IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
____________________ FERNANDO
STAPLE,
Plaintiff-Appellant
v.
BROWARD COUNTY SCHOOL BOARD,
Defendant-Appellee
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
____________________
BRIEF FOR THE UNITED
STATES AS AMICUS CURIAE
SUPPORTING APPELLANT
AND URGING REVERSAL
____________________
GWENDOLYN YOUNG REAMS KRISTEN CLARKE
Acting General
Counsel Assistant Attorney General
JENNIFER S. GOLDSTEIN THOMAS E. CHANDLER
Associate General
Counsel CHRISTOPHER C. WANG
PHILIP M. KOVNAT Attorneys
Attorney Department of Justice
Equal Employment Civil Rights
Division
Opportunity Commission Appellate Section
Office of the General
Counsel Ben Franklin Station
131 M Street NE, Fifth Floor P.O. Box 14403
Washington, D.C. 20507 Washington, D.C. 20044-4403
(202) 921-2702 (202) 514-9115
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
Pursuant
to Eleventh Circuit Rules 26.1-1 to 26.1-3 and 28-1(b), counsel for amicus curiae United States
hereby certifies that plaintiff-appellant’s Certificate of Interested Persons, filed with his brief
on September 13, 2021, is a complete list of
the persons and entities who may have an interest in the outcome of this
case except for the following individuals omitted from that list:
1. Chandler, Thomas E., U.S. Department of Justice, Counsel
for amicus curiae
United States;
2.
Clarke, Kristen, U.S. Department of Justice, Counsel
for amicus curiae
United States;
3. Goldstein, Jennifer S., Equal
Employment Opportunity Commission, Counsel for amicus curiae United States;
4.
Kovnat, Philip M., Equal
Employment Opportunity Commission, Counsel for amicus curiae United
States;
5. Reams, Gwendolyn Young, Equal
Employment Opportunity Commission, Counsel for amicus
curiae United States;
6. Wang, Christopher C., U.S. Department of Justice, Counsel
for amicus curiae
United States.
C-1
of 2
The United States certifies that no publicly traded company or
corporation has an interest in the outcome of
this appeal.
s/ Christopher C. Wang
CHRISTOPHER C. WANG
Attorney
Date: September 20, 2021
C-2
of 2
TABLE OF CONTENTS (continued): PAGE
B.
The District Court Erred In
Requiring That A Plaintiff Allege
That He Suffered Discharge Or Discipline To State The Employment-Action Element
Of A Religious-
Accommodation Claim......................................................................................... 16
1.
The District Court’s
Discharge-Or-Discipline Standard Conflicts
With Title VII’s Text, Structure,
And Broad Remedial Purpose............................................................................... 16
2.
This Court’s Precedents Do
Not Mandate Applying The Discharge-Or-Discipline Standard
To This Case 20
C.
This Court Should Provide
Guidance To The District Court On
Whether Denying A Plaintiff’s Request For A Shift Change Or Requiring
Him To Use Accrued Paid Leave For His
Religious Observance Falls Within
The Scope Of Title VII......................................................................................... 22
CONCLUSION............................................................................................................. 25
CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
- ii -
TABLE OF CITATIONS
CASES: PAGE
Ashcroft v. Iqbal, 556 U.S. 662 (2009)................................................. 23
*Bailey v. Metro Ambulance Servs., Inc.,
992 F.3d 1265 (11th Cir. 2021)............................................. 22-23
Beadle v. Hillsborough Cnty. Sheriff’s Dep’t, 29 F.3d 589 (11th Cir. 1994),
cert. denied, 514 U.S. 1128 (1995)............................................. 21
*Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742 (1998)...................... 15
Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).......... 14
Cooper v.
Oak Rubber Co., 15 F.3d 1375 (6th Cir. 1994).................... 24
County of Wash. v. Gunther, 452 U.S. 161 (1981)............................... 13
Dalberiste v. GLE Assocs., Inc.,
814 F. App’x 495 (11th Cir. 2020),
cert. denied, 141 S. Ct. 2463
(2021)........................................... 20
Davis v. Town of Lake Park, 245 F.3d
1232 (11th Cir. 2001) .................... 14-15,
24
Dixon v. Palm
Beach Cnty. Parks & Recreation Dep’t,
343 F. App’x 500 (11th Cir. 2009), cert. denied, 559 U.S. 1076 (2010)........................................................................................ 21
Dixon v. The
Hallmark Cos., 627 F.3d 849
(11th Cir. 2010)................ 21
EEOC v. Abercrombie & Fitch Stores, Inc.,
575 U.S. 768 (2015)........ 11
Forgus v. Esper, 141 S. Ct. 234 (2020)................................................ 16
Gillis v. Georgia Dep’t of Corr., 400 F.3d 883 (11th Cir. 2005).......... 17
Jefferson v. Sewon Am., Inc., 891 F.3d 911 (11th
Cir. 2018)..................... 7-8,
14-15
*Lawson v.
Washington, 296 F.3d 799
(9th Cir. 2002)........................ 19
- iii -
CASES (continued): PAGE
Lawson v. Washington, 319 F.3d 498 (9th Cir. 2003)............................................................................................................. 19
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986)............................................................................................................. 11
Morrissette-Brown v. Mobile
Infirmary Med. Ctr.,
506 F.3d 1317 (11th
Cir. 2007)................................................................................................... 20
Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75 (1998)........................................................................................................... 11-12
Peterson v. Linear Controls, Inc., 140 S. Ct. 2841 (2020)............................................................................................................. 16
Ray v. McCullough Payne & Haan, LLC, 838 F.3d 1107 (11th Cir. 2016)........................................................................................................... 21-22
*Reed v. International Union, 569 F.3d 576 (6th Cir. 2009),
cert. denied, 559 U.S. 1048 (2010)................................................................................................. 18-19
Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560 (2012).................... 11
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977)........................................................................................................... 10-11
University of Tex.
Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013)......... 18
Walden v. Centers For Disease Control
& Prevention,
669 F.3d 1277 (11th
Cir. 2012).................................................................................................. 10, 20
Walker v. Indian River Transp. Co., 741 F. App’x 740 (11th
Cir. 2018)............................................................................................................. 21
STATUTES:
Civil Rights
Act of 1964, Title VII, 42 U.S.C.
2000e et seq............................................................................................................... 1
42 U.S.C.
2000e..................................................................................................... 1
*42 U.S.C.
2000e-2(a)(1)............................................................................................ passim
42 U.S.C. 2000e-2(c)................................................................. 19
42 U.S.C.
2000e-5(a)..................................................................................................... 1
42 U.S.C.
2000e-5(f)(1)..................................................................................................... 1
42 U.S.C.
2000e-16(a)................................................................................................... 14
*42 U.S.C. 2000e(j).................................................................................................... 2, 10, 13
- iv -
RULE: PAGE
Federal Rule of Appellate Procedure 29(a)(2)........................................ 2
MISCELLANEOUS:
EEOC Compliance Manual
on Religious Discrimination,
(Jan. 2021),
available at https://www.eeoc.gov/laws/guidance/section
-12-religious-discrimination....................................................... 13
- v -
IN THE UNITED STATES COURT
OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 21-11832 FERNANDO STAPLE,
Plaintiff-Appellant
v.
BROWARD COUNTY SCHOOL BOARD,
Defendant-Appellee
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF FLORIDA
BRIEF FOR THE UNITED
STATES AS AMICUS CURIAE
SUPPORTING APPELLANT
AND URGING REVERSAL
This case presents an important question
concerning the elements
of a cause of action
alleging that an employer failed to reasonably accommodate an employee’s religious observance in
violation of Sections 703(a)(1) and 701(j) of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (Title
VII). The United States has a substantial
interest in the proper interpretation of Title VII.
The Attorney General and the Equal Employment Opportunity Commission (EEOC) share enforcement responsibility under Title VII. See 42 U.S.C. 2000e-
5(a) and (f)(1). The United
States files this brief as amicus curiae pursuant to Federal Rule of Appellate Procedure 29(a)(2).
Title VII prohibits an employer from discriminating against an employee with respect to his “compensation, terms,
conditions, or privileges of employment” because
of the employee’s religious beliefs or practices unless the employer shows that it cannot reasonably accommodate
the religious beliefs or practices without an
undue hardship. 42 U.S.C.
2000e-2(a)(1), 2000e(j). Here, the
employer denied plaintiff’s request
to retain an accommodation it had previously provided—an adjustment to his Friday work schedule so that he did not have
to work on his Sabbath. The employer instead required the employee
to use virtually all of his accrued
paid leave to meet his religious obligation to observe his Sabbath. The district
court granted the employer’s motion to dismiss plaintiff’s religious- accommodation claim, holding that he had not sufficiently alleged that he had been “discharged or disciplined” as a result
of this observance.
This
case presents the question of what type of employment action a plaintiff’s complaint must allege to state
a religious-accommodation claim under Title VII and, specifically, whether the district
court erred in concluding that in this
context the employee must allege that he was “discharged or disciplined” as a result
of his religious observance.1
1.
Plaintiff
Fernando Staple is an Afternoon Shift Supervisor for the bus operations of the Broward County School
Board (School Board). Doc. 10, at 4.2 He is a member of the Seventh-day
Adventist Church. Doc. 10, at 2. Because of his religion, he must abstain from secular work on his Sabbath,
which is Friday sundown through
Saturday sundown. Doc. 10, at 2-3. Staple requested permission to shift his work hours on Fridays
during the winter months so that he could begin work earlier than usual and leave work prior to sundown to
accommodate his religious observance. Doc. 10, at 4. The School Board initially granted Staple’s request, but later denied it. Doc. 10, at 4-5. As a result, Staple had to use virtually all of his accrued paid leave to cover the Fridays he wanted
to leave work early because of his religious observance. Doc. 10, at 5-6.
2. Staple filed a timely Charge of
Discrimination with the EEOC, which issued him a Notice
of Right to Sue. Doc. 10, at 7. Staple
then filed suit in the
1 The
United States takes no position on any other issues presented in this appeal.
2 This brief uses the abbreviation “Doc. , at ” for the document recorded on the district court docket sheet for Case No.
0:20-cv-62313 and page number, respectively.
United States
District Court for the Southern District of Florida, alleging that the School Board violated Title VII by denying
his request to retain an adjustment to his
work hours for his religious observance it had previously provided, and instead requiring him to use accrued paid leave
if he wanted to leave work early to observe
his Sabbath. Doc. 10, at 7-8. The complaint alleged that the denial of
Staple’s accommodation request
and the requirement that he used paid leave denied
him the benefits of his position by forcing him to choose between (1)
not observing the dictates of his
religion and working on Fridays after sundown or (2) using accrued paid leave in these circumstances so he
could observe his religion, thereby losing the ability
to use those hours
for sick leave or
vacation. Doc. 10, at 6-8.
The School
Board filed a motion to dismiss for failure to state a claim. Doc.
20. The School Board argued that the complaint
failed to allege an essential element
of a prima facie case of discrimination—that the School Board disciplined Staple for failing to work during his
Sabbath. Doc. 20, at 2-4. The School Board also asserted that its requirement that Staple use accrued paid
leave to leave early on Friday
evenings was a reasonable accommodation. Doc.
20, at 3-5. Staple responded that he was required to allege
only that he suffered an adverse employment
action as a result of the denial of his request for an accommodation. Doc. 25, at 5-7. He argued that the School Board’s decision to discontinue its practice
of providing him a full work schedule
outside of Sabbath
hours (i.e., a
shift change) and
its forcing him to use accrued paid leave to cover such hours constituted such adverse employment
actions. Doc. 25, at 7. Staple also argued that the School
Board failed to establish as a matter
of law that the accommodation it afforded him was
reasonable. Doc. 25, at
7-8.
3. The district court granted the School Board’s
motion to dismiss.
Doc. 28.
The court
observed that this Court applies
a burden-shifting framework
to Title VII religious-discrimination
cases based upon a failure to accommodate religious observance. Doc. 28,
at 4-5. According to the court, this
framework requires the employee first to establish
a prima facie case of discrimination by showing that:
(1) he has a bona
fide religious belief that conflicts with an employment requirement; (2) he informed his employer of this belief;
and (3) he was discharged or disciplined for failing to comply with the conflicting
employment requirement. Doc. 28, at
5. If the employee establishes the
prima facie case, the burden shifts to the
employer to show that it provided the employee with a reasonable accommodation or that an accommodation
would cause an undue hardship. Doc. 28, at 5.
The court stated that there was no dispute here that the complaint adequately alleged the first two elements
of his prima facie case, i.e., that Staple has a bona fide belief as a Seventh-day Adventist that he should
not perform secular work during the
Sabbath hours that conflicted with his standard work schedule, and that he informed the School Board of this belief.
Doc. 28, at 5.
The issue on appeal arises from the third element: the type of employment action
a plaintiff must allege in a failure-to-accommodate-religious-observance claim (the employment-action element). The district court noted that Staple did not allege that he was discharged or
disciplined for failing to work during his Sabbath or indeed that he was discharged or disciplined at all. Doc. 28, at 5.
The court rejected Staple’s formulation of the employment-action element, stating that the adverse-employment-action
standard applies to disparate-treatment claims,
but not to religious-accommodation claims. Doc.
28, at 6-7. According to the court, “the Eleventh Circuit has made
clear the third element of his prima facie case
for failure to accommodate is discharge or discipline, not an adverse employment action.” Doc. 28, at 7 (emphasis added).
The court also rejected the contention
that requiring Staple to use his accrued paid leave to cover his Sabbath hours may have constituted discipline. Doc. 28, at 7. Thus, the court concluded that because
Staple “fails to allege that he was discharged or disciplined, he has not stated
a plausible Title VII claim against [the School Board] for failure to accommodate his religious observances.” Doc. 28, at 7. For that reason, the court dismissed
Staple’s Title VII claim. Doc. 28, at 7.
Staple filed a timely
notice of appeal.
Doc. 30.
The
district court erred in holding that an employee pursuing a Title VII religious-accommodation claim must allege
that his employer discharged or disciplined
him for failing to comply with an employment requirement conflicting with his religious practices or beliefs. The Supreme Court has made clear that religious-accommodation claims may be
brought as disparate-treatment claims under Section
703(a)(1), which is the statutory provision Staple invokes
here.
Under the plain
text of the statute, an employee bringing such a claim need only allege, as relevant here, that he was
subjected to some form of an employment action
affecting his “compensation, terms, conditions, or privileges of employment” because of religion. 42 U.S.C. 2000e-2(a)(1). This standard is satisfied in nearly all cases in which an employer denies an
employee’s religious- accommodation
request and instead requires an employee to accept an alternative accommodation to which the employee
objects. In these cases, the
employer’s action will relate to the
compensation, terms, conditions, or privileges of employment, almost by definition.
To be sure, in assessing ordinary disparate-treatment claims, this Court
has characterized the employment-action element
as requiring a plaintiff to establish an “adverse
employment action,” which it defined as “a serious and material change in the terms,
conditions, or privileges of employment.” E.g., Jefferson v. Sewon
Am., Inc., 891 F.3d 911, 920-921 (11th Cir. 2018) (citation
omitted). But, in our view, this heightened standard is mistaken
and any employment action that affects
the “compensation, terms, conditions, or privileges” of employment is
covered by Section 703(a)(1). Accordingly, this standard should not be
extended to religious- accommodation
claims, which should instead be governed by Section 703(a)(1)’s plain language. Under either approach, however, plaintiffs pursuing religious- accommodation claims are not limited to filing suit only if they suffer discharge or discipline.
The district court’s conclusion that an employee must allege discipline
or discharge to state a claim of
religious-accommodation discrimination thus improperly
narrowed the scope of the statute. It
also is at odds with Title VII’s broad
remedial purpose, as it forces an employee to put his job in jeopardy to vindicate his statutory right to a
reasonable accommodation for his religious observance. Moreover, contrary to the district court’s
determination otherwise, this Court’s
precedents do not mandate the discharge-or-discipline standard.
Although some of
this Court’s published decisions have stated in dictum that an employee pursuing an accommodation claim
must allege that he was disciplined or discharged
for failing to comply with an employment requirement that conflicts with his religious observance, they have
never so held when squarely faced with the issue of whether
an employment action
short of discipline or discharge satisfies
the employment-action element.
Indeed, this Court recently stated,
also in dictum, that an
“adverse employment action” satisfies this element, confirming the incorrectness of the district court’s decision.
Because the district court held that Staple failed to allege discipline
or discharge, it did not address
whether the denial of Staple’s schedule-adjustment request—or the requirement that Staple use virtually all of his
accrued paid leave for his religious
observances—affected the compensation, terms, conditions, or privileges of his employment. Should this Court vacate and remand, it would
be appropriate for the Court to
provide guidance to the district court on this issue. To state a claim for
religious-accommodation discrimination, Staple’s complaint need only contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. Here,
Staple’s complaint alleged that the School Board’s denial of his request for a shift change, and requirement that
he use virtually all of his accrued
paid leave instead to observe the Sabbath, denied him benefits of his position because it left him unable to
accrue sufficient hours to both cover his Sabbath
hours and cover sickness and vacation. Accepted
as true, these allegations state a
plausible claim that the School Board’s actions constituted discrimination “with respect to his compensation, terms,
conditions, or privileges of employment, because of * * * religion.” 42 U.S.C. 2000e-2(a)(1).
ARGUMENT
THE EMPLOYMENT-ACTION
ELEMENT OF A TITLE VII RELIGIOUS-ACCOMMODATION
CLAIM IS SATISFIED BY AN EMPLOYEE’S
ALLEGATION THAT THE EMPLOYER’S DISCRIMINATORY ACTION
AFFECTED THE COMPENSATION, TERMS, CONDITIONS, OR PRIVILEGES OF EMPLOYMENT
A.
Title VII’s Plain Language
Prohibits Discrimination In Response To An Employee’s Request For A Religious Accommodation
1.
Requiring An Employee To Accept An Accommodation To Which He Objects
Implicates The “Compensation, Terms, Conditions, Or Privileges Of Employment” Within The Meaning
Of Title VII
Section 703(a)(1) of Title VII makes it an “unlawful employment practice” for an employer “to fail or refuse to
hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because
of such individual’s
* * * religion.” 42 U.S.C. 2000e-2(a)(1). Title
VII defines “religion” to include “all
aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to
reasonably accommodate to an employee’s
or prospective employee’s religious observance or practice without undue hardship on the conduct of the
employer’s business.” 42 U.S.C.
2000e(j). Accordingly, “[a]n employer
has a ‘statutory obligation [under Section 703(a)(1)] to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship.’” Walden v. Centers For Disease Control & Prevention, 669 F.3d 1277, 1293 (11th Cir. 2012) (quoting Trans
World Airlines,
Inc. v. Hardison,
432 U.S. 63, 75 (1977)). In EEOC v.
Abercrombie & Fitch Stores, Inc.,
575 U.S. 768 (2015), the Supreme Court explained that Title VII does not establish a distinct cause of action
for religious-accommodation claims, and that
such claims may instead be brought as so-called “disparate-treatment” claims under Section 703(a)(1), as Staple did here. Id. at 771-772 & n.2, 774-775.
The relevant statutory provision here is therefore Section 703(a)(1)’s prohibition on an employer
discriminating against an employee with respect to the employee’s “compensation, terms, conditions, or privileges of employment.” 42
U.S.C.
2000e-2(a)(1). Congress did not
define the phrase “terms, conditions, or privileges
of employment” in Title VII. “When a
term goes undefined in a statute,”
courts give “the term its ordinary meaning.”
Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012).
Read according to its plain meaning, that key
statutory phrase—“terms, conditions, or privileges of employment”—“is an expansive
concept” with a broad sweep.
Meritor Sav. Bank,
FSB v. Vinson, 477
U.S. 57, 66 (1986) (citation omitted).
Indeed, the Supreme Court has explained
that the statutory phrase “terms, conditions, or privileges of
employment” evinces Congress’s intent
“to strike at the entire spectrum” of disparate treatment in employment based on protected
characteristics. Id. at 64
(citation omitted). Accordingly, for
example, “the language of Title VII is not limited to ‘economic’ or ‘tangible’ discrimination.” Ibid.; see also Oncale v. Sundowner Offshore
Servs.,
Inc., 523
U.S. 75, 78 (1998) (confirming that the statutory phrase “terms, conditions, or privileges” is not limited
to “the narrow contractual sense”)
(citation omitted).
To be sure, not every action affecting an employee qualifies as one concerning an employee’s terms,
conditions, or privileges of employment. But showing that an employer’s action
qualifies as an “employment practice” within
the meaning of Title VII is not difficult. When, for example, an employer denies an employee’s request for a reasonable religious accommodation
and this refusal necessitates that
the employee make additional burdensome arrangements so that he can both keep his job and observe his
religion, the employer’s actions have affected
the compensation, terms, conditions, or privileges of employment “because of” the employee’s religion and
thus satisfy the employment-action element
of a prima facie case. Indeed, in
nearly all cases in which an employer denies
an accommodation request and instead requires an employee to accept an alternative accommodation to which the
employee objects (such as an action pertaining
to the hours he works, a “term” or “condition” of employment), the employer’s action will relate to the compensation, terms, conditions, or privileges of employment,
almost by definition.3
|
|
 |
3 This case does not raise the closely related
question whether an employer that denies any
religious accommodation, and requires an employee to work in
(continued…)
Moreover, because the employer’s actions
are a response to the employee’s request for a religious accommodation,
they are “because of” the employee’s religion
and plainly constitute discrimination actionable under Section 703(a)(1). This interpretation furthers Title VII’s
“broad approach to the definition of equal employment
opportunity” and “avoid[s] interpretations of Title VII that deprive victims of discrimination of a remedy,
without clear congressional mandate.” County
of Wash. v. Gunther, 452 U.S. 161, 178 (1981) (internal quotation
marks and citation omitted).
At
the same time, the statutory text places meaningful limits on the scope of actionable discrimination. As mentioned, the employer’s
discrimination must be employment-related
and “because of * * * religion.” 42 U.S.C. 2000e-2(a)(1). And,
in the accommodation context, employees are entitled only to a “reasonabl[e] accommodat[ion]” that would not result
in “undue hardship on the conduct of the employer’s
business.” 42 U.S.C. 2000e(j). Accordingly, there is no reason to look beyond
Section 703(a)(1)’s plain
text—as relevant here, that the employer
(…continued)
violation of his religious
beliefs, necessarily alters the employee’s terms, conditions, or privileges of employment within the meaning
of Title VII. Because such an action by an employer makes the
violation of an employee’s religious beliefs
a term or condition of employment, the EEOC has answered that question in the affirmative. See, e.g., EEOC Compliance Manual on Religious Discrimination § 12-IV(A), text
surrounding nn. 210-212 (Jan. 15, 2021), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination.
discriminated
because of religion with respect to the “compensation, terms, conditions, or privileges of
employment”—in determining whether a plaintiff has sufficiently alleged a religious failure-to-accommodate claim. 42 U.S.C. 2000e- 2(a)(1).4
2.
This Court’s Prior Decisions In Intentional-Discrimination Cases
Should Not Be Read To Restrict Title VII’s Plain Language With Respect
To Religious-Accommodation Cases
This
Court and at least some other federal courts addressing ordinary disparate-treatment claims (i.e.,
intentional discrimination) have read Section
703(a)(1)’s “terms, conditions, or privileges of employment” language to
require that a plaintiff establish,
as part of his prima facie case, that he suffered an “adverse employment action.” Davis
v. Town of Lake Park, 245 F.3d 1232, 1238 (11th Cir. 2001)
(collecting cases), abrogated
on other grounds
by Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006); see also Jefferson v. Sewon Am., Inc., 891 F.3d 911, 920-921 (11th Cir.
2018). In one sense, that requirement
is sensible: it is simply another way of saying that the plaintiff has
suffered a cognizable injury, i.e.,
has been subjected to an objectionable (“adverse”) work- related (“employment”)
action by his employer.
4 Title
VII’s federal-sector provision, 42 U.S.C. 2000e-16(a), is the provision applicable to claims against the
federal government. That provision contains different statutory language than
Section 703(a)(1), and the United States does
not with this filing urge this Court to reconsider any of its precedent interpreting 42 U.S.C. 2000e-16(a).
The United States believes that any further gloss on Section 703(a)(1)’s plain language—requiring, for example,
that the employer’s action must amount to “a
serious and material change in the terms, conditions, or privileges of employment,” Jefferson, 891 F.3d at
921 (citation omitted); Davis, 245 F.3d at 1239—is mistaken.5 To the contrary, any employment
action that affects the “compensation, terms,
conditions, or privileges” of employment is covered by
|
|
|
5 This Court’s contrary case law rests in part
on a
misreading of the Supreme Court’s decision in Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), which involved a claim alleging that a supervisor had
created a sex-based hostile work
environment—and thereby altered the “terms or conditions of employment.” Id. at 752; see, e.g., Davis, 245 F.3d at
1239. Significantly, the question in Ellerth was not the
substantive standard for a discrimination claim, but rather the circumstances under which “an employer has vicarious
liability” for sexual harassment by a
supervisor. Ellerth, 524 U.S.
at 754. After reviewing agency-law principles, the Supreme Court
held that employers are always vicariously
liable when such harassment culminates in a “tangible employment action,” defined to mean a “significant
change in employment status,” and are vicariously
liable even absent such an action if they fail to establish an “affirmative defense.” Id. at 761-762, 764-765.
Ellerth’s identification of the “tangible employment action[s]” that support automatic
imputation of vicarious
liability to an employer in cases involving supervisory
harassment thus says nothing about the meaning
of “terms, conditions, or privileges of employment” in Section 703(a)(1), as the Supreme Court itself subsequently
made clear in White, 548 U.S. at 64-65.
And Ellerth’s holding that employers may be vicariously liable for
harassment even absent a
tangible employment action made clear that, contrary to this Court’s analysis in Davis, 245 F.3d at
1239, a “significant change in employment status” is not necessary for a Title VII discrimination claim. Ellerth, 524 U.S. at 761, 764- 765.
Section 703(a)(1).6 But
even if the “serious and material” standard governs the ordinary disparate-treatment case, it should not be extended
to reasonable- accommodation cases. Instead, this Court should apply the plain
language of Section 703(a)(1). And it should reject the district court’s
requirement that a plaintiff must
show discharge or discipline to make out a prima facie case of religious-accommodation discrimination.
B.
The District Court Erred In
Requiring That A Plaintiff Allege That He Suffered
Discharge Or Discipline To State The Employment-Action Element Of A
Religious-Accommodation Claim
1.
The District Court’s
Discharge-Or-Discipline Standard Conflicts With Title VII’s Text, Structure, And Broad Remedial
Purpose
The district court’s requirement that a plaintiff allege that he suffered “discharge or discipline” in response to
his request for a religious accommodation to
make a prima facie case of discrimination cannot be reconciled with Section 703(a)(1)’s plain text and statutory
structure. Section 703(a)(1)’s
inclusion of an expansive list of
employment practices, of which “discharge” is but one covered action,
necessarily encompasses much more than an employer’s discharge decision
6 The
United States has recently filed two Supreme Court briefs adopting this interpretation of the scope of
Section 703(a)(1)’s “terms, conditions, or privileges
of employment” language. See U.S. Br.
as Amicus Curiae at 14-17, Peterson
v. Linear Controls, Inc., 2020 WL 1433451 (Mar. 20, 2020) (No. 18- 1401) (dismissing certiorari petition, 140 S. Ct. 2841 (2020)); Gov’t Br. in Opp. at 11-16,
Forgus v. Esper, 2019 WL 2006239 (May 6, 2019) (No. 18-942)
(denying certiorari petition, 141 S. Ct. 234 (2020)).
or employer actions that punish an employer for disobedience (discipline). 42
U.S.C.
2000e-2(a)(1). If Congress had meant
to cover only “discharge” and “discipline” for current employees, it would not have used the phrase it did. That conclusion follows regardless of whether
this Court adopts our plain-text interpretation
of the statute or instead embraces the adverse-employment-action standard applicable in ordinary
disparate-treatment cases. See, e.g.,
Gillis v. Georgia Dep’t of
Corr., 400 F.3d 883, 887-888 (11th Cir. 2005) (noting in applying adverse-employment-action
standard in ordinary disparate-treatment context,
that, e.g., reductions in compensation and at least some transfers are actionable).
The district court’s conclusion that an employee’s “[m]ere
dissatisfaction with an employer’s
offered accommodation is insufficient to meet [a plaintiff’s] prima facie burden,” i.e., does not
constitute “discipline” (Doc. 28, at 7), therefore misses the point that the employee must allege only that the
employer’s action (here, denying the
employee’s request for a shift change and requiring him to use virtually all of his accrued paid leave if
he wanted to leave early to observe his Sabbath)
affected the “compensation, terms, conditions, or privileges of employment.” Thus, because the district court’s discharge-or-discipline
standard fails to capture all
actionable conduct against
an employee—hiring and discharge
decisions and
actions that otherwise affect the compensation, terms, conditions, or privileges of employment—the court erred
in applying it.
Moreover, the district court’s standard also fails as a practical matter
and puts religious employees “in an
unavoidable bind.” Reed v. International
Union, 569 F.3d 576, 587 (6th Cir. 2009) (McKeague, J., dissenting), cert. denied, 559
U.S. 1048
(2010). As Judge McKeague explained,
under such a standard, if an employee
accepts an unreasonable accommodation that affects the terms or conditions of his employment, thereby
avoiding discharge or discipline, “the employee
has acquiesced in the discrimination and abandoned any hope of a remedy.”
Ibid. But “if an
employee [instead] rejects the accommodation,” then he or she “puts his or her employment in jeopardy.” Ibid.
Because that dilemma is “inconsistent
with the [sic] both the text and purpose of Title VII,” University of Tex. Sw. Med. Ctr. v. Nassar,
570 U.S. 338, 359 (2013), it cannot be the law. As Judge Berzon of the
Ninth Circuit reasoned, the view that “employees must risk financial hardship, negative employment
histories, and the anxiety of waiting for a
discharge or other discipline to occur before their statutory right to
religious accommodation can be vindicated” is inconsistent with Title VII’s “overall
structure and
purpose.” Lawson v. Washington,
319 F.3d 498, 501-502 (9th Cir. 2003) (Berzon,
J., dissenting from denial of reh’g en banc) (citation
omitted).7
7 The
Lawson majority opinion does not undermine our argument. The plaintiff in that case argued that he established the employment-action element
of a prima facie case of religious-accommodation discrimination by
showing that he was constructively discharged. Lawson v. Washington, 296 F.3d 799, 804-805 (9th Cir. 2002). The Ninth Circuit majority opinion held that the plaintiff did
not create a genuine issue of
material fact as to whether he actually had been constructively discharged. Id.
at 805-806. The court did not
address the distinct issue of whether
a plaintiff could have proceeded with a religious-accommodation claim by
showing another type of employment
action, including one falling short of discharge
or discipline. In any event, the employment-action standard
recited by the majority
opinion in Lawson—that an employer must “threaten[] [an employee] with or subject[] him to
discriminatory treatment”—is broader than the
discharge-or-discipline standard the district court adopted here. Id. at 804 (citation omitted).
By contrast, the
Reed majority opinion is, in our view, incorrect. The court assumed arguendo
that an “adverse employment action”—not just discharge or discipline—was sufficient to make out a
religious-accommodation claim but concluded
that the plaintiff there did not establish such an action even though he suffered a monetary loss as a result of
the accommodation a union granted him— the
option of paying a charity an amount that was 22% higher than the amount he otherwise would have had to
pay the union. 569 F.3d at 578, 580-581.
Significantly, Reed arose
under Section 703(c), 42 U.S.C. 2000e-2(c), a statutory provision addressing unlawful employment discrimination by labor
organizations that lacks the “terms,
conditions, or privileges” language in Section 703(a)(1). To the
extent that Reed’s reliance on decisions arising under Section 703(a)(1) suggests that the plaintiff’s loss in pay
would also not be actionable under Section 703(a)(1),
it is at odds with the statutory text barring discrimination with respect to an employee’s
“compensation.” 42 U.S.C.
2000e-2(a)(1).
2.
This Court’s Precedents Do
Not Mandate Applying The Discharge- Or-Discipline Standard To This Case
The district
court found that this Court’s
precedents have “made clear” that in
a religious-accommodation case the employee must allege discharge or discipline. Doc. 28, at 7. That is
not correct. The cited cases do not
mandate applying that standard
to this case.
The
district court relied on Dalberiste v. GLE Associates, Inc., 814
F. App’x 495, 496-497 (11th Cir.
2020), cert. denied, 141 S. Ct. 2463 (2021), and Morrissette-Brown v. Mobile Infirmary Medical Center,
506 F.3d 1317, 1320-1321 (11th Cir.
2007), to conclude that it was bound to apply the discharge-or-discipline standard.
Doc. 28, at 7. But those
decisions do not squarely present the question. In those cases—and many other decisions by this Court reciting
this standard (or a “discharge”
standard)—the plaintiffs were in fact discharged or sustained an equivalent employer action. Thus, the Court had no need to address
whether a plaintiff could have made a
prima facie case by showing that some other employer action fell within the scope of Section 703(a)(1). See Dalberiste, 814 F. App’x at 496-497 (reciting standard as requiring
discharge but not examining requirement in
case where employer
rescinded accepted job offer); Morrissette-Brown, 506 F.3d at 1320-1321 (reciting standard as
requiring discharge but not examining requirement
in case where employer discharged employee); see also Walden, 669 F.3d at 1292-1293
(reciting standard as requiring discharge and assuming
requirement
satisfied in case where employer discharged employee); Dixon v. The Hallmark Cos., 627 F.3d 849, 855 (11th
Cir. 2010) (reciting standard as requiring discharge
and concluding it was satisfied where employer discharged employee); Beadle v. Hillsborough Cnty.
Sheriff’s Dep’t, 29 F.3d 589, 591, 592 n.5 (11th Cir. 1994) (reciting standard as requiring
discharge and noting employer did not dispute
it was satisfied where employer discharged employee), cert. denied, 514
U.S. 1128 (1995); cf. Walker v.
Indian River Transp. Co., 741 F. App’x 740, 745-746 (11th Cir. 2018) (reciting standard as requiring
discipline or discharge but expressly declining to rule
on whether it was satisfied
there).
To our knowledge, this Court has never squarely addressed in a published decision the issue this case presents—i.e.,
whether a plaintiff making a religious- accommodation
claim must always allege an employment action constituting discharge
or discipline, or whether it is also sufficient to allege that the employer’s actions affected a hiring decision or the compensation, terms,
conditions, or privileges of employment.8 That this Court’s law is not settled on this point is
8 In
Dixon v. Palm Beach County Parks & Recreation Department, 343
F. App’x 500 (11th Cir. 2009), cert.
denied, 559 U.S. 1076 (2010), this Court defined the employment-action element as requiring the plaintiff to
prove that “he was disciplined for
failing to comply with the conflicting employment requirement” and concluded that the plaintiff did not satisfy
this standard. Id.
at 502. Again, we do not believe that the court applied
the correct standard, and in any event the decision is not precedential. See Ray v.
McCullough Payne & Haan, LLC,
838
(continued…)
made clear by a
decision that was released shortly before the district court’s order here (but which was not cited therein). In Bailey v. Metro Ambulance
Services, Inc., 992 F.3d 1265,
1275 (11th Cir. 2021), this Court stated in dictum that a religious-accommodation claim requires the
employee to show that his “employer took
adverse employment action against him because of his inability to comply with the employment requirement or because
of the employer’s perceived need for his
reasonable accommodation.” Id. at
1275. That characterization suggests
that, at a minimum, the district
court was wrong to conclude that the discharge-or- discipline standard applies
in all religious-accommodation cases.
C.
This Court Should Provide
Guidance To The District Court On Whether Denying
A Plaintiff’s Request For A Shift Change Or Requiring Him To Use Accrued Paid Leave For His Religious
Observance Falls Within The Scope Of Title
VII
Because the district court labored under the mistaken belief that Staple
was required to allege discipline or
discharge, it did not address whether being denied a request for a shift change and being required to use virtually
all of his accrued paid leave for
his religious observance affected the compensation, terms, conditions, or privileges of his employment. Should the Court vacate and remand, it may
be appropriate to provide some guidance on this issue to the district court,
as follows.
(…continued)
F.3d 1107, 1109 (11th Cir. 2016)
(“In this Court, unpublished decisions, with or without opinion, are not precedential and they bind no one.”).
This
Court “ha[s] recognized that a plaintiff’s burden to establish a prima facie case [for a religious-accommodation
claim] is not onerous.” Bailey,
992 F.3d at 1275 (citations and
internal quotation marks omitted). A
plaintiff’s burden is particularly light
on a motion to dismiss, where a complaint need only “contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face” —i.e., “plead[] factual content that allows
the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citation omitted).
Here,
Staple’s complaint alleged that the School Board’s denial of his request for a shift change, and
requirement that he use virtually all of his accrued paid leave instead to observe the Sabbath, denied him benefits
of his position because it left him
unable to accrue sufficient hours to both cover his Sabbath hours and cover sickness and vacation. Doc. 10, at 6-8. Accepted as true, the denial
of Staple’s request for a shift change to accommodate his religious observance affected the hours
he works, and thus necessarily pertains to his “terms [or]
conditions * * * of employment, because
of * * * religion.” 42 U.S.C.
2000e-2(a)(1). Likewise, the
requirement that Staple use virtually all of his accrued paid leave instead to observe his Sabbath deprived
Staple of a benefit or privilege of
employment—namely, the ability to use his accrued leave for its intended
purpose—and thus constituted discrimination “with respect
to his
- 24 -
compensation,
terms, conditions, or privileges of employment, because of * * * religion.” Ibid.; cf., e.g., Cooper v.
Oak Rubber Co., 15 F.3d 1375, 1379 (6th Cir. 1994) (recognizing that “[a]n employer who permits an employee
to avoid mandatory Sabbath work only
by using accrued vacation does not ‘reasonably
accommodate’ the employee’s religious beliefs [because] [s]uch an
employee stands to lose a benefit,
vacation time, enjoyed by all other employees who do not share the same religious conflict, and is thus discriminated
against with respect to a privilege of employment”).9
9 Even
if this Court concludes that the “adverse employment action” standard from ordinary disparate-treatment
cases applies here, the forced elimination
of most or all of Staple’s vacation and sick leave, and the denial of his request for a modified work schedule,
could plausibly satisfy that standard as well:
each could qualify as “a serious and material change in the terms,
conditions, or privileges of
employment,” and the former also could qualify as “a[] tangible consequence from [the School Board’s
actions] in the form of a loss of * * * benefits.” Davis, 245 F.3d at
1239-1240 (emphasis omitted).
- 25 -
CONCLUSION
The Court should reverse the district court’s opinion and remand for
further proceedings.
Respectfully submitted,
GWENDOLYN YOUNG REAMS KRISTEN CLARKE
Acting General Counsel Assistant Attorney
General
JENNIFER S. GOLDSTEIN s/ Christopher C. Wang
Associate General
Counsel THOMAS
E. CHANDLER
PHILIP M. KOVNAT CHRISTOPHER C. WANG
Attorney Attorneys
Equal Employment Department of Justice
Opportunity Commission Civil Rights
Division
Office of the General
Counsel Appellate
Section
131 M Street NE, Fifth Floor Ben Franklin
Station
Washington, D.C. 20507 P.O. Box 14403
(202) 921-2702 Washington, D.C. 20044-4403
(202) 514-9115
CERTIFICATE OF COMPLIANCE
I certify, pursuant to Federal Rule of Appellate
Procedure 32(g):
1.
This brief
complies with the type-volume limit of Federal Rule of Appellate Procedure 29(a)(5)
because, excluding the parts of the brief
exempted by Federal
Rule of Appellate Procedure 32(f), the brief contains 5,611
words.
2.
This brief
complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the
type-style requirements of Federal Rule of Appellate
Procedure 32(a)(6) because the brief has been prepared in a proportionally spaced typeface using
Microsoft Office Word 2019 in Times New Roman, 14-point
font.
s/ Christopher C. Wang
CHRISTOPHER C. WANG
Attorney
Date: September 20, 2021
CERTIFICATE
OF SERVICE
I hereby certify that on September 20, 2021, I electronically filed the foregoing BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING
APPELLANT AND URGING REVERSAL with the United States Court of Appeals for the Eleventh Circuit by using the CM/ECF
system and filed with the court four
paper copies of the same. All
participants in this case are registered
CM/ECF users, and service will be accomplished by the appellate CM/ECF
system.
s/ Christopher C. Wang
CHRISTOPHER C. WANG
Attorney
