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

No. 22-174

In the Supreme Court of the United States

GERALD E. GROFF, Petitioner

v.

LOUIS DEJOY, POSTMASTER GENERAL.

On Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

BRIEF OF AMICUS CURIAE

THE GENERAL CONFERENCE

OF SEVENTH-DAY ADVENTISTS

SUPPORTING PETITIONER

TODD R. MCFARLAND

GENE C. SCHAERR

Deputy General Counsel Counsel of Record

General Conference of

H. CHRISTOPHER

Seventh-day Adventists

BARTOLOMUCCI

12501 Old Columbia Pike HANNAH C. SMITH

Silver Spring, MD 20904 KATHRYN E. TARBERT

JAMES C. PHILLIPS

CHRISTOPHER E. MILLS JOSHUA J. PRINCE

Spero Law LLC

ANNIKA BOONE BARKDULL*

557 E. Bay Street #22251 SCHAERR|JAFFE LLP

Charleston, SC 29413

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

Counsel for Amicus Curiae

February 28, 2023

QUESTIONS PRESENTED

The questions presented are:

1. Whether this Court should disapprove the morethan-de-minimis-cost test for refusing Title VII religious accommodations stated in Trans World Airlines,

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

2. Whether an employer may demonstrate “undue

hardship on the conduct of the employer’s business”

under Title VII merely by showing that the requested

accommodation burdens the employee’s co-workers rather than the business itself.

ii

TABLE OF CONTENTS

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

INTRODUCTION AND INTEREST OF AMICUS

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

STATEMENT............................................................... 3

SUMMARY OF ARGUMENT ..................................... 4

ARGUMENT ................................................................ 5

I. “Undue Hardship” Is a Legal Term of Art from

a 1967 EEOC Regulation and pre-1972 EEOC

Decisions Interpreting It, Providing Much

Greater Protection than Hardison’s Test. ............. 5

A. By using the phrase “undue hardship” in

the 1972 amendment, Congress codified a

1967 EEOC regulation and agency

decisions interpreting it. ................................... 6

B. Before 1972, the EEOC consistently

interpreted “undue hardship” to require

something more than a “de minimis plus”

or even “significant” burden. .......................... 10

C. The EEOC’s pre-1972 decisions show that

“undue hardship” meant a burden or

expense that was immense or extreme in

relation to the employer’s overall business. ... 22

D. Applying the codified EEOC standard to

this case shows that Petitioner should

prevail. ............................................................. 24

iii

II.

Hardison’s De-Minimis-Plus Standard

Severely Burdens the Religious Exercise of

Seventh-day Adventists and Other Sabbath

Observers. ............................................................. 25

A. Observing the Sabbath is of utmost

importance to Seventh-day Adventists. ......... 26

B. Hardison’s de minimis plus standard

disproportionately discriminates against

religious minorities like amicus. .................... 29

CONCLUSION .......................................................... 30

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Abramson v. William Paterson Coll. Of N.J.,

260 F.3d 265 (3d Cir. 2001) ................................... 30

Dewey v. Reynold Metals Co.,

402 U.S. 689 (1971) .................................................. 9

Dewey v. Reynolds Metals Co.,

300 F. Supp. 709 (D.C. Mich. 1969) ....................... 12

Dewey v. Reynolds Metals Co.,

429 F.2d 324 (6th Cir. 1970) .................................... 9

EEOC v. Abercrombie & Fitch,

575 U.S. 768 (2015) ................................................ 12

FAA v. Cooper,

566 U.S. 284 (2012) ........................................ 6, 7, 10

George v. McDonough,

142 S. Ct. 1953 (2022) .................................. 7, 10, 23

Riley v. Bendix Corp.,

330 F. Supp. 583 (M.D. Fla. 1971)........................... 9

Riley v. Bendix Corp.,

464 F.2d 1113 (5th Cir. 1972) .................................. 9

Sekhar v. United States,

570 U.S. 729 (2013) ........................................ 1, 5, 10

Sherbert v. Verner,

374 U.S. 398 (1963) ................................................ 12

Small v. Memphis Light, Gas & Water,

952 F.3d 821 (6th Cir. 2020) .................................. 30

v

TABLE OF AUTHORITIES (cont’d)

Cases (cont'd)

Trans World Airlines v. Hardison,

432 U.S. 63 (1977) .......................................... 1, 5, 10

Universal Elec. Corp. v. Golden Shield Corp.,

316 F.2d 568 (1st Cir. 1963) .................................... 6

Statutes

42 U.S.C. §12111.......................................................... 6

42 U.S.C. §2000e ................................................ 1, 9, 24

Regulations

29 C.F.R. §1605.1 ................................................. 7, 8, 9

29 C.F.R. §1605.3 ..................................................... 7, 8

Agency Adjudications

EEOC Dec. No. 70-110,

1969 WL 2908 (Aug. 27, 1969) ............................... 11

EEOC Dec. No. 70-580,

1970 WL 3513 (Mar. 2, 1970) .......................... 11, 12

EEOC Dec. No. 70-670,

1970 WL 3518 (Mar. 30, 1970) ........................ 18, 19

EEOC Dec. No. 70-716,

1970 WL 3586 (Apr. 23, 1970) ............................... 13

EEOC Dec. No. 70-773,

1970 WL 3527 (May 7, 1970) ........................... 21, 22

EEOC Dec. No. 70-99,

1969 WL 2905 (Aug. 27, 1969) ......................... 20, 21

EEOC Dec. No. 71-2620,

1971 WL 3957 (June 25, 1971) ........................ 17, 18

vi

TABLE OF AUTHORITIES (cont’d)

Agency Adjudications (cont'd)

EEOC Dec. No. 71-463,

1970 WL 3544 (Nov. 13, 1970) ................... 13, 14, 15

EEOC Dec. No. 71-779,

1970 WL 3550 (Dec. 21, 1970) ................... 15, 16, 17

EEOC Dec. No. 72-606,

1971 WL 3912 (Dec. 22, 1971) ......................... 19, 20

Scriptural Authorities

Leviticus 23:3 ............................................................. 27

Exodus 20:8 ................................................................ 26

Other Authorities

118 Cong. Rec. 652 (1972) ................................... 10, 30

CPI Inflation Calculator ............................................ 22

Ellen G. White,

The Desire of Ages (1898) ...................................... 27

Ellen G. White,

The Great Controversy Between Christ and

Satan (1911) ........................................................... 28

James C. Phillips,

Ordinary Meaning as Last Resort:

The Meaning of “Undue Hardship”

in Title VII .................................................. 5, 6, 8, 10

Ministerial Association of the General

Conference of Seventh-day Adventists,

Seventh-day Adventists Believe (1988) .................. 28

vii

TABLE OF AUTHORITIES (cont’d)

Other Authorities (cont'd)

Seventh-day Adventist Church,

Official Beliefs of the Seventh-day Adventist

Church .............................................................. 27, 28

Seventh-day Adventist Church,

Why You Should Get to Know Seventh-day

Adventists ......................................................... 26, 27

INTRODUCTION AND INTEREST

OF AMICUS CURIAE 1

Congress amended Title VII in 1972 to require employers to provide reasonable accommodations for the

religious beliefs and practices of their employees unless doing so would impose an “undue hardship” on the

employer. 42 U.S.C. §2000e(j). In enacting this amendment, Congress sought to protect the religious rights

of all believers—especially religious minorities like

amicus’s members—and prevent them from being

forced to choose between their jobs and their religion.

But in Trans World Airlines v. Hardison, this Court

adopted an interpretation of the phrase “undue hardship” that allows an employer to evade that protection

if it can show anything more than a de minimis burden. 432 U.S. 63, 84 (1977). That test is unjust and unworkable. And it is wrong as a legal matter—for reasons going well beyond the strong textual and historical arguments advanced by Petitioner.

Specifically, where a statutory term “is obviously

transplanted from another legal source *** it brings

the old soil with it.” Sekhar v. United States, 570 U.S.

729, 733 (2013). “Undue hardship” is such a legal term

of art. And, when Congress amended Title VII’s definition of “religion” to include that phrase, it necessarily

codified the meaning of “undue hardship” as used in a

1967 EEOC guideline.

The proper understanding of that phrase can be

discerned from analysis of the EEOC cases applying

1 No counsel for any party authored this brief in whole or in

part and no entity or person, aside from amicus curiae, its members, and its counsel, made any monetary contribution toward its

preparation or submission.

2

that guideline between 1967 and the 1972 amendment. Those cases make clear that an employer incurs

an “undue hardship” only when a reasonable accommodation would impose an immense or extreme cost or

harm in relation to the employer’s business. Hardison’s de-minimis-plus test misses the mark by a mile.

That legal error—highlighted at the time in Justice

Marshall’s Hardison dissent—has imposed substantial hardship on amicus, the General Conference of

Seventh-day Adventists (“General Conference”), and

on members of the Seventh-day Adventist faith. The

General Conference is the administrative body for the

worldwide Seventh-day Adventist Church, a

Protestant Christian denomination with more than 22

million members and a longstanding commitment to

religious liberty.

Members of the Seventh-day Adventist Church often experience a conflict between job requirements and

their sincerely held religious beliefs because a fundamental belief of their faith is that no secular work

should be performed on the Sabbath—from sundown

Friday to sundown Saturday. Accordingly, the Seventh-day Adventist Church has extensive nationwide

experience in litigating Sabbath accommodation cases

on behalf of its members and other people of faith.

That experience confirms that Hardison makes it

nearly impossible for employees to obtain the religious

accommodations promised by Title VII. Amicus urges

this Court to vindicate the religious rights of Adventists and all other people of faith by disavowing the interpretation advanced in that ill-conceived decision.

3

STATEMENT

When Petitioner Groff began working for the US

Postal Service, he was not required to deliver mail on

Sundays. J.A. 296. And even when USPS signed a contract to deliver packages for Amazon and chose to do

so on Sundays, Groff was exempted from those shifts

because of his religious beliefs. Id. at 6-7, 296. But, after USPS entered an agreement with a union about its

Amazon deliveries, Groff was told he would have to

begin working on Sunday. Id. at 5, 167-168. He transferred to an office that did not yet do Sunday Amazon

deliveries, but eventually that office too required him

to work on his Sabbath. Id. at 146. Even though Groff

volunteered to work extra shifts, including on Saturdays and holidays, USPS refused to exempt him from

Sunday work. Id. at 296-297. Eventually, Groff resigned to avoid being fired. Id. at 150.

Groff sued under Title VII. Pet. 4a, 44a. The district

court granted summary judgment for USPS, reasoning

that exempting Groff from Sunday deliveries would

cause undue hardship to USPS because it would

“cause[] more than a de minimus [sic] impact on

[Groff’s] co-workers” and cause USPS to violate its

agreement with the union. Pet. 56a, 58a-59a.

On appeal, a divided panel of the Third Circuit affirmed, holding that (1) eliminating a conflict between

a job requirement and a religious practice is a reasonable accommodation but (2) exempting Groff from Sunday deliveries would result in an undue hardship to

USPS under Hardison. Id. at 24a-25a.

4

SUMMARY OF ARGUMENT

“Undue hardship” is a legal term of art, transplanted from a 1967 EEOC regulation adopted only a

few years before Congress incorporated the term into

Title VII. The EEOC decisions under that regulation

make clear that “undue hardship” is a much higher

standard than Hardison’s yardstick of “something

more than de minimis harm.” It is even more robust

than a “significant difficulty or expense”—the standard subsequently adopted in the Americans with Disabilities Act. The EEOC’s decisions before the 1972

amendment to Title VII compel the conclusion that the

burden on an employer must be much higher to avoid

accommodation: Contrary to Hardison, only an immense or extreme cost or harm in relation to the employer’s overall business qualifies as “undue hardship.”

Correcting Hardison’s error is crucial to the ability

of Adventists (among many others) to live out their

faith. Adventists believe that working from sundown

Friday to sundown Saturday transgresses one of God’s

commandments, and that to violate the Sabbath would

be detrimental to their spiritual relationship with

Him. Under the current de-minimis-plus standard,

employers can and often do force Adventists to choose

between their jobs and their faith, simply by pointing

to a minor, often theoretical inconvenience that an accommodation would impose on them. The result is that

a typical Adventist worker today is virtually forced to

avoid certain jobs and professions, or to abandon his or

her faith. Either outcome is both a personal and societal tragedy—one the Court can and should avoid by

overruling Hardison.

5

ARGUMENT

I. “Undue Hardship” Is a Legal Term of Art from

a 1967 EEOC Regulation and pre-1972 EEOC

Decisions Interpreting It, Providing Much

Greater Protection than Hardison’s Test.

As explained more fully elsewhere, “undue hardship” in Title VII is not a term of ordinary meaning.

See James C. Phillips, Ordinary Meaning as Last Resort: The Meaning of “Undue Hardship” in Title VII, at

31-43. 2 Rather, the term is a legal term of art and

should be so interpreted: “[I]f a word is obviously

transplanted from another legal source, *** it brings

the old soil with it.” Sekhar, 570 U.S. at 733. Justice

Marshall was therefore correct in his Hardison dissent: In interpreting the term “undue hardship”, the

Court should look to (1) a 1967 regulation adopted by

the EEOC to implement Title VII, from which Congress later adopted identical language, and (2) how the

meaning of “undue hardship” was fleshed out by the

EEOC over the next few years “in a long line of decisions.” 432 U.S. at 85-86 & n.1(Marshall, J., dissenting).

As shown below, a careful analysis of this history

provides a clear, workable standard for determining

whether the employer’s burden of an accommodation

constitutes an “undue hardship”: Only accommodations that inflict an immense or extreme cost or harm

relative to the employer’s overall business qualify as

an “undue hardship.” The Hardison standard—something more than de minimis harm—is thus incorrect

Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4363032 (Feb. 18, 2023).

2

6

and insufficient. So too is the more elevated standard

subsequently adopted in the Americans with Disabilities Act, that the accommodation entail “significant

difficulty or expense.” See 42 U.S.C. §12111(10)(a).

The “immense or extreme cost or harm” standard

drawn from pre-1972 EEOC decisions is the one Congress codified in Title VII.

A. By using the phrase “undue hardship” in

the 1972 amendment, Congress codified a

1967 EEOC regulation and agency decisions interpreting it.

As a legal term of art, “undue hardship” first appeared in American law nearly two centuries ago. See

Phillips at 38. It is seldom used in ordinary American

English, appearing just 10 times in the Corpus of Historical American English from 1820 to 1966, but

nearly 10,000 times in legal sources over that same period. See id. at 31-32. This disparate usage between

ordinary and legal materials provides strong evidence

that the phrase is a legal term of art. See id. at 32.

1. Of course, “[e]ven as a legal term,” the meaning

of undue hardship “is far from clear” as a general matter because the term “has taken on different meanings

in different statutes[,]” cases, regulations, and other

legal materials. See FAA v. Cooper, 566 U.S. 284, 292,

294 n.4 (2012); see also Phillips at 32, 34-42. Furthermore, the term “undue hardship” has a built-in equitable quality. See Universal Elec. Corp. v. Golden

Shield Corp., 316 F.2d 568, 572 (1st Cir. 1963)

(“Whether or not [something] imposes an undue hardship is a question of judgment. Each case must depend

upon its own facts and circumstances.”) (cleaned up).

This “chameleon-like quality” across a variety of legal

7

contexts requires looking to the most relevant context.

Cooper, 566 U.S. at 294.

Fortunately, there is “prior regulatory practice”

that provides that context and the term’s meaning:

EEOC regulations and decisions before 1972. See

George v. McDonough, 142 S. Ct. 1953, 1963 (2022).

2. To implement Title VII of the 1964 Civil Rights

Act, the EEOC initially enacted a regulation in June

1966 that specified employers’ duties under the Act’s

original version. That regulation promulgated a “serious inconvenience” standard, placing a duty on employers to accommodate its employees’ religious needs

so long as the employer experienced no “serious inconvenience to the conduct of the business.” 29 C.F.R.

§1605.1(a)(2) (June 14, 1966).

The term “serious inconvenience” was undefined.

But the regulation explained that employers were free

“to establish a normal workweek (including paid holidays) generally applicable to all employees,” regardless of its effect on religious employees. 29 C.F.R.

§1605.3. Additionally, businesses could choose just one

faith’s religious holidays to observe by closing. Id.

§1605.3(b)(2). Further, “absent an intent on the part of

the employer to discriminate on religious grounds,”

employees or applicants were “not entitled to demand

any alteration” to the employer’s prescribed “normal

work week and foreseeable overtime requirements” to

“accommodate *** religious needs.” Id. §1605.3(b)(3).

Finally, when an employee’s schedule must be

changed, creating a conflict with that employee’s religious obligations, “an employer is not compelled to

make such an accommodation at the expense of serious

8

inconvenience to the conduct of his business or disproportionate allocation of unfavorable work assignments

to other employees.” Id. §1605.3(b)(4).

3. But the Commission quickly abandoned this

standard. Less than a year later, it published a new

regulation in the Federal Register, inviting comments.

See Phillips at 44 (examining history of regulation).

The Commission received many comments lauding the

proposal, particularly for its benefits to Seventh-day

Adventists and Orthodox Jews. See id. at 44-45. But

businesses mostly opposed the proposed changes, including its undue hardship standard. Id. Friends and

foes alike thought the “undue hardship” standard

would be more protective of employee religious rights

than the prior “serious inconvenience standard.” See

id. For instance, one corporation criticized the new undue hardship standard, observing that it would impose

“a more stringent standard” than “serious inconvenience.” Id. at 45. That letter also complained that “[t]o

force an employer to go to the brink of ‘undue hardship’

on the conduct of his business in accommodating the

religious needs of his employees and prospective employees, before he can fulfill his obligation not to discriminate, is placing an unwarranted and unreasonable burden on the employer.” Id.

Nevertheless, in July 1967, the EEOC adopted the

new regulation because of “[s]everal complaints filed

with the Commission.” 29 C.F.R. §1605.1(b) (July 13,

1967). The new guideline required an “employer to

make reasonable accommodations to the religious

needs of employees and prospective employees where

such accommodations can be made without undue

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

9

Id. “Undue hardship” was undefined, but the EEOC

noted that it would “review each case on an individual

basis in an effort to seek an equitable application of

these guidelines to the variety of situations which

arise.” Id

4. As Petitioner explains, Congress’s “primary purpose” in adopting the 1972 Amendment was to codify

the EEOC’s standards for reasonable accommodation

and undue hardship, in direct response to court decisions that “clouded” the interpretation of Title VII. See

Pet. Br. 25-27. In Dewey v. Reynolds Metals Co. and

Riley v. Bendix Corp., the lower courts had spurned

those guidelines, reasoning that Title VII did not mandate accommodation where an employer’s policies

were facially neutral. 429 F.2d 324, 328, 334 (6th Cir.

1970); 330 F. Supp. 583, 591 (M.D. Fla. 1971). An

equally divided Supreme Court shed little light on the

matter, issuing a per curiam affirmance of Dewey without explanation. 402 U.S. 689 (1971).

In response, Congress swiftly amended Title VII

and adopted the reasonable accommodation requirement, with its accompanying exception for undue

hardship. 42 U.S.C. §2000e(j). Recognizing that codification, the Fifth Circuit then reversed the district

court in Riley, holding that the EEOC’s 1967 guidelines properly interpreted Title VII, “as validated by

the subsequent legislative recognition of that fact.”

464 F.2d 1113, 1117 (5th Cir. 1972).

To understand exactly what that legislative recognition entailed, one must examine the EEOC’s prior

interpretations of the guidelines Congress codified.

Only then does the proper interpretation of “undue

hardship” become clear.

10

B. Before 1972, the EEOC consistently interpreted “undue hardship” to require something more than a “de minimis plus” or

even “significant” burden.

Between 1967 and 1972, the EEOC issued “a long

line of decisions” addressing the meaning of “undue

hardship,” Hardison, 432 U.S. at 85 (Marshall, J., dissenting), putting meat on the bones of what that term

means in this “particular context,” Cooper, 566 U.S. at

294. During this time, ten EEOC decisions applied the

“undue hardship” standard, with the Commission determining in eight of them that reasonable cause existed to believe employer had violated Title VII by failing to accommodate employees’ religious exercise. 3 See

generally Phillips at 47-57.

1. The first decision where the EEOC did not find

an undue hardship involved a Seventh-day Adventist

mechanic. EEOC Dec. No. 70-110, 1969 WL 2908 (Aug.

3 In contrast to “a robust regulatory backdrop,” McDonough,

142 S. Ct. at 1959, from “a long line of [agency] decisions,” Hardison, 432 U.S. at 85, the federal case law interpreting Title VII

prior to the 1972 amendment is sparse and not “well-settled,” see

Sekhar v. United States, 570 U.S. 729, 732 (2013), making it unlikely to be the source of legal soil Congress transplanted into Title VII according to the legal meaning canon. See Phillips at 43.

The legislative history supports this conclusion. See 118 Cong.

Rec. 652, 705-706 (1972) (“I think in the Civil Rights Act we thus

intended to protect the same rights in private employment as the

Constitution protects in Federal, State, or local governments. Unfortunately, the courts have, in a sense, come down on both sides

of this issue. *** This amendment is intended, in good purpose,

to resolve by legislation *** that which the courts apparently

have not resolved. I think it is needed *** because court decisions

have clouded the matter with some uncertainty.”) (Statement of

Sen. Jennings Randolph).

11

27, 1969). Employees working weekend overtime were

required to work both days. Id. at *1. However, employees who worked Saturday but not Sunday were

still paid for their Saturday work; they just had a recorded absence for Sunday. But employees who didn’t

show up on Saturday were prohibited from working

Sunday. Id. Thus, the Adventist mechanic was completely denied overtime for not working on his Sabbath

while those who observed a Sunday Sabbath were allowed some overtime. Id.

The employer made two arguments in defense.

First, an accommodation would require discrimination

for the mechanic’s religion and against others. Id. at

*2. Second, accommodating him required paying him

Sunday’s double-time rates while he skipped Saturday’s time-and-a-half rates, thus imposing “a considerable expense to accommodate his religious beliefs.” Id.

The Commission rejected these arguments and found

reasonable cause that the employer had violated Title

VII. Id.

Hence, the Commission implicitly determined that

neither concerns about preferential treatment nor

even “considerable expense” to the employer (short of

threatening its business) are undue hardships.

2. The next year, the EEOC decided a case involving an employee who, after joining a Sabbatarian

church, requested “to work Sundays instead of Saturdays” or “transfer (to the Warehouse) to avoid this conflict.” EEOC Dec. No. 70-580, 1970 WL 3513, at *1

(Mar. 2, 1970). His employer denied these requests,

raising two reasons why an accommodation would

work an undue hardship. First, the plant was closed

12

on Sundays and the employee’s job could not be performed alone. Id. Second, because that job could be

done only by one of a few equivalent employees, accommodating him would require another such qualified

employee “working extra and consecutive shifts.” Id.

The Commission rejected these defenses. It noted

that they assumed religious discrimination occurs only

when different groups are treated differently, and it

rejected the employer’s argument that it had not violated the statute simply because its “Saturday-work

rule applie[d] equally to all employees.” Id. The Commission labeled such an argument “invalid because

while a rule may apply equally to all employees, it may

well have unequal impact on them.” Id. (citing Sherbert v. Verner, 374 U.S. 398 (1963); Dewey v. Reynolds

Metals Co., 300 F. Supp. 709 (D.C. Mich. 1969)). Accord EEOC v. Abercrombie & Fitch, 575 U.S. 768, 775

(2015) (rejecting similar employer argument). Finally,

the Commission noted that the employer had failed to

state “whether another employee could be trained to

substitute for the [religious employee] during Sabbath

days, or whether already qualified personnel have

been invited to work a double shift.” EEOC Dec. No.

70-580, supra, at *2. So, according to the EEOC, there

was no showing of undue hardship.

The takeaway from this decision is that training

another employee to take over a shift or even recruiting another employee to work a double shift is not an

undue hardship.

3. In another 1970 case, an Orthodox Jewish

woman’s faith mandated she be home before sunset, so

she needed to leave work an hour or two before normal

closing time in the winter months. EEOC Dec. No. 70-

13

716, 1970 WL 3586 (Apr. 23, 1970). Initial permission

to do so was later retracted, and she was given the option of staying for her full shift, being fired, or taking

a part-time job “at the same wage rate but with a substantial loss of hours worked and benefits received.”

Id. at *1. In response, she “offered to come in early or

work late on another night to make up the time, to

take a cut in pay proportional to the amount of time

lost, or have the amount of time deducted from her normal vacation time.” Id. But her employer rejected

these proposed accommodations. Id. When she left

early the next Friday, the employer terminated her.

Id.

Before the EEOC, the employer tried to justify its

actions by arguing that the size of its workforce prevented it from making individualized exceptions to its

policies. Id. But the Commission noted that the employee only had to leave early in the winter months

and worked a job that did not require supervision, so

she “could easily compensate for the lost hours at other

times.” Id. at *2. Noting also that she initially received

permission, the Commission found “that her temporary absences” would not have “worked an undue

hardship on [the employer’s] business needs.” Id.

In short, seasonal absences of a non-supervised employee did not constitute an undue hardship. And

merely having to make an exception to company policy

does not count as undue hardship either.

4. In a later 1970 decision, an employee joined a

church that mandated attendance at its annual twoweek convention. EEOC Dec. No. 71-463, 1970 WL

3544, at *1 (Nov. 13, 1970). So she asked for permission to take her vacation or a leave of absence then. Id.

14

The employer refused, stating that vacations could

only be taken during the two-week period when the

plant was shut down each year, and any leave of absence longer than “one or two days” would not be allowed “for religious reasons.” Id. But the employee attended the convention anyway, resulting in a twoweek suspension. The next year, over a warning that

she would be fired if she left again for the convention,

the employee did so and was dismissed. Id.

In defense, the employer alleged that granting the

request “would have caused undue hardship to its

business, both by necessitating the training of a replacement *** and by ‘establishing a precedent which

would have been a source of discontent for many employees.’” Id. The Commission disagreed, noting that,

“[w]here an employment policy has a disproportionate

impact on members of a group protected by Title VII,

the employer has the burden of showing that the policy

is so necessary to the operation of his business as to

justify the policy’s discriminatory effects.” Id. (emphasis added).

The Commission further noted the employer’s concession that, while normally the soldering iron assembly was a one-person operation, sometimes to meet extra production requirements two people would work

together. Id. at *2. The Commission also emphasized

that the employer, anticipating a month beforehand

that the employee would again leave for two weeks and

so be fired, had trained another employee for the job

and that the two had worked together for that month.

Id. Given the employer’s “assertions as to the importance of the job and its statement that the job some-

15

times requires two employees,” the Commission determined that it was not an undue hardship “to have at

least one employee other than [the fired employee]

trained in soldering iron assembly.” Id.

Finally, the Commission rejected the employer’s

“employee discontent” argument, disagreeing with the

Sixth Circuit’s decision in Dewey to the extent that

case “requires less than a showing by an employer that

‘chaotic personnel problems’ will ensue if the religious

needs of particular employees are accommodated.” Id.

Because there was no “persuasive evidence” that accommodating the religious employee “would have

given rise to such ‘employee discontent,’” there was no

undue hardship. Id. (cleaned up).

In sum, while an undue hardship can theoretically

arise from “chaotic personnel problems” and thus justify a policy that is “so necessary to the operation of

[one’s] business” to justify refusing an accommodation,

mere “employee discontent” is not an undue hardship.

See id. at *1-2 (emphasis added). Nor is the cost and

burden of training another employee to back up an employee who needs days off for religious reasons.

5. A month later, the EEOC found another Title

VII violation. EEOC Dec. No. 71-779, 1970 WL 3550

(Dec. 21, 1970). The employee in that case was a registered obstetrics staff nurse with 13 years of experience. Id. at *1. For religious reasons, she “always wore

a scarf which covered her hair,” which she had “worn

*** to her pre-employment interview, and was never

seen without it.” Id. Because her duties required she

wear a “scrub cap,” she wore the scarf underneath,

which was completely covered by the cap. Id. When

transferred to a new post, she asked permission to

16

wear her scarf either under a cap or in place of it, but

her supervisor refused her request, resulting in a loss

of employment. Id.

The hospital defended its cap policy based on the

need for “sanitary considerations,” but “offer[ed] no evidence that a simple white scarf wrapped closely

around [the employee’s] hair would be less sanitary

than the typical nurse’s cap.” Id. at *2. Another proffered reason for the policy was “that the nurse’s cap

has traditionally served as a ‘symbol,’” that “it used to

be customary to require a nurse to work without her

cap for two or three weeks as the severest of disciplinary measures,” and that “student nurses are not permitted the ‘privilege’ of wearing a cap until their six

month probationary period is completed.” Id. Unconvinced, the Commission found “that [the employer’s]

policy of requiring its nurses to wear white caps instead of white scarves is not so necessary to the operation of its business as to justify the effect that this policy has upon the employment opportunities of [the

nurse] and others of similar religious convictions.” Id.

at *3 (emphasis added) (cleaned up).

Once again, refusing a religious exception to a

dress code or other company policy would have to be

not only “necessary,” but “so necessary to the operation

of [one’s] business as to justify [its] effect *** upon the

employment opportunities” of those whose religious

practices would be affected. Only then would the effect

of the religious accommodation qualify as an undue

hardship.

6. A decision the next year involved a woman who,

upon “adopt[ing] Islam as her religious faith,” began

“wear[ing] dresses which substantially covered her

17

legs and arms and which had a high neckline.” EEOC

Dec. No. 71-2620, 1971 WL 3957, at *2 (June 25, 1971).

Her supervisor “pointed out that we are a business

and, as such, feel that there are certain standards of

dress to which we expect our employees to conform and

that, frankly, the attire she described did not fall

within those standards.” Id. at *1. The employer thus

argued that it discharged the employee, not because

she was a Muslim, but “because she did not wish to

comply with the Company’s definition of appropriate

business attire,” which “discourages attention-attracting clothing.” Id. at *3.

Before the EEOC, however, the employer admitted

“that no employee had been previously discharged for

wearing clothing considered by the Company not to be

appropriate business attire,” with a “witness confirm[ing] that no action had been taken against other

females for wearing clothing not usually considered as

being in good business taste.” Id. Further, “[d]uring

the investigation, as well as on a previous occasion, the

Commission’s Representative observed female employees of Respondent attired in clothing which could

only be described as ‘attention-attracting clothing.’”

Id. Given that the company “offered no evidence that

its dress policy is necessary to the safe and efficient

operation of its business,” and given “that other female

employees have on occasion worn unusual and attention-getting clothing, such as miniskirts, and that no

other employee has been discharged,” id. at *2, the

Commission concluded the employer violated Title VII.

One can fairly infer from this decision that granting an exception to a company policy is not an undue

18

hardship if the policy has not been consistently enforced. And here again, an exception to a company policy can qualify as undue hardship only when the policy

is truly “necessary to the safe and efficient operation of

[one’s] business.” See id. (emphasis added).

7. In another case, an employee who was initially

willing to work any day and all hours, with his job requiring some evening and weekend work, joined his

wife’s Sabbatarian faith. He then informed his employer that he could not work after sundown Fridays

through sundown Saturdays. EEOC Dec. No. 70-670,

1970 WL 3518 (Mar. 30, 1970). However, he offered to

reduce his lunch time “or make it up[]” otherwise, and

would “cheerfully work any other day and any other

hours.” Id.

His employer denied his request with a warning

that failing to finish his Friday work shift “would be

considered [his having] abandoned his job or resigned

his position.” Id. at *3. On the second straight Friday

that he left work early, he was fired. Id. at *2.

In defense, the employer argued that, because the

employee was one of five with similar duties, without

him the remaining four would have to add his load to

theirs, “provid[ing] a hardship for both the remaining

individuals and the company, [given its] need to provide service on a [24/7] basis.” Id. The employer also

claimed that accommodating this employee would be

unfair to other employees who had requested Sundays

off for worship and who all had been denied, and that

it “could not enter into separate or special agreements

with individuals who are represented by a bargaining

agent.” Id. at *1.

19

The Commission rejected this reasoning because

“the number of Saturdays required to be worked by

each of the five employees in [the employee’s] classification has not been shown.” Id. at *2. For example,

each of these employees was required to be on call

every fifth Saturday, so requiring one to be on call an

extra Saturday “would hardly qualify as an undue

‘hardship’ for [the employer],” particularly if it would

compensate for the accommodation by requiring extra

Sunday duty of the employee seeking Saturdays off

(which would also enable the employer to give a different employee a Sunday accommodation). Id. Reasonable cause thus existed for a Title VII violation. And the

presence of a “bargaining agent” didn’t change the result.

Thus, according to the EEOC, the administrative

burden to the employer of requiring other employees

to switch a day or work an extra day is not an undue

hardship to the employer. And similarly—of particular

relevance to Question 2—the employer could not establish the requisite undue hardship based on burdens

faced by its other employees.

8. The final EEOC decision in favor of the employee’s religious rights prior to Title VII’s 1972

amendment involved a Seventh-day Adventist. EEOC

Dec. No. 72-606, 1971 WL 3912 (Dec. 22, 1971). At first

his employer, aware that his religion “prohibited him

from working between sunset on Friday to sunset on

Saturday,” never required him to work during those

times. Id. at *1, *2. Later he was promoted to a position requiring Saturday work, and when he refused to

work two consecutive Saturdays, he was fired. Id. The

employer alleged that no other employees were asked

20

to fill in for him because they were all either working

or unavailable. Id. at *3.

The Commission ultimately concluded that the employer violated Title VII. Id. at *2. Reiterating its disagreement with the Sixth Circuit’s decision in Dewey,

the Commission said it would require “a showing by an

employer that ‘chaotic personnel problems’ will ensue

if the religious needs of particular employees are accommodated.” Id. And here “[t]here [was] no evidence

of record that [the employer] made any effort to find a

replacement for [the religious employee], nor [was]

there evidence that such effort would have been futile.”

Id. at *1.

Here again, the EEOC’s decision shows that anything short of chaotic personnel problems fundamentally disrupting the employer’s business—something

well beyond finding another employee to take over a

religious employee’s shift—is not an undue hardship.

And this decision reinforces the conclusion that this

type of burden on other employees doesn’t count as undue hardship to the employer.

9. The two cases in which the EEOC did find for the

employer confirm this reading of “undue hardship.” In

the first, a Seventh-day Adventist high school student

was hired for six weeks to process perishable crops.

EEOC Dec. No. 70-99, 1969 WL 2905, at *1 (Aug. 27,

1969). She had to work Mondays through Saturdays,

but for religious reasons she missed five consecutive

Saturdays, and so was fired just before her last scheduled week. Id.

The Commission applied its undue hardship standard, finding that the employer “would have to obtain

21

*** substitute employees from outside its work force”

because it had “no available pool of qualified employees” to pull from. Id. And the Commission “note[d] the

practical impossibility of obtaining and training an

employee from outside the work force to work one day

per week for one-and-a-half months per year.” Id. (emphasis added). The Commission thus concluded no Title VII violation had occurred. Id. And it thereby established that a “practical impossibility” is an undue

hardship.

10. In the only other decision to find such a hardship, a company initially offered an Orthodox Jewish

job candidate a position as a process engineer. But it

then revoked the offer when he “conditioned his acceptance on being allowed to be absent from work on

Saturdays and to leave work early on Fridays during

the winter months in order to arrive home before sundown as required by his religion.” EEOC Dec. No. 70773, 1970 WL 3527, at *1 (May 7, 1970).

The company defended its action given the unique

nature of the position. Id. Process engineers must be

available 24/7 because the plants operate continuously; only one engineer is normally assigned to a

plant; and the process engineer typically oversees

plant operations. Id. The company argued that when

“setting up a new plant or modifying an existing plant”

the company “details a ‘team’ of process engineers” to

a plant, that each has “a specialized task,” making it

“not possible to replace [the worker in question] with

another member of the engineering department without significant loss of time.” Id. Also, the company

“contend[ed] that, if a process engineer is unavailable

22

at all times to take corrective action on operation problems[,] ‘very often the plant must be shut down at a

cost of 15 to 25 thousand dollars per day during shut

down.’” Id. 4 Finally, 15 of the 16 process engineers

were regularly assigned to plants, working rotating

shifts with the off-shift engineer serving as back-up if

the on-shift engineer needed help. Id. at *2.

Based on this evidence, the Commission found that

an accommodation of the job candidate would work an

undue hardship on the company’s business “within the

meaning of the [regulation].” Id. In short, accommodating an irreplaceable employee whose absence may

shut down operations and inflict immense economic

costs was an undue hardship.

C. The EEOC’s pre-1972 decisions show that

“undue hardship” meant a burden or expense that was immense or extreme in relation to the employer’s overall business.

Combining these EEOC decisions, a standard for

determining “undue hardship” can be gleaned. It is

clear from those decisions that an “undue hardship”

requires something like a practical impossibility, chaotic personnel problems, shutting down one’s operations (and suffering exorbitant lost income and costs),

or violating a policy truly necessary to the safe and efficient operation of one’s business. But it is not an “undue hardship” to (a) give religious employees so-called

4 A daily financial loss of $15,000-25,000 in 1970 equals about

$115,659-192,764 today. See CPI Inflation Calculator, available

at https://www.in2013dollars.com/us/inflation/1970?amount=1

(calculating that $1 in 1970 is worth $7.71 today) (last visited

February 27, 2023).

23

preferential treatment, (b) suffer considerable expense

(short of exorbitant), (c) experience significant employee discontent (short of chaotic personnel problems), (d) train another employee to take over a shift

or work a double shift, or (e) experience seasonal, short

absences of a non-supervised employee. And, given the

EEOC’s decision to replace its earlier regulation with

a more protective standard, a mere “serious inconvenience” also is not an “undue hardship.”

In short, only accommodations that inflict immense

or extreme burdens or costs in relation to the employer’s overall business qualify as creating “undue

hardship” under the 1967 EEOC regulation.

Moreover, because Congress “enacted no new definition or other provision indicating any departure

from the same meaning that the [agency] had long applied,” Congress must be considered to have “codified

and adopted the [undue hardship standard] as it had

developed under prior agency practice.” See

McDonough, 142 S. Ct. at 1959 (cleaned up). Given

that “a robust regulatory backdrop fills” the meaning

of “undue hardship,” the Court should read that

phrase as “[d]efined by this regulatory history.” Id. at

1959-1960.

24

D. Applying the codified EEOC standard to

this case shows that Petitioner should

prevail.

Given this understanding of “undue hardship” in

Title VII, the question remains whether USPS faced

an immense or extreme cost or harm if it accommodated Groff. It did not.

1. As to USPS itself (the first Question Presented):

Accommodating Groff required having someone else

work a different shift or an extra shift. But this did not

present a “practical impossibility” or cause “chaotic

personnel problems.” Nor would it have shut down

USPS’s operations. In fact, for a while USPS did accommodate Groff, showing it was not overly burdensome. And this very type of burden was found in some

of the relevant EEOC decisions to not qualify as an undue hardship. See supra 12-13, 19-21.

Whatever inconvenience USPS might face in accommodating Groff, it does not rise to the rarified level

of being an “undue hardship” as that term is properly

understood in Title VII.

2. As to any harm to USPS’s employees (Question

2): As explained above, several of the EEOC decisions

during the run-up to the 1972 amendment involved alleged harm to employees. But, in each of those decisions, the EEOC held that any burden on other employees was relevant only to the extent it imposed a

hardship on employer itself. See supra 11-23. And the

text of the 1972 Title VII amendment requires this

same approach. 42 U.S.C. §2000e(j) (employer must

show “undue hardship on the conduct of the employer's

business”) (emphasis added). Accordingly, the answer

to Question 2 is clearly “No.”

25

Even if employee harm were cognizable, the EEOC

decisions indicate a need for something much more

substantial than the harm alleged here. Any harm to

employees forced to substitute for Groff falls nowhere

near the level of extreme or immense harm that the

relevant EEOC decisions require.

In short, those EEOC decisions, which were effectively incorporated into the 1972 Title VII amendment, foreclose USPS’s undue-hardship defense, and

thus require reversal.

II. Hardison’s De-Minimis-Plus Standard Severely Burdens the Religious Exercise of Seventh-day Adventists and Other Sabbath Observers.

By allowing employers to refuse to accommodate religious practices when doing so would impose any more

than a de minimis inconvenience, Hardison puts many

employees to a choice between their faith and their job.

Doing so contravenes both the meaning and purpose of

Title VII. For religious minorities like amicus that

have beliefs and practices that contravene societal

norms or standard business practices, Hardison’s burden is acute. This case particularly illustrates Hardison’s devastating impact: keeping the Sabbath is a

commandment of the highest significance for amicus

and its members, because it is a matter of salvation.

This Court should correct Hardison’s error and adopt

the definition of undue hardship Congress codified

from the phrase’s regulatory history so that members

of faiths like amicus may freely live their faith while

retaining their employment.

26

A. Observing the Sabbath is of utmost importance to Seventh-day Adventists.

To fully appreciate the burden that affirming the

lower court would place on Adventists—and the burden that Hardison’s de-minimis-plus standard already has placed on them—it is important to understand the deep importance of Sabbath Day observance

in the Seventh-day Adventist faith. As the name of the

church highlights, the observance of a seventh day

Sabbath, from sundown Friday until sundown Saturday, is “foundational” and holds “great significance for

Adventists and their history.” 5

The Seventh-day Adventist Church originated in

the mid-1800s, when a group of Christians engaged in

rigorous Bible study during the Second Great Awakening. From that study, they came to understand the

great significance of the fourth commandment: “Remember the Sabbath day, to keep it holy.” Exodus 20:8

(ESV). And, as they studied the Bible, “they found no

evidence that the fourth commandment was to be altered in any way[.]” 6 They therefore began to observe

the Sabbath on the seventh day, contrary to the prevailing tradition among Christians of observing Sunday as the day of rest and worship. 7 Seventh-day Sabbath observance is therefore one of the twenty-eight

5 Seventh-day Adventist Church, Why You Should Get to Know

Seventh-day Adventists, https://www.adventist.org/who-are-seventh-day-adventists/.

6 Id.

7 Id.

27

fundamentals of Seventh-day Adventist belief. 8 Despite many challenges where most of “society’s calendar [is] structured to give preference to Sunday”—or

increasingly to no holy day at all—“honoring this commandment of God *** remains a priority to this day.” 9

A crucial aspect of Sabbath observance in the Adventist faith is the biblical commandment to refrain

from secular work: “Six days shall work be done, but

on the seventh day is a Sabbath of solemn rest, a holy

convocation. You shall do no work. It is a Sabbath to

the Lord in all your dwelling places.” Leviticus 23:3

(ESV). As Ellen G. White, co-founder of the Seventhday Adventist church, stated:

“The law forbids secular labor on the rest day of

the Lord; the toil that gains a livelihood must

cease; no labor for worldly pleasure or profit is

lawful upon that day; but as God ceased His labor of creating, and rested upon the Sabbath

and blessed it, so man is to leave the occupations of his daily life, and devote those sacred

hours to healthful rest, to worship, and to holy

deeds.” 10

8 Seventh-day Adventist Church, Official Beliefs of the Seventh-

day Adventist Church, available at https://www.adventist.org/beliefs/.

9 Why You Should Get to Know Seventh-day Adventists, supra

n. 5.

10 Ellen G. White, The Desire of Ages 207 (1898), available at

https://www.ellenwhite.info/books/ellen-g-white-book-desire-ofages-da-contents.htm.

28

For some Christian denominations, failing to hallow the Sabbath by working on it or engaging in secular pursuits like shopping or sports, might be considered a relatively minor sin—or no sin at all. Not so for

Adventists, who hold that the Sabbath is “God’s perpetual sign of His eternal covenant between Him and

His people,” and that its observance is “a symbol of

[their] redemption in Christ, a sign of [their] sanctification, a token of [their] allegiance, and a foretaste of

[their] eternal future in God’s kingdom.” 11 Adventists

believe that, in the last days, “[t]he Sabbath will be

the great test of loyalty,” 12 and that, “[w]hen this issue

is clearly brought before the world, those who reject

God’s memorial of creatorship—the Bible Sabbath—

*** will receive the ‘mark of the beast.’” 13 By contrast,

those who keep the seventh-day Sabbath, by “choosing

the token of allegiance to divine authority, [will] receive the seal of God.” 14 For Adventists, keeping the

Sabbath is therefore a matter of the greatest importance.

8.

11 Official Beliefs of the Seventh-day Adventist Church, supra n.

12 Ellen G. White, The Great Controversy Between Christ and

Satan 605 (1911).

13 Ministerial Association of the General Conference of Seventhday Adventists, Seventh-day Adventists Believe 167 (1988).

14 The Great Controversy, supra n. 12, at 605.

29

B. Hardison’s de minimis plus standard disproportionately discriminates against religious minorities like amicus.

Because of their seventh-day Sabbath observance,

Adventists are disproportionately subjected to religious discrimination in employment. To the extent

that any religions are accommodated by employers,

majority religions are more often accommodated by default in a societal calendar that caters to their faiths.

For example, while Sunday Sabbath observance is

at issue in this case, seventh-day Sabbatarians are

likely to face even more difficulties with employment

at a post office than are Sunday observers. After all,

except for deliveries of private packages like the arrangement at issue here, the mail is delivered on Friday and Saturday, but not on Sunday. See also supra

at 12-26 (seven of the ten EEOC decisions involved a

Saturday Sabbath accommodation request).

And that general principle holds true for many

other employers as well: Too often, employing those

who wish to observe a Friday sundown to Saturday

sundown Sabbath will be deemed an undue hardship

(under Hardison’s mistaken interpretation of that

term) due to normal business hours and operations. By

default, then, the greatest harm from Hardison’s misinterpretation falls on members of minority faiths that

are more likely to deviate from societal norms on issues of dress, Sabbath observance, prayer, religious

holidays, and all manner of other religious practices

that are central to a religious person’s daily living.

30

As Justice Alito recognized in an earlier case involving an Adventist member, forcing a believer to decide between his religion and his employment is a

“cruel choice” indeed. Abramson v. William Paterson

Coll. Of N.J., 260 F.3d 265, 290 (3d Cir. 2001) (Alito,

J., concurring). For faithful Adventists, that choice can

be between losing their job and breaking a commandment at the core of their religion, with the possibility

of a loss of their salvation.

Congress amended Title VII precisely to prevent religious individuals from being forced to make that

choice. Indeed, the Title VII amendment at issue was

introduced by a Saturday Sabbath observer, who

wanted to protect employees from employers’ refusal

“to hire or to continue in employment employees whose

religious practices rigidly require them to abstain from

work in the nature of hire on particular days.” 118

Cong. Rec., supra, at 705 (1972).

Hardison rendered that amendment almost useless. And it is religious minorities like amicus and its

members that bear the brunt of the burden. See Small

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

Cir. 2020) (Thapar, J., concurring). As Petitioner

notes, this discrimination proves that Hardison’s de

minimis plus test is unworkable and unworthy of this

Court’s stare decisis deference. Pet. Br. 33-34.

CONCLUSION

Hardison’s de-minimis-plus test for undue hardship is incorrect, unworkable, and in effect discriminatory against religious minorities like amicus and its

members. Because of Hardison’s error, amicus’s members have too often been put to the choice between

31

their religion and their vocation—particularly because

of their seventh-day Sabbath observance, a central

tenet of their faith. It is time for this Court to overturn

Hardison and adopt an interpretation of undue hardship consistent with this term of art’s regulatory history: that is, harm that inflicts an immense or extreme

cost in relation to the employer’s overall business. No

such extreme cost or harm existed here, and this Court

should reverse.

Respectfully submitted,

TODD R. MCFARLAND

Deputy General Counsel

General Conference of

Seventh-day Adventists

12501 Old Columbia Pike

Silver Spring, MD 20904

GENE C. SCHAERR

Counsel of Record

H. CHRISTOPHER

BARTOLOMUCCI

HANNAH C. SMITH

KATHRYN E. TARBERT

JAMES C. PHILLIPS

CHRISTOPHER E. MILLS

JOSHUA J. PRINCE

Spero Law LLC

ANNIKA BOONE BARKDULL*

557 E. Bay Street #22251 SCHAERR|JAFFE LLP

Charleston, SC 29413

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

*Not yet admitted in D.C.

Counsel for Amicus Curiae

February 28, 2023