Supreme Court of the United States

As required by Supreme Court Rule 33.1(h), I, Anton Metlitsky, a member of the bar of this Court, certify on this 30th day of March, 2023, that the Brief of Airlines for America as Amicus Curiae in Support of Respondent in the above-captioned cases contains 6,654 words, excluding the parts of the document that are exempted by Supreme Court Rule 33.1(d).

B r ie'fs an d R ec o r ds Supreme Court of the United States United States Courts of Appeals

All parties required to be served have been served by Priority Mail.

Packages were plainly addressed to the following:

Subscribed and sworn to before me this 30th day of March, 2023.

I am duly authorized under the laws of the State of Nebraska to administer oaths.

NEITHER PARTY in the above entitled case.

All parties required to be served have been served by Priority Mail.

Packages were plainly addressed to the following:

I am duly authorized under the laws of the State of Nebraska to administer oaths.

The share of cases involving minorities climbs to 62.1 percent when one adds Seventh-day Ad- ventists and other Christian groups that follow the mi- nority practice of Saturday Sabbath observance.

If judges could add to, remodel, up- date, or detract from old statutory terms in- spired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process re- served for the people’s representatives.

Alone among comparably protected civil rights, an employer may dispense with it nearly at whim.” Small v. Memphis Light, Gas & Water, 141 S. Ct. 1227, 1228 (2021) (Gor- such, J., joined by Alito, J., dissenting from denial of certiorari).

Ra- ther, it gives them favored treatment, affirm- atively obligating employers not “to fail or refuse to hire or discharge any individual ... because of such individual’s” “religious ob- servance and practice.” 575 U.S. at 775.3 As the Court pointed out: “An em- ployer is surely entitled to have, for example, a no-

definition in other civil rights statutes as “significant difficulty or expense.” Under the proper definition, USPS failed to show that accommodating Groff ’s religious practice would cause “undue hardship.” Amici therefore agree with petitioner that he should have been granted summary judgment, or at the very least that summary judgment against him was improper because there is a question of fact whether the alleged scheduling difficulties and morale problems to which USPS pointed actually rose to the level of excessive oppression of USPS’s business or “significant difficulty or expense.” Petitioner ex- plains how “USPS could and did accommodate Groff without any undue hardship on the conduct of its busi- ness,” and how any “effects on USPS’s operations re- sulting from the alleged imposition on Groff ’s co- workers ... were minimal, avoidable, and confined to the six-week-per-year peak season.” Br.

In the Supreme Court of the United States ─────  ─────

─────  ───── On Writ of Certiorari to the United States Court of Appeals for the Third Circuit ─────  ─────

─────  ───── As required by Supreme Court Rule 33.1(h), I certify that the Brief for The Sikh Coalition, Muslim Advocates, The Islam and Religious Freedom Action Team, Sur Legal Collaborative, and Legal Aid at Work as Amici Curiae in Support of Petitioner contains 5,804 words, excluding the parts of the document that are exempted by Supreme Court Rule 33.1(d).

I declare under penalty of perjury that the foregoing is true and correct.

Executed on February 28, 2023.

Supreme Courtof the Anited States

OnWrit of Certiorari to the United States Court of Appeals for the Third Circuit

Jay Alan Sekulow, a memberof the Bar of this Court and an attorney for amicus, pursuant to Rule 33.1(h), hereby certifies that the Amicus Curiae Brief of the American Centerfor Law and Justice in Support of Petitioner complies with the word limitations of Rule 33.1(h).

The brief, excluding the parts mentioned in Rule 33.1(d), contains 2,984 words, including footnotes.

xAba Sekulow

Briefs and Records Supreme Court of the United States United States Courts of Appeals

As required by Supreme Court Rule 33.l(h), I certify that the Brief of Religious Liberty Scholars and Employment Law Scholars As Amici Curiae in Support of Petitioner contains 6,605 words, excluding the parts of the Brief that are exempted by Supreme Court Rule 33.l(d).

(800) 890.5001 ' www.beckergallagher.com 8790 Governor's Hill Drive Suite 102 Cincinnati, Ohio 45249 Franklin Square 1300 I Street, NW, Suite 400E Washington, DC 20005

State of Ohio County of Hamilton I declare under penalty of perJury that the foregoing is true and correct.

Notary Public [seal]

Briefs and Records Supreme Court of the United States United States Courts of Appeals

As required by Supreme Court Rule 33.l(h), I certify that the Brief of Amicus Curiae Over 400 Physicians, Surgeons, Nurses, and Medical Professionals Who Support Religious Liberty in Support of Petitioner contains 3,651 words, excluding the parts of the Brief that are exempted by Supreme Court Rule 33. l(d).

(800) 890.5001 www.beckergallagher.com 8790 Governor's Hill Drive Suite l 02 Cincinnati, Ohio 45249 Franklin Square 1300 I Street, NW, Suite 400E Washington, DC 20005

State of Ohio County of Hamilton I declare under penalty of perjury that the foregoing is true and correct.

Notary Public [seal] JOHN D. Gt LLAGHER Notary Public, S:a'e of Ohio My Commission Expires February 14, 2028

Accreditation Council for Graduate Med- ical Education, ACGME Institutional Requirements, July 1, 2022 .................................. 21 Encyclopedia Judaica (2d ed. 2007) ........... 5, 6, 7, 8, 9 Orthodox Medical Students Aspire to Touro’s Shomer Shabbat Residency Programs, Jewish Link, Apr. 4, 2019 .................. 21

v. Makin, 142 S. Ct. 1987 (2022); Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021); Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014); Locke v. Davey, 540 U.S. 712 (2004); and Zelman v. Simmons-Harris, 536

One famous example in American his- tory of this sort of Jewish workplace religious ob- servance happened on October 6, 1965, when Sandy Koufax did not take the mound for the Dodgers in the first game of the World Series.

As Petitioner ably explains, Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), ripped away the protection the 1972 amendments sought to provide, dealing a fatal blow to the idea of workplace accommodation for ob- servant Jews.

Apr. 11, 2014) (employer denied summary judg- ment on reasonable accommodation issue where em- ployee with diabetes disability ate chips at work to combat hypoglycemic episode, violating company’s workplace rule).

Although Congress intended to bolster the rights of employees to religious accommodation, the words “undue hardship” were so diminished in the dicta of Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) as to render the protection useless in several judicial circuits.

In his dissent, Thurgood Marshall wrote, “Today’s decision deals a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices.” 432 U.S. 63, 86.

The Riley court wrote, “If one accepts a position knowing that it may in some way impinge upon his religious beliefs, he must conform to the working conditions of his employer or seek other employment.” Id. at 590.

Under § 2000e(j), designated § 701(j) of the Civil Rights Act of 1964, Congress added language stating, “[t]he term ‘religion’ includes all aspects of religious observance and practice, as well as belief unless an employer demonstrates that he is unable to ... an employee’s or reasonably accommodate prospective employee’s religious observance or prac- tice without undue hardship on the conduct of the employer’s business.” When he introduced the 1972 legislation, Senator Jennings Randolph explained its purpose, “Unfortu- nately, the courts have, in a sense, come down on both sides of this issue.

After the sweeping Hardison decision, many employ- ers believed they were now relieved of any affirmative duty to accommodate religious beliefs under §2000e(j), a situation that the EEOC addressed in a series of meetings held across the United States in 1978.

I HEREBY CERTIFY that on February 28, 2023, three (3) copies of the BRIEF FOR THE

LEAGUE AS AMICI CURIAE SUPPORTING PETITIONER in the above-captioned case were served, as required by U.S. Supreme Court Rule 29.5(c), on the following: Attorneys for Petitioner

1115 H Street, N.E.

Baim WO?

it District of Columbia Be 6e§ “ccion expj On ° ee My commission expires September 30, 2027.

On appeal, a divided panel of the Third Circuit af- firmed, holding that (1) eliminating a conflict between a job requirement and a religious practice is a reason- able accommodation but (2) exempting Groff from Sun- day deliveries would result in an undue hardship to USPS under Hardison.

The EEOC’s decisions before the 1972 amendment to Title VII compel the conclusion that the burden on an employer must be much higher to avoid accommodation: Contrary to Hardison, only an im- mense or extreme cost or harm in relation to the em- ployer’s overall business qualifies as “undue hard- ship.” Correcting Hardison’s error is crucial to the ability of Adventists (among many others) to live out their faith.

As shown below, a careful analysis of this history provides a clear, workable standard for determining whether the employer’s burden of an accommodation constitutes an “undue hardship”: Only accommoda- tions that inflict an immense or extreme cost or harm relative to the employer’s overall business qualify as an “undue hardship.” The Hardison standard—some- thing more than de minimis harm—is thus incorrect 2 Available at https://papers.ssrn.com/sol3/papers.cfm?ab- stract_id=4363032 (Feb. 18, 2023).

During this time, ten EEOC decisions applied the “undue hardship” standard, with the Commission de- termining in eight of them that reasonable cause ex- isted to believe employer had violated Title VII by fail- ing to accommodate employees’ religious exercise.3 See generally Phillips at 47-57.

It is clear from those decisions that an “undue hardship” requires something like a practical impossibility, cha- otic personnel problems, shutting down one’s opera- tions (and suffering exorbitant lost income and costs), or violating a policy truly necessary to the safe and ef- ficient operation of one’s business.

No. 22-174 In THE Supreme Court of the Gnited States

On Writ of Certiorari to the United States Court of Appeals for the Third Circuit

As required by Supreme Court Rule 33.1(h), I certify that the document contains 3,892 words, excluding the parts of the document that are exempted by Supreme Court Rule 33.1(d).

I declare under penalty of perjury that the foregoing is true and correct.

District of Columbia audtayAn, SS&AScweseset ws oo : SINE ot fps ; ‘ etrregcae

Supreme Court of the Anited States

As required by Supreme Court Rule 33.1(h), I certify that the document contains 7,888 words, excluding the parts of the document that are exempted by Supreme Court Rule 33.1(d).

I declare under penalty of perjury that the foregoing is true and correct.

Sworn to and subscribed before me this 28th day of Fe}ryary

District of Columbia My commission expires September30, 2027.