Opposition Brief — Cynthia Braccia, et al., Petitioners v. Northwell Health Systems

No. 25-963

IN THE

Supreme Court of the United States

CYNTHIA BRACCIA, ET AL.,

Petitioners

v.

NORTHWELL HEALTH SYSTEMS,

Respondent

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF IN OPPOSITION

JACQUELINE PHIPPS POLITO

Counsel of Record

ERIN TRAIN

LITTLER MENDELSON P.C.

80 Linden Oaks, Suite 210

Rochester, NY 14625

(585) 203-3400

jpolito@littler.com

Counsel for Respondent

i

QUESTIONS PRESENTED

Title VII of the Civil Rights Act of 1964 only

requires an employer to accommodate the religious

practices of its employees when doing so does not

impose an “undue hardship on the employer’s

business.” 42 U.S.C. 2000e(j). Petitioners challenge

whether Respondent’s required compliance with a law

adopted by the State of New York requiring licensed

health-care provider organizations to ensure that

certain health-care workers were fully vaccinated

against

COVID-19

with

limited

religious

accommodations subject to severe penalties, including

loss of licensure, for non-compliance constitutes an

“undue hardship” under Title VII. The questions

presented are:

1. Whether granting an employee’s request for a

religious exemption from a state mandated health and

safety requirement constitutes an “undue hardship”

under Title VII, where the employer is required to

comply with the state law which permits only limited

religious accommodations, but prohibits complete

religious exemptions, and imposes substantial

penalties for noncompliance.

2. Whether Title VII preempts a state health and

safety law that prohibited religious exemptions but

allowed limited accommodations for certain

employees which Respondent asks this Court not to

consider because it was raised for the first time by

Petitioners before this Court and not briefed or

considered in any lower court.

ii

PARTIES TO THE PROCEEDING

AND CORPORATE DISCLOSURE STATEMENT

Petitioners Cynthia Braccia, Irina Abramov, Dawn

Alois, Joy Altrui, Angela Bastone-Pergola, Diane

Bono, Katherine Carney, Karen Ferrando, Carmela

Fiorica, Eileen Hagan, Sarah Haseney, Maryann

Hojnowski, Dennise Johnson, Karen La Rosa, Nadira

Mahabir, Veronica Newton, Katlyn Pastor, Rebecca

Ramirez, Julia Shaw, Rose Taylor, Mia Torres,

Marisol Ventrice, and Michele Woodward-Lawton

(collectively “Petitioners”) were appellants in the

Second Circuit and plaintiffs in the district court.

Respondent Northwell Health, Inc. incorrectly

sued as Northwell Health Systems, (“Respondent”)

was the appellee in the Second Circuit and the

defendant in the district court.

Respondent Northwell Health, Inc.’s parent

company is Northwell, Inc., and no publicly held

corporation owns 10% or more of its stock. Respondent

does not have a stock ticker symbol.

iii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ........................................i

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT ........... ii

INTRODUCTION ........................................................ 1

STATEMENT OF THE CASE .................................... 3

A. Legal Background ............................................. 3

1. Title VII Does Not Require Employers to

Accommodate the Religious Beliefs or

Practices of Their Employees if Doing so

Would Impose an Undue Hardship on the

Conduct of the Employer’s Business .......... 3

2. During the COVID-19 Pandemic, New York

State Promulgated an Emergency Rule

Regarding the Vaccination of Healthcare

Personnel ..................................................... 4

B. Factual and Procedural History....................... 6

1. Petitioners

Requested

a

Prohibited

“Exemption” from Rule 2.61 ....................... 6

REASONS TO DENY CERTIORARI ......................... 8

A. This Case Does Not Present the Questions

Identified in the Petition .................................. 9

1. Rule 2.61 Only Barred Complete Religious

Exemptions

But

Allowed

Limited

Accommodation for Certain Covered

“Personnel” .................................................. 9

2. Petitioners’ Second Question Was Not

Properly Preserved Below ......................... 12

iv

B. The Decision Below Does Not Conflict With

Any Decision Of This Court Or With Any

Federal Circuit Court ..................................... 13

1. The Decision Below Comports with this

Court’s Precedent ...................................... 13

2. Petitioners Identify No Circuit Split on the

Issues Actually Presented Here................ 15

CONCLUSION .......................................................... 26

v

TABLE OF AUTHORITIES

PAGE(S)

Cases

E.E.O.C. v. Allegheny Cty.,

705 F.2d 679 (3d Cir. 1983) ................................. 24

Ansonia Bd. of Educ. v. Philbrook,

479 U.S. 60 (1986) .................................... 13, 14, 23

Ash v. Hobart Mfg. Co.,

483 F.2d 289 (6th Cir. 1973) ................................ 22

Barber v. Colorado Dep’t of Revenue,

562 F.3d 1222 (10th Cir. 2009) ............................ 24

Bhatia v. Chevron U.S.A., Inc.,

734 F.2d 1382 (9th Cir. 1984) (per

curiam) ................................................................. 19

United States v. Board of Education,

911 F.2d 882 (3d Cir. 1990) ................................. 18

Bolden-Hardge v. Office of California

State Controller,

63 F.4th 1215 (2023) ...................................... 20, 21

California Federal Savings & Loan

Association v. Guerra,

479 U.S. 272 (1987) .......................................... 4, 25

Campbell v. Universal City Dev.

Partners,

72 F.4th 1245 (11th Cir. 2023) ............................ 24

vi

Crowder v. Kitagawa,

81 F.3d 1480 (9th Cir. 1996) ................................ 24

D’Cunha v. Northwell Health Systems,

No. 23-476-cv, 2023 WL 7986441 (2d

Cir. 2023) .............................................................. 16

Gibbs v. City of Pittsburgh,

989 F.3d 226 (3d Cir. 2021) ................................ 24

Groff v. DeJoy,

600 U.S. 447 (2023) ................................ 3, 8, 14, 17

Guardians Ass’n of the New York City

Police Dep’t, Inc., v. Civil Service

Comm’n,

630 F.2d 79 (2d Cir. 1980), cert.

denied, 452 U.S. 940 (1981) ................................. 22

Gulino v. N.Y.S. Educ. Dep’t,

460 F.3d 361 (2d Cir. 2006), cert.

denied 554 U.S. 917 (2008) .................................. 22

Hillsborough Cnty., Fla. v. Automated

Med. Lab’ys, Inc.,

471 U.S. 707 (1985) .............................................. 25

Hindel v. Husted,

875 F.3d 344 (6th Cir. 2017) ............................... 24

Jacobson v. Commonwealth of

Massachusetts,

197 U.S. 11 (1905) ................................................ 25

Johnson v. Goodyear Tire & Rubber Co.,

Synthetic Rubber Plant,

491 F.2d 1364 (5th Cir. 1974) .............................. 22

vii

U.S. v. Jones,

565 U.S. 400 (2012) .............................................. 12

Kober v. Westinghouse Elec. Corp.,

480 F.2d 240 (3d Cir. 1973) ................................. 22

Lowe v. Mills,

68 F.4th 706 (1st Cir. 2023), cert.

denied, 144 S.Ct. 345 (2023) .................... 14, 17, 25

Mary Jo C. v. N.Y. State and Local Ret.

Sys.,

707 F.3d 144 (2d Cir. 2013) ................................. 24

E.E.O.C. v. Massachusetts,

987 F.2d 64 (1st Cir. 1993) .................................. 24

Nat’l Fed’n of the Blind v. Lamone,

813 F.3d 494 (4th Cir. 2016) ................................ 24

Palmer v. General Mills Inc.,

513 F.2d 1040 (6th Circuit 1975) ........................ 22

Quinones v. City of Evanston,

58 F.3d 275 (7th Cir. 1995) .................................. 24

Rosenfeld v. Southern Pacific Co.,

444 F.2d 1219 (9th Cir. 1971) .............................. 22

Russo v. Patchogue-Medford School

District,

129 F.4th 182 (2d Cir. 2025) .......................... 15, 16

Schaeffer v. San Diego Yellow Cabs,

Inc.,

462 F.2d 1002 (9th Cir. 1972) .............................. 22

viii

Sutton v. Providence St. Joseph Medical

Center,

192 F.3d 826 (9th Cir. 1999) .......................... 19, 20

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) .......................................... 14, 18

We The Patriots, USA, Inc. v. Hochul,

17 F.4th 266 (2d Cir. 2021), opinion

clarified, 17 F.4th 368 (2d Cir. 2021),

cert. denied 142 S.Ct. 2569 (2022)................. 10, 25

Williams v. General Foods Corp.,

492 F.2d 399 (7th Cir. 1974) ................................ 22

U.S. v. Williams,

504 U.S. 36 (1992) ................................................ 13

Statutes

42 U.S.C. 2000e ........................................... 3, 4, 14, 23

N.Y. Pub. Health Law § 2806 ................................. 4, 6

Other Authorities

10 N.Y. Comp. Codes R. & Regs. § 2.61

(Aug. 26, 2021) ................................................... 1, 4

10 N.Y. Comp. Codes R. & Regs. § 2.62

(2021) .................................................................... 15

ix

N.Y. Dep't of Health & N.Y. Dep't of

Soc. Servs., Emergency Rulemaking

- Prevention of COVID-19

Transmission by Covered Entities,

43 N.Y. Reg. 6, 2021 N.Y. Reg. Text

593545 (Westlaw, Sept. 15, 2021) ......................... 5

Sup. Ct. R. 10 ....................................................... 23, 24

1

INTRODUCTION

This case presents two questions concerning Title

VII of the Civil Rights Act of 1964: (1) whether

granting a healthcare worker a complete exemption

from a mandatory health and safety law constitutes

an undue hardship as a matter of law, where: (i) state

law mandated the employer’s compliance; (ii) state

law permitted certain accommodations, but not

blanket religious exemptions; and (iii) non-compliance

exposed the employer to severe penalties, including

loss of licensure; and (2) whether Title VII preempts a

state health and safety law that required employer

compliance.

Respondent is a corporation operating licensed

health-care facilities in New York state, and which

provided health care to the public during the COVID19 pandemic. In 2021, the New York Department of

Health adopted a rule requiring licensed health-care

provider organizations, such as Respondent, to ensure

that certain health-care workers were fully vaccinated

against COVID-19. See 10 N.Y. Comp. Codes R. &

Regs. § 2.61 (Aug. 26, 2021) (the “Rule” or “Rule

2.61”).1 The Rule applied to “personnel,” defined as

individuals whose work could expose other staff,

patients or residents to COVID-19 if they themselves

were infected. The Rule allowed covered healthcare

providers to accommodate religious objections by

removing covered “personnel” from the scope of the

Rule (i.e., so they would not be in contact with other

staff, patients, or residents), but it did not permit

religious

“exemptions”

allowing

unvaccinated

1 Repealed effective October 4, 2023. See 10 N.Y. Comp. Codes R.

& Regs. § 2.61.

2

“personnel” to continue working in contact with others

while unvaccinated. The Rule aimed to protect

vulnerable patient populations from COVID-19

exposure and prevent staffing shortages by reducing

infections among healthcare workers.

Each Petitioner fell within the Rule’s definition of

“personnel” and requested to be exempted from the

vaccination requirement while continuing to work in

contact with patients and/or other staff. When

Respondent refused to exempt Petitioners, they filed

suit in federal district court alleging that Respondent

violated Title VII by failing to accommodate them.

The district court dismissed Petitioners’ complaint for

failure to state a claim, and the Second Circuit

affirmed.

Petitioners now seek this Court’s review, but the

questions they present are based on the erroneous

assertion that New York’s Rule forbade healthcare

employers

from

providing

any

religious

accommodation to employees whatsoever. It did not.

Rather, the Rule did not allow complete exemptions

solely on religious grounds but provided for limited

accommodation. As the Second Circuit correctly held,

no Petitioner requested a reasonable accommodation

compliant with state law.

This case would be an exceedingly poor vehicle for

resolving the questions asserted in the Petition. To

start, Petitioners focus primarily on their Title VII

preemption argument, an issue that was neither

pressed nor addressed below. Moreover, there is no

conflict either with this Court’s precedent or amongst

the circuit courts for this Court to address.

3

Accordingly, the Petition for a writ of certiorari should

therefore be denied.

STATEMENT OF THE CASE

A.

Legal Background

1.

Title VII Does Not Require Employers

to Accommodate the Religious Beliefs

or Practices of Their Employees if

Doing so Would Impose an Undue

Hardship on the Conduct of the

Employer’s Business

While Title VII of the Civil Rights Act of 1964 does

not allow employers to “discharge any individual, or

otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s

… religion,” 42 U.S.C. 2000e-2(a)(1), it recognizes

that accommodation is not required if an “undue

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

created by the accommodation. 42 U.S.C. 2000e(j).

Title VII thus does not require employers to

accommodate the religious beliefs or practices of their

employees when “doing so would impose an ‘undue

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

Groff v. DeJoy, 600 U.S. 447, 453-54 (2023) (quoting

42 U.S.C. 2000e(j)). Indeed, Title VII itself defines

“religion” as only those “aspects of religious

observance and practice,” that an employer is able to

“reasonably accommodate[.]” 42 U.S.C. 2000e(j).

Title VII contains an express preemption clause. It

provides that “[n]othing in this subchapter shall be

deemed to exempt or relieve any person from any

4

liability, duty, penalty, or punishment provided by

any present or future law of any State or political

subdivision of a State, other than any such law which

purports to require or permit the doing of any act

which would be an unlawful employment practice

under this subchapter.” 42 U.S.C. 2000e–7. As this

Court has explained, that provision has a “narrow

scope,” such that Title VII preempts a state law “only”

if it “stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of

Congress.” California Federal Savings & Loan

Association v. Guerra, 479 U.S. 272, 281-83 (1987)

(internal quotation marks and citation omitted).

2.

During the COVID-19 Pandemic, New

York

State

Promulgated

an

Emergency Rule Regarding the

Vaccination of Healthcare Personnel

Like many States, New York requires hospitals

and other health-care provider organizations to obtain

and maintain a license for operation. Licensed

hospitals and other providers are obligated to comply

with applicable Department of Health regulations like

Rule 2.61. See N.Y. Pub. Health Law § 2806(1) (2021).

Failure to comply can result in significant penalties,

including suspension or loss of an entity’s license to

operate. See id. § 2806(1)(a).

On August 26, 2021, New York State’s Department

of Health adopted an emergency rule, 10 N.Y. Comp.

Codes R. & Regs. § 2.61 (Aug. 26, 2021) requiring

specified types of licensed health-care facilities to

ensure that certain personnel were vaccinated against

COVID-19. Pet. App. 49a-52a. The State promulgated

5

Rule 2.61 in response to a significant rise in cases of

the COVID-19 “Delta variant” and the Department of

Health’s understanding at that time that

“[u]nvaccinated personnel in [healthcare] settings

have an unacceptably high risk of both acquiring

COVID-19 and transmitting the virus to colleagues

and/or vulnerable patients or residents, exacerbating

staffing shortages, and causing unacceptably high

risk of complications.” N.Y. Dep’t of Health & N.Y.

Dep’t of Soc. Servs., Emergency Rulemaking –

Prevention of COVID-19 Transmission by Covered

Entities, 43 N.Y. Reg. 6, 2021 N.Y. Reg. Text 593545

(Westlaw, Sept. 15, 2021).

Rule 2.61 applied to “covered entities,” which

included hospitals, home health programs, hospices,

and adult care facilities. Pet. App. 49a, § 2.61(a)(1).

The Rule defined “personnel” to include “all persons

employed or affiliated with a covered entity … who

engage in activities such that if they were infected

with COVID-19, they could potentially expose other

covered personnel, patients or residents to the

disease.” Pet. App. 49a-50a, § 2.61(a)(2).

Rule 2.61 mandated that all covered entities

“continuously require personnel to be fully vaccinated

against COVID-19, with the first dose for current

personnel received by September 27, 2021 for general

hospitals and nursing homes, and by October 7, 2021

for all other covered entities absent receipt of an

exemption as allowed below.” Pet. App. 51a, § 2.61(c).

The rule provided an exemption for those personnel

where “a licensed physician or certified nurse

practitioner certifies that immunization with COVID19 vaccine is detrimental to the [individual’s] health.”

6

Pet. App. 51a-52a, § 2.61(d). Otherwise, employees

who wished to avoid vaccination, such as those with a

stated

reasonable

request

for

religious

accommodation, would need to cease engaging in

“activities such that if they were infected with

COVID-19, they could potentially expose other

covered personnel, patients or residents to the

disease.” See Pet. App. 49a-50a, § 2.61(a)(2).

Respondent is a corporation that operates

healthcare facilities in New York state that are

covered entities under Rule 2.61. See Pet. App. 4a.

Accordingly, Respondent was required to comply with

Rule 2.61 or face significant penalties, including

suspension or loss of its license to operate. See N.Y.

Pub. Health Law § 2806(1)(a).

B.

Factual and Procedural History

1. Petitioners Requested a Prohibited

“Exemption” from Rule 2.61

Petitioners allege they were employed by

Respondent in New York during the COVID-19

pandemic. Pet. App. 3a-4a. Each Petitioner sought to

be relieved (i.e., exempted) of Rule 2.61’s vaccination

requirement on religious grounds while still engaging

in patient care and co-worker interaction. Pet. App.

4a-5a, 7a. Each request was denied as in violation of

Rule 2.61. Id.

On May 17, 2023, Petitioners filed an Amended

Consolidated Complaint in the federal district court

for the Eastern District of New York, asserting, as

relevant here, a claim that Respondent failed to

7

accommodate their religious beliefs in violation of

Title VII of the Civil Rights Act of 1964. Pet App. 3a;

Pet. App. 88a-89a, ¶ 95.2

Petitioners alleged that, in lieu of vaccination,

Respondent could have accommodated their religious

objections to the COVID-19 vaccination by allowing

them to continue working in their roles as covered

“personnel” while “masking and weekly testing” and

“social distancing.” Pet. App. 7a; Pet. App. 28a-29a;

Pet. App. 82a-83a, ¶¶ 56, 58.

Respondent subsequently moved to dismiss

Petitioners’ Amended Consolidated Complaint. On

September 24, 2024, the district court granted

Respondent’s motion and dismissed all of Petitioners’

claims. Pet. App. 12a. The district court determined

that Petitioners’ accommodation request would not

have removed them from the scope of Rule 2.61’s

vaccination requirement but instead amounted to a

blanket religious “exemption” while permitting them

to continue to work as covered “personnel” within the

scope of Rule 2.61. Id. at 29a. That requested

accommodation would, the district court concluded,

impose an “undue hardship” on Respondent, as it

would have forced Respondent to violate Rule 2.61

and exposed it to penalties, including potential loss of

its license. Id. at 31a-32a. The district court entered

judgment in Respondent’s favor. Id. at 42a-43a.

2 The Amended Complaint represented the consolidation of two

actions pending in the Eastern District of New York that

constituted 30 named plaintiffs. Pet. App. 13a. All 30 named

plaintiffs were appellants before the Second Circuit, however,

only 23 petition this Court for Certiorari of the Second Circuit’s

decision. Pet. ii.

8

The Court of Appeals for the Second Circuit

affirmed the district court’s judgment. Pet. App. 3a.

The panel concluded that Rule 2.61 allowed an

employer to grant a religious accommodation only by

removing an employee from Rule 2.61’s definition of

“personnel,” a fact which Petitioners failed to allege

when they sought such an accommodation. Id. at 7a.

Rather,

the

Petitioners

allegedly

sought

accommodations in the form of “masking and weekly

testing” and “social distancing,” which the panel found

(1) did not satisfy Rule 2.61, and (2) would have

subjected Respondent to financial penalties or the

suspension or revocation of its operating license. Id.

at 7a-8a. The panel found this constituted an undue

hardship on Respondent under the standard

articulated in Groff v. DeJoy, 600 U.S. 447 (2023), as

Title VII does not obligate Respondent to grant the

“accommodation” Petitioners sought. Pet. App. 8a.

The panel held that Petitioners, therefore, failed to

state a claim for failure-to-accommodate in violation

of Title VII. Id.

REASONS TO DENY CERTIORARI

Because Rule 2.61 did not prohibit religious

accommodations, this case does not present, nor did

the Second Circuit decide, either of the questions now

raised by the Petition, both of which are predicated on

the notion that Rule 2.61 “punish[ed]” federally

required religious accommodations. See Pet. i. Nor, as

Petitioners contend, is there any conflict among the

circuit courts on the questions actually presented by

the decision below. Id. 11-13. Rather, the Second

Circuit’s decision below comports with this Court’s

9

precedent and all circuit courts that have considered

the issue are in accord. Further, the second question

presented here, regarding Title VII preemption, was

not raised below and should not be considered by this

Court in the first instance. Therefore, the Petition for

Writ of Certiorari should be denied.

A.

This Case Does Not Present the

Questions Identified in the Petition

Petitioners frame the questions presented in this

case as, first, “[w]hether an employer faces a per se

Title VII undue hardship if granting an otherwise

federally required religious accommodation would

conflict with state law purporting to punish such an

accommodation,” and second, “[w]hether, if so, Title

VII preempts state laws that purported to prohibit

employers from granting federally required religious

accommodations.” Pet. i. Neither question is properly

presented here.

1. Rule 2.61 Only Barred Complete

Religious Exemptions But Allowed

Limited Accommodation for Certain

Covered “Personnel”

Both questions posited by Petitioners rest upon an

assumption that Rule 2.61 forbade any religious

accommodation whatsoever and was therefore

contrary to Title VII. Yet, Petitioners alleged in their

Complaint that, per the Second Circuit, Rule 2.61

“does not bar an employer from providing an

employee a reasonable accommodation.” Pet.

App. 82a-83a, ¶ 58 (emphasis in original).

10

In fact, in an earlier legal challenge to Rule 2.61,

the Second Circuit held that although Rule 2.61

“bar[red] an employer from granting a religious

exemption from the vaccination requirement, it [did]

not prevent employees from seeking a religious

accommodation allowing them to continue working

consistent with the Rule, while avoiding the

vaccination requirement.” We The Patriots, USA, Inc.

v. Hochul, 17 F.4th 266, 292 (2d Cir. 2021), opinion

clarified, 17 F.4th 368 (2d Cir. 2021), cert. denied 142

S.Ct. 2569 (2022) (emphasis in original). In its

clarifying opinion, the Second Circuit explained that

“on its face” Rule 2.61 did “not bar an employer from

providing an employee with a reasonable

accommodation that removes the individual from the

scope of the Rule.” Id. at 370 (emphasis in original).

The Second Circuit determined that such a rule does

not directly conflict with Title VII, because it does not

“foreclose all opportunity” for employees to obtain a

reasonable religious accommodation that removes the

employees from the scope of the rule, and Title VII

does not require an employer to provide “the

accommodation the employee prefers.” Id. (citation

omitted).

Nonetheless, Petitioners now (inaccurately) argue

that the Second Circuit held otherwise in its decision

below. Pet. 1. A plain reading of the Second Circuit’s

decision belies Petitioners’ contention. The Second

Circuit held that Rule 2.61 did not permit religious

“exemptions” but did permit an employer to

“accommodate” a religious objection by “reassign[ing]

the employee ‘in a manner that removes them from’”

the “definition of ‘personnel’” in Rule 2.61. Pet. App.

7a, quoting We The Patriots, 17 F.4th at 370. However,

11

Petitioners do not allege that they requested an

accommodation removing them from the scope of Rule

2.61. Pet. App. 7a. Instead, Petitioners wanted to

continue working in their same roles, while masking,

testing, and social distancing. Id. Therefore, the

relevant question below was whether granting

Petitioners’ request for an exemption—rather than an

accommodation—would have imposed an undue

hardship on Respondent because it would have caused

Respondent to violate Rule 2.61 and subjected it to

“financial penalties or a suspension or revocation of

[its] operating license[s].” Id. at 8a, citing N.Y. Pub.

Health Law § 12 (2008). The Second Circuit correctly

concluded that granting the exemption under the

circumstances presented—as opposed to granting

some

other

possible

accommodation,

which

Petitioners did not request—would have given rise to

an undue hardship. Pet. App. 7a-8a.

Despite no court (including the court below) having

held

that

Rule

2.61

prohibited

religious

accommodations, the questions Petitioners present

here assume that Rule 2.61 forbade a “federally

required religious accommodation.” Pet. i. This case

provides this Court with no occasion to address a law

that forbade or punished religious accommodations

because Rule 2.61 was not such a law, as even

Petitioners conceded in their pleading below. See Pet.

App. 82a-83a, ¶ 58. As a result, the only question

properly presented here is whether granting an

employee’s request for a religious exemption from a

state mandated health and safety requirement

constitutes an “undue hardship” under Title VII,

where the employer is required to comply with the

state law which permits only limited religious

12

accommodations, but prohibits complete religious

exemptions, and imposes substantial penalties for

noncompliance.

This case provides the Court with no occasion to

address the questions Petitioners identify because

they are neither supported by the plain language of

Rule 2.61 or Petitioners’ operative pleading nor were

they briefed or decided by the lower courts.

2.

Petitioners’ Second Question Was Not

Properly Preserved Below

Contrary to Petitioners’ contention, the Second

Circuit below did not address whether Title VII

preempted Rule 2.61. The Second Circuit instead held

that a state law that prohibits one particular

accommodation can give rise to an undue hardship

with respect to a request for that particular

accommodation. See Pet. App. 7a-8a. Moreover,

Petitioners never raised the preemption argument in

their operative complaint, in arguing before the

district court, or on appeal to the Court of Appeals for

the Second Circuit.

Rather, the Petition only specifies where

Petitioners raised their first question in the Second

Circuit. See Pet. at 22. However, there is no discussion

in the Petition where the Petitioners raised the issue

of whether Rule 2.61 was preempted by Title VII. Id.

Nor is there any record of this argument in either the

district court or Second Circuit decision. See Pet. App.

1a-41a. Thus, Petitioners’ second question presented

is not properly preserved for this Court’s review. See

U.S. v. Jones, 565 U.S. 400, 413 (2012) (government’s

13

argument forfeited where not raised below or

addressed by the court of appeals) (citation omitted);

U.S. v. Williams, 504 U.S. 36, 41 (1992) (Court does

not consider issues not “pressed or passed upon

below.”).

B.

The Decision Below Does Not Conflict

With Any Decision Of This Court Or With

Any Federal Circuit Court

There is no conflict on the questions that

Petitioners actually present to this Court.3 To the

contrary, the Second Circuit’s decision is consistent

with the decisions of this Court. It is also consistent

with other circuit courts analyzing interaction

between similar state laws and Title VII. Because the

Second Circuit did not address a state law that forbid

all reasonable religious accommodations or that

otherwise directly conflicted with Title VII, the

decision below does not conflict with any of the cases

Petitioners cite. Therefore, further review is

unwarranted.

1. The Decision Below Comports with this

Court’s Precedent

The Second Circuit’s decision comports with longstanding precedent by this Court that an employee is

not entitled to the accommodation of their choice, but

a “reasonable” accommodation. See Ansonia Bd. of

Educ. v. Philbrook, 479 U.S. 60, 68 (1986). Title VII

3 Moreover, the Second Circuit’s decision below is an unpublished

Summary Order specifying that it has no precedential effect. Pet.

App. 1a.

14

provides that an employer is not required to provide a

religious accommodation that would constitute an

“undue hardship on the conduct of the employer’s

business.” 42 U.S.C. 2000e(j). That provision does “not

impose a duty on the employer to accommodate at all

costs.” Ansonia, 479 U.S. at 70.

An “‘undue hardship’ is shown when a burden is

substantial in the overall context of an employer’s

business.” Groff, 600 U.S. at 468 (internal citation

omitted). As this Court has confirmed, “courts should

resolve whether a hardship would be substantial in

the context of an employer’s business in the commonsense manner that it would use in applying any such

test.” Id. at 471. It would be difficult to imagine a more

substantial hardship that a healthcare provider

serving the public could face than the loss of its

operating license during a pandemic. See Lowe v.

Mills, 68 F.4th 706, 721 (1st Cir. 2023) (“The risk of

license suspension facing the Providers would readily

meet this standard too; indeed, it is difficult to

imagine a penalty that would cause a healthcare

provider more significant difficulty “‘[i]n the conduct

of [its] business,’ 42 U.S.C. § 2000e(j), than license

suspension.”), cert. denied, 144 S.Ct. 345 (2023). Cf.

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63,

80 (1977) (duty to accommodate religious needs does

not require employer to take steps inconsistent with

collective bargaining contract).

Thus, the Second Circuit decision below, which

found that Petitioners’ proposed accommodation

would have created exactly that substantial hardship,

comports with this Court’s decisions in Groff and

15

Ansonia. Thus, there is no need for this Court to grant

review.

2.

Petitioners Identify No Circuit Split

on the Issues Actually Presented Here

Petitioners fail to identify any actual conflict

amongst the circuit courts on the issues present in

this case. Because the Second Circuit did not address

a state law that forbade all reasonable religious

accommodations or that otherwise directly conflicted

with Title VII, the decision below does not conflict

with any of the cases Petitioners cite as ostensibly

being in conflict with Title VII’s requirement for a

reasonable religious accommodation.

With respect to the first question presented, four

circuit courts, including the Second Circuit along with

the First, Third, and Ninth Circuits, have held that a

requested religious accommodation can impose an

undue hardship on an employer where granting the

accommodation would require the employer to violate

a valid state law.

In Russo v. Patchogue-Medford School District,

129 F.4th 182 (2d Cir. 2025), the Second Circuit

addressed Title VII religious-accommodation claims

brought by a school employee challenging the denial

of her requested exemptions from a similar rule to

that at issue here, requiring all school personnel to be

vaccinated against COVID-19. Id. at 184. See also 10

N.Y. Comp. Codes R. & Regs. § 2.62 (2021) (“Rule

2.62”). With respect to one of the school employee’s

request to be “exempt” from the vaccination

requirement, the Second Circuit found the request

16

would have required the school district to violate Rule

2.62, which in turn would have constituted an undue

hardship. Id. at 186.

In D’Cunha v. Northwell Health Systems, No. 23476-cv, 2023 WL 7986441 (2d Cir. 2023)

(unpublished), the Second Circuit held that—similar

to this case—an employee was not entitled to “an

exemption

from

the

COVID-19

vaccination

requirement while continuing to provide direct

patient care as a resident” as that particular

“accommodation” would have required Northwell to

violate Rule 2.61. Id. at *2. The Second Circuit noted

“‘Title VII does not require covered entities to provide

the accommodation that Plaintiffs prefer[.]’” Id.

(citation omitted). The exemption D’Cunha preferred

would have subjected Northwell to penalties that

would have amounted to an “excessive” and

“unjustifiable” burden. Id. at *3, quoting Groff, 600

U.S. at 469.

Neither Russo nor D’Cunha stand for the

proposition that Petitioners suggest – that a state law

can eliminate Title VII’s religious-accommodation

requirement. Instead, as the Second Circuit noted in

its decision below, the particular accommodation

sought in these cases would result in an undue

hardship as it would require the respective employer

to violate state law. See Russo, 129 F.4th at 185;

D’Cunha, 2023 WL 7986441, at *3.

In Lowe, the First Circuit addressed religious

accommodation claims asserted by healthcare

workers under Title VII challenging the denial of their

requested exemptions from a Maine law requiring

17

vaccination against COVID-19. 68 F. 4th at 709. Like

Rule 2.61, the Maine law did not allow exemption for

religious reasons but only provided for limited

accommodations. Id. at 709. Healthcare employers

who failed to comply with the law “would have risked

onerous penalties, including license suspension.” Id.

at 719. Like here, the employees in Lowe “would

accept only one accommodation: a religious exemption

allowing them to continue in their roles without

receiving a vaccine while observing other precautions,

such as masking and testing.” Id.

The First Circuit held that granting the plaintiffs’

“desired accommodation” would have imposed an

undue hardship on their employers. Id. at 720.

Indeed, in their complaint, the employees

“acknowledge[d] the threat to the [employers’]

licenses” if they “fail[ed] to mandate that all

employees receive the COVID-19 vaccine.” Id. at 720.

The First Circuit reasoned the plaintiffs’ sole

requested accommodation would have imposed an

undue hardship insofar as it was “difficult to imagine

a penalty that would cause a healthcare provider more

significant difficulty ‘[i]n the conduct of [its] business’

… than license suspension.” Id. at 721 (quoting 42

U.S.C. 2000e(j)). And although the First Circuit

decided Lowe before this Court issued its decision in

Groff, 600 U.S. 447, clarifying the standard for

assessing

whether

a

requested

religious

accommodation imposed an “undue hardship,” the

First Circuit explained that “the plaintiffs’ requested

accommodation would have constituted an undue

hardship under any plausible interpretation of the

statutory text.” Lowe, 68 F.4th at 721.

18

The Third Circuit has likewise held that a valid

state law may create an undue hardship for an

employer. In United States v. Board of Education, 911

F.2d 882 (3d Cir. 1990), the court addressed a Title

VII challenge to a Pennsylvania criminal statute

prohibiting public school teachers from wearing

religious garb while teaching. See id. at 885. The law

imposed penalties, including fines and potential

removal from office, on administrators who failed to

enforce its requirements. See id. The United States,

suing on behalf of an individual teacher, did not claim

that she sought any “alternative means of

accommodation” other than being permitted to wear

clothing in accordance with her religious beliefs. Id. at

887.

The Third Circuit held that requiring the

employing school board to exempt the teacher from

the otherwise-valid state law against religious garb

would have imposed an undue hardship on the school

board. Id. at 891. In so doing, the Third Circuit

invoked this Court’s decision in Trans World Airlines

v. Hardison, 432 U.S. 63 (1997), which held that a

requested accommodation that would require an

employer to violate its collective bargaining

agreement would constitute undue hardship. See

Board of Education, 911 F.2d at 891. It “follow[ed] a

fortiori,” the Third Circuit reasoned, that it would

likewise “be an undue hardship to require a school

board to violate an apparently valid criminal statute,

thereby exposing its administrators to criminal

prosecution and the possible consequences thereof.”

Id.

19

In Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382

(9th Cir. 1984) (per curiam), the Ninth Circuit

similarly confirmed that a requested religious

accommodation that would require an employer to

violate a valid state law could impose an undue

hardship on the employer. That case addressed a

newly promulgated California safety standard

requiring employees whose work might expose them

to toxic gases to wear a mask with a gas-tight face

seal, something that was not possible for individuals

with beards. See id. at 1383. After the defendant

employer imposed a policy requiring all of its

machinists to shave their beards, an employee whose

religious faith forbade cutting or shaving of any body

hair refused each accommodation of placement in a

different position that the employer offered and

instead asked to be permitted to continue working in

his same position in violation of the new law. The

employee ultimately chose a different accommodation

before pursuing claims against the employer under

Title VII. See id.

The Ninth Circuit rejected the employee’s Title VII

claim. Id. at 1384. It held that the employer had

“established that if it were to retain [the employee] as

a machinist … it would risk liability for violating

California

Occupational

Safety

and

Health

Administration standards.” Id. After considering and

rejecting other potential accommodations as unduly

burdensome under the facts of the case, the Ninth

Circuit affirmed dismissal of the plaintiff’s Title VII

claim. Id.

The Ninth Circuit’s decision in Sutton v.

Providence St. Joseph Medical Center, 192 F.3d 826

20

(9th Cir. 1999), involved a prospective employee who

refused to provide his social security number to the

employer based on a religious belief. Id. at 829. The

prospective employee sued after the employer refused

to hire him. Id. at 830. The Ninth Circuit found “that

an employer is not liable under Title VII when

accommodating an employee’s religious beliefs would

require the employer to violate federal or state law.”

Id. at 830-31.

Finally, the Ninth Circuit’s holding in BoldenHardge v. Office of California State Controller, 63

F.4th 1215 (2023) does not create a conflict among the

Circuit Courts as it is readily distinguishable from the

foregoing decisions involving private employers. The

decision involved a request for an accommodation by

a state government employee from swearing a loyalty

oath to the United States Constitution and California

Constitution as contrary to her religious beliefs. Id. at

1219. The State Controller’s Office rejected her

proposed accommodation and refused to employ her,

although two other State agencies granted it and

employed her. Id.

In declining to grant the defendant’s motion to

dismiss, the Ninth Circuit relied on three

distinguishing factors – not the Janus-like approach

claimed by Petitioners. Pet. 10-11. First, the Ninth

Circuit pointed out that cases involving private

employers (such as Respondent) face an undue

hardship where a requested accommodation would

pose potential liability for the employer, as the private

employer “had no ability to create or enforce that law.”

Bolden-Hardge, 63 F.4th at 1225. Second, the Ninth

Circuit noted the lack of an enforcement mechanism

21

for violating the oath requirement, as the State had

taken no action against the other agencies that

accommodated the employee. Id. Third, the undue

hardship defense on the part of the defendant was not

foreclosed, it was (unlike here) simply “not obvious

from the face of [the] Complaint.” Id. at 1226-1227. In

contrast to the case at issue, based on the face of the

complaint in Bolden, the government did not face any

“undue hardship” since there were no ramifications or

other punishment for noncompliance.

In sum, these decisions do not stand for the

proposition for which Petitioners present them, i.e.,

that “every circuit court to consider the question

presented has concluded that employers need not

provide

religious

accommodations

if

an

accommodation would violate state law.” Pet. 11.

Instead, they stand for the more limited and settled

proposition that an employer is not required to

provide

an

employee’s

preferred

religious

accommodation where that specific accommodation

would compel the employer to violate state law – and

then only where non-compliance with state law would

impose an undue hardship.

Petitioners also contend that the decision below

conflicts with other decisions from this Court and

other circuit courts in two additional ways: first, by

holding that “an employer faces a per se Title VII

undue hardship if granting an otherwise federally

required religious accommodation would conflict with

state law”; and second, by holding that “a state law

that requires employers to deny without any

consideration all requests by employees for religious

accommodation … is preempted by Title VII and the

22

Supremacy Clause.” Pet. i, ii. Because the Second

Circuit did not so hold, see pp. 8-11, supra, the

conflicts identified by the Petition are illusory.

With respect to the first question presented,

Petitioners cite cases (Pet. 11-13) in which circuit

courts have refused to excuse race-based or sex-based

discrimination on the grounds that state law required

the alleged discrimination. For example, the Second

Circuit has held that, where rank-ordering job

candidates based on exam scores creates a disparate

impact on members of a racial minority, any state law

that “purports to require or permit” rank-ordering is

preempted and thus cannot excuse continued use of

such practices. Guardians Ass’n of the New York City

Police Dep’t, Inc., v. Civil Service Comm’n, 630 F.2d

79, 104-05 (2d Cir. 1980), cert. denied, 452 U.S. 940

(1981). Other circuit courts addressing analogous

schemes have reached the same conclusion. See, e.g.,

Gulino v. N.Y.S. Educ. Dep’t, 460 F.3d 361, 363 (2d

Cir. 2006), cert. denied 554 U.S. 917 (2008) (state

teacher certification test); Palmer v. General Mills

Inc., 513 F.2d 1040, 1042 (6th Circuit 1975) (sex-based

weight lifting and overtime laws); Williams v. General

Foods Corp., 492 F.2d 399, 402-03 (7th Cir. 1974) (sexbased overtime policies); Johnson v. Goodyear Tire &

Rubber Co., Synthetic Rubber Plant, 491 F.2d 1364,

1368 (5th Cir. 1974) (high school diploma

requirement); Kober v. Westinghouse Elec. Corp., 480

F.2d 240, 242 (3d Cir. 1973) (sex-based limit on work

hours); Ash v. Hobart Mfg. Co., 483 F.2d 289, 291-92

(6th Cir. 1973) (sex-based weight lifting law);

Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d

1002, 1004, 1006 (9th Cir. 1972) (sex-based limit on

work hours); Rosenfeld v. Southern Pacific Co., 444

23

F.2d 1219, 1225-26 (9th Cir. 1971) (the exclusion of

female employees from certain workplace tasks).

These cases fail to address Title VII’s provisions

regarding religious discrimination – which requires

only reasonable accommodation and do not mandate

employers

grant

employees’

preferred

accommodation. See Ansonia, 479 U.S. at 67-69. The

distinction is important particularly given Title VII’s

provisions

concerning

racial

and

sexual

discrimination impose materially different obligations

on employers. See 42 U.S.C. 2000e-2(a), (e), (k).

None of the cited cases involve a request for a

religious accommodation – much less the interplay

between the undue hardship faced by an employer

and

the

employee’s

preferred

religious

accommodation that would violate state law.

Accordingly, those courts’ recognition that a state law

directly conflicting with Title VII cannot excuse

liability does not raise a circuit court conflict within

the meaning of this Court’s certiorari criteria. See

Sup. Ct. R. 10. Any purported conflict is illusory; it

arises only from comparing fundamentally different

legal contexts.

Petitioners separately contend (Pet. 14-17) that

the decision below conflicts with decisions from other

circuit courts involving federal antidiscrimination

laws other than Title VII. But again, in each of those

cases, the circuit court concluded that the state law in

question must conflict directly with the relevant

federal statute to be preempted and addressed a

federal statute with substantive requirements

different from Title VII’s religious-accommodation

24

provisions. See Campbell v. Universal City Dev.

Partners, 72 F.4th 1245 (11th Cir. 2023) (Americans

with Disabilities Act (“ADA”)); Gibbs v. City of

Pittsburgh, 989 F.3d 226 (3d Cir. 2021) (ADA and

Rehabilitation Act); Hindel v. Husted, 875 F.3d 344

(6th Cir. 2017) (discussing ADA and voter

accommodations); Nat’l Fed’n of the Blind v. Lamone,

813 F.3d 494 (4th Cir. 2016) (ADA); Mary Jo C. v. N.Y.

State and Local Ret. Sys., 707 F.3d 144 (2d Cir. 2013)

(same); Barber v. Colorado Dep’t of Revenue, 562 F.3d

1222 (10th Cir. 2009) (holding Supremacy Clause did

not govern outcome of Rehabilitation Act claim);

Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996)

(ADA); Quinones v. City of Evanston, 58 F.3d 275 (7th

Cir. 1995) (Age Discrimination in Employment Act);

E.E.O.C. v. Massachusetts, 987 F.2d 64 (1st Cir. 1993)

(same); E.E.O.C. v. Allegheny Cty., 705 F.2d 679 (3d

Cir. 1983) (same).

In sum, because none of these cases address the

question of whether the need to violate state law in

order to grant a particular religious accommodation

created an “undue hardship” for purposes of Title VII,

those cases do not create a conflict within the meaning

of this Court’s certiorari criteria. See Sup. Ct. R. 10.

As to the second question presented: Petitioners

argue (Pet. 18-20) that the decision below conflicts

with decision from this Court and other circuit courts

holding that Title VII preempts directly conflicting

state laws. As previously discussed, this issue was

raised for the first time by Petitioners before this

Court and therefore, should not be considered by this

Court. See pp. 10-11, supra. To the extent the Court

does consider this argument, the Second Circuit did

25

not address that issue here, and the decision below

does not conflict with Petitioners’ cited decisions.

In Guerra, this Court explained that “state laws

will be pre-empted only if they actually conflict with”

Title VII. 479 U.S. at 281. Where compliance with

both a state law and federal law is not a “physical

impossibility” and the state law is not an obstacle to

the accomplishment of the federal law, the state law

is not preempted. Id.; accord Hillsborough Cnty., Fla.

v. Automated Med. Lab’ys, Inc., 471 U.S. 707, 713

(1985) (same).

Moreover, the Second Circuit addressed this very

issue in a decision prior to issuing the decision below

and held “[b]ecause Section 2.61’s text does not

foreclose all opportunity for [employees] to secure a

reasonable accommodation under Title VII, the Rule

does not conflict with federal law.” We The Patriots, 17

F.4th at 292. The Second Circuit also relied on this

Court’s precedent in Jacobson v. Commonwealth of

Massachusetts, 197 U.S. 11 (1905) for the proposition

that “vaccine requirements imposed in the public

interest, in the face of a public health emergency” are

permissible, and that Rule 2.61 “was a reasonable

exercise of the State’s power to enact rules to protect

the public health.” We The Patriots, 17 F.4th at 290,

293. Accord Lowe, 68 F.4th at 724 (finding “no

‘actual[] conflict’” between the Title VII and state law

that permitted other accommodations aside from the

one that would have constituted an undue hardship)

(quoting Guerra, 479 U.S. at 281).

26

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

JACQUELINE PHIPPS POLITO

Counsel of Record

ERIN TRAIN

LITTLER MENDELSON P.C.

80 Linden Oaks, Suite 210

Rochester, NY 14625

(585) 203-3400

jpolito@littler.com

Counsel for Respondent

APRIL 20, 2026