The Seventh-day Adventist Church has long fought to help its members reconcile their work responsibilities with their religious practices. That long-running legal campaign could now make its way to the highest court in the land.

The church represents a former Walgreen Co. 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 Seventh-day Adventists. A federal appeals court threw out the worker’s discrimination lawsuit, prompting the church to ask the U.S. Supreme Court to intervene. The high court this week gave Walgreens more time to file its response.

The legal activism by this relatively little-known church has the potential to expand what employers must do to accommodate the religious practices of workers of all faiths. The church might find a sympathetic audience at the high court, which last June sided with a Colorado baker who refused to sell a cake to a same-sex couple on religious grounds.

Several religious groups have filed briefs backing the Adventists’ bid for high court review, including the Church of Jesus Christ of Latter-day Saints, National Jewish Commission on Law and Public Affairs, Christian Legal Society, and Muslim Public Affairs Council.

The Seventh-day Adventist Church is a Protestant denomination with approximately 20 million members worldwide, including 1.2 million members in the U.S. and Canada. Adventists are perhaps best known for observing their day of rest on Saturday instead of Sunday.

“The Sabbath is very central to our identity,” said Todd McFarland, an attorney with the General Conference of Seventh-day Adventists. “It’s in our name. It’s also our belief that comes into conflict with work.”

The church has taken to the courts to assist members in navigating that secular-religious conflict since the late 19th century, when they found themselves facing criminal prosecution for violating blue laws that prohibited work on Sundays, McFarland told Bloomberg Law.

Religious Accommodation

Those legal fights in recent years have largely focused on the religious accommodation requirements under Title VII of the Civil Rights Act of 1964, McFarland said.

The General Conference, which manages the church’s worldwide ministries, has filed nearly 20 employment discrimination lawsuits in federal court in the past 15 years. The church has litigated cases against Kellogg USA Inc., United Parcel Service Inc., First Student Inc., University of Tennessee, and Walgreens to the circuit court level with mixed results.

Title VII’s accommodation provision, added to the statute in 1972, calls on employers to reasonably allow for workers’ religious practices if they can do so without undue hardship. But the Supreme Court “pulled the teeth out” of that requirement with its 1977 decision in TWA v. Hardison, which said anything more than a minimal expense is an undue hardship, according to Douglas Laycock, a University of Virginia law professor who has written extensively on religious rights.

“The law has been mostly a failure ever since,” Laycock told Bloomberg Law in an email.

Still, the law got a slight boost in 2015, when the Supreme Court handed down its ruling in EEOC v. Abercrombie & Fitch, Laycock said. That decision said a Muslim worker who was fired for wearing a headscarf didn’t have to request an accommodation to get the protections of Title VII.

The Seventh-day Adventist Church told the Supreme Court in its September petition that the Abercrombie decision only addressed one of the precedential “barriers” that prevent Title VII’s accommodation provisions from functioning as Congress intended.

The decision by the U.S. Court of Appeals for the Eleventh Circuit throwing out Darrell Patterson’s lawsuit against Walgreens involves some of those barriers, the church said. Appeals courts are divided on how to handle aspects of religious accommodation requirements, thanks in part to decisions in cases that the church litigated.

An attorney for Walgreens didn’t respond to requests for comment. The company’s response to the Supreme Court is due Jan. 14.

Potential Issue for Review

The Seventh-day Adventist Church asked the high court to consider whether an accommodation is reasonable if it didn’t resolve the conflict between workers’ job responsibilities and religious practices.

Walgreens had reasonably accommodated Patterson’s religious beliefs, the Eleventh Circuit ruled, by allowing him to swap shifts with other workers and offering him the possibility of transferring to another position that would make shift swapping easier. Patterson said he couldn’t find somebody to swap shifts, while the transfer would have been a demotion with a pay cut that would still leave him vulnerable to demands to work on the Sabbath.

Nine circuit courts have weighed in on the issue and have split three ways, the church said. Four say accommodations that don’t resolve the work-religion conflict are unreasonable, three say they are reasonable, and two say the reasonableness of incomplete accommodations is a question for a jury.

The Eleventh Circuit also said Walgreens would suffer an undue hardship if it had to guarantee that Patterson would never work during his Sabbath.

The Seventh-day Adventist Church said the Eleventh Circuit is on the wrong side of a 4-3 circuit split on whether companies can show hardship based on speculation.

The church additionally invited the Supreme Court to reconsider the definition of “undue hardship” from the Hardison ruling, saying it is unworkable and “turns Title VII’s history on its head.”

The case is Patterson v. Walgreen, U.S., 18-349, petition for a writ of certiorari 9/14/18.