Amicus Curiae Brief — Ronald Hittle, Petitioner v. City of Stockton, California, et al.

No. 24-427

In the

Supreme Court of the United States

─────  ─────

RONALD HITTLE,

v.

Petitioner,

CITY OF STOCKTON, CALIFORNIA ET AL.,

Respondents.

─────  ─────

On Petition For A Writ of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

─────  ─────

BRIEF OF ISLAM AND RELIGIOUS FREEDOM

ACTION TEAM OF THE RELIGIOUS FREEDOM

INSTITUTE AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

─────  ─────

HORVITZ & LEVY LLP

SCOTT P. DIXLER

Counsel of Record

JASJAAP S. SIDHU

3601 WEST OLIVE AVENUE

8TH FLOOR

BURBANK, CA 91505

(818) 995-0800

sdixler@horvitzlevy.com

HORVITZ & LEVY LLP

JEREMY B. ROSEN

505 SANSOME STREET

SUITE 1550

SAN FRANCISCO, CA

94111

Counsel for Amicus Curiae

Islam and Religious Freedom Action Team of the

Religious Freedom Institute

i

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS CURIAE ............................ 1

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

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

I.

A public employer cannot fire an employee

because of coworkers’ perceptions or

discomfort with religion, or to avoid phantom

Establishment Clause violations. ....................... 3

II. The

Ninth

Circuit’s decision below

contradicts the two principles discussed

above

and

empowers

employers

to

discriminate. ........................................................ 9

III. Allowing religious discrimination based on

public perception or other employees’

discomfort with religion will particularly

harm those of minority faiths, including

Muslims. ............................................................ 11

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

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alzuraqi v. Grp. 1 Auto., Inc.,

921 F.Supp.2d 648 (N.D. Tex. 2013)................... 13

Anderson v. Gen. Dynamics Convair

Aerospace Div.,

589 F.2d 397 (9th Cir. 1978) ................................. 6

Berry v. Dep’t of Soc. Servs.,

447 F.3d 642 (9th Cir. 2006) ............................... 16

Brown v. Polk County,

61 F.3d 650 (8th Cir. 1995) ............................... 7, 8

Camara v. Epps Air Serv., Inc.,

292 F.Supp.3d 1314 (N.D. Ga. 2017) ........ 3, 14, 15

Capitol Square Rev. & Advisory Bd. v.

Pinette,

515 U.S. 753 (1995) ........................................... 4, 7

Cordova v. State Farm Ins. Cos.,

124 F.3d 1145 (9th Cir. 1997) ............................... 9

EEOC v. Abercrombie & Fitch Stores,

Inc.,

575 U.S. 768 (2015) ..................................... 4, 8, 11

EEOC v. Sambo’s of Ga., Inc.,

530 F.Supp. 86 (N.D. Ga. 1981) .................... 10, 15

iii

EEOC v. Sunbelt Rentals, Inc.,

521 F.3d 306 (4th Cir. 2008) ................. 5, 6, 10, 13

Franks v. Bowman Transp. Co.,

424 U.S. 747 (1976) ............................................... 4

Good News Club v. Milford Cent. Sch.,

533 U.S. 98 (2001) ............................................. 4, 7

Groff v. DeJoy,

600 U.S. 447 (2023) ............... 2, 3, 4, 10, 14, 15, 17

Guessous v. Fairview Property

Investments, LLC,

828 F.3d 208 (4th Cir. 2016) ............................... 13

Hittle v. City of Stockton,

101 F.4th 1000 (9th Cir. 2024).......... 2, 3, 9, 10, 17

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ................. 2, 6, 7, 8, 11, 16, 17

King v. Hillen,

21 F.3d 1572 (Fed. Cir. 1994) ............................... 5

Lemon v. Kurtzman,

403 U.S. 602 (1971) ............................................... 8

Muller v. Costello,

187 F.3d 298 (2d Cir. 1999)................................... 5

Nichols v. Azteca Rest. Enters., Inc.,

256 F.3d 864 (9th Cir. 2001) ................................. 6

Palmore v. Sidoti,

466 U.S. 429 (1984) ............................................... 5

iv

Peterson v. Hewlett-Packard Co.,

358 F.3d 599 (9th Cir. 2004) ................................. 6

Prowel v. Wise Bus. Forms, Inc.,

579 F.3d 285 (3d Cir. 2009)................................... 6

Roberts v. Madigan,

921 F.2d 1047 (10th Cir. 1990) ........................... 16

Rosenberger v. Rector & Visitors of

Univ. of Va.,

515 U.S. 819 (1995) ............................................... 7

Shaare Tefila Congregation v. Cobb,

785 F.2d 523 (4th Cir. 1986), rev’d,

481 U.S. 615 (1987) ............................................... 5

Shahar v. Bowers,

114 F.3d 1097 (11th Cir. 1997) ........................... 15

Smith v. City of Salem,

378 F.3d 566 (6th Cir. 2004) ................................. 6

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) ................................................. 3

Tucker v. State of Cal. Dep’t of Educ.,

97 F.3d 1204 (9th Cir. 1996) ................................. 8

United States v. Bethlehem Steel Corp.,

446 F.2d 652 (2d Cir. 1971)................................... 4

United States v. Board of Education for

School District of Philadelphia,

911 F.2d 882 (3d Cir. 1990)................................. 16

v

Webb v. City of Philadelphia,

562 F.3d 256 (3d Cir. 2009)................................. 15

Statutes

42 U.S.C.

§ 2000e-2(a)(1) ................................................... 2, 3

§ 2000e-2(m) .......................................................... 4

Rules

Sup. Ct. R.

37.2......................................................................... 1

37.6......................................................................... 1

Miscellaneous

EEOC, Compliance Manual on Religious

Discrimination (2021),

https://tinyurl.com/ReligiousGuidance

§ 12-IV.B.4 ........................................................... 14

§ 12-IV.C.4(a)....................................................... 14

§ 12-IV.C.6(a)....................................................... 14

Eugene Volokh, The EEOC, Religious

Accommodation Claims, and

Muslims, Wash. Post (June 21, 2016,

4:39 PM),

https://tinyurl.com/44sx78ra............................... 13

Feeling Toward Religious Groups, Pew

Rsch. Ctr. (July 23, 2019),

https://tinyurl.com/PewReligiousSurvey ............ 12

vi

How the U.S. General Public Views Muslims

and Islam, Pew Rsch. Ctr. (July 26, 2017),

https://tinyurl.com/PewRschMuslimSurvey. 12, 13

John Sides & Dalia Mogahed, Muslims in

America: Public Perceptions in the

Trump Era, Democracy Fund Voter

Study Group (June 2018),

https://tinyurl.com/MuslimsVoterStudy............. 12

Shibley Telhami, Prejudice Toward

Muslims is Highest Among All

Religious and Ethnic Groups,

Brookings Inst. (Aug. 27, 2024),

https://tinyurl.com/MuslimPrejudice.................. 11

Survey Examines Perceptions of Muslim

Americans, New America (Nov. 1,

2018),

https://tinyurl.com/MuslimPerceptions ........ 11, 12

1

──────────

INTEREST OF AMICUS CURIAE 1

The Islam and Religious Freedom Action

Team (“IRF”) of the Religious Freedom Institute

amplifies Muslim voices on religious freedom, seeks a

deeper understanding of the support for religious

freedom inside the teachings of Islam, and protects

the religious freedom of Muslims. To this end, the IRF

engages in research, education, and advocacy on core

issues including freedom from coercion in religion and

equal citizenship for people of diverse faiths. The IRF

explores and supports religious freedom by

translating resources by Muslims about religious

freedom, fostering inclusion of Muslims in religious

freedom work both where Muslims are a majority and

where they are a minority, and by partnering with the

Institute’s other teams in advocacy.

Amicus is concerned that discrimination in the

context of reasonable accommodation requests is

disproportionately directed towards adherents of

minority faiths. This discrimination includes

segregation, the failure to hire, and retaliatory or

hostile work environments, all of which undermine

the goal of equal access to employment opportunities.

The issues at stake in this case relate directly to the

1 Pursuant to Supreme Court Rule 37.6, amicus states that no

counsel for any party authored this brief in whole or in part and

that no entity or person, aside from amicus, its members, and its

counsel, made any monetary contribution toward the

preparation or submission of this brief. Pursuant to Supreme

Court Rule 37.2, amicus certifies that counsel of record for all

parties received notice of the intent to file this brief at least ten

days before it was due.

2

right of practitioners of minority faiths in America to

avail themselves of employment opportunities on

equal terms. Amicus submits this brief in the hope

that this Court will protect the religious rights of all

Americans in the workplace.

──────────

SUMMARY OF ARGUMENT

Under Title VII of the Civil Rights Act of 1964,

employers may not fire their employees because of

their religion. 42 U.S.C. § 2000e-2(a)(1). This Court’s

Title VII jurisprudence has strictly enforced that

prohibition, and two principles from that

jurisprudence are particularly important here.

First, just as “a coworker’s dislike of ‘religious

practice and expression in the workplace’” cannot

justify

denying

an

employee’s

religious

accommodation, it also cannot justify firing that

employee. Groff v. DeJoy, 600 U.S. 447, 472 (2023).

Second, an employer’s purported desire to avoid

violating the Establishment Clause does not allow it

to discriminate against religiously observant

employees. “[I]n no world may a government entity’s

concerns about phantom constitutional violations

justify actual violations of an individual’s First

Amendment rights.” Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507, 543 (2022).

The Ninth Circuit undercut both of those core

principles. First, it allowed the City to fire Hittle due

to “concern about the perception of others.” Hittle v.

City of Stockton, 101 F.4th 1000, 1017 (9th Cir. 2024).

Second, it endorsed the City’s view that its conduct

3

was justified by “legitimate

concerns.” Id. at 1014.

constitutional

...

This ruling gives employers a license to

discriminate against religious employees, and will be

particularly harmful to Muslims.

Negative

stereotypes about Muslims mean coworkers and the

public often have negative perceptions about visibly

Muslim employees.

For example, before Groff,

Muslim employees were routinely fired because

employers worried that signs of their faith—like a

hijab—might make customers uncomfortable. E.g.,

Camara v. Epps Air Serv., Inc., 292 F.Supp.3d 1314,

1319 (N.D. Ga. 2017), abrogated by Groff, 600 U.S. at

466–67, 466 n.13.

Making clear that “public perception” is not a

valid reason for discrimination can prevent a return

to when employees had to make the “cruel choice of

surrendering their religion or their job.” Trans World

Airlines, Inc. v. Hardison, 432 U.S. 63, 87 (1977)

(Marshall, J., dissenting). This Court should grant

Hittle’s petition for certiorari and reverse the Ninth

Circuit’s decision.

──────────

ARGUMENT

I.

A public employer cannot fire an employee

because of coworkers’ perceptions or

discomfort with religion, or to avoid

phantom Establishment Clause violations.

Under Title VII, an employer may not “discharge

any individual . . . because of such individual’s

. . . religion.” 42 U.S.C. § 2000e-2(a)(1). An employer

violates Title VII if an employee’s religion is a

4

“motivating factor” of the discharge. 42 U.S.C.

§ 2000e-2(m). Title VII extends “favored treatment”

to religious employees. EEOC v. Abercrombie & Fitch

Stores, Inc., 575 U.S. 768, 775 (2015).

The Title VII jurisprudence of this Court and the

circuit courts of appeals reflects that favored

treatment. Two principles from that jurisprudence

are particularly relevant.

First, public perception or other employees’

discomfort

with

religion

does

not

excuse

discrimination. “If relief under Title VII can be denied

merely because the majority group of employees, who

have not suffered discrimination, will be unhappy

about it, there will be little hope of correcting the

wrongs to which the Act is directed.” Franks v.

Bowman Transp. Co., 424 U.S. 747, 775 (1976)

(quoting United States v. Bethlehem Steel Corp., 446

F.2d 652, 663 (2d Cir. 1971)); see Groff, 600 U.S. at

472 (noting “a coworker’s dislike of ‘religious practice

and expression in the workplace’” is irrelevant under

Title VII because, “[i]f bias or hostility to a religious

practice or a religious accommodation provided a

defense to a reasonable accommodation claim, Title

VII would be at war with itself”); cf. Good News Club

v. Milford Cent. Sch., 533 U.S. 98, 119 (2001)

(rejecting, in context of Establishment Clause,

concerns “about the perceptions of particular

individuals or saving isolated nonadherents from . . .

discomfort” (alteration in original) (emphasis omitted)

(quoting Capitol Square Rev. & Advisory Bd. v.

Pinette, 515 U.S. 753, 779–780 (1995) (O’Connor, J.,

concurring in part and concurring in judgment))).

5

That principle flows from one of the key purposes

of not only Title VII, but of all civil rights statutes:

protecting minority groups from the irrational or

discriminatory perceptions of the majority. See King

v. Hillen, 21 F.3d 1572, 1582 (Fed. Cir. 1994)

(explaining that purpose of Title VII “is not to import

into the workplace the prejudices of the community,

but through law to liberate the workplace from the

demeaning influence of discrimination,” and rejecting

the view that discrimination can be excused “simply

because it may be culturally tolerated outside of the

workplace”); see also Shaare Tefila Congregation v.

Cobb, 785 F.2d 523, 528 (4th Cir. 1986) (Wilkinson, J.,

concurring in part and dissenting in part) (recognizing

“[a]ll racial prejudice is the result of subjective,

irrational perceptions,” and that various civil rights

statutes “were enacted precisely to halt the spread of

violence and hatred by those motivated by such

perceptions”), rev’d, 481 U.S. 615 (1987); Muller v.

Costello, 187 F.3d 298, 309 (2d Cir. 1999) (explaining

that the Americans with Disabilities Act was enacted

to combat “discriminatory policies based on

unfounded, outmoded stereotypes and perceptions,

and deeply imbedded prejudices toward people with

disabilities” (citation omitted)); cf. Palmore v. Sidoti,

466 U.S. 429, 433 (1984) (“Private biases may be

outside the reach of the law, but the law cannot,

directly or indirectly, give them effect.”).

Thus, a coworker’s discriminatory perception of a

protected groups is properly the basis for a Title VII

action, not a defense. See, e.g., EEOC v. Sunbelt

Rentals, Inc., 521 F.3d 306, 318–19 (4th Cir. 2008)

(reversing district court’s grant of summary judgment

for defendant in Title VII action where plaintiff

6

suffered “constant and repetitive abuse founded upon

misperceptions” of Muslims, and explaining that Title

VII ensures “our constitutional ideals of mutual

respect”). That is true not only for claims of religious

discrimination, see id., but also for claims of

discrimination against other protected classes, see

Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 289–92

(3d Cir. 2009) (reversing judgment for defendants on

Title VII claim where gender-nonconforming plaintiff

experienced hostility from coworkers); Smith v. City of

Salem, 378 F.3d 566, 571–75 (6th Cir. 2004) (same);

Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874

(9th Cir. 2001) (same). Indeed, before its decision in

this case, the Ninth Circuit regularly applied this

Court’s guidance that coworkers’ perceptions and

discomfort do not trump Title VII’s protections. See

Peterson v. Hewlett-Packard Co., 358 F.3d 599, 607

(9th Cir. 2004) (“[Employers] must tolerate some

degree of employee discomfort in the process of taking

steps required by Title VII to correct the wrongs of

discrimination.”); Anderson v. Gen. Dynamics Convair

Aerospace Div., 589 F.2d 397, 402 (9th Cir. 1978)

(“[P]roof that employees would grumble about a

particular accommodation is not enough to establish

undue hardship.”).

Second, public employers cannot rely on

concerns of hypothetical Establishment Clause

violations as an excuse to fire religiously observant

employees. As this Court explained in Kennedy, a

government employer’s reliance on a hypothetical

Establishment Clause violation “hinges on the need to

generate conflict between an individual’s rights under

the Free Exercise and Free Speech Clauses and [the

employer’s] own Establishment Clause duties.”

7

Kennedy, 597 U.S. at 542. But “there is no conflict

between th[ose] constitutional commands . . . . There

is only the ‘mere shadow’ of a conflict, a false choice

premised on a misconstruction of the Establishment

Clause.” Id. at 543. “An Establishment Clause

violation does not automatically follow whenever a

public school or other government entity ‘fail[s] to

censor’ private religious speech. Nor does the Clause

‘compel the government to purge from the public

sphere’ anything an objective observer could

reasonably infer endorses or ‘partakes of the

religious.’” Id. at 534–35 (alteration in original)

(citation omitted); cf., e.g., Good News Club, 533 U.S.

at 119 (holding concerns about hypothetical

Establishment Clause violation did not justify refusal

to allow a religious club to use school facilities);

Rosenberger v. Rector & Visitors of Univ. of Va., 515

U.S. 819, 845–46 (1995) (finding Establishment

Clause concerns do not justify denying eligibility of

religious student newspaper for school funding).

Ultimately, “in no world may a government entity’s

concerns about phantom constitutional violations

justify actual violations of an individual’s First

Amendment rights.” Kennedy, 597 U.S. at 543; cf.

Capitol Square, 515 U.S. at 768 (plurality opinion)

(rejecting argument that government action violates

the Establishment Clause “whenever hypothetical

observers

may—even

reasonably—confuse

an

incidental

benefit

to

religion

with

state

endorsement”).

In fact, the circuit courts of appeals have long

rejected

employers’

reliance

on

phantom

Establishment

Clause

violations

to

justify

discrimination. For example, in Brown v. Polk

8

County, a county employee was fired in part for

participating in religious activities at work. 61 F.3d

650, 654 (8th Cir. 1995). Brown held that the county

had violated Title VII and refused to credit the

county’s fear of violating the Establishment Clause as

a basis for its discrimination.

Id. at 659.

Foreshadowing Kennedy, Brown explained that the

county’s argument “gives a dominance to the

[E]stablishment [C]lause that it does not have and

that would allow it to trump the free exercise clause,”

and that “government is charged with making sure

that its activities are confined to the ample and welldefined space that separates” those two clauses. Id.;

see Tucker v. State of Cal. Dep’t of Educ., 97 F.3d 1204,

1212 (9th Cir. 1996) (finding ban on religious speech

in a government office violates Title VII despite

government contention that it prevents the

appearance of favoring religion).2

This authority reflects courts’ tradition of

enforcing Title VII’s goal of providing “favored

treatment” to religious employees. Abercrombie, 575

U.S. at 775. But as explained next, the Ninth Circuit’s

decision below deviates from that tradition,

warranting this Court’s intervention.

2 Though some circuit courts of appeals previously evaluated

government action to determine whether a reasonable observer

may interpret the action as an endorsement of religion, that

approach stemmed directly from Lemon v. Kurtzman, 403 U.S.

602 (1971), and “this Court long ago abandoned Lemon and its

endorsement test offshoot,” Kennedy, 597 U.S. at 534.

9

II. The Ninth Circuit’s decision below

contradicts the two principles discussed

above and empowers

employers to

discriminate.

First, under the decision below, a public

employer may fire an employee for engaging in

religious activity as long as the termination is

motivated by “concern about the perception of others”

rather than the employer’s own “discriminatory

animus.” Hittle, 101 F.4th at 1017. Hittle proffered

evidence that his supervisor had derogatorily

described him and other Christian employees as a

“Christian Coalition,” inquired into his “off duty

Christian activities,” and told him he “should refrain

from doing any” Christian activities with other

firefighters. Id. at 1005 (citations omitted). The

Ninth Circuit acknowledged that “Christian

Coalition” was used as a pejorative. Id. at 1013

(citation omitted). And Ninth Circuit precedent

recognizes that derogatory comments are direct

evidence of discriminatory animus. Id. (quoting

Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1149

(9th Cir. 1997)).

Even so, the Ninth Circuit held Hittle’s

supervisor’s remarks were acceptable because the

supervisor was not expressing her own concerns but

relaying “concerns about other persons’ perceptions.”

Id. Indeed, the Ninth Circuit emphasized that point

throughout its opinion. Id. at 1017 (“There is no

genuine issue of material fact that Montes and Deis

were motivated by discriminatory animus toward

religion, as opposed to concern about the perception of

others.”); see id. at 1018 (suggesting that the “real

10

issue” driving Hittle’s termination was “public

perception”).

In other words, according to the Ninth Circuit, an

employer can fire an employee as long as that action

is intended to mitigate or prevent the discomfort of

customers or coworkers, even if that discomfort is

rooted in bias against religion. In adopting that

reasoning, the Ninth Circuit splits with courts that

protect members of minority faiths from their

coworkers’ hostile perceptions, see, e.g., Sunbelt

Rentals, 521 F.3d at 318, and harkens back to an era

when discomfort with protected classes of minorities

was too readily accepted as an excuse for

discrimination, see EEOC v. Sambo’s of Ga., Inc., 530

F.Supp. 86, 88–89 (N.D. Ga. 1981) (excusing

termination of Sikh employee who maintained

religious beard on grounds that beard risked potential

for “[a]dverse customer reaction[s]”), abrogated by

Groff, 600 U.S. at 472.

Second,

the

Ninth

Circuit’s

reasoning

improperly accepted the City’s concerns about

potential Establishment Clause violations. In noting

that the City informed Hittle that it was not

“permitted to further religious activities” or “favor one

religion over another,” the Ninth Circuit described

those remarks as reflecting a “legitimate concern that

the City could violate constitutional prohibitions and

face liability if it is seen to engage in favoritism with

certain employees because they happen to be

members of a particular religion.” Hittle, 101 F.4th at

1013 (citation omitted). But that is no “legitimate

concern”: avoiding hypothetical Establishment Clause

violations does not excuse punishing employees for

11

engaging in religious activity. See Kennedy, 597 U.S.

at 543.

The Ninth Circuit’s reasoning therefore violates

two core principles from this Court’s Title VII

jurisprudence outlined above. See supra Part I. By

doing so, the Ninth Circuit undermines Title VII’s

goal of extending “favored treatment” to religious

employees, Abercrombie, 575 U.S. at 775, and it

exposes religious employees to the whims of majority

misperceptions. As explained next, that exposure

carries particularly dangerous risks for members of

minority faiths.

III. Allowing religious discrimination based on

public perception or other employees’

discomfort with religion will particularly

harm those of minority faiths, including

Muslims.

Muslim Americans are one of the most

discriminated against minorities in the United

States—and much of that discrimination stems from

misperceptions and lack of understanding. Surveys

show that around forty to fifty percent of Americans

do not personally know a Muslim American. See

Survey Examines Perceptions of Muslim Americans,

New

America

(Nov.

1,

2018),

https://tinyurl.com/MuslimPerceptions (hereinafter

New America Survey) (finding 2 in 5 respondents did

not personally know a Muslim American); Shibley

Telhami, Prejudice Toward Muslims is Highest

Among All Religious and Ethnic Groups, Brookings

Inst.

(Aug.

27,

2024),

https://tinyurl.com/MuslimPrejudice (noting 54% of

respondents did not know any Muslim people).

12

Despite hardly knowing their Muslim peers,

Americans view Muslims less favorably than nearly

all other minority groups, including Asians, Blacks,

Hispanics, gays and lesbians, evangelical Christians,

and Jews. See John Sides & Dalia Mogahed, Muslims

in America: Public Perceptions in the Trump Era,

Democracy Fund Voter Study Group (June 2018),

https://tinyurl.com/MuslimsVoterStudy;

see

also

Feeling Toward Religious Groups, Pew Rsch. Ctr.

(July

23,

2019),

https://tinyurl.com/PewReligiousSurvey

(finding

Muslims viewed less warmly than adherents of all

other major religions).

These unfavorable views have led a substantial

number of Americans to harbor hostile feelings

towards Muslims: almost twenty percent of

Americans would deny Muslims who are American

citizens the right to vote, see Sides & Mogahed, supra,

and one in three Americans are uncomfortable when

they see Muslim Americans wearing a veil or Islamic

attire, would be concerned if a mosque was built in

their neighborhood, and believe that Muslims should

be subject to extra screening at airports, see New

America Survey, supra.

Forty-one percent of

Americans think that Muslims are more likely than

others to encourage violence, fifty percent believe that

Islam is not a part of mainstream American society,

and forty-four percent believe there is a natural

conflict between Islam and democracy. See How the

U.S. General Public Views Muslims and Islam, Pew

Rsch.

Ctr.

(July

26,

2017),

https://tinyurl.com/PewRschMuslimSurvey.

13

Muslim-Americans’ experiences reflect these

hostile perceptions. In the year before one survey,

nearly half of Muslim Americans reported being

treated with suspicion, singled out by airport security

or other law enforcement, called an offensive name, or

physically threatened or attacked. See id. That

number rose to sixty-four percent for Muslims whose

clothing or appearance is distinctly Islamic. See id.

Seventy-five percent of Muslim Americans believe

there is “a lot” of discrimination against Muslims in

America, and fifty percent report that, in recent years,

being Muslim in America has become harder. See id.

Unfortunately, despite Title VII’s protections,

those experiences carry over into the workplace, and

the misperceptions of Muslims can cause employers

and coworkers to discriminate against them. For

example, in Guessous v. Fairview Property

Investments, LLC, a Muslim woman was fired by her

supervisor who believed all Muslims are “‘crooks’ and

untrustworthy.” 828 F.3d 208, 211 (4th Cir. 2016).

And in Sunbelt Rentals, a Muslim employee brought

suit after coworkers used religiously charged epithets

and often called him names such as “Taliban” and

“towel head.” 521 F.3d at 311 (citation omitted); see

Alzuraqi v. Grp. 1 Auto., Inc., 921 F.Supp.2d 648, 660

(N.D. Tex. 2013) (noting plaintiff was called

“‘towelhead’; ‘raghead’; ‘rock thrower’; ‘sand nigger’;

‘terrorist’; ‘fucking Palestinian’; and ‘fucking

Muslim’”). Indeed, although only 1% of Americans are

Muslims, Muslims submitted 19.6% of all EEOC

complaints from 2009 to 2015. Eugene Volokh, The

EEOC, Religious Accommodation Claims, and

Muslims, Wash. Post (June 21, 2016, 4:39 PM),

https://tinyurl.com/44sx78ra.

14

Because coworker and customer discomfort is so

frequently used as an excuse for discrimination, the

U.S. Equal Employment Opportunity Commission

(“EEOC”) has issued specific guidance on it. For

example, the EEOC advises that “[m]ere subjective

offense

or

disagreement”

and

“general

disgruntlement, resentment, or jealousy of coworkers”

will not rise to the level of undue hardship justifying

the rejection of an employee’s request for

accommodation.

EEOC, Compliance Manual on

Religious Discrimination §§ 12-IV.C.6(a), 12-IV.B.4

(2021),

https://tinyurl.com/ReligiousGuidance.

Illustrating the persistent problems faced by Muslim

employees, the EEOC has specifically advised that

refusing to hire someone because of a concern that

customers or coworkers may be uncomfortable with

their hijab is illegal. Id. § 12-IV.C.4(a).

While this guidance should be uncontroversial

both as a matter of case law and public policy, the

Ninth Circuit ignored it. Instead, the Ninth Circuit

adopted a rule that shelters employers who fire

employees based on public perception. The Ninth

Circuit’s decision risks sending religious employees

back to an era when religious discrimination was

regularly permitted.

Indeed, when public perception excuses employer

discrimination, workplace discrimination flourishes.

Cf. Groff, 600 U.S. at 465 (noting that the de minimis

test, which allowed public perception to be used as a

reason to deny religious accommodations, made it

“harder for members of minority faiths to enter the job

market”). For example, in Camara, a business owner

concerned

about

“negative

stereotypes

and

15

perceptions about Muslims” fired a Muslim worker

who wore a hijab. 292 F.Supp.3d at 1319. The court

allowed her firing under the pre-Groff de minimis

standard because her employer “was concerned about

what his customers might think”—rather than his

own religious animus. Id. at 1332. Though Groff

abrogated Camara, see 600 U.S. at 466–67, 466 n.13,

the Ninth Circuit’s decision here echoes Camara’s

reasoning.

Likewise, in Webb v. City of Philadelphia, a

Muslim police officer was suspended for wearing a

hijab. 562 F.3d 256, 258 (3d Cir. 2009). The court

found no Title VII violation because the officer’s

uniform was essential to promote “a sense of authority

and competence to other officers inside the

Department, as well as to the general public.” Id. at

261 (citation omitted). Presumably, the department

believed fellow officers and the public would not view

a Muslim woman wearing a hijab as competent.

Again, the discrimination against her was excused

because it came from public and coworker perception,

not the police department’s own bias.

Nor is it only Muslims who are harmed when

courts defer to public perceptions about adherents of

minority faiths. See Sambo’s of Ga., 530 F.Supp. at

88.

Indeed, even beyond the religious context,

members of minority-protected classes have

historically suffered when courts defer to public

perceptions. See, e.g., Shahar v. Bowers, 114 F.3d

1097, 1108–09 (11th Cir. 1997) (accepting government

employer’s argument that, in order to accommodate

“public perception” and “cohesion within the office,”

16

employer could rescind job offer after learning that

plaintiff was a lesbian married to a woman).

Concerns about hypothetical Establishment

Clause violations have also long been used as a shield

for discrimination. For example, in United States v.

Board of Education for School District of

Philadelphia, the Third Circuit upheld a state statute

prohibiting religious garb in public schools because of

the importance of preserving “religious neutrality.” 3

911 F.2d 882, 893 (3d Cir. 1990); see Berry v. Dep’t of

Soc. Servs., 447 F.3d 642, 655 (9th Cir. 2006) (finding

Establishment Clause concerns validated employer

not allowing an employee to display a Bible in his

cubicle); Roberts v. Madigan, 921 F.2d 1047, 1059

(10th Cir. 1990) (finding concerns about endorsing

religion validated school district prohibiting a teacher

from reading the Bible silently in view of students).

3 In Kennedy, this Court cast doubt on the Third Circuit’s

decision in School District of Philadelphia by rejecting reasoning

under which “a school could fire a Muslim teacher for wearing a

headscarf in the classroom.” 597 U.S. at 531.

17

──────────

CONCLUSION

Hittle returns the Ninth Circuit and its nearly

sixty million citizens to the pre-Groff and pre-Kennedy

standards for religious discrimination. Under Hittle,

the workplace rights of adherents of minority faiths

will turn on the whims of public perception. And

public

employers

evaluating

religious

accommodations will routinely be permitted to hide

behind phantom Establishment Clause violations.

Accordingly, to ensure that its Title VII jurisprudence

is enforced, this Court should grant the petition for a

writ of certiorari.

Respectfully submitted,

HORVITZ & LEVY LLP

SCOTT P. DIXLER

Counsel of Record

JASJAAP S. SIDHU

3601 WEST OLIVE AVENUE

8TH FLOOR

BURBANK, CA 91505

(818) 995-0800

sdixler@horvitzlevy.com

HORVITZ & LEVY LLP

JEREMY B. ROSEN

505 SANSOME STREET

SUITE 1550

SAN FRANCISCO, CA

94111

Counsel for Amicus Curiae

Islam and Religious Freedom Action Team of the

Religious Freedom Institute

November 15, 2024