On March 18, 2019, the United States Supreme Court invited the U.S. Solicitor General to file a brief expressing the federal government's view on whether the Court should hear Patterson v. Walgreen, a workplace religious accommodation case.

The case, which involves a Seventh-day Adventist employee who was terminated for refusing to work on the Sabbath, asks the Court to clarify what standard employers should adhere to when addressing workplace religious accommodation because there are major differences between the ways that federal courts have addressed the issue. In the 1st, 4th, and 11th Circuits, an accommodation is considered "reasonable" so long as it lessens or has the potential to eliminate a conflict between work and religious practice.  In the 8th and 10th Circuits, the question is left for juries. In the 2nd, 7th, and 9th Circuits the accommodation must fully eliminate the conflict.

Despite the differences between the Circuits, the Equal Employment Opportunity Commission (EEOC) has issued "right to sue" determinations and even litigated cases acting on behalf of the United States government, underscoring the degree of legal confusion that exists on the issue. The EEOC has sought to clarify its stance on religious accommodation in its guidelines, which had been bolstered by Congressional action, but the Supreme Court's 1977 determination in TWA v. Hardison opining that "undue hardship" only meant that employers had accommodated insofar as it did not incur more than a "de minimis cost" brought about further confusion as it was not clear what constituted "de minimis cost."

As Justice Alito noted earlier this year, an employee seeking religious accommodation may find it very difficult to successfully bring a Title VII accommodation claim because "[I]n Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977), the Court opined that Title VII’s prohibition of discrimination on the basis of religion does not require an employer to make any accommodation that imposes more than a de minimis burden."  Kennedy v. Bremerton School District, opinion on denial of certiorari.

The fact that the Court is asking the Solicitor General to review Patterson is a hopeful sign in terms of a grant of cert, and it is reasonable that the Department of Justice's officer who is responsible for representing the federal government before the Court provide some insight about the EEOC's opinion of the case. After all, the EEOC, which is part of the Department of Justice, had cleared Patterson for adjudication before it was dismissed on summary judgment at the trial level without a trial on the specific facts.

The solicitor general does not have a timeframe in which to file its views, but historically it has taken upwards of 4 months for a solicitor general to review the case facts, meet with counsel, and formulate a recommendation to the Supreme Court as to whether or not to hear a particular case.

The value of the Patterson case does not merely hinge on its facts, which would likely have to be developed at the trial level, but more importantly, it provides a vehicle for the Circuit courts to obtain needed guidance from the Supreme Court in order to consistently interpret Title VII religious accommodation requirements in cases filed by, or approved for filing in the form of "right to sue" letters, by the EEOC.



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