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.


Founders’ First Freedom operates ReligiousLiberty.TV, a website where you can find the latest news and analysis. Be sure to check it out!

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Founders First Freedom welcomes ReligiousLiberty.TV to online portfolio

Los Angeles, California – On September 19, 2017, the board of directors of Founders First Freedom, a non-profit organization that promotes religious liberty, voted to merge with ReligiousLiberty.TV, a website dedicated to celebrating liberty of conscience.

Founders First Freedom was incorporated as a 501(c)(3) organization in 2005 to carry forward the desire of John and Cecil Hedrick and the Hedrick Family Trust to educate the public about religious liberty. In 1981, the Hedricks approached John Stevens, Sr. and told them about their interest in religious freedom and religious ministry. They decided to create an organization to advance the cause. In 1985, they formed the Council for Religious Freedom which eventually turned into Founders First Freedom.  In 1986, John Hedrick passed away followed by Cecil Hedrick in 1991.  John Stevens, Sr., continued to guide the organization until his death in 2015.

Today, the organization is led by Michael Peabody, who serves as president, vice-president Walter Carson, Glenn Fuller, Kent Hansen, Alice Farley, Karen Scott, and Hedrick family attorney Dave Larkin. John Hedrick’s cousin, Betsy Phillips, now in her 100th year, serves as an advisor to the board.

Launched in 2008, ReligiousLiberty.TV is a website featuring breaking news and analysis in the field of religious liberty. The website will continue with its current board of advisors and editorial staff.

Our Purpose

Incorporated in 2005, Founders First Freedom is a 501(c)(3) non-profit organization that exists to foster, uphold, educate and promote the principles of religious liberty in any one or a combination of the following ways:

  1. By upholding the freedom of personal choice to adopt, not to adopt, or to change a religious belief.
  2. By upholding the individual’s right to speak in the determination of personal belief and in the advocacy of ideas.
  3. By upholding and educating individuals in the United States regarding the principle of separation of church and state and the freedom of the press as defined in the First Amendment to the United States Constitution.
  4. By arousing public opinion concerning the importance of religious liberty as the fundamental human right through education and evangelistic dissemination.
  5. By educating the public and government representatives through all appropriate means and instrumentalities, including but not limited to publications, radio, television, internet, audio-visual presentations, lectures and seminars regarding the principles of religious liberty and its vulnerability within the United States of America.

News – SCOTUS schedules Trinity Lutheran, 7th Circuit Rules on Title VII, and more

Religious Liberty Newsbriefs

The U.S. Supreme Court will finally be hearing oral arguments inTrinity Lutheran Church v. Pauley on April 19, 2017. The Court granted certiorari in January 2016 just before the death of Justice Scalia, and the case has been delayed more than a year. It’s anticipated but uncertain whether Trump nominee Neil Gorsuch will have replaced Scalia by that date on the bench. This case matters because a church is suing the state of Missouri for the ability to participate in a playground replacement program available to other non-profits but not churches under the state constitution. If the Court finds for the church, it could strike a blow to “Blaine Amendments” present in many cases that prohibit state funding of religion.

Trinity Lutheran Church v. Pauley is also the subject of Founders First Freedoms’ first law student writing competition where law students are being asked to write a model Supreme Court majority opinion in the case. First prize is $1500 and second prize is $750. The entry deadline is 5:00 p.m. on June 23 with judging to be completed in August.  More info is available online at http://foundersfirstfreedom.org/

United States Attorney General Jeff Sessions has announced plans to combat religious hate crimes. In a Memo(https://www.justice.gov/opa/press-release/file/955476/download) released April 5,  Sessions states, “We will not tolerate threats or acts of violence targeting any person or community in this country on the basis of their religious beliefs or background.  Accordingly, the Hate Crimes Subcommittee will develop a plan to appropriately address hate crimes to better protect the rights of all Americans.  As with many other areas of the Task Force’s work, we are already making significant progress toward our goal of a safer America.  Recently, the Federal Bureau of Investigation, working with law enforcement partners in Israel and elsewhere, helped secure the arrest of a man believed to be responsible for the recent surge in threats of violence against Jewish community centers and synagogues.  I commend their outstanding efforts.”

The U.S. 7th Circuit Court of Appeals has issued a landmark en banc decision holding 8-3 that Title VII of the Civil Rights Act of 1964 prohibits discrimination by sexual orientation as it is a form of prohibited sex discrimination. The primary issue is whether the courts can apply current interpretation to existing statutes. Previous courts had ruled that Title VII did not apply to sexual orientation as it was not specifically identified as a protected class. Judge Posner, in a concurring opinion, wrote that although Congress had not passed legislation to expand Title VII to include sexual orientation, “statutory and constitutional provisions frequently are interpreted on the basis of present need and understanding rather than original meaning.” Dissenting justices wrote that “[t]he majority deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion…. The result is a statutory amendment courtesy of unelected judges,” and called the decision “the circumvention of the legislative process by which the people govern themselves.”   Hively v. Ivy Tech Community College of Indiana

On March 27, the U.S. Supreme Court heard oral arguments in three cases brought by employees against religiously-affiliated hospitals. The employees had sued claiming that the hospitals had underfunded their pensions in violation of the Employment Retirement Income Security Act (ERISA). The hospitals argued that they had in fact properly funded the pensions, and even if they had not, that they were actually the same as “churches” and therefore eligible for the exception, regardless of whether they primarily engage in religious activity and regardless of “necessary” involvement with the state in terms of funding and health and safety regulations. Others argued that exempting the large religiously affiliated hospitals and health systems from federal pension protections would violate church-state separation by providing them a financial advantage over secular competitors. l rather than a “religious” issue. A decision is expected later this year. (Advocate Health Care Network v. Stapleton)

On April 3, the 5th Circuit Court of Appeals heard arguments on whether a 2016 injunction should be lifted on a Mississippi law, HB 1523, that allows state employees to refuse to issue marriage licenses to same-sex couples and businesses to deny certain wedding-related services to LGBT individuals. Critics of the law state that it is the most discriminatory legislation against the LGBT community in the nation. A decision is expected shortly. During oral arguments, the attorney for the state argued that the 12 plaintiffs who had filed suit against the law lacked standing because they could not establish ‘an injury in fact.” The judges did not seem to buy this argument, and a decision on the merits is expected shortly.  (Bryan v. Barber – you can hear the arguments here)

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