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.,

Petitioners,

v.

SNOHOMISH REGIONAL FIRE AND RESCUE,

Respondent.

________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth

Circuit

________________

BRIEF OF AMICI CURIAE NEBRASKA AND

21 OTHER STATES IN SUPPORT OF

PETITIONERS

________________

MICHAEL T. HILGERS

Attorney General of

Nebraska

CODY S. BARNETT

Solicitor General

Counsel of Record

NEBRASKA DEPARTMENT OF

JUSTICE

ZACHARY A. VIGLIANCO

Principal Deputy Solicitor

General

1445 K Street, Room 2115

Lincoln, NE 68509

Tel: (402) 471-2683

cody.barnett@nebraska.gov

ETHAN C. TREACY

King Street Legal, PLLC

Counsel for Nebraska

QUESTION PRESENTED

Whether an employer can defeat a Title VII

religious accommodation claim by establishing merely

that it had a reasonable basis for believing that a

requested accommodation would inflict an undue

hardship on the employer or whether the employer

must establish that the requested accommodation

would have actually imposed an undue hardship.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF CONTENTS ............................................ ii

STATEMENT OF INTEREST ................................... 1

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

REASONS FOR GRANTING THE PETITION......... 6

I.

Amici

States

accommodated

vaccine

exemptions during the COVID pandemic

without undue hardship. ..................................... 6

II. The Ninth Circuit’s reasonable-concern-ofhardship test harkens back to Hardison. ......... 10

A. Hardison failed to adequately protect

religious practice. ....................................... 11

B. Groff corrected Hardison’s erroneous

more-than-de-minimis-cost test. ................ 13

C. The Ninth Circuit joined other circuits in

adopting an erroneous reasonableconcern-of-hardship test............................. 15

III. The reasonable-concern-of-hardship test may

infect state laws. ................................................ 21

CONCLUSION ......................................................... 22

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) ........................................ 16, 20

Groff v. DeJoy,

600 U.S. 447 (2023) ............................. 3, 10, 11, 13

14, 15, 19, 20, 22

Kluge v. Brownsburg Comm.

School Corp.,

150 F.4th 792 (7th Cir. 2025) ........... 16, 18, 19, 21

Lee v. Weisman,

505 U.S. 577 (1992) ................................................ 1

Naylor v. County of Muscatine,

151 F.4th 973 (8th Cir. 2025) .............................. 21

Shaw v. Delta Air Lines, Inc.,

463 U.S. 85 (1983) ................................................ 21

Smith v. City of Atlantic City,

138 F.4th 759 (3d Cir. 2025) ................................ 21

Statutes & Constitutional Provisions

U.S. Const. amend. I ................................................... 2

Title VII, 78 Stat. 253 (1964) codified at

42 U.S.C. § 2000e et. seq. ........................ 1, 2, 10 20

iv

Neb. Rev. Stat. § 18-1724 ............................................ 9

Neb. Rev. Stat. § 48-239 .............................................. 6

Other Authorities

CDC National Center for Health

Statistics, COVID-19 Mortality ............................. 7

Johns Hopkins University, U.S.

Surpasses 100 Million Reported

COVID-19 Cases (Dec. 21, 2022), .......................... 7

Nebraska’s Equal Opportunity Commission,

Report for Fiscal Year 2024/2025 ................... 9, 10

Nick Reaves, Groff v. DeJoy: Hardison is

Dead, Long Live Hardison!,

39 Harv. J. L. & Pub. Pol’y .................................. 11

Press Release, Gov. Ricketts Signs

Coronavirus Vaccine Exemption

Legislation (Feb. 8, 2022),...................................... 6

Robert N. Strassfeld, If…: Counterfactuals in

the Law, 60 Geo. Wash. L. Rev. 339 (1992) ......... 20

Scott Dodson, The Gravitational Force of

Federal Law, 164 U. Pa. L. Rev. 703 (2016)........ 21

University of Nebraska, About the

University of Nebraska System .............................. 1

v

University of Nebraska, Nebraska

Annual Social Survey Snapshot:

What role does religion play in

Nebraskans’ lives? (May 2025), .............................. 2

University of Nebraska, University of

Nebraska system updates COVID-19

protocols (Aug. 6, 2021), ..................................... 8, 9

UNMC Press Release, COVID-19 vaccine to be

required for all UNMC faculty, students

and staff (Aug. 13, 2021) ........................................ 8

UNMC Vaccination Waiver Request

Form........................................................................ 8

STATEMENT OF INTEREST1

Americans’ religious freedoms are “too precious to

be either proscribed or prescribed by the State.” Lee v.

Weisman, 505 U.S. 577, 589 (1992). But proscribing

religious practice is precisely what the holding below

does, contra Title VII’s requirement that employers

accommodate

religious

practices

unless

accommodation would inflict “undue hardship.” 42

U.S.C. 2000e(j).

Amici States submit this brief to underscore the

ability of government employers to grant religious

accommodations without incurring undue hardship,

even when important governmental functions like

firefighting and first response are implicated. As large

government employers themselves, Amici States are

uniquely positioned to address accommodations that

do—or do not—impose undue hardship on the

provision of public services.

The State of Nebraska, for example, is itself the

largest employer in Nebraska, with the University of

Nebraska alone employing over 16,000 people.2

Nebraska, and other Amici States, have little trouble

granting the vast majority of their employees’

requested religious accommodations. That remained

true for otherwise mandatory vaccine requirements

1 Under Supreme Court Rule 37.6, no counsel for any party

authored this brief in whole or in part and no entity or person,

aside from amici and their counsel, made any monetary

contribution toward the preparation or submission of this brief.

Consistent with Rule 37.2, counsel for the parties were notified

of the intention to file this brief ten days before it was due.

2 University of Nebraska, About the University of Nebraska

System, https://perma.cc/9XXT-P83E.

2

during the COVID pandemic, even when those

requests came from medical staff and first responders.

Amici States are also protective of their citizens’

constitutional and statutory rights to freely exercise

their religion, even when that exercise imposes some

hardship on an employer. See U.S. Const. amend. I.;

42 U.S.C. 2000e(j) (Title VII). Significant proportions

of Amici States’ populations practice a religion. Nearly

seventy percent of Nebraskans, for example, report a

religious affiliation.3 Amici States thus have a strong

interest in ensuring that the federal circuit courts

apply the correct test for an “undue hardship” under

Title VII.

Amici States are also keenly aware that state

courts and legislatures tend to model state antidiscrimination laws on federal standards. It is

concerning to Amici States that a growing number of

federal circuit courts have adopted an untenable and

underprotective interpretation of Title VII.

Here, the Ninth Circuit expanded the list of courts

in applying an incorrect test for “undue hardship.” The

Ninth Circuit held that employers may deny religious

accommodations merely on a reasonable belief that an

undue hardship would result. That is not correct. Title

VII requires actual hardship, not a reasonable belief

of hardship, as the Third, Seventh, and Eighth

Circuits have correctly held.

The erroneous reasonable-concern-of-hardship

test is reminiscent of TWA v. Hardison’s now-defunct

3 See University of Nebraska, Nebraska Annual Social Survey

Snapshot: What role does religion play in Nebraskans’ lives?

(May 2025), https://perma.cc/ST2P-5ZRH.

3

more-than-de-minimis-cost test. Hardison’s test

resulted in decades of underprotection of religious

practice by permitting employers to deny

accommodations that imposed any more than a de

minimis cost on the employer. This Court recently—

and unanimously—repudiated the more-than-deminimis-cost test in Groff v. DeJoy. Now, less than

three years later, the lower courts again need direction

on the proper force of Title VII’s “undue hardship”

standard.

The Court should grant the petition.

4

SUMMARY OF ARGUMENT

I. Amici States are uniquely positioned to address

the undue hardships that would—or would not—occur

had Respondent Snohomish Regional Fire and Rescue

(SRFR) granted Petitioners’ accommodations. Amici

States are themselves among the largest employers in

their states, and Amici States routinely grant

accommodations that would impose more than de

minimis, but less than undue, hardships. And the

Amici States that had mandatory vaccine

requirements during COVID were able to do so in

precisely the context at issue here—mandatory

vaccine requirements for healthcare workers and first

responders.

II. This Court recently restored Title VII to its

proper force, rectifying decades of underprotection

under Hardison’s unfortunate more-than-de-minimiscost test. But several federal circuit courts have again

placed Title VII’s protections in jeopardy by

permitting

employers

to

deny

religious

accommodations on a reasonable belief that hardship

will result. That reasonable-concern-of-hardship test

guts Title VII and returns to an underprotective

regime similar to—and sometimes worse than—

Hardison.

The Ninth Circuit below ignored a bevy of

evidence that SRFR would not suffer an undue

hardship if it granted Petitioners’ requested

accommodation, and instead granted summary

judgment to SRFR. By doing so, the Ninth Circuit

credited SRFR’s reasonable belief that it would suffer

undue hardship rather than requiring SRFR to show

actual hardship. This Court should not countenance

5

such a low and atextual bar for Title VII’s “undue

hardship” standard.

III. The reasonable-concern-of-hardship test risks

more than perverting Title VII jurisprudence: it also

risks state law adoption. The states routinely model

their anti-discrimination laws after federal standards.

The longer the reasonable-concern-of-hardship test is

permitted to stand, the greater the risk that state

courts will adopt the same underprotective standard.

6

REASONS FOR GRANTING THE PETITION

I.

Amici

States

accommodated

vaccine

exemptions during the COVID pandemic

without undue hardship.

Amici States’ experiences as government

employers demonstrate that Petitioners’ religious

accommodations would not have caused SRFR undue

hardship.

Amici States are themselves among the largest

employers in each of their respective states. Amici

States have little trouble accommodating the religious

requests of their employees, even where those

requests impose some hardship, as Title VII requires

them to do. And the Amici States that had mandatory

vaccine requirements during COVID were able to

grant religious accommodations without undue

hardship, even for healthcare workers and first

responders like Petitioners.

During the COVID pandemic, Nebraska, for

example, passed a law ensuring that Nebraskans

could request religious exemptions from the COVID

vaccine.4 See Neb. Rev. Stat. § 48-239. Under that

statute, employers who had one or more employees—

that is to say, all relevant employers—were required

to permit vaccine exemptions for those with sincerely

held religious beliefs. Id. § 48-239(2), (3). Nebraska

enacted its religious exemption because “[s]weeping

COVID vaccine mandates”—like the one that SRFR

imposed

here—“fail

to

account

for

individuals’ … religious convictions.” Press Release,

Gov. Ricketts Signs Coronavirus Vaccine Exemption

4 So, too, did Alaska. See 2021 Alaska Sess. Laws ch. 2, § 17.

7

Legislation (Feb. 8, 2022), https://perma.cc/UDV3F6WQ (quoting then-Governor Ricketts).

Nebraska’s public entities were themselves

“employers” subject to the statute’s religious

exemptions requirement. Id. § 48-239(1)(c)(i)–(ii)

(defining “employer” to “include[] the State of

Nebraska, governmental agencies, and political

subdivisions”).

The

statute’s

accommodation

requirement applied to all public jobs equally,

including firefighters. See id. § 48-239(1)(c)(iii)

(exempting some entities, but not any state

government entities). As an alternative to vaccination,

the statute permitted fundamentally the same

accommodations that Petitioners proposed to SRFR—

testing and use of personal protective equipment. Id.

§ 48-239(4).

The resulting religious exemptions did not have a

measurable negative effect on COVID outcomes.

Nebraska’s religious exemption statute went into

effect on March 1, 2022. Nine months later, Johns

Hopkins University reported the relative COVID case

rates between states. Johns Hopkins University, U.S.

Surpasses 100 Million Reported COVID-19 Cases

(Dec.

21,

2022),

https://perma.cc/LZ8X-7JAU.

Nebraska had the 17th lowest per capita case rate in

the country. Ibid. The same year, Nebraska’s COVID

mortality rate was among the lowest in the country.

See CDC National Center for Health Statistics,

COVID-19

Mortality,

https://perma.cc/

Q34U-GP2F (showing Nebraska’s mortality rate as

35.5 per 100,000 in 2022—the 15th lowest in the

nation). The following year, with COVID mortality

falling in all states, Nebraska’s mortality rate was

8

unremarkable. Ibid. (showing Nebraska’s mortality

rate as 25th in the nation).

Even before Nebraska’s religious exemption

statute was enacted, the University of Nebraska

Medical

Center

(UNMC)

granted

religious

accommodations to its staff, consistent with Title VII’s

requirements. In August 2021, the UNMC required

“all students, staff and faculty” to get the COVID

vaccine. UNMC Press Release, COVID-19 vaccine to

be required for all UNMC faculty, students and staff

(Aug. 13, 2021), https://perma.cc/L4BK-TGVM.

UNMC considered the vaccine requirement

“imperative” “to keep our campuses and the

communities that we serve functional and safe.” Ibid.

But that did not discourage UNMC from granting

exemptions “on the grounds of religious beliefs.” Ibid.

As an alternative to vaccination, UNMC

suggested one of the principal accommodations that

Petitioners requested here: that its healthcare

workers use personal protective equipment. See

UNMC

Vaccination

Waiver

Request

Form,

https://perma.cc/9B4H-PRDS (archived August 12,

2021). In other words, UNMC—the largest hospital in

Nebraska—made exactly the accommodation that

Petitioners requested here without suffering undue

hardship.

Nor did Nebraska’s other major public employers

suffer undue hardship by exempting religious

practitioners from vaccination. The University of

Nebraska’s three non-UNMC campuses, for example,

did not mandate vaccination at all. University of

Nebraska, University of Nebraska system updates

COVID-19

protocols

(Aug.

6,

2021),

9

https://perma.cc/37FU-YWN8 (“Vaccination is not

required.”). Instead, the University of Nebraska

System “urge[d] every Nebraskan to get vaccinated as

soon as possible” because its “priority [was] the health

and safety of every member of the University of

Nebraska community.” Ibid. Still, instead of forcing

vaccination for its employees, “[u]nvaccinated

individuals should continue to wear masks”—again,

the principal accommodation that Petitioners

proposed here. Ibid.

Of course, Nebraska’s ability to provide religious

accommodations without incurring undue hardship is

also on display outside of the COVID context. For

example, Nebraska’s Equal Opportunity Commission

(NEOC) regularly trains Nebraska’s employers on

reasonable accommodations for religious practices.

NECO, Annual Report for Fiscal Year 2024/2025, at

1, https://perma.cc/2C53-QVF2. And Nebraska has

empowered its “cities and villages” to “define,

regulate, suppress, and prevent discrimination on the

basis of … religion,” including by “providing

appropriate penalties.” Neb. Rev. Stat. § 18-1724. As

a result, less than three percent of charges filed under

Nebraska’s Fair Employment Practices Act involve

religious discrimination. See id. at 6–7.

SRFR

denied

Petitioners’

requested

accommodations because it was concerned about the

spread of COVID and the potential repercussions.

Those exact same concerns were in full force in

Nebraska’s hospitals and fire houses. Still, Nebraska

was able to accommodate their firefighters and first

responders’ religious beliefs without suffering undue

hardship. SRFR could have, too.

10

II. The Ninth Circuit’s reasonable-concern-ofhardship test harkens back to Hardison.

Enacted in 1964, Title VII prohibits an employer

from discriminating against “any individual because

of his … religion.” 78 Stat. 253, 255 (1964). Congress

quickly clarified Title VII’s language by amending the

statute to add a definition of “religion.” 86 Stat. 103,

103 (1972). Under that definition, an employee’s

religious practices are protected from interference

“unless an employer demonstrates that he is unable to

reasonably accommodate to an employee’s … religious

observance or practice without undue hardship on the

conduct of the employer’s business.” Ibid.

Five years after that amendment, this Court

decided Hardison. 432 U.S. 63 (1977). Under

Hardison, Title VII required employers to

accommodate only those religious practices that

imposed a de minimis cost on the employer—that is to

say, only those costs that are “very small or trifling.”

Id. at 84; Groff v. DeJoy, 600 U.S. 447, 469 (2023)

(quoting Black’s Law Dictionary).

This Court recently repudiated that reading of

Title VII’s “undue hardship” standard in Groff. Contra

Hardison’s permissive language, Groff held that Title

VII requires employers to grant religious

accommodations unless the accommodation imposes a

“burden [that] is substantial in the overall context of

an employer’s business.” Ibid. (emphasis added).

Notwithstanding this recent clarification, the

Ninth Circuit’s holding permits employers to deny

religious accommodations on a good faith or

reasonable belief that the accommodation would

impose an undue hardship, rather than on proof that

11

a burden “is substantial” such that an actual hardship

would result. Ibid. (emphasis added). That permissive

test significantly lowers the bar for employers and

would, in effect, return Title VII jurisprudence to

Hardison’s vastly underprotective regime. This Court

should not permit that result.

A. Hardison failed to adequately protect

religious practice.

For over 45 years, Hardison’s notorious morethan-de-minimis-cost test inflicted enormous damage

on religious practice. See, e.g., Groff, 600 U.S. at 465

(noting that “a bevy of diverse religious organizations

has told this Court that the de minimis test has

blessed the denial of even minor accommodation in

many cases”); Nick Reaves, Groff v. DeJoy: Hardison

is Dead, Long Live Hardison!, 39 Harv. J. L. & Pub.

Pol’y Per Curiam 1 (2023) (“Hardison cost countless

religious minorities their jobs.”). See also Br. Amicus

Curiae of W. Va., et al., Groff v. DeJoy, No. 22-174

(Sept. 26, 2022) (Groff Amicus) at 4–9 (noting that

numerous state courts adopted Hardison’s “morethan-de-minimis-cost” test for state-law Title VII

analogs). The Ninth Circuit’s holding is uncomfortably

reminiscent of the more-than-de-minimis-cost test

that lower courts “latched on to” after Hardison. Groff,

600 U.S. at 465. A brief review of Hardison is

instructive.

In Hardison, a Saturday Sabbatarian requested

Saturdays off to accommodate his religious practices.

Id. at 69. His employer, Trans World Airlines (TWA),

agreed to permit Hardison’s union to seek a change of

work assignment. Id. at 68. But the union declined

because doing so would violate the union’s seniority

12

system. Ibid. TWA rejected Hardison’s other proposed

accommodations—that Hardison work a shorter work

week, that TWA fill Hardison’s shift with a supervisor,

or that TWA pay premium wages to a different

employee. Ibid. Following the failure to reach an

agreement, Hardison refused to work Saturdays and

was fired for insubordination. Ibid. Hardison brought

a Title VII claim alleging that TWA could have

accommodated his Sabbath without undue hardship.

Ibid.

The Court disagreed with Hardison and instead

held that “TWA made reasonable efforts to

accommodate” his religious practice because TWA had

held meetings with Hardison, had authorized the

union to search for someone to swap shifts with

Hardison, and had helped Hardison find another job.

Id. at 77.

The Court also reasoned that Hardison’s

“suggested alternatives would have been an undue

hardship.” Ibid. (emphasis added). In the Court’s view,

TWA itself—as opposed to the union—could not be

expected to facilitate a shift swap because a swap

would have breached a collective bargaining

agreement. Id. at 78–79. Nor could TWA have been

expected to let Hardison work a shorter work week or

to find an alternative employee to cover his Saturday

shift. Id. at 84. That is because those “alternatives

would involve costs to TWA.” Ibid. (emphasis added).

Indeed, the Court reasoned—in a line that would

inflict decades of harm on religious practice—that

requiring “TWA to bear more than a de minimis cost

in order to give Hardison Saturdays off is an undue

hardship.” Ibid.

13

The significance of this error was not lost on the

Court’s dissenters. For their part, Justices Marshall

and Brennan noted that “[t]oday’s decision deals a

fatal blow to all efforts under Title VII to accommodate

work requirements to religious practices.” Id. at 86. In

their view, “[t]o conclude that TWA, one of the largest

air carriers in the Nation, would have suffered undue

hardship had it done anything more defies both reason

and common sense.” Id. at 91. Indeed, under

Hardison, “[a]ll Americans will be a little poorer until

today’s decision is erased.” Id. at 97.

Justices Marshall and Brennan were right.

Though it took over 45 years, Hardison’s more-thande-minimis-cost test was finally erased by a

unanimous Court less than three years ago. See Groff,

600 U.S. at 469 (“We hold that showing ‘more than a

de minimis cost,’ as that phrase is used in common

parlance, does not suffice to establish ‘undue hardship’

under Title VII.”).

B. Groff corrected Hardison’s erroneous

more-than-de-minimis-cost test.

This Court “erased” Hardison’s error less than

three years ago in Groff. There, a United States Postal

Service (USPS) worker requested a religious

accommodation from Sunday deliveries. Id. at 455.

Though other staff covered Groff’s Sunday shift, the

USPS progressively disciplined Groff for not working

on Sundays, eventually forcing his resignation. Id.

Groff sued, alleging that the USPS could have

accommodated his Sunday observance without undue

hardship, and thus had violated Title VII. Id. at 456.

The district court granted summary judgment to

USPS and the Third Circuit affirmed, reasoning that

14

Hardison’s “de minimis” language was “not a difficult

threshold to pass.” Ibid. (quotation marks and citation

omitted). The USPS had passed the de-minimis-cost

threshold because accommodating Groff’s Sabbath

“imposed on his coworkers, disrupted the workplace

and workflow, and diminished employee morale.” Ibid.

(quotation marks and citation omitted).

This Court vacated and remanded, clarifying that

the more-than-de-minimis-cost test is not the correct

standard for undue hardship under Title VII. Id. at

473. Rather, an “undue hardship” is a “substantial

burden.” Id. at 468. “[A]dditional costs” are not

sufficient unless they “would result in substantial

increased costs in relation to the conduct of [an

employer’s] particular business.” Id. at 469, 471. In

making that determination, courts must consider “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 471 (quotation

marks and citation omitted). It is not enough to

“merely … assess the reasonableness of a particular

possible accommodation or accommodations.” Id. at

473. Instead, an employer must consider “other

options” before denying an accommodation. Ibid.

In short, Groff restored Title VII to the full force

that its text requires, which nowhere permits a mere

non-de-minimis cost to justify denying an

accommodation. But now, less than three years later,

Title VII’s protections are again in doubt.

15

C. The Ninth Circuit joined other circuits in

adopting an erroneous reasonableconcern-of-hardship test.

Just a few years after this Court provided relief

from Hardison, this Court’s intervention is again

needed to restore Title VII to its proper force.

The Ninth Circuit below joined a growing number

of courts interpreting Title VII’s “undue hardship”

standard as turning on an employer’s reasonable

beliefs. That reasonable-concern-of-hardship test

permits employers to evade Title VII liability merely

by expecting, in good faith, that an accommodation

will cause undue hardship. But Title VII requires

more than reasonable belief or good faith.

As this Court recently explained, Title VII

requires an employer to grant an accommodation

unless “granting an accommodation would result in

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

(emphasis added). By permitting employers to deny

accommodations without having to show that any

undue hardship would, in fact, occur, the Ninth

Circuit erred. See id. at 568 (reasoning that “’undue

hardship’ is shown when a burden is substantial”).

The reasonable-concern-of-hardship test is

particularly indefensible in light of this Court’s recent

rejection of Hardison. That is because, in some cases,

the reasonable-concern-of-hardship test is actually

less protective than Hardison’s more-than-deminimis-cost test was. Under Hardison, an employer

at least had to show that they would suffer some cost.

Hardison, 432 U.S. at 84. Under the reasonableconcern-of-hardship test, however, an employer may

evade liability without showing that it would incur

16

any cost at all. See Pet. at 17–19 (detailing the errors

of the reasonable-concern-of-hardship test). See also

Petersen, 150 F.4th at 1218–23 (holding that SRFR

established undue hardship as a matter of law despite

significant evidence to the contrary). Thus, for many

employees—including Petitioners—the reasonableconcern-of-hardship test deals the same “fatal blow”

that Hardison’s more-than-de-minimis-cost test dealt

to religious accommodations. Hardison, 432 U.S. at 86

(Marshall, J., dissenting).

That “fatal blow” is evident in the Ninth Circuit’s

holding below. The Ninth Circuit held that no

reasonable jury could find that SRFR would not suffer

undue hardship if it had granted Petitioners’

requested accommodations. Petersen, 150 F.4th at

1223 (affirming district court’s holding that

Petitioners’ accommodation claim failed as a matter of

law). See also Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251 (1986) (explaining that the summary

judgment standard and “reasonable jury” standard

are “[i]n essence … the same”). Given the evidence

before the court, that holding is remarkable.

Petitioners introduced significant evidence that

SRFR could grant their accommodation without

suffering undue hardship. Petitioners’ evidence

should have raised a fact issue on undue hardship,

and, under the proper actual hardship test, would

have precluded summary judgment. The Ninth

Circuit’s holding to the contrary demonstrates the

ease with which an employer can satisfy a test that

turns on the employer’s reasonable beliefs.

For example, with respect to SRFR’s health

concerns, the Ninth Circuit did not believe that any of

17

the following evidence raised a fact issue on undue

hardship:

• SRFR had already permitted its firefighters to

work unvaccinated for a time without suffering

undue hardship.

• SRFR requested that Petitioners return to their

jobs irrespective of their vaccination status

after a brief period of enforcing the vaccine

mandate.

• Neighboring fire districts made identical

accommodations without suffering undue

hardship.

• Unvaccinated SRFR firefighters were hired by

neighboring fire departments and then worked

alongside SRFR firefighters anyway, without

causing SRFR or their new employers undue

hardship.

With respect to SRFR’s operational and financial

concerns, the Ninth Circuit did not credit any of the

following evidence, either:

• The federal Department of Corrections (DOC),

with whom SRFR had a service contract,

permitted religious accommodations to its

vaccination requirement.

• DOC had not enforced its vaccine requirement

against other unvaccinated contractors.

• SRFR’s own fire chief stated that lawsuits like

those that SRFR was concerned about were

“rare and difficult … to win.”

• SRFR’s insurer stated it had never faced such a

lawsuit.

18

• Even if SRFR lost its DOC contract, it would

lose less than $400,000 of its $67 million in

annual revenue (less than one percent).

• Petitioners’ accommodations were ultimately

granted without any change to DOC policy or

SRFR’s insurance coverage.

In addition to failing to credit all of the above

evidence, the Ninth Circuit repeatedly couched its

reasoning in terms of what SRFR might reasonably

expect to occur, instead of what the evidence showed

would, in fact, occur.

For example, the Ninth Circuit reasoned that

SRFR “faced increased health and safety costs” if it

accommodated Petitioners’ beliefs. Petersen, 150 F.4th

at 1218 (emphasis added).5 The court was persuaded

by an expert report that explained SRFR’s “concerns”

that unvaccinated firefighters “might endanger the

public.” Id. at 1218, 1219. The court observed SRFR’s

argument that it “faced a serious operational burden”

due to the number of requested accommodations. Id.

at 1220. SRFR also “worried about the increased risk

of employee absences and scheduling issues.” Id. at

1221. It “risked losing a contract.” Ibid. And it “faced

potential liability” for claims brought against it over

COVID transmission and therefore was “justified in

seriously considering whether it was prepared to

assume the risk of liability.” Id. at 1221, 1222.

All of this probability evidence would have been

entirely proper for a jury to consider in making a

factual determination on whether or not SRFR would

have suffered undue hardship. But under the Ninth

5 All emphases in this paragraph were added.

19

Circuit’s reasonable-concern-of-hardship test, none of

this evidence could—or did—overcome SRFR’s

reasonable concern that these events would come to

pass, and thus summary judgment for SRFR was

proper. That lowers the bar considerably below that

contemplated by Groff, and sometimes, even below

that permitted by Hardison.

To be sure, the Ninth Circuit sometimes couched

its reasoning in terms that sound in the actual

hardship test. For example, the court reasoned that

“we consider only actual hardships, not hypothetical

ones.” Id. at 1221. However, the court followed that up

by reasoning that the “risk of undue hardship … must

be realistic and not merely conceivable or

hypothetical.” Id. at 1222 (quotation marks omitted,

emphasis added). And it applied that “risk” standard

by treating the evidence recounted above as

irrelevant.

The Ninth Circuit even explicitly discounted some

evidence because the “reasonableness of others’

decisions is not before us.” Id. at 1222 (emphasis

added). But neither was the reasonableness of SRFR’s

decisions. The Ninth Circuit’s decision ultimately

turned on its assessment of whether SRFR would

suffer an undue hardship without accounting for the

possibility that SRFR may have been able to

reasonably accommodate Petitioners. See Petersen,

150 F.4th at 1218 (“[W]e consider whether SRFR

would have faced an undue hardship by

accommodating Plaintiffs’ request for vaccine

exemption.”).

The Ninth Circuit’s observation that an “undue

hardship” is not necessarily synonymous with a

20

“realized hardship” does not save the court’s approach.

Petersen, 150 F.4th 1221. It is true that an “undue

hardship may include an evaluation of the risk of

hardship, not just an accounting of damages actually

suffered.” Id. at 1221–22. SRFR was not required to

suffer the hardships that it feared in order to evade

liability. But when an employer denies an

accommodation, Title VII liability turns on a

counterfactual question about whether an undue

hardship would have occurred if the accommodation

had been granted. 42 U.S.C. 2000e(j) (requiring

“undue hardship” to result if an employer denies an

accommodation).

And

unless

the

evidence

“unmistakably favors one side”—which it did not

here—such counterfactuals are usually jury

questions. Anderson, 477 U.S. at 252; Robert N.

Strassfeld, If…: Counterfactuals in the Law, 60 Geo.

Wash. L. Rev. 339, 364 (1992) (“[T]he task of resolving

legal counterfactuals typically falls to the legal

factfinder.”).

Instead of submitting the counterfactual to the

jury, however, the Ninth Circuit took an easier—but

ultimately mistaken—approach. It ignored the

counterfactual question and instead answered a

different question: whether or not SRFR reasonably

believed that accommodating Petitioners would cause

undue hardship. That approach finds no support in

Title VII’s text or in Groff, nor did the Ninth Circuit

identify any. See generally 42 U.S.C. 2000e(j);

Petersen, 150 F.4th at 1221–22.

Indeed, other circuits to consider the issue have

either applied the correct actual hardship test or have

explicitly rejected an approach that would credit an

21

employer’s reasonable beliefs. See Smith v. City of

Atlantic City, 138 F.4th 759, 774 (3d Cir. 2025)

(“[G]ood faith is not by itself a cure for a Title VII

breach” because an employer “has a defense only if

hardship is undue.”) (cleaned up); Kluge v.

Brownsburg Comm. School Corp., 150 F.4th 792, 807

(7th Cir. 2025) (“[I]t is the employer’s burden to prove

undue hardship arising from the accommodation, not

to merely offer a good-faith—yet mistaken—reason for

taking an adverse employment action.”); Naylor v.

County of Muscatine, 151 F.4th 973, 976, 977 (8th Cir.

2025) (requiring “definitive evidence” of a hardship

that is “real rather than speculative, merely

conceivable, or hypothetical”) (quotation marks and

citation omitted).

Those courts have the better position. This Court

should grant the petition and clarify that Title VII

requires proof of actual hardship, not mere reasonable

belief of one.

III. The reasonable-concern-of-hardship

may infect state laws.

test

The erroneous reasonable-concern-of-hardship

test threatens more than a perversion of Title VII: it

also threatens to warp state anti-discrimination laws.

As this Court has observed, “[m]any States look to

Title VII law as a matter of course in defining the

scope of their own laws.” Shaw v. Delta Air Lines, Inc.,

463 U.S. 85, 106 (1983). State court conformity to

federal anti-discrimination standards is not

necessarily a result of careful deliberation, but rather

an instinct to keep federal and state antidiscrimination statutes on the same track. See Scott

Dodson, The Gravitational Force of Federal Law, 164

22

U. Pa. L. Rev. 703, 721 (2016) (“[S]tate courts typically

conform to federal court interpretations of federal

[anti-discrimination] statutes with relatively paltry

analysis of countervailing considerations.”). Nebraska

and other Amici States brought this point to the

Court’s attention several years ago when it decided

Groff. Groff Amicus at 5–7.

Amici States reiterate the same point here.

Though the erroneous circuit decisions are recent

enough that they have not yet posed a significant risk

of state court adoption, that risk compounds the longer

the reasonable-concern-of-hardship test is left

standing. Indeed, it “did not take long for Hardison to

shape lower federal court decisions,” and it has not

taken long for the reasonable-concern-of-hardship test

to take hold in some circuit courts, either. Id. at 4. See

also Pet. at 13–20 (describing the circuit split).

This Court should not wait to correct these errors.

The holding below is ripe for this Court’s review now.

See Pet. at 20–25.

CONCLUSION

For the reasons above, the Court should grant the

petition.

23

Respectfully submitted,

MICHAEL T. HILGERS

Attorney General of

Nebraska

CODY S. BARNETT

Solicitor General

Counsel of Record

NEBRASKA DEPARTMENT OF

JUSTICE

1445 K Street, Room 2115

Lincoln, NE 68509

Tel: (402) 471-2683

cody.barnett@nebraska.gov

ZACHARY A. VIGLIANCO

Principal Deputy

Solicitor General

ETHAN C. TREACY

King Street Legal,

PLLC

On Behalf Of:

STEVE MARSHALL

Attorney General of Alabama

CORI MILLS

Acting Attorney General of Alaska

TIM GRIFFIN

Attorney General of Arkansas

JAMES UTHMEIER

Attorney General of Florida

THEODORE E. ROKITA

Attorney General of Indiana

BRENNA BIRD

Attorney General of Iowa

KRIS KOBACH

Attorney General of Kansas

RUSSELL COLEMAN

Attorney General of Kentucky

24

LIZ MURRILL

Attorney General of Louisiana

LYNN FITCH

Attorney General of Mississippi

CATHERINE HANAWAY

Attorney General of Missouri

AUSTIN KNUDSEN

Attorney General of Montana

DREW WRIGLEY

Attorney General of North Dakota

DAVE YOST

Attorney General of Ohio

GENTNER DRUMMOND

Attorney General of Oklahoma

ALAN WILSON

Attorney General of South Carolina

MARTY JACKLEY

Attorney General of South Dakota

JONATHAN SKRMETTI

Attorney General of Tennessee

KEN PAXTON

Attorney General of Texas

DEREK BROWN

Attorney General of Utah

JOHN B. MCCUSKEY

Attorney General of West Virginia