath: Day of Eternity, 2

The Aryeh Kaplan Anthology 107 (1998) ........ 13

Exodus 31:14

.......................................................... 14

Gertrude Himmelfarb, One Nation, Two

Cultures 96 (2001) ............................................ 16

Identity, Sikh Coal. ................................................... 15

“In U.S., Decline of Christianity Continues at

Rapid Pace,” Pew Research Center (Oct.

17, 2019) ............................................................ 16

vii

James Madison, Memorial and Remonstrance

Against Religious Assessments (June 20,

1785), in 5 The Founders’ Constitution

82 ....................................................................... 12

Jason Despain, A Peculiar Clause of Political

Compromise for California's Religious

Minorities, 21 ...................................................... 2

Jews in America: Shabbat as Social Reform

(1925) .................................................................. 2

Jonathan D. Sarna, American Judaism: A

History 162 (2004) .............................................. 2

Koran 62:9 ................................................................. 14

Leviticus 19:27 ........................................................... 14

Sampson Raphael Hirsch, Hirsch Siddur 14

(1969) ................................................................ 13

Scott Neuman, “Fewer Than Half of U.S.

Adults Belong to a Religious

Congregation, New Poll Shows,”

NPR.org (Mar. 30, 2021) .................................. 16

The 39 Categories of Sabbath Work Prohibited

by Law, Orthodox Union (July 17, 2006) ......... 13

What Adventists Believe About the Sabbath,

Seventh-day Adventist Church ........................ 14

Why the Sabbath?, Orthodox Union (July 17,

2006) .................................................................. 13

1

IDENTITY AND INTEREST OF AMICI

CURIAE1

The Thomas More Society (TMS) is a not-forprofit, national public interest law firm dedicated to

restoring respect in law for life, family, and religious

liberty. Based in Chicago, Illinois, the Thomas More

Society defends and fosters support for these causes

by providing high quality pro bono legal services

from local trial courts to the United States Supreme

Court. Throughout its history, the Thomas More

Society has worked to eliminate discrimination

against persons of faith, and this has included

representation of clients in cases brought under Title

VII of the Civil Rights Act of 1964.

The Jewish Coalition for Religious Liberty

(JCRL) is a non-denominational organization of

Jewish communal and lay leaders, seeking to protect

the ability of Americans to freely practice their faith.

JCRL also aims to foster cooperation between Jewish

and other faith communities in an American public

square in which all supporters of freedom may

flourish.

Pursuant to Supreme Court Rule 37.6, it is stated that no

counsel for a party wrote this brief in whole or in part, and no

counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person or

entity, other than the amici curiae or their counsel, has made a

monetary contribution to this brief’s preparation or submission.

1

2

SUMMARY OF THE ARGUMENT

As originally enacted and as subsequently

amended in 1972, Title VII was intended to provide

strong protections to workers against discrimination

in employment due to an employee’s religion. The

history of Jewish immigrants to America provides a

poignant example of why such protection is vital.

The combination of a Monday-through-Saturday

work week and “strictly enforced” Sunday closure

laws had a particularly devastating effect on the

lives of many newly arrived Jewish immigrants.

Jonathan D. Sarna, American Judaism: A History

162 (2004). “[U]nsympathetic employers” told their

Jewish employees, “if you don’t come in on Saturday,

don’t bother coming in on Monday.” Id. at 162-63;

see also Jason Despain, A Peculiar Clause of Political

Compromise for California’s Religious Minorities, 21

Rutgers J. L. & Religion 390, 393-94 (2021)

(describing how one rabbi’s pleas to secure

accommodations for Russian Jewish immigrants in

West Hollywood “often fell on deaf ears”); Jews in

America: Shabbat as Social Reform (1925), Jewish

Virtual Library, available at https://www.jewish

virtuallibrary.org/shabbat-as-social-reform-1925

(last visited Feb. 28, 2023) (“Almost no employers—

even Jewish employers—honored Saturday as a day

of rest.”).

Though some Jewish workers “preserve[d] their

Sabbath at all costs,” many more succumbed to the

need “to feed themselves and their families.” Sarna,

supra, at 163. “[T]he decline of Sabbath observance”

indicated “spiritual collapse within the Jewish

immigrant community.” Id. at 162. It was, at that

3

point, unclear whether Judaism could thrive in

America.

Title VII with its robust protections and

mandatory accommodations seemed like the answer

to the fervent prayers of those Jews and the prayers

of other people of faith. Unfortunately, this Court’s

decision in Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977), caused religion to receive

substantially less protection than other statutory

bases protected by Title VII, such as race and sex.

Indeed, the “de minimis standard” adopted in

Hardison often provides little defense against

religious discrimination; and, it has led to results

that are inconsistent with the purpose of preventing

workplace discrimination on the basis of religious

belief and practice. Returning to an understanding

of “undue hardship” based in Title VII’s text would

restore the balance that Congress intended to strike

in this area upset by Hardison’s atextual and

otherwise unsound approach.

Amici therefore

respectfully urge that Hardison be overturned.

ARGUMENT

I.

RELIGION

SHOULD

NOT

BE

TREATED

AS

A

“LESSER”

CATEGORY

OF

PROTECTION

UNDER TITLE VII.

The language of Title VII equally protects

against discrimination on several bases: “race, color,

religion, sex, [and] national origin.” 42 U.S.C. §

2000e-2(a) (emphasis added). And yet, one of these

categories—religion—is

currently

given

less

4

protection than the others. The case currently

before the Court presents an ideal opportunity to

remedy this unjustifiable difference in treatment.

That religion was meant to be given the same

level of protection as, for example, race or sex should

have been obvious enough from the plain text of Title

VII when it was enacted, given that all of its

protected categories are listed in the very same

sentence. See Davis v. Mich. Dep’t of Treasury, 489

U.S. 803, 809 (1989) (“It is a fundamental canon of

statutory construction that the words of a statute

must be read in their context and with a view to

their place in the overall statutory scheme.”); see

also A. Scalia & B. Garner, READING LAW 167 (2012)

(“The text must be construed as a whole”); cf.

Gustafson v. Alloyd Co., 513 U.S. 561, 575 (2015)

(“[A] word is known by the company it keeps (the

doctrine of noscitur a sociis).”).

In 1972, Congress made its intended scope of

protections even clearer. It added definitional

language making it indisputable that religious

practices were protected as much as an employee’s

religious beliefs: “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.” 42 U.S.C. § 2000e(j). By

amending Title VII in this manner, Congress

ensured that “religious practice is one of the

protected characteristics that cannot be accorded

disparate treatment and must be accommodated.”

5

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

768, 775 (2015).

Despite this legislative action to protect against

religious discrimination, this Court in Trans World

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

reduced the level of protection for religion under

Title VII. In Hardison, the Court clawed back the

protections enacted by Congress and replaced them

with the de minimis standard. See Hardison, 432

U.S. at 84 (“To require TWA to bear more than a de

minimis cost in order to give Hardison Saturdays off

is an undue hardship.”).

The “de minimis standard” is not found in Title

VII, but it has nonetheless become the touchstone for

resolving religious discrimination cases. Petitioner

Groff has explained well the manner in which this

approach deviates from the text and uses a flawed

approach to statutory interpretation. These amici

agree with that analysis.

Courts after Hardison embraced its articulation

of the de minimis standard, even though the

language was dicta. See Abercrombie & Fitch Stores,

Inc., 575 U.S. at 787 n.* (2015) (Thomas, J.,

concurring in part and dissenting in part) (“Because

the employee’s termination had occurred before the

1972 amendment to Title VII’s definition of religion,

Hardison applied the then-existing EEOC guideline .

. . Hardison’s comment about the effect of the 1972

amendment was thus entirely beside the point.”); see

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

Ct. 1227, 1228 (2021) (Gorsuch, J., dissenting) (“The

Court announced that standard in a single sentence

6

with little explanation or supporting analysis.

Neither party before the Court had even argued for

the rule.”). Thus, even though the legal prohibitions

under Title VII against other forms of discrimination

in employment remain vigorous, the prohibition

against discrimination on the basis of religion is

quite literally de minimis.

II.

THE DE MINIMIS STANDARD HAS

UNDERMINED THE SCOPE OF

RELIGIOUS LIBERTY PROTECTIONS

UNDER TITLE VII BY PERMITTING

THE

MOST

MINOR

OF

INCONVENIENCES TO QUALIFY AS

AN “UNDUE HARDSHIP” FOR AN

EMPLOYER.

Post-Hardison decisions are hard, if not

impossible, to square with the idea that Title VII

protects against religious discrimination in the

workplace. See, e.g., Patterson v. Walgreen Co., 140

S. Ct. 685, 686 (2020) (Alito, J., with Thomas and

Gorsuch, J.J., concurring in the denial of certiorari)

(“Hardison’s reading does not represent the most

likely interpretation of the statutory term ‘undue

hardship[.]’”); see also Hardison, 432 U.S. at 92 n.6

(calling it “seriously question[able] whether simple

English usage permits ‘undue hardship’ to be

interpreted to mean ‘more than de minimis cost’”)

(Marshall, J., dissenting). Examples of such cases

are as follows:

 It has been held that requiring an

employer to shift a meal break for Muslim

employees during Ramadan would be an

7

undue hardship. EEOC v. JBS USA, LLC,

339 F. Supp. 3d 1135 (D. Colo. 2018).

 It has been held that requiring an

employer to provide an employee any space in

an office building in which to pray would be

an undue hardship. Farah v. A-1 Careers, No.

12-2692-SAC, 2013 WL 6095118, 2013 U.S.

Dist. LEXIS 164930, at *23-25 (D. Kan. Nov.

20, 2013).

 It has been held that a “mere possibility

of adverse impact” from adjusting work

schedules constitutes an undue hardship.

George v. Home Depot, 2001 U.S. Dist. LEXIS

20627, at *28 (E.D. La. Dec. 6, 2001) (citations

omitted).

 It has been held that an employer could

reject outright, and not be required to explore

at all, a female employee’s proposed

alternative of an ankle-fitting skirt rather

than pants in a factory setting. EEOC v. OakRite Mfg. Corp., No. IP 99-1962-C H/G, 2001

U.S. Dist. LEXIS 15621, at *41-42 (S.D. Ind.

Aug. 27, 2001).

 It has been held that the possibility an

accommodation may create “hard feelings”

among coworkers was sufficient justification

to deny an accommodation.

Leonce v.

Callahan, No. 7:03-CV-110-KA, 2008 U.S.

Dist. LEXIS 228, 2008 WL 58892, at *5 (N.D.

Tex. Jan. 3, 2008).

8

Such cases illustrate the extreme application

given to the de minimis standard by many courts,

which ultimately results in exclusion of a certain

employees from the workplace because of their

religious beliefs and which cannot be reconciled with

Title VII’s text or purpose.

Recognition by this Court of the proper textuallybased “undue hardship” standard, rather than

Hardison’s aberrant reading of Title VII, would

restore prohibitions on religious discrimination to

their proper place of equal station in the scope of

Title VII’s protections.

III. THIS COURT SHOULD RETURN TO A

DEFINITION OF “UNDUE HARDSHIP”

THAT IS FAITHFUL TO THE TEXT OF

TITLE VII AND THUS SHOULD GIVE

EFFECT

TO

THE

BALANCE

CONGRESS ATTEMPTED TO STRIKE

FOR

AMERICA’S

DIVERSE

AND

PLURALISTIC SOCIETY.

A. Hardison Improperly Tips the

Scales Against Employees of Faith.

In Title VII, Congress struck a legislative

balance between the employer’s business interests

and the interests of an employee to be free of

discrimination based on religion. See 42 U.S.C. §

2000e(j). “The ultimate tragedy . . . [of Hardison is

that] one of this Nation’s pillars of strength—our

hospitality to religious diversity—has been seriously

eroded.” Hardison, 432 U.S. at 96 (Marshall, J.,

9

dissenting).

As such, that balance was, and

continues to be, upset.

A return to a textually faithful interpretation

would hardly open up the floodgates of litigation.

First, Title VII itself only applies to employers with

fifteen or more employees. 42 U.S.C. § 2000e(b).

Moreover, to trigger protection, an employee’s

religious beliefs must be “sincere.” See, e.g., Ansonia

Bd. of Educ. v. Philbrook, 479 U.S. 60, 65-66 (1986).

Claims of discrimination under Title VII generally

must be administratively exhausted through the

EEOC, and the time for filing with the EEOC is as

brief as 180 days in some instances. See 42 U.S.C. §

2000e-5(b), (e)(1). The total amount of compensatory

and punitive damages available under Title VII is

also capped based on the number of individuals

employed. 42 U.S.C. § 1981a(b)(3).

The de minimis standard from Hardison,

however, places too much control in the hands of

employers. Compared to the employee, an employer

has superior knowledge of how its business runs,

and so employers are all too able to proffer ostensibly

reasonable sounding, but pretextual justifications,

for their rejection of proposed accommodations. Cf.

Davis v. Fort Bend Cnty., 765 F.3d 480, 488 (5th Cir.

2014) (reversing District Court grant of summary

judgment on issue of undue hardship). Courts have

come close to saying as much: “[Employer] was in a

better position than [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, 2013 U.S.

Dist. LEXIS 164930, at *24.

10

The sting of Hardison is particularly painful to

working-class Americans who belong to minority

religious groups. Petitioners in recent cases asking

this Court to overrule Hardison have included a

Jehovah’s Witness service dispatcher; a Sabbatarian

industrial hygienist; a Sabbatarian trainer at

Walgreens; and a Sabbatarian who hoped to become

an assistant manager at Walmart.2 Calls to overrule

Hardison have come from Jews, Sikhs, Hindus,

Adventists, and Lutherans, among others.

See

generally, e.g., Br. for Jewish Coalition for Religious

Liberty; The Coalition for Jewish Values; The Sikh

Coalition; The International Society for Krishna

Consciousness;

Ethics

&

Religious

Liberty

Commission of the Southern Baptist Convention;

The Lutheran Church-Missouri Synod; and Church

Of God In Christ, Inc. as Amici Curiae Supporting

Petitioner, Dalberiste v. GLE Assocs., Inc., No. 191461 (July 31, 2020).

One can also look to the lower courts for

examples of Hardison’s pernicious effect on the lives

of working class Americans including: Muslim

factory production workers, Mohamed v. 1st Class

Staffing, LLC, 286 F. Supp. 3d 884 (S.D. Ohio 2017);

a Pentecostal juvenile detention officer, Finnie v. Lee

2 Small v. Memphis Light, Gas & Water, 952 F.3d 821 (6th Cir.

2020), cert. denied, 141 S. Ct. 1227 (Apr. 5, 2021) (No. 19-1388);

Dalberiste v. GLE Assocs., Inc., 814 Fed. App’x 495 (11th Cir.

2020), cert. denied, 141 S. Ct. 2463 (Apr. 5, 2021) (No. 19-1461);

Patterson v. Walgreen Co., 727 F. App’x 581 (11th Cir. 2018),

cert. denied, 140 S. Ct. 685 (Feb. 24, 2020) (No. 18-349); EEOC

v. Walmart Stores East, L.P., No. 20-1419, 2021 U.S. App.

LEXIS 33263 (7th Cir. June 4, 2021), cert. granted, vacated,

and remanded for further consideration by Hedican v. Walmart

Stores East, L.P., 142 S. Ct. 1357 (2022)

11

Cty., Miss., 907 F. Supp. 2d 750 (N.D. Miss. 2012); a

Jewish dump truck driver, E.E.O.C. v. Thompson

Contracting, Grading, Paving, & Utils., Inc., 793 F.

Supp. 2d 738 (E.D.N.C. 2011); a Russian Orthodox

Christian hotel kitchen mechanic, Jiglov v. Hotel

Peabody, G.P., 719 F. Supp. 2d 918 (W.D. Tenn.

2010); and an Adventist part-time grocery store

clerk, Prach v. Hollywood Supermarket, Inc., No. 0913756, 2010 U.S. Dist. LEXIS 88738 (E.D. Mich.

Aug. 27, 2010). The list goes on.

And this list excludes the untold number of

Americans who—understanding, or informed by

counsel, that Hardison has stacked the deck against

them—capitulate

rather

than

challenge

a

discriminatory practice. See, e.g., Br. for Appellant at

13, Hobbie v. Unemployment Appeals Comm’n, 480

U.S. 136 (1987) (No. 85-993) (arguing that an

Adventist fired for keeping her Sabbath should not

be denied unemployment benefits because Hardison

already foreclosed an employment discrimination

claim).

Hardison permits employers to “compel” workers

from minority religions “to make the cruel choice of

surrendering their religion or their job.” 432 U.S. at

87 (Marshall, J., dissenting). And it permits them to

do so over relatively small matters.

That is,

Hardison allows the employer to turn its molehill

into the employee’s mountain. For example,

employers may discriminate against religious

employees for requesting minor departures from a

dress and appearance policy, e.g., Cloutier v. Costco

Wholesale Corp., 390 F.3d 126, 134-37 (1st Cir.

2004), for requesting time off before completing the

12

new-hire probationary period, Thomson Contracting,

Grading, Paving, & Utils., Inc., 793 F. Supp. 2d at

741, or for requesting an accommodation that might

create “hard feelings” among coworkers if granted,

Leonce, No. 7:03-CV-110-KA, 2008 WL 58892, at *5

(N.D. Tex. Jan. 3, 2008). Hardison itself presents a

prime example of this: a global airliner fired the

respondent over an accommodation request that

would have cost $150 over three months. 432 U.S. at

92 n.6 (Marshall, J., dissenting).

Each of these situations creates a minor

inconvenience for the employer.

But for an

employee, her very conscience and relationship with

her creator is at stake. Small wonder that many

employees decide to honor their faith despite the

financial hardships that result. E.g., Hobbie v.

Unemployment Appeals Comm’n, 480 U.S. 136, 138

(1987) (“[T]he general manager informed appellant

that she could either work her scheduled shifts or

submit her resignation to the company. When

Hobbie refused to do either, [the company]

discharged her.”); Sherbert v. Verner, 374 U.S. 398,

399 (1963) (explaining that Adell Sherbert was fired

for keeping her Sabbath and could not find work

because of her Sabbath observance); cf. James

Madison, Memorial and Remonstrance Against

Religious Assessments (June 20, 1785), in 5 The

Founders’ Constitution 82, 82 (arguing that the

demands of faith are “precedent, both in order of

time and in degree of obligation, to the claims of

Civil Society”).

Consider Sabbath observance. The Torah and

Oral Law forbid Orthodox Jews working on the

13

Jewish Sabbath (sundown on Friday to nightfall on

Saturday) and designated Jewish holy days. See

generally 3 Rabbi Yosef Karo, Shulchan Aruch

Orach

Chayim

242-365

(1977)

(Sabbath

prohibitions); id. at 495-529 (holy day prohibitions);

see also Aryeh Kaplan, Sabbath: Day of Eternity, in 2

The Aryeh Kaplan Anthology 107, 128 (1998). These

restrictions extend beyond paid employment to

encompass thirty-nine categories of prohibited

activity. See The 39 Categories of Sabbath Work

Prohibited by Law, Orthodox Union (July 17, 2006),

available at https://www.ou.org/holidays/shabbat/the

thirty_nine_categories_of_sabbath_work_prohibited_

by_law/ (last visited Feb. 28, 2023). “The Sabbath is

the most important institution of Judaism. It is the

primary ritual, the very touchstone of our faith.”

Why the Sabbath?, Orthodox Union (July 17, 2006),

available at https://www.ou.org/holidays/why_the

sabbath/ (last visited Feb. 28, 2023). The Torah

commands severe punishment for those who violate

the Sabbath. See Exodus 31:14 (“You shall keep the

Sabbath, for it is holy to you; anyone who profanes it

shall be put to death. For whoever does any work on

that day shall be cut off from his people.”). The

gravity of this obligation commands that half

measures cannot reasonably accommodate Sabbath

observance. It is no accommodation at all to relieve

the Jewish worker of only some types of prohibited

work or give her the day off on alternating

Saturdays. The choice between employment and the

Sabbath for that person is illusory—the Jewish

employee must be willing to lose her job rather than

violate the Sabbath. See 3 Karo, supra, at 308.

14

This is precisely the dilemma the amendment to

Title VII sought to avoid.

Though Sabbath

accommodation claims arise most frequently,

Orthodox Jewish employees may also require

accommodation from dress codes and grooming

policies. Jewish men and married women wear head

coverings, Aron Moss, Why Do Jewish Women Cover

Their

Hair,

Chabbad.org,

available

at

https://www.chabad.org/theJewishWoman/article_cd

o/aid/336035/jewish/Why-Do-Jewish-Women-CoverTheir-Hair.htm (last visited Feb. 28, 2023), in the

case of a yarmulke or kippah, to express submission

to the Almighty, Sampson Raphael Hirsch, Hirsch

Siddur 14 (1969). Orthodox and Hasidic Jewish

males also let their sideburns grow to a certain

length, and some wear beards to honor the

commandment of Leviticus 19:27: “You shall not

round off the edge of your scalp and you shall not

destroy the edge of your beard.”

Of course, Sabbath observance is not unique to

the Jewish faith. Muslims and some Christian

denominations

require

similar

weekly

accommodations. Jumu’ah is “a weekly Muslim

congregational service . . . commanded by the Koran

and . . . held every Friday after the sun reaches its

zenith.” O’Lone v. Est. of Shabazz, 482 U.S. 342, 345

(1987) (citing Koran 62:9-10). Believers are

commanded to “leave trade” and attend these weekly

services. Koran 62:9. Seventh Day Adventists

observe the Sabbath from sundown Friday until

sundown Saturday and cannot work during that

time. What Adventists Believe About the Sabbath,

Seventh-day Adventist Church, available at

15

https://www.adventist.org/the-sabbath/ (last visited

Feb. 28, 2023).

As with Sabbath observance, other religious

traditions also command certain forms of dress and

grooming. Many Muslims believe men must grow

beards if they are able, see Fraternal Order of Police

Newark Lodge No. 12 v. City of Newark, 170 F.3d

359, 360 (3d Cir. 1999) (explaining that refusal to

grow a beard “is a major sin” in that religious

tradition), and don a takia to symbolize that the

“wearer is in constant prayer,” see In re Palmer, 386

A.2d 1112, 1113 (R.I. 1978). Sikhs must maintain

five articles of faith that represent the fundamental

tenets of their religion. Identity, Sikh Coal.,

available at https://www.sikhcoalition.org/aboutsikhs/identity/ (last visited Feb. 28, 2023). One of

these articles of faith is unshorn hair, or kesh. Id.

Many Sikhs wear a turban as well to “assert[ ] a

public commitment to maintaining the values and

ethics of the tradition, including service, compassion,

and honesty.” Id. These practices can be

accommodated, often with little cost to the employer.

But under Hardison, employers need not take on

that minor inconvenience or risk offending

customers. Until Title VII is afforded its plain

meaning, Jews, Muslims, Sikhs, Adventists,

Witnesses, and many others will continue to endure

religious discrimination that forces them to choose

between irreconcilable conflicts with their faith and

their ability to earn a living.

16

B. Societal Changes Make the Need

for Title VII’s Protections All the

More Necessary.

At one time, it was easy for this Court to remark

that “[w]e are a religious people whose institutions

presuppose a Supreme Being.” Zorach v. Clauson,

343 U.S. 306, 313 (1952). Two decades ago, though,

one historian observed: “Although the United States

is far more religious than most European countries,

it is also less religious than it once was.” Gertrude

Himmelfarb, One Nation, Two Cultures 96 (2001).

That trend brought a host of other societal changes.

Id. at 96-98. Recent polls confirm that this move

away from religion continues. See, e.g., “In U.S.,

Decline of Christianity Continues at Rapid Pace,”

Pew

Research

Center

(Oct.

17,

2019),

https://www.pewforum.org/2019/10/17/in-u-s-declineof-christianity-continues-at-rapid-pace/

(“[T]he

religiously unaffiliated share of the population,

consisting of people who describe their religious

identity as atheist, agnostic or ‘nothing in

particular,’ now stands at 26% [in 2019], up from

17% in 2009.”); see also Scott Neuman, “Fewer Than

Half of U.S. Adults Belong to a Religious

Congregation, New Poll Shows,” NPR.org (Mar. 30,

2021),

https://www.npr.org/2021/03/30/982671783/

fewer-than-half-of-u-s-adults-belong-to-a-religiouscongregation-new-poll-shows (“Fewer than half of

U.S. adults say they belong to a church, synagogue

or mosque, according to a new Gallup survey that

highlights a dramatic trend away from religious

affiliation in recent years among all age groups.”).

With changes in the views of the population at

large, the risk that religious practices will be

excluded from the workplace increases, and in the

17

process marginalization of people of faith becomes

more likely. Cf. Espinoza v. Mont. Dep’t of Revenue,

140 S. Ct. 2246, 2269-71 (2019) (Alito, J., concurring)

(discussing history of Blaine Amendments enacted in

waive of animus toward Catholic immigrants).

Ultimately, the de minimis standard effectively casts

aside a central purpose of Title VII—the goal of

protecting persons based on religion. As the nation’s

population becomes more pluralistic and generally

less religious, there arise more and more

opportunities for religious beliefs to conflict with an

employer’s requirements.

When that happens,

employees will be faced with a choice of adhering to

their religious beliefs, but losing their jobs, versus

keeping their jobs at the expense of violating their

religious beliefs. Overturning Hardison can help

alleviate that tension by adhering to the will of

Congress, as expressed in Title VII.

CONCLUSION

Hardison has become an excuse for employers to

evade their obligations under Title VII and for

reviewing Courts to adopt a position of judicial

inertia.

Overturning Hardison, however, would

facilitate the protection of religion as was intended

by Congress in enacting Title VII.

For the above-stated reasons, these amici

respectively submit that Hardison should be

overruled. Therefore, the Court should reverse the

grant of summary judgment for Respondent and

direct entry of summary judgment for Petitioner.

18

Respectfully submitted,

Thomas Brejcha

Counsel of Record

Stephen M. Crampton

Thomas More Society

309 W. Washington St., Suite 1250

Chicago, Illinois 60606

Telephone: (312) 782-1680

Facsimile: (312) 782-1887

tbrejcha@thomasmoresociety.org

Howard Slugh

Jewish Coalition for Religious Liberty

2400 Virginia Ave, N.W., C619

Washington, D.C. 20037

Telephone: (954) 328-9461

hslugh@jcrl.org

B. Tyler Brooks

Thomas More Society

100 E. Lake Drive, Suite 6

Greensboro, North Carolina 27403

Telephone: (336) 707-8855

Facsimile: (336) 900-6535

tbrooks@thomasmoresociety.org

Counsel for Amici Curiae