Amicus Curiae Brief — Shannon Cross, Petitioner v. Central Contra Costa Transit Authority

Supreme Court briefSep 14, 2026

Ask Donna

What actually matters in this document.

Text

No. 26-100

In the

Supreme Court of the United States

SHANNON CROSS,

Petitioner,

CENTRAL CONTRA COSTA TRANSIT AUTHORITY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Ninth Circuit

BRIEF OF AMICI CURIAE AMERICAN

HINDU JEWISH CONGRESS AND ISLAM

AND RELIGIOUS FREEDOM ACTION TEAM

OF THE RELIGIOUS FREEDOM INSTITUTE

IN SUPPORT OF PETITIONER

Brian T. Goldman

Counsel of Record

Holwell Shuster

& Goldberg LLP

425 Lexington Avenue

New York, NY 10017

(646) 837-5151

bgoldman@hsgllp.com

Counsel for Amici Curiae

TABLE OF CONTENTS

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

INTERESTS OF AMICI CURIAE ............................. 1

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

ARGUMENT .............................................................. 4

I. This Case Illustrates McDonnell Douglas’s

Well-Documented Shortcoming, Particularly

As To Religious-Discrimination Plaintiffs ........... 4

II. McDonnell Douglas Is

Inconsistent With Rule 56 .................................. 12

CONCLUSION ......................................................... 14

TABLE OF AUTHORITIES

Cases

Page(s)

Agfa-Gevaert, A.G. v. A.B. Dick Co.,

879 F.2d 1518 (7th Cir. 1989)..................................6

Bostock v. Clayton County,

590 U.S. 644 (2020) ..............................................3, 8

Brady v. Off. of Sergeant at Arms,

520 F.3d 490 (D.C. Cir. 2008) ............................ 4, 10

EEOC v. Abercrombie & Fitch Stores, Inc.,

575 U.S. 768 (2015) ..............................................3, 7

Fonseca v. Sysco Food Servs. of Ariz., Inc.,

374 F.3d 840 (9th Cir. 2004)....................................9

Green v. McDonnell-Douglas Corp.,

299 F. Supp. 1100 (E.D. Mo. 1969) .......................13

Hittle v. City of Stockton, California,

101 F.4th 1000 (9th Cir. 2024) ................................5

Holt v. Hobbs,

574 U.S. 352 (2015) ..................................................8

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ..................................................7

Kizer v. Children’s Learning Ctr.,

962 F.2d 608 (7th Cir. 1992)....................................9

Menard v. First Sec. Servs. Corp.,

848 F.2d 281 (1st Cir. 1988) ....................................9

Nidds v. Schindler Elevator Corp.,

113 F.3d 912 (9th Cir. 1996)....................................9

iii

Richmond v. Board of Regents Univ. of Minn.,

957 F.2d 595 (8th Cir. 1992)....................................9

St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502 (1993) ................................................13

Tex. Dep’t of Cmty. Affs. v. Burdine,

450 U.S. 248 (1981) ................................................14

Thomas v. Review Bd. of Ind. Emp. Sec. Div.,

450 U.S. 707 (1981) ..............................................3, 8

Trans World Airlines, Inc. v. Thurston,

469 U.S. 111 (1985) ...................................... 4, 10, 13

Tynes v. Fla. Dep’t of Juv. Just.,

88 F.4th 939 (11th Cir. 2023) ...................... 9, 12, 13

United States Postal Service Bd. of Gov. v. Aikens,

460 U.S. 711 (1983) ................................................14

Walton v. Powell,

821 F.3d 1204 (10th Cir. 2016)..............................12

Wells v. Colo. Dep’t of Transp.,

325 F.3d 1205 (10th Cir. 2003).................. 10, 13, 14

Statutes

42 U.S.C. § 2000e(j) .................................................2, 4

Rules

Fed. R. Civ. P. 56(a)............................................... 4, 12

Sup. Ct. R. 37.2 ............................................................2

Other Authorities

Ann C. McGinley, Credulous Courts and the Tortured

Trilogy: The Improper Use of Summary Judgment

in Title VII and Adea Cases,

34 B.C. L. Rev. 203 (1993) .....................................10

Elizabeth M. Schneider, The Dangers of Summary

Judgment: Gender and Federal Civil Litigation,

59 Rutgers L. Rev. 705 (2007) ...............................11

Hon. Denny Chin, Summary Judgment in

Employment Discrimination Cases: A Judge’s

Perspective,

57 N.Y.L. Sch. L. Rev. 671 (2013) ................... 11, 12

Kerri Lynn Stone, Shortcuts in Employment

Discrimination Law,

56 St. Louis U. L.J. 111 (2011) ..............................11

Mem. from Joe Cecil & George Cort, Fed. Judicial

Ctr., to the Hon. Michael Baylson (revised June 15,

2007),

https://tinyurl.com/y8fxzv6m.................................11

Michael Selmi, Why Are Employment Discrimination

Cases So Hard to Win?,

61 La. L. Rev. 555 (2001) .......................................11

INTERESTS OF AMICI CURIAE

The American Hindu Jewish Congress (“AHJC”) is

a national, non-partisan coalition representing the

shared interests and concerns of Hindu Americans

and Jewish Americans. Founded in 2025, AHJC

unites two vibrant, millennia-old faith communities to

advocate for religious liberty, mutual respect, and interfaith solidarity. The AHJC membership encompasses community leaders, houses of worship, cultural

associations, student fellowships, and civil-rights advocates across all fifty states.1

The Islam and Religious Freedom Action Team

(“IRF”) of the Religious Freedom Institute amplifies

Muslim voices on religious freedom, seeks a deeper

understanding of the support for religious freedom inside the teachings of Islam, and protects the religious

freedom of Muslims. To this end, the IRF engages in

research, education, and advocacy on core issues including freedom from coercion in religion and equal

citizenship for people of diverse faiths. The IRF explores and supports religious freedom by translating

resources by Muslims about religious freedom, fostering inclusion of Muslims in religious freedom work

both where Muslims are a majority and where they

1 Pursuant to Sup. Ct. R. 37.2, counsel of record for all parties

received timely notice of this filing. Amici certifies that no party

or party’s counsel authored this brief in whole or in part and that

no party or party’s counsel made a monetary contribution intended to fund the preparation or submission of this brief.

are a minority, and by partnering with the Institute’s

other teams in advocacy.

Amici submit this brief because, in their experience, workers who belong to minority religious communities bear an outsized share of the adverse treatment that follows a request for religious accommodation. That treatment takes many forms—applicants

passed over at hiring, employees separated from their

coworkers, and workplaces made hostile in response

to an employee’s assertion of her rights—and each

form erodes the promise of equal opportunity that Title VII guarantees. The question presented here

therefore bears directly on whether members of minority faiths can compete for and hold jobs on the

same footing as everyone else. Amici respectfully urge

the Court to safeguard the workplace religious liberties of Americans of every creed.

SUMMARY OF THE ARGUMENT

Congress defined religion, for purposes of Title VII,

to include “all aspects of religious observance and

practice, as well as belief.” 42 U.S.C. § 2000e(j). Religious practice is thus conduct—what an employee

wears, when she prays, what she eats—and conduct is

what workplace rules govern. An employer that acts

against religious exercise can therefore nearly always

point to a facially neutral rule. But as the decision below illustrates, under McDonnell Douglas, such a rule

is dispositive and sufficient to deny a religious-discrimination plaintiff’s claims. That cannot be right.

The courts below held that two supervisors’ statements to a Muslim bus operator—that she could not

wear “that,” and could not wear “that thing” on her

head—were not direct evidence of discrimination, because the supervisors were “merely attempting to enforce the dress code.” Pet.App. 3a, 17a. That reasoning

proves too much. A Hindu employee’s vegetarian diet,

a Jewish employee’s kippah, and a Christian employee’s cross are all touched by neutral workplace

rules, and adverse action taken because of such conduct can nearly always be recast as ordinary rule enforcement. That result cannot be squared with this

Court’s holding that an employer “may not make an

applicant’s religious practice, confirmed or otherwise,

a factor in employment decisions,” EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 773 (2015), or

with the “favored treatment” Title VII affords religious practice, id. at 775.

The prima facie showing required by McDonnell

Douglas compounds the difficulty. Required to identify a similarly situated employee outside her protected class, Shannon Cross was faulted because “at

least one of these drivers is himself a practicing Muslim.” Pet.App. 19a. But Title VII’s “focus on individuals rather than groups [is] anything but academic,”

Bostock v. Clayton County, 590 U.S. 644, 659 (2020),

and this Court has held that such guarantees are “not

limited to beliefs which are shared by all of the members of a religious sect,” Thomas v. Review Bd. of Ind.

Emp. Sec. Div., 450 U.S. 707, 715–16 (1981). The same

statements were then discounted a second time, as

“[a]mbiguous comments” too weak to support an inference of discrimination. Pet.App. 20a. Whether Cross’s

supervisors were enforcing a uniform policy or pressuring her to abandon her faith is a classic question of

fact—one of motive—and the kind the Constitution reserves for juries.

These errors are not peculiar to this case. Lower

courts have come to treat the prima facie showing under McDonnell Douglas as a substantive standard of

liability, making its first step “a largely unnecessary

sideshow” that has “spawn[ed] enormous confusion

and wast[ed] litigant and judicial resources.” Brady v.

Off. of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.

2008). And as Part II explains, the framework cannot

be reconciled with Rule 56, which asks only whether

“there is no genuine dispute as to any material fact,”

Fed. R. Civ. P. 56(a). For workers who belong to religious communities, the consequence is that Title VII’s

protections are least available precisely where religious practice is most visible. The petition should be

granted.

ARGUMENT

I. This Case Illustrates McDonnell Douglas’s

Well-Documented Shortcoming, Particularly

As To Religious-Discrimination Plaintiffs

Congress defined religion, for purposes of Title VII,

to include “all aspects of religious observance and

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

statute’s differentiation between “practice” and “belief” reflects a recognition that religion is expressed in

conduct—what an employee wears, when she prays,

what she eats, when she is unavailable to work—as

well as an internal belief system. Conduct, of course,

is what workplace rules purport to govern.

The decision below is a prime example of why the

McDonnell Douglas framework fails plaintiffs, particularly religious-discrimination plaintiffs.

The Ninth Circuit required that plaintiff—the nonmovant—establish a prima facie case of discrimination. Pet.App. 2a. That should have been easily established for purposes of summary judgment: one of

Cross’s supervisors told her “you can’t wear that” hijab, and her other supervisor told her that she could

not wear “that thing” on her head. Given those facts

alone (not to mention the many others in the record,

see Pet. 3–8), a jury should have decided whether Respondent’s decision to terminate her after a bus-bicycle accident was pretextual or legitimate. Instead,

McDonnell Douglas led to summary dismissal of her

claim.

A. To begin, the Ninth Circuit held that she had

not established a prima facie case for discrimination

because “where there are obvious alternative explanations for the purportedly invidious discrimination

plaintiff asks us to infer, discrimination is not a plausible conclusion,” Pet.App. 2a–3a (cleaned up) (quoting Hittle v. City of Stockton, California, 101 F.4th

1000, 1014 (9th Cir. 2024)), affirming the district

court’s conclusion that these comments did “not lead

inevitably to the conclusion that [Cross’s supervisors]

harbored discriminatory animus against Muslims; it

is possible that [Cross’s supervisors] were merely attempting to enforce the dress code,” Pet.App. 17a.

Well, sure, it’s possible. But these are contested issues of fact that should be resolved by juries, not

courts. And particularly in the context of religious discrimination, that rule of decision simply proves too

much. An employer that acts against religious practice can almost always point to a neutral-seeming rule

about dress, grooming, scheduling, or attendance.

Consider the following activities that often are a part

of a Hindu’s everyday life: shaving one’s head for certain worship practices, or eating only vegetarian

meals, or praying before a meal. Or take a Jewish person who wears a kippah and eats kosher, or a Christian employee who wears a cross. If the existence of

dress codes or mealtime rules supplies an “obvious alternative explanation” sufficient to defeat a claim for

discrimination as a matter of law, then any discrimination towards a person of faith on account of their

outward religious conduct—dietary preferences, fashion choices, or momentary prayer—can be justified as

mere attempts to enforce neutral rules of workplace

conduct.

In rejecting the possibility of direct evidence of discrimination, the Ninth Circuit also emphasized that

direct evidence requires a showing shorn of “inference

or presumption,” Pet.App. 3a (emphasis in original),

seconding the district court’s statement that direct evidence must not “require[] an inferential step,”

Pet.App. 17a. But “[a]ll perception is inferential” and

“since Kant we have known that there is no unmediated contact between nature and thought.” AgfaGevaert, A.G. v. A.B. Dick Co., 879 F.2d 1518, 1523

(7th Cir. 1989). It is hard to imagine a series of facts

that does not require that some inference, however

basic, be drawn to connect a fact with a motive. Otherwise, under the rule as supplied by the Ninth Circuit, religious-discrimination plaintiffs will likely

never be able to show direct evidence of discrimination, unless the employer literally states that they are

taking adverse action against the person due to their

religion.

Further, treating the employer’s explanation as

dispositive is difficult to reconcile with EEOC v. Abercrombie & Fitch Stores, Inc., in which this Court held

that motive rather than knowledge governs and that

“[a]n employer may not make an applicant’s religious

practice, confirmed or otherwise, a factor in employment decisions.” 575 U.S. 768, 773 (2015). Title VII

does not merely tolerate religious practice; it gives it

“favored treatment.” Id. at 775. A supervisor who tells

an employee to remove her hijab has made her religious practice a factor whatever the dress code provides, because the practice and the asserted infraction

are the same act. This Court has identified where the

contrary view leads, cautioning that on an “excessively broad job description” of public employment “a

school could fire a Muslim teacher for wearing a headscarf in the classroom.” Kennedy v. Bremerton Sch.

Dist., 597 U.S. 507, 530–31 (2022) (cleaned up).

B. Having held there was not sufficient direct evidence of discrimination, the courts below moved on to

assess whether a prima facie case of discrimination

could be established circumstantially under McDonnell Douglas. Pet.App. 4a. As the Ninth Circuit explained, one factor under McDonnell Douglas at the

prima facie stage is identifying a similarly situated

employee outside the protected class who fared better.

Pet.App. 4a.

This requirement is particularly difficult for religious discrimination plaintiffs; the district court

faulted Cross for not establishing that the drivers she

identified were “outside of her protected class,” citing

the employer’s evidence that “at least one of these

drivers is himself a practicing Muslim.” Pet.App. 19a.

But treating a coreligionist as an answer mistakes

what Title VII protects. The statute’s “focus on individuals rather than groups [is] anything but academic.” Bostock, 590 U.S. at 659. And this Court has

rejected the premise that an observance must be uniform within a faith before it is protected, holding that

such guarantees are “not limited to beliefs which are

shared by all of the members of a religious sect.”

Thomas, 450 U.S. at 715–16. Applying that principle

in Holt v. Hobbs, a case under the Religious Land Use

and Institutionalized Persons Act of 2000, the Court

held that the district court “went astray when it relied

on petitioner’s testimony that not all Muslims believe

that men must grow beards.” 574 U.S. 352, 362 (2015).

The inquiry compounded the difficulty by allowing

the same evidence to be discounted twice. Having set

the supervisors’ statements aside at the direct-evidence stage because an alternative explanation was

available, the district court took them up again under

the prima facie case and dismissed them as “[a]mbiguous comments that are not tied directly to the adverse employment action,” which it held were “‘weak

evidence and not enough to create an inference of . . .

discrimination.’” Pet.App. 20a (quoting Nidds v.

Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir.

1996)). However, Cross had testified that she “understood clearly that if I did not remove it, I was likely to

face consequences,” and that she perceived her supervisors as “threatening me with discipline if I continued to wear it.” Pet.App. 39a. These disputes raise

classic fact questions that the Constitution reserves

for juries, not judges.

C. The Ninth Circuit’s missteps are not an outlier.

The requirement that the non-movant set forth a

prima facie case that he is protected under Title VII is

“often . . . wrongly treat[ed] . . . as a substantive

standard of liability.” Tynes v. Fla. Dep’t of Juv. Just.,

88 F.4th 939, 949 (11th Cir. 2023) (Newsom, J., concurring). That is in part because one of the elements

of making out a prima facie case—that the employee

“was qualified for his position,” Fonseca v. Sysco Food

Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir.

2004)—requires a plaintiff effectively to disprove an

employer’s argument for why the employee was not

qualified. Menard v. First Sec. Servs. Corp., 848 F.2d

281, 285 (1st Cir. 1988) (“To establish that he was

qualified a complainant must show that he was doing

his job well enough to rule out the possibility that he

was fired for inadequate job performance, absolute or

relative.” (cleaned up)); Kizer v. Children’s Learning

Ctr., 962 F.2d 608, 611–12 (7th Cir. 1992) (plaintiff

must prove she met employer’s expectations in order

to establish “qualified” prong of prima facie case);

Richmond v. Board of Regents Univ. of Minn., 957

F.2d 595, 598 (8th Cir. 1992) (in order to make out

qualified prong of prima facie case, employee must

disprove defense that she was not performing adequately).

This “trend is particularly damaging to a plaintiff

who is defending against a summary judgment motion

because it shifts the burden from the movant to the

plaintiff to disprove the defense without the benefit of

cross-examination.” Ann C. McGinley, Credulous

Courts and the Tortured Trilogy: The Improper Use of

Summary Judgment in Title VII and Adea Cases, 34

B.C. L. Rev. 203, 231 (1993).

Thus, as then-Judge Kavanaugh explained, the

“prima facie” element “is a largely unnecessary sideshow” that “has not benefited employees or employers;

nor has it simplified or expedited court proceedings”

and in fact “has done exactly the opposite, spawning

enormous confusion and wasting litigant and judicial

resources.” Brady, 520 F.3d at 494.

D. Although McDonnell Douglas was originally

thought to be “a plaintiff-friendly opinion,” Wells v.

Colo. Dep’t of Transp., 325 F.3d 1205, 1224 (10th Cir.

2003) (Hartz, J., writing separately), insofar as it “assure[d] that the plaintiff [has] his day in court despite

the unavailability of direct evidence,” Trans World

Airlines, Inc., 469 U.S. at 121, that intention has not

borne out in practice.

Instead, the opposite has come to pass. Surviving

summary judgment as a Title VII plaintiff is a

uniquely difficult row to hoe, even as compared to similarly-situated plaintiffs. In an article published in

2013 by Judge Denny Chin of the Second Circuit, he

observed that “summary judgment was granted, in

whole or in part, in employment discrimination cases

approximately seventy-seven percent of the time,”

while “in tort cases approximately sixty-one percent of

the time, and in contract cases approximately fiftynine percent of the time.” Hon. Denny Chin, Summary

Judgment in Employment Discrimination Cases: A

Judge’s Perspective, 57 N.Y.L. Sch. L. Rev. 671, 672–

73 (2013).

This conclusion has been identified in other studies. “Research confirms everyday observations of how

much more difficult it is for employment discrimination plaintiffs than for other plaintiffs[.]” Kerri Lynn

Stone, Shortcuts in Employment Discrimination Law,

56 St. Louis U. L.J. 111, 112 & n.1 (2011) (citing studies); see also Elizabeth M. Schneider, The Dangers of

Summary Judgment: Gender and Federal Civil Litigation, 59 Rutgers L. Rev. 705, 709–10 (2007); Michael Selmi, Why Are Employment Discrimination

Cases So Hard to Win?, 61 La. L. Rev. 555, 574–75

(2001).

One comprehensive analysis was a fiscal-year 2006

study conducted by the Federal Judicial Center, submitted to the Hon. Michael Bayslon (E.D. Pa.). The

FJC analyzed over 200,000 cases that were terminated that year. Of those cases, the study found that

73% of summary judgment motions in employment

discrimination cases were granted—while the average

for all civil cases was just 60%. See Mem. from Joe

Cecil & George Cort, Fed. Judicial Ctr., to the Hon.

Michael Baylson (revised June 15, 2007), Tables 3 &

4.2

2 Available at https://tinyurl.com/y8fxzv6m.

II. McDonnell Douglas Is

Inconsistent With Rule 56

Further, the McDonnell Douglas summary-judgment framework is inconsistent with Federal Rule of

Civil Procedure 56. “[T]oday[,] motions practice, and

especially summary judgment motions practice,

seems to have assumed a place near the center of the

legal universe: almost no one makes it to trial anymore.” Walton v. Powell, 821 F.3d 1204, 1212 (10th

Cir. 2016) (Gorsuch, J.). This is especially true in Title

VII cases. Compared to other claims, remarkably few

Title VII plaintiffs make it past summary judgment to

a trial on the merits. Chin, Summary Judgment in

Employment Discrimination Cases, supra p. 11, at

672–73; Tynes, 88 F.4th at 950 (Newsom, J., concurring) (“Many, if not most, Title VII cases are decided

at summary judgment.”). It is critical that the summary-judgment framework for Title VII cases be rocksolid—but, regrettably, McDonnel Douglas, as interpreted by the courts today, leaves much to be desired.

A. Rule 56 is plain in its directive: “The court shall

grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). McDonnell Douglas, however,

permits dismissal of cases that satisfy Rule 56.

For example, “[a] plaintiff who can marshal strong

circumstantial evidence of discrimination but who, for

whatever reason, can’t check all of the McDonnellDouglas-related doctrinal boxes—for instance, because she can’t quite show that her proffered comparator is sufficiently “similarly situated,’—may well lose

at summary judgment.” Tynes, 88 F.4th at 955 (Newsom, J. concurring) (emphasis in original and cleaned

up). “Especially in light of Rule 56’s plain language—

which focuses on the existence of a ‘genuine dispute as

to any material fact,’”—that “seems a little topsyturvy.” Ibid.; see also Wells, 325 F.3d at 1225 (Hartz,

J., writing separately) (“[T]he use of the McDonnell

Douglas framework so readily lends itself to consideration of formalities instead of the essence of the issue

at hand—the sufficiency of the evidence.”).

B. What is more, the application of McDonnell

Douglas to summary-judgment motions is dubious in

the first place.

Although “McDonnell Douglas’s burden-shifting

framework has become the presumptive means of resolving Title VII cases at summary judgment,” Tynes

at 952 (Newsom, J. concurring), as Judge Newsom

pointed out in his concurrence in Tynes, McDonnell

Douglas itself arose from bench-trial proceedings, not

on summary judgment, see Green v. McDonnell-Douglas Corp., 299 F. Supp. 1100, 1102 (E.D. Mo. 1969).

Indeed, this Court has emphasized that McDonnell

Douglas’s “procedural device” was intended “only to

establish an order of proof and production.” St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 521 (1993) (emphasis in original).

This Court’s opinion in United States Postal Service Board of Governors v. Aikens, 460 U.S. 711

(1983), highlights the confusion with respect to

whether McDonnell Douglas is meant to apply on

summary judgment. As the Court explained in Aikens,

“when the defendant fails to persuade the district

court to dismiss the action for lack of a prima facie case, and responds to the plaintiff’s proof by offering evidence of the reason for the plaintiff’s rejection,

the fact finder must then decide whether the rejection was discriminatory within the meaning of Title

VII,” id. at 714–15 (emphasis added), and so, “[a]t this

stage, the McDonnell–Burdine presumption ‘drops

from the case,’” ibid. (quoting Tex. Dep’t of Cmty. Affs.

v. Burdine, 450 U.S. 248, 255 n.10 (1981)).

Given this Court’s statements in Aikens, “[o]ne

therefore wonders why we need to have this artificial,

often confusing, framework.” Wells, 325 F.3d at 1226

(Hartz, J., writing separately). And “[t]he answer is

that there is no need.” Ibid.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,