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DOJ Urges High Court to Hear Religious Accommodation Case

Dec. 10, 2019, 9:59 PM

The U.S. Supreme Court should hear a workplace dispute between Walgreen Co. and the Seventh-day Adventist Church to refine the legal test for what employers must do to accommodate the religious practices of workers, the solicitor general’s office said.

Employers have to accommodate their workers’ religious practices unless that would cause an “undue hardship.” But the current definition of undue hardship from the high court’s 1977 ruling in TWA v. Hardison—"more than de minimis harm"—sets the bar too low, the SG’s office said in a Dec. 9 brief.

The solicitor general’s brief suggests that the justices are more likely to agree to review a decision that Walgreens reasonably accommodated a worker’s religious practices. The high court in March asked for the views of the SG—sometimes called the “tenth justice” due to the office’s influence.

Seventh-day Adventist Church represents Darrell Patterson, a Walgreens training instructor who was fired for failing to conduct a two-hour session on the Sabbath, which stretches from sundown on Friday to sundown on Saturday for his faith tradition. But Patterson claimed the company didn’t offer him a legally adequate accommodation to observe the Sabbath.

The U.S. Circuit Court of Appeals for the Eleventh Circuit ruled that Walgreens made a reasonable attempt to meet Patterson’s needs under the requirements of Title VII of the 1964 Civil Rights Act.

Patterson asked the Supreme Court to review the circuit court’s decision. His petition included three separate legal issues for the court to consider as part of his case.

The solicitor general’s office said the high court doesn’t need to consider two of those questions: whether a reasonable accommodation must eliminate all conflict between the religious practice and work; and whether an employer may rely on speculation about what sort of hardships an accommodation might cause.

But the third issue—how courts should interpret what’s an undue hardship for employers—is ripe for review, the SG’s office said.

The definition from Hardison doesn’t work, the office said. That ruling says it’s more than de minimus cost, but since that means more than “very small or trifling,” it doesn’t track with the burden being excessive, the office said.

Attorneys for Patterson and Walgreens weren’t immediately available for comment.

The case is Patterson v. Walgreen, U.S., No. 18-349, 12/9/19.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Terence Hyland at thyland@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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