Amicus Curiae Brief — David Petersen, et al., Petitioners v. Snohomish Regional Fire and Rescue

No. 25-1210

In the Supreme Court of the United States

DAVID PETERSEN, ET AL.,

v.

Petitioners,

SNOHOMISH REGIONAL FIRE & RESCUE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE FORMER EEOC

GENERAL COUNSEL AND RELIGIOUS

NONDISCRIMINATION EXPERT IN

SUPPORT OF PETITIONERS

RACHEL N. MORRISON

Counsel of Record

ETHICS & PUBLIC POLICY

CENTER

1730 M Street, N.W.

Suite 910

Washington, D.C. 20036

(202) 682-1200

rmorrison@eppc.org

Counsel for Amici Curiae

ii

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF ARGUMENT .................................... 1

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

I. Title VII prohibits religious discrimination

and requires reasonable accommodations

absent actual undue hardship. ........................ 3

II. The reasonable-concern-of-hardship rule

departs from Title VII’s legal standards for

undue hardship................................................. 9

CONCLUSION ......................................................... 13

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ansonia Bd. of Educ. v. Philbrook,

479 U.S. 60 (1986) ............................................. 5, 6, 9

EEOC v. Abercrombie & Fitch Stores, Inc.,

575 U.S. 768 (2015) ............................................... 4, 5

Gonzales v. O Centro Espirita Beneficente Uniao

do Vegetal,

546 U.S. 418 (2006) ................................................. 12

Groff v. DeJoy,

600 U.S. 447 (2023) ......................................... passim

Holt v. Hobbs,

574 U.S. 352 (2015) ................................................. 11

Petersen v. Snohomish Reg’l Fire & Rescue,

150 F.4th 1211 (9th Cir. 2025) ..................... 2, 10, 11

Thomas v. Review Bd. of Ind. Emp’t Sec. Div.,

450 U.S. 707 (1981) ................................................... 4

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) ..................................................... 6

United States v. Seeger,

380 U.S. 163 (1965) ............................................... 4, 5

Welsh v. United States,

398 U.S. 333 (1970) ............................................... 3, 4

iv

Williams v. Legacy Health,

No. 24-5977, 2026 WL 1239760

(9th Cir. May 6, 2026) ............................... 2-3, 10, 11

Young v. United Parcel Serv., Inc.,

575 U.S. 206 (2015) ................................................. 11

Statutes

42 U.S.C. 2000e .................................................. passim

42 U.S.C. 2000e-2 ..................................................... 3, 4

Other Authorities

118 Cong. Rec. 705 (1972) .......................................... 12

29 C.F.R. 1605.1 ........................................................... 4

29 C.F.R. 1605.2 ............................................... 2, 5, 6, 7

EEOC, Compliance Manual: Religious

Discrimination (2021)

(last visited May 26, 2026) ............................. passim

EEOC, What You Should Know About

COVID-19 and the ADA, the Rehabilitation

Act, and Other EEO Laws

(last visited May 26, 2026) ................................... 8, 9

1

INTEREST OF AMICI CURIAE1

Amici Sharon Fast Gustafson, former General

Counsel for the Equal Employment Opportunity

Commission (EEOC), and Rachel N. Morrison, former

attorney advisor to General Counsel Gustafson, are

experts

in

religion-related

employment

discrimination. During her time at the EEOC,

Gustafson established a Religious Discrimination

Work Group to promote religious nondiscrimination

and accommodation. Ms. Gustafson has worked to

promote

religious

nondiscrimination

and

accommodation, as well as litigated these cases under

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

2000e et seq. Morrison was a member of the Religious

Discrimination Work Group and has written and

spoken as an expert on employees’ religious rights in

the workplace.

Amici offer this brief to explain Title VII’s religious

discrimination, accommodation, and undue hardship

standards and show how the reasonable-concern-ofhardship rule departs from Title VII’s legal standards.

SUMMARY OF ARGUMENT

This case involves whether respondent, Snohomish

Regional Fire & Rescue (SRFR), lawfully denied

petitioners,

eight

firefighters,

religious

accommodations to its COVID-19 vaccination policy.

SRFR claimed the religious accommodations would

No counsel for a party authored this brief in whole or in part,

and no person other than Amici or their counsel made a monetary

contribution to fund the brief’s preparation or submission.

Counsel for all parties received timely notice of the intent to file

this brief.

1

2

pose an undue hardship on the fire district. The

firefighters disagreed. Instead of allowing a jury to

decide this factual dispute, the Ninth Circuit affirmed

summary judgment for SRFR, crediting the fire

district’s claimed reasonable concerns of undue

hardship.

But this is contrary to Title VII. Under Title VII,

when a workplace policy violates an employee’s

sincerely held religious belief, an employer must

reasonably accommodate the employee’s religious

observance or practice if it can do so without undue

hardship to the employer’s business. The Equal

Employment Opportunity Commission (EEOC)—the

federal agency tasked with enforcing Title VII—has

set out what is required of a religious accommodation,

explaining that an employer has the “burden of

persuasion”

to

“demonstrate[]”

that

an

accommodation would “in fact” create an “actual”

undue hardship. EEOC, Compliance Manual:

Religious Discrimination §§ 12-IV-A-2 and 12-IV-B

(2021),

https://perma.cc/53SA-VNVL;

EEOC

Guidelines on Discrimination Because of Religion, 29

C.F.R. 1605.2(b)(1) and (c)(1). As this Court clarified

in Groff v. DeJoy, undue hardship means “substantial

increased costs in relation to the conduct of its

particular business.” 600 U.S. 447, 470 (2023).

Nevertheless, post-Groff and contrary to at least

three circuit courts, the Ninth Circuit along with two

other circuit courts, have adopted a reasonableconcern-of-hardship rule. Pet. Br. 13-20. And the

Ninth Circuit’s decision below in Petersen v.

Snohomish Regional Fire & Rescue, 150 F.4th 1211

(9th Cir. 2025), is already being relied on to resolve

other undue hardship disputes on summary

judgment. See Williams v. Legacy Health, No. 24-

3

5977, 2026 WL 1239760 (9th Cir. May 6, 2026). Such

a

rule

undermines

Title

VII’s

religious

accommodation protections for employees and this

Court’s clarification of the undue hardship standard

in Groff.

This Court should grant the petition to correct this

harm and restore Title VII’s religious accommodation

protections to the firefighters and other employees.

ARGUMENT

I. Title VII prohibits religious discrimination

and requires reasonable accommodations

absent actual undue hardship.

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

2000e et seq., prohibits discrimination in the

workplace on the basis of religion. 42 U.S.C. 2000e2(a).

Religious. Title VII defines “religion” broadly to

include “all aspects of religious observance and

practice, as well as belief.” 42 U.S.C. 2000e(j). Beliefs

are considered “religious” if they are “sincerely held”

and, “in the individual’s ‘own scheme of things,

religious.’”

Equal

Opportunity

Employment

Commission (EEOC), Compliance Manual: Religious

Discrimination § 12 (2021), https://perma.cc/53SAVNVL (EEOC Religion Guidance)2 (quoting Welsh v.

United States, 398 U.S. 333, 339 (1970), and United

2 EEOC’s religion guidance was passed by the Commission after

notice and public comment. While it is not legally binding on

employers, it states the EEOC’s positions and contains extensive

footnotes to case law in support. In Groff v. DeJoy, this Court

recognized that “a good deal of the EEOC’s guidance in this area

is sensible.” 600 U.S. 447, 471 (2023).

4

States v. Seeger, 380 U.S. 163, 185 (1965)); see also

EEOC Guidelines on Discrimination Because of

Religion (EEOC Religion Guidelines), 29 C.F.R.

1605.1 (EEOC has “consistently applied” the Welsh

and Seeger standard to Title VII). Title VII protects an

individual’s religious beliefs—including religious

beliefs about vaccination—regardless of whether

those beliefs are common or traditional, whether they

seem logical or reasonable to others, whether they are

recognized by an organized religion, and whether only

a “few—or no—other people adhere to [them].” EEOC

Religion Guidance § 12-I.A.1 (citing Thomas v. Review

Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 714 (1981);

EEOC Religion Guidelines, 29 C.F.R. 1605.1; Welsh,

398 U.S. at 343); see also EEOC Religion Guidance §

12-I.A.1 (explaining religious practices can include

“refraining from certain activities”).

Prohibited discrimination. Title VII forbids

employers from discriminating because of an

individual’s religion in hiring, promotion, discharge,

“compensation, terms, conditions, or privileges of

employment.” 42 U.S.C. 2000e-2(a)(1). Further,

employers must not “limit, segregate, or classify”

employees based on religion “in any way which would

deprive or tend to deprive any individual of

employment opportunities or otherwise adversely

affect his status as an employee.” 42 U.S.C. 2000e2(a)(2). Employers are prohibited from discriminating

intentionally (disparate treatment) or through

policies that have a disparate impact on religious

employees. See EEOC v. Abercrombie & Fitch Stores,

Inc., 575 U.S. 768, 771 (2015).

Religious accommodation requirement. In

addition to those proscriptions, employers are

5

affirmatively required to “reasonably accommodate”

an employee’s religious beliefs, observances, and

practices “unless the employer demonstrates” that the

accommodation would pose an “undue hardship on the

conduct of the employer’s business.” 42 U.S.C.

2000e(j). Absent undue hardship, an employer’s

failure to reasonably accommodate religious belief

constitutes unlawful discrimination. In Abercrombie,

this Court held that “Title VII requires otherwiseneutral policies to give way to the need for an

accommodation.” 575 U.S. at 775. The Court further

explained, “Title VII does not demand mere neutrality

with regard to religious practices—that they be

treated no worse than other practices. Rather, it gives

them favored treatment,” creating an affirmative

obligation on employers. Ibid.

An employee’s “sincerely held” religious objection

to a workplace policy or job duty qualifies for a

religious accommodation. EEOC Religion Guidance

§ 12-I.A.2 (citing Seeger, 380 U.S. at 185); id. § 12-IV;

EEOC Religion Guidelines, 29 C.F.R. 1605.2.

An employer is not required to provide an unreasonable accommodation and is not necessarily

required to provide the employee’s preferred

accommodation. EEOC Religion Guidance § 12-IV.A.3

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

(1986)). For an accommodation to be reasonable, it

“must not discriminate against the employee or

unnecessarily disadvantage the employee’s terms,

conditions, or privileges of employment.” Id. (citing

Ansonia, 479 U.S. at 70). An employer’s proposed

religious accommodation is not reasonable if the

employer provides a more favorable accommodation to

other employees for non-religious reasons, including

6

medical reasons. Id. (citing Ansonia, 479 U.S. at 7071).

Likewise, a religious accommodation is not

reasonable “if it requires the employee to accept a

reduction in pay rate or some other loss of a benefit or

privilege of employment” and there is another

accommodation available that would not require such

a harm. EEOC Religion Guidance § 12-IV.A.3. When

there is more than one reasonable accommodation

that does not pose an undue hardship, “the employer

***

must offer the alternative which least

disadvantages the individual with respect to his or her

employment

opportunities.”

EEOC

Religion

Guidelines, 29 C.F.R. 1605.2(c)(2)(ii).

Employees who need religious accommodations

should generally be accommodated in their current

positions unless there is no accommodation in that

position that does not pose an undue hardship. EEOC

Religion Guidance § 12-IV.C.3 (citing EEOC Religion

Guidelines, 29 C.F.R. 1605.2(d)(iii)). Only when no

such accommodation is possible should the employer

consider reassignment or a lateral transfer as an

accommodation. Ibid.

Undue hardship defense. This Court recently

clarified “that ‘undue hardship’ is shown when a

burden is substantial in the overall context of an

employer’s business.” Groff v. DeJoy, 600 U.S. 447,

470 (2023) (rejecting reliance on the “more than a de

minimis cost” line in Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63 (1977), because “showing ‘more

than a de minimis cost’ does not suffice to establish

undue hardship under Title VII”).3 “Hardship” is

3

EEOC’s Religion Guidance was issued prior to the Supreme

7

“more severe than a mere burden” and, at a minimum,

“something hard to bear.” Ibid. And “undue hardship”

is hardship that rises to an “‘excessive’ or

‘unjustifiable’ level.” Ibid. To establish undue

hardship, an “employer must show that the burden of

granting an accommodation would result in

substantial increased costs in relation to the conduct

of its particular business,” “tak[ing] into account all

relevant factors in the case at hand, including the

particular accommodations at issue and their

practical impact in light of the nature, size and

operating cost of an employer.” Id. at 452 (cleaned up).

Because undue hardship is an affirmative defense,

an employer carries “the burden of persuasion” to

“demonstrate[]” that an accommodation “would result

in undue hardship.” EEOC Religion Guidance § 12IV.B; EEOC Religion Guidelines, 29 C.F.R.

1605.2(b)(1). Employers must show that the

accommodation “would actually have posed an undue

hardship.” EEOC Religion Guidance § 12-IV-A-2

(emphasis added). Put another way, an employer is

justified in refusing a religious accommodation “only

when” the employer “can demonstrate that an undue

hardship would in fact result from each available

alternative method of accommodation.” EEOC

Religion Guidelines, 29 C.F.R. 1605.2(c)(1) (emphasis

added).

To demonstrate undue hardship, employers must

rely on “objective information,” not “speculative or

hypothetical hardship,” including the assumption that

other employees might seek accommodations. EEOC,

Court’s opinion in Groff. See EEOC Religion Guidance, Notice

Concerning the Undue Hardship Standard in Title VII Religious

Accommodation Cases (acknowledging that “Groff supersedes

any contrary information” in its guidance).

8

What You Should Know About COVID-19 and the

ADA, the Rehabilitation Act, and Other EEO Laws

§§ L.3 and L.4 (last updated May 15, 2023),

https://perma.cc/CQ9C-JPNY

(EEOC

COVID-19

Guidance). Whether a reasonable accommodation

exists that does not pose an undue hardship is a factspecific inquiry appropriate for a case-by-case

determination. EEOC Religion Guidance § 12-IV.B.1.

In the COVID-19 context, the EEOC identified

considerations that may be relevant, such as whether

the employee “works outdoors or indoors, works in a

solitary or group work setting, or has close contact

with other employees or members of the public

(especially medically vulnerable individuals).” EEOC

COVID-19 Guidance § L.3. But even pre-Groff, the

EEOC did not indicate that such considerations are

dispositive, because undue hardship must be assessed

“by considering the particular facts of each situation.”

Ibid.; cf. Groff, 600 U.S. at 468 (recognizing undue

hardship is a “fact-specific inquiry”).

Reasonable accommodation process. To

receive a religious accommodation, an employee

should notify the employer of the conflict between a

workplace requirement, policy, or practice and the

employee’s sincerely held religious belief, observance,

or practice. EEOC COVID-19 Guidance § L.1. An

employer and an employee should engage in a

“flexible, interactive process” to identify workplace

accommodations that do not impose an undue

hardship on the employer. Id. § K.6. An employer

“should thoroughly consider all possible reasonable

accommodations,” which in the COVID-19 vaccination

context could include periodic testing, masking, social

distancing, modified shifts, telework, and—as a “last

9

resort”—reassignment. Id. §§ K.2, K.6, K.12 and L.3.

As this Court explained in Groff, “Title VII requires

that an employer reasonably accommodate an

employee’s practice of religion, not merely that it

assess the reasonableness of a particular possible

accommodation or accommodations.” 600 U.S. at 473.

Religious

accommodation

denials

as

disparate

treatment.

Denial

of

religious

accommodation requests can also give rise to other

disparate treatment, harassment, or retaliation

claims. See EEOC Religion Guidance §§ 12-II.A.3 Ex.

13 & n.137 and 12-IV.C.4.a Ex. 48. Failure to treat

like accommodation requests alike gives rise to an

inference of pretextual religious discrimination. Cf.

Ansonia, 479 U.S. at 71 (“unpaid leave is not a

reasonable accommodation when paid leave is

provided for all purposes except religious ones * * *

[because] [s]uch an arrangement would display a

discrimination against religious practices that is the

antithesis of reasonableness”).

II. The reasonable-concern-of-hardship rule

departs from Title VII’s legal standards for

undue hardship.

Petitioners, eight firefighters, requested religious

accommodations from their employer, respondent

Snohomish Regional Fire & Rescue (SRFR), but SRFR

denied

their

requests,

claiming

that

the

accommodations would create undue hardship. Pet.

App. 7a. The firefighters disagreed. Pet. App. 8a.

Instead of allowing a jury to resolve this factual

dispute, the Ninth Circuit erred by affirming

summary judgment for SRFR. Pet. App. 26a.

10

Consistent with the First and Sixth Circuits but in

contrast to at least the Third, Seventh, and Eighth

Circuits, Pet. Br. 13-20, the Ninth Circuit agreed that

SRFR’s “reasonable concern” that the religious

accommodations would create undue hardship

warranted summary judgment for SRFR. Pet. App.

20a. As another Ninth Circuit panel read Petersen, “A

‘risk of undue hardship’ will suffice—provided it is

‘realistic’ and ‘not “merely conceivable or

hypothetical.”’ Williams v. Legacy Health, No. 245977, 2026 WL 1239760 (9th Cir. May 6, 2026)

(quoting Petersen v. Snohomish Regional Fire &

Rescue, 150 F.4th 1211, 1222 (9th Cir. 2025)) (relying

on Petersen to grant summary judgment for employer

in religious accommodation undue hardship dispute).

The

reasonable-concern-of-hardship

rule

contradicts the plain text of Title VII. Title VII

requires

employers

provide

reasonable

accommodations for their employees’ religious

observances and practices “unless the employer

demonstrates” that the accommodations would create

“undue hardship.” 42 U.S.C. 2000e(j). Title VII does

not permit denials of religious accommodations based

merely on a concern of undue hardship or a fear of

undue hardship—even if reasonable or in good faith.

Rather, Title VII requires that an employer

demonstrate actual undue hardship, not speculative

or hypothetical hardship. Under Groff, an employer

must demonstrate that an accommodation will “result

in substantial increased costs.” Groff, 600 U.S. at 470.

Undermining this Court’s direction in Groff, the

Ninth Circuit erred by crediting a claimed reasonable

concern or fear of undue hardship instead of actual

undue hardship.

11

According to the Ninth Circuit, the fact that other

fire departments in the area successfully

accommodated their employees was dismissed as

impermissible “‘hindsight’ reasoning.” Pet. App. 23a;

see Williams, 2026 WL 1239760, at *3-4 (“[W]e do not

‘judge [a given employer] by the responses taken by

other [employers].’ * * * [W]e rejected that form of

‘hindsight’ reasoning.” (quoting Petersen, 150 F.4th at

1222) (cleaned up). While not dispositive, the fact that

neighboring fire departments were able to operate

differently suggests that there was not an actual

undue hardship for SRFR to grant the firefighters’

religious accommodations. Cf. Holt v. Hobbs, 574 U.S.

352, 369 (2015) (“We do not suggest that [the Religious

Land Use and Institutionalized Persons Act] requires

a prison to grant a particular religious exemption as

soon as a few other jurisdictions do so. But when so

many prisons offer an accommodation, a prison must,

at a minimum, offer persuasive reasons why it

believes that it must take a different course, and the

Department failed to make that showing here.”).

The firefighters also pointed out SRFR was able to

operate fine for months both prior to and after its

vaccine mandate. Pet. App. 22a. Indeed, SRFR

allowed its firefighters to fight fires alongside

unvaccinated firefighters at other departments,

including in one instance Petitioner David Petersen

who was hired by another department while on leave

from SRFR. Ibid. Prior, current, and sequent policies

and practice are relevant to whether SRFR could

actually accommodate the firefighters without undue

hardship. Certainly, such factual evidence is proper

for a jury to weigh and should not be disregarded by a

judge on summary judgment. Cf. Young v. United

Parcel Serv., Inc., 575 U.S. 206, 231-232 (2015)

12

(vacating summary judgment for employer when

lower court failed to consider “the combined effects” of

the

employer’s

accommodation

policies

for

nonpregnant workers and “the strength of [the

employers’] justifications for each when combined”).

The Ninth Circuit also erred by crediting the fact

that forty-six employees “initially” requested religious

accommodations, even though “only eleven” ended up

needing an accommodation. Pet. App. 19a. Undue

hardship that may arise by granting additional

religious accommodations does not establish undue

hardship for the present religious accommodation. Cf.

Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418, 436 (2006) (Religious Freedom

Restoration Act) (“The Government’s argument

echoes the classic rejoinder of bureaucrats throughout

history: If I make an exception for you, I'll have to

make one for everybody, so no exceptions.”).

In contrast to Title VII’s dictates, the Ninth Circuit

justified its reasonable-concern-of hardship rule based

on policy considerations, such as the unfairness of

“judg[ing] SRFR by the responses taken by other fire

departments,” or of “judg[ing] SRFR with the clarity

of hindsight,” explaining that SRFR had to “make

decisions quickly and with limited information.” Pet.

App. 23a. But there is no “quick decision” exception to

Title VII’s religious accommodation requirement.

Congress accounted for policy considerations in Title

VII only by requiring that religious accommodations

be reasonable and that they do not pose an undue

hardship on the employer. See 42 U.S.C. 2000e(j); cf.

118 Cong. Rec. 705 (1972) (explaining the addition of

religious accommodation protections to Title VII was

“to assure that freedom from religious discrimination

13

in the employment of workers is for all time

guaranteed by law”).

This Court should grant the petition to correct the

Ninth Circuit’s harmful errors and restore Title VII’s

religious accommodation protections to employees.

Without guidance, lower courts will continue to

undermine the balance Congress struck in Title VII

and this Court’s direction in Groff.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

RACHEL N. MORRISON

Counsel of Record

ETHICS & PUBLIC POLICY CENTER

1730 M Street, N.W.

Suite 910

Washington, D.C. 20036

(202) 682-1200

rmorrison@eppc.org

Counsel for Amici Curiae

MAY 26, 2026