Patterson v. Walgreen Co.

Cite as: 589 U. S. ____ (2020) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
DARRELL PATTERSON v. WALGREEN CO.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 18–349. Decided February 24, 2020
The petition for a writ of certiorari is denied.
JUSTICE ALITO, with whom JUSTICE THOMAS and
JUSTICE GORSUCH join, concurring in the denial of
certiorari.
The petition in this case raises important questions about
the meaning of Title VII’s prohibition of employment
discrimination “because of . . . religion.” 78 Stat. 255, 42
U.S. C. §§2000e–2(a)(1) and (2). For this reason and be-
cause of the Government’s responsibility to enforce Title
VII, we asked for the views of the Solicitor General regard-
ing review in this case, and the Solicitor General’s response
to our request is helpful.
I agree with the most important point made in that brief,
namely, that we should reconsider the proposition, en-
dorsed by the opinion in Trans World Airlines, Inc. v. Har-
dison, 432 U.S. 63, 84 (1977), that Title VII does not re-
quire an employer to make any accommodation for an
employee’s practice of religion if doing so would impose
more than a de minimis burden. Title VII prohibits employ-
ment discrimination against an individual “because of such
individual’s . . . religion,” §§2000e–2(a)(1) and (2), and the
statute defines “religion” as “includ[ing] all aspects of reli-
gious observance and practice, as well as belief, unless an
employer demonstrates that he is unable to reasonably ac-
commodate to an employee’s or prospective employee’s reli-
gious observance or practice without undue hardship on the
conduct of the employer’s business.” §2000e( j) (emphasis
2 PATTERSON v. WALGREEN CO.
ALITO, J., concurring
added). As the Solicitor General observes, Hardison’s read-
ing does not represent the most likely interpretation of the
statutory term “undue hardship”; the parties’ briefs in Har-
dison did not focus on the meaning of that term; no party in
that case advanced the de minimis position; and the Court
did not explain the basis for this interpretation. See Brief
for United States as Amicus Curiae 19–21. I thus agree
with the Solicitor General that we should grant review in
an appropriate case to consider whether Hardison’s inter-
pretation should be overruled.*
The Solicitor General also agrees that two other issues
raised in the petition are important, specifically,
(1) whether Title VII may require an employer to provide a
partial accommodation for an employee’s religious practices
even if a full accommodation would impose an undue hard-
ship, and (2) whether an employer can show that an accom-
modation would impose an undue hardship based on spec-
ulative harm. But the Solicitor General does not interpret
the decision below as turning on either of those questions.
While I am less sure about this interpretation, I agree in
the end that this case does not present a good vehicle for
revisiting Hardison. I therefore concur in the denial of cer-
tiorari, but I reiterate that review of the Hardison issue
should be undertaken when a petition in an appropriate
case comes before us.
——————
*In addition, as JUSTICE THOMAS has pointed out, Hardison did not
apply the current form of Title VII, but instead an Equal Employment
Opportunity Commission guideline that predated the 1972 amendments
defining the term “religion.” EEOC v. Abercrombie & Fitch Stores, Inc.,
575 U.S. 768, 787, n. (2015) (opinion concurring in part and dissenting
in part).