Month: August 2020

Founders’ First Freedom files Amicus Brief Urging US Supreme Court to Restore Title VII Workplace Religious Accommodation Standard



Today, Founders’ First Freedom, Inc. filed an amicus brief urging the United States Supreme Court to revisit and restore the workplace religious accommodation standard found in Title VII of the Civil Rights Act of 1964.

Founders’ First Freedom argues that the Supreme Court needs to revisit a 1977 decision that watered-down an employer’s responsibility under Title VII to accommodate to the point where it was essentially meaningless. In Title VII, as amended in 1972, Congress required employers to “reasonably accommodate” their employees’ religious observance or practice unless the accommodation imposed an “undue hardship” on the employer. In 1977, the Supreme Court’s decision in Transworld Airlines v. Hardison included language that said an employer did not need to accommodate an employee if the accommodation imposed anything more than a “de minimis” burden on the employer. Since then, courts have ruled that any cost or effort incurred in accommodating an employee would exceed that standard.

“The current situation is untenable for people whose faith extends beyond attending weekend worship services,” said attorney Michael Peabody, president of Founders’ First Freedom. “If a person is serious about keeping their faith, under the current standards, employers do not even have to pretend to make an attempt to provide an accommodation. The way some courts see it, an employer doesn’t have to try to accommodate a person’s religious observances or practices. They just have to claim that it is hypothetically impossible to provide an accommodation and that’s it.”

Peabody continued, “This is not what Congress intended when it passed the Civil Rights Act. It’s not about asking employers to provide unreasonable accommodations – it’s about asking them to process the requests for accommodation fairly within the meaning of the statute and about giving employers’ and employees a clear expectation of what’s required and what’s not to avoid these kinds of conflicts.”

Dalberiste v. GLE, Inc. is an ideal vehicle for the Court to reconsider this issue. It is a straightforward and focused case in which Mr. Dalberiste, a Seventh-day Adventist, was offered a job. When he asked for a religious accommodation to keep the Sabbath, the employer admittedly did not consider any accommodation and withdrew the job offer. Mr. Dalberiste filed a lawsuit that the trial judge dismissed on summary judgment. The Eleventh Circuit upheld the dismissal, relying on this Court “di minimis” dicta in Hardison, a case involving the impact of union seniority on accommodation in which the definition of “undue hardship” was neither briefed nor argued.

Last year, the Supreme Court declined to hear another case that challenged the Hardison holding, Patterson v. Walgreen. However, Justice Alito, joined by Justices Thomas and Gorsuch, issued an opinion saying the Court needed to revisit Hardison. Justice Alito wrote, “[W]e should reconsider the proposition, endorsed by the opinion in Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 84 (1977), that Title VII does not require an employer to make any accommodation for an employee’s practice of religion if doing so would impose more than a de minimis burden.”

Justice Alito continued, “I agree in the end that this case (Patterson) does not present a good vehicle for revisiting Hardison. I therefore concur in the denial of certiorari, but I reiterate that review of the Hardison issue should be undertaken when a petition in an appropriate case comes before us.” (Emphasis added.)

Dalberiste is that case. The facts are straightforward, and the Eleventh Circuit admitted  that it based its decision on Hardison, finding that any accommodation would be more than a “de minimis” burden. The Eleventh Circuit noted that although Mr. Dalberiste argued that Hardison was wrongly decided, “[i]t is, of course, one of the fundamental principles of our judicial system that we do not have the authority to overrule Supreme Court precedent.”

Now is the chance for the Supreme Court to restore the meaning of the statutory language in Title VII, which Congress intended to protect the rights of people of faith in the workplace.


Founders’ First Freedom, Inc. (“Founders’ First Freedom”) is a 501(c)(3) nonprofit organization incorporated in 2005 that upholds liberty of conscience and to pursue a cooperative approach to resolving disputes between parties in cases affecting religious freedom. Founders’ First Freedom is the successor organization to the Council on Religious Freedom, a non-partisan, nonprofit national advocacy group formed in 1986 that provided advocacy on issues involving the Free Exercise and Establishment Clauses and associated legislation.

For media inquiries, visit FoundersFirstFreedom.org or phone (866) 21-FREEDOM or (866) 213-7333.

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