Amicus Brief of Former EEOC Employees — Dr. A v. Hochul

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A motion by former EEOC employees and Title VII religious accommodation experts for leave to file an amici curiae brief, with the proposed brief attached, in Dr. A. v. Hochul, No. 21A145, in the Supreme Court of the United States, dated November 16, 2021. The motion is addressed to Associate Justice Sonia Sotomayor as Circuit Justice for the Second Circuit and asks leave to file without ten days' advance notice, stating that applicants and respondents consent. The brief supports the applicants' emergency application for a writ of injunction and argues that Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., requires reasonable accommodation of religious belief absent undue hardship. It argues that New York's vaccine mandate prohibits religious exemptions and that under the Supremacy Clause no state may require employers to violate Title VII.

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No. 21A145 
 
In the Supreme Court of the United States 
 
 
DR. A., NURSE A., DR. C., NURSE D., DR. F., DR. G., THERAPIST I., DR. J., 
NURSE J., DR. M., NURSE N., DR. O., DR. P., TECHNOLOGIST P., DR. S., 
NURSE S., PHYSICIAN LIAISON X., 
Applicants, 
v. 
KATHY HOCHUL, GOVERNOR OF THE STATE OF NEW YORK, IN HER OFFICIAL CAPACITY, 
DR. HOWARD A. ZUCKER, COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF 
HEALTH, IN HIS OFFICIAL CAPACITY; LETITIA JAMES, ATTORNEY GENERAL OF THE STATE 
OF NEW YORK, IN HER OFFICIAL CAPACITY, 
Respondents. 
To the Honorable Sonia Sotomayor, Associate Justice of the United States 
Supreme Court and Circuit Justice for the Second Circuit 
MOTION BY FORMER EEOC EMPLOYEES AND TITLE VII RELIGIOUS 
ACCOMMODATION EXPERTS, WITH ATTACHED PROPOSED AMICI 
CURIAE BRIEF IN SUPPORT OF APPLICANTS AND IN SUPPORT OF 
EMERGENCY APPLICATION FOR WRIT OF INJUNCTION, FOR LEAVE 
(1) TO FILE THE BRIEF, (2) TO DO SO IN AN UNBOUND FORMAT ON 8 ½ 
BY 11-INCH PAPER, AND (3) TO DO SO WITHOUT TEN DAYS’ ADVANCE 
NOTICE TO THE PARTIES 
 
SHARON FAST GUSTAFSON 
FIRST LIBERTY INSTITUTE 
2001 West Plano Parkway 
Suite 1600 
Plano, Texas 75075 
(703) 527-0147 
sharon.fast.gustafson@gmail.com 
 
RACHEL N. MORRISON 
   Counsel of Record 
ETHICS & PUBLIC POLICY CENTER 
1730 M Street, N.W. 
Suite 910 
Washington, D.C. 20036-4548 
(202) 682-1200 
rmorrison@eppc.org 
 
Counsel for Amici Curiae 
 
 

 
 
ii 
 
Amici respectfully move for leave to file a brief amici curiae in support of Appli-
cants’ Emergency Application For Writ of Injunction, without 10 days’ advance notice 
to the parties of Amici’s intent to file as ordinarily required. 
 
In light of the expedited nature of the emergency application, it was not feasible 
to give 10 days’ notice, but Amici was nevertheless able to obtain a position on the 
motion from the parties. Applicants and Respondents consent to the filing of the amici 
brief. 
Amici are former employees of the U.S. Equal Employment Opportunity Com-
mission (EEOC) and experts in employment discrimination as it relates to religious 
discrimination and accommodation. Sharon Fast Gustafson is a former General 
Counsel of the EEOC. During her tenure she established a Religious Discrimination 
Work Group. Ms. Gustafson has worked to promote religious nondiscrimination and 
accommodation, as well as litigated these cases under Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. 2000e et seq. Rachel Morrison was an attorney advisor to 
General Counsel Gustafson at the EEOC, and a member of the General Counsel’s 
Religious Discrimination Work Group, where she advised the General Counsel on 
religious discrimination matters. Ms. Morrison has written and spoken as an expert 
on employees’ religious rights in the workplace. 
Amici offer the proposed brief to explain Title VII’s religious accommodation 
standard and why New York’s vaccine mandate should not and cannot displace re-
ligious freedom protections under Title VII. The amici brief thus includes relevant 
material not fully brought to the attention of the Court by the parties. See Sup. Ct. 

 
 
iii 
R. 37.1. 
For the foregoing reasons, Amici respectfully request that the Court grant this 
unopposed motion to file the attached proposed amici brief and accept it in the format 
and at the time submitted. 
Respectfully submitted. 
 /s/ Rachel Morrison            
SHARON FAST GUSTAFSON 
FIRST LIBERTY INSTITUTE 
2001 West Plano Parkway 
   Suite 1600 
Plano, Texas 75075 
(703) 527-0147 
sharon.fast.gustafson@gmail.com 
 
RACHEL N. MORRISON 
   Counsel of Record 
ETHICS & PUBLIC POLICY CENTER 
1730 M Street, N.W. 
   Suite 910 
Washington, D.C. 20036-4548 
(202) 682-1200 
rmorrison@eppc.org 
 
Counsel for Amici Curiae 
NOVEMBER 16, 2021 
 

 
No. 20A145 
 
In the Supreme Court of the United States 
 
 
DR. A., NURSE A., DR. C., NURSE D., DR. F., DR. G., THERAPIST I., DR. J., 
NURSE J., DR. M., NURSE N., DR. O., DR. P., TECHNOLOGIST P., DR. S., 
NURSE S., PHYSICIAN LIAISON X., 
 
Applicants, 
v. 
KATHY HOCHUL, GOVERNOR OF THE STATE OF NEW YORK, IN HER OFFICIAL CAPACITY; 
HOWARD A. ZUCKER, COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF 
HEALTH, IN HIS OFFICIAL CAPACITY; LETITIA JAMES, ATTORNEY GENERAL OF THE STATE 
OF NEW YORK, IN HER OFFICIAL CAPACITY, 
 
Respondents. 
 
 
To the Honorable Sonia Sotomayor, Associate Justice of the United States 
Supreme Court and Circuit Justice for the Second Circuit 
 
 
 
BRIEF AMICI CURIAE OF FORMER EEOC EMPLOYEES AND TITLE VII 
RELIGIOUS ACCOMMODATION EXPERTS IN SUPPORT OF APPLI-
CANTS AND EMERGENCY APPLICATION FOR WRIT OF INJUNCTION
 
 
 
SHARON FAST GUSTAFSON 
FIRST LIBERTY INSTITUTE 
2001 West Plano Parkway 
   Suite 1600 
Plano, Texas 75075 
(703) 527-0147 
sharon.fast.gustafson@gmail.com 
RACHEL N. MORRISON 
   Counsel of Record 
ETHICS & PUBLIC POLICY CENTER 
1730 M Street, N.W. 
   Suite 910 
Washington, D.C. 20036-4548 
(202) 682-1200 
rmorrison@eppc.org 
 
Counsel for Amici Curiae 
 

 
 
ii 
TABLE OF CONTENTS 
TABLE OF AUTHORITIES .......................................................................................... iii 
INTEREST OF THE AMICI CURIAE ........................................................................... 1 
INTRODUCTION AND SUMMARY OF ARGUMENT ................................................ 1 
ARGUMENT ................................................................................................................... 2 
I. 
Title VII creates a floor of protection against religious discrimination. ...... 2 
II. 
New York’s vaccine mandate conflicts with Title VII. .................................. 7 
III. 
Federal vaccine mandates recognize Title VII. ........................................... 11 
CONCLUSION .............................................................................................................. 13 

 
 
iii 
TABLE OF AUTHORITIES 
Page(s) 
Cases 
Ansonia Bd. of Educ. v. Philbrook, 
479 U.S. 60 (1986) ............................................................................................. 4, 5, 7 
Does 1-3 v. Mills, 
No. 21A90, 2021 WL 5027177 (U.S. Oct. 29, 2021) ................................................. 9 
Equal Emp’t Opportunity Comm’n v. Abercrombie & Fitch Stores, Inc., 
575 U.S. 768 (2015) ................................................................................................... 4 
Ortiz-Diaz v. U.S. Dep’t of Hous. & Urban Dev., 
867 F.3d 70 (D.C. Cir. 2016) ............................................................................... 9, 10 
Patterson v. Walgreen Co., 
140 S. Ct. 685 (2020) ................................................................................................. 6 
Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 
450 U.S. 707 (1981) ................................................................................................... 3 
Trans World Airlines, Inc. v. Hardison, 
432 U.S. 63 (1977) ..................................................................................................... 6 
United States v. Seeger, 
380 U.S. 163 (1965) ............................................................................................... 3, 4 
Welsh v. United States, 
398 U.S. 333 (1970) ................................................................................................... 3 
Constitution 
U.S. Const. art. VI, para. 2 ........................................................................................... 11 
Statutes 
42 U.S.C. 2000e et seq. ................................................................................................ 1, 2 
42 U.S.C. 2000e ........................................................................................................... 3, 4 
42 U.S.C. 2000e-2 ................................................................................................. 2, 3, 10 
42 U.S.C. 2000e-7 ......................................................................................................... 10 
N.Y. Comp. Codes R. & Regs. tit. 10, § 2.61 (2021) .......................................... 1-2, 8, 10 

 
 
iv 
Regulations 
COVID-19 Vaccination and Testing; Emergency Temporary Standard, 
86 Fed. Reg. 61,402 (Nov. 5, 2021) ......................................................................... 12 
EEOC Guidelines on Discrimination Because of Religion, 29 C.F.R. 
1605.1 ......................................................................................................................... 3 
EEOC Guidelines on Discrimination Because of Religion, 29 C.F.R. 
1605.2 ..................................................................................................................... 4, 5 
Exec. Order No. 14043, 86 Fed. Reg. 50,989 (2021) .................................................... 11 
Medicare and Medicaid Programs; Omnibus COVID-19 Health Care 
Staff Vaccination, 86 Fed. Reg. 61,555 (Nov. 5, 2021)  ................................... 11, 12 
Other Authorities 
EEOC, Compliance Manual: Religious Discrimination § 12 (2021) ............. 3, 4, 5, 6, 7 
EEOC, Religious Accommodation Request Form ....................................................... 11 
EEOC, What You Should Know About COVID-19 and the ADA, the 
Rehabilitation Act, and Other EEO Laws (last updated Oct. 28, 
2021) ....................................................................................................................... 6, 7 
HHS Office for Civil Rights in Action, Bulletin: Civil Rights, HIPAA, 
and the Coronavirus Disease 2019 (COVID-19) (Mar. 28, 2020) .......................... 13 
Safer Federal Workforce Task Force, Template: Request for a Religious 
Exemption to the COVID-19 Vaccination Requirement (last up-
dated Oct. 29, 2021) ................................................................................................. 11 
U.S. Dep’t of Just., Civil Rights and COVID-19 (last updated May 12, 
2021) ......................................................................................................................... 13 
 

1 
INTEREST OF THE AMICI CURIAE1 
Amici are former employees of the U.S. Equal Employment Opportunity Com-
mission (EEOC) and experts in employment discrimination as it relates to religious 
discrimination and accommodation. Sharon Fast Gustafson is a former General 
Counsel of the EEOC. During her tenure she established a Religious Discrimination 
Work Group. Ms. Gustafson has worked to promote religious nondiscrimination and 
accommodation, as well as litigated these cases under Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. 2000e et seq. Rachel Morrison was an attorney advisor to 
General Counsel Gustafson at the EEOC, and a member of the General Counsel’s 
Religious Discrimination Work Group, where she advised the General Counsel on 
religious discrimination matters. She has written and spoken as an expert on em-
ployees’ religious rights in the workplace. 
Amici offer the proposed brief to explain Title VII’s religious accommodation 
standard and why New York’s vaccine mandate should not and cannot displace re-
ligious freedom protections under Title VII. 
INTRODUCTION AND SUMMARY OF ARGUMENT 
This case raises the question of whether New York can mandate that employers 
violate Title VII of the Civil Rights Act of 1964. 
New York’s vaccine mandate allows “any reasonable accommodation” for medi-
cally exempt unvaccinated employees. N.Y. Comp. Codes R. & Regs. tit. 10, § 2.61(d) 
 
1 
No counsel for a party authored this brief in whole or in part, and no person other than amici, its 
members, or its counsel made a monetary contribution to fund the brief’s preparation or submission. 
This brief has been submitted with an unopposed motion for leave to file it. 

 
 
2 
(2021). However, the mandate categorically prohibits religious exemptions and al-
lows no reasonable accommodation for employees unvaccinated for religious rea-
sons. 
Under Title VII, when a workplace rule violates an employee’s sincerely held 
religious belief, an employer must reasonably accommodate the employee’s religious 
belief if it can do so without undue hardship to the employer’s business. 
The Equal Employment Opportunity Commission (EEOC)—the federal agency 
tasked with enforcing Title VII—has set out what is required of a religious accom-
modation in order for it to be deemed reasonable. An accommodation is deemed not 
to be reasonable if it transfers an employee from his current position or if it reduces 
an employee’s pay, benefits, or responsibilities of employment, and a reasonable ac-
commodation exists that would not so harm the employee. 
Pursuant to the Supremacy Clause of the U.S. Constitution and Title VII, no 
state can require employers to violate Title VII’s reasonable accommodation require-
ment. 
New York’s mandate that employers must categorically require employees to be 
vaccinated against COVID-19, without regard to, or accommodation for, an em-
ployee’s sincerely held religious beliefs, is facially infirm. This Court should grant 
the application and enjoin operation of New York’s mandate as to Applicants. 
ARGUMENT 
I. Title VII creates a floor of protection against religious discrimination. 
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., prohibits dis-
crimination in the workplace on the basis of religion. Id. 2000e-2(a). By text and by 

 
 
3 
design, Congress created a floor of protection against such discrimination that all 
states are bound to respect. Title VII defines religion broadly to include “all aspects 
of religious observance and practice, as well as belief.” Id. 2000e(j). Beliefs are con-
sidered “religious” if they are religious “in the individual’s ‘own scheme of things.’” 
EEOC, Compliance Manual: Religious Discrimination § 12 (2021) [hereinafter 
“EEOC Religion Guidance”] (quoting Welsh v. United States, 398 U.S. 333, 339 
(1970), and United States v. Seeger, 380 U.S. 163, 185 (1965)); see also EEOC Guide-
lines on Discrimination Because of Religion [hereinafter “EEOC Religion Guide-
lines”], 29 C.F.R. 1605.1 (EEOC has “consistently applied” Welsh and Seeger stand-
ard to Title VII).2 Title VII protects an individual’s religious beliefs—including reli-
gious beliefs about vaccination—regardless of whether those beliefs are common or 
traditional, whether they seem logical or reasonable to others, and whether they are 
recognized by an organized religion. EEOC Religion Guidance § 12-I-A-1 (citing 
Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 714 (1981)). 
Title VII forbids an employer to discriminate because of an individual’s religion 
in hiring, promotion, discharge, “compensation, terms, conditions, or privileges of 
employment.” 42 U.S.C. 2000e-2(a)(1). Further, an employer must not “limit, segre-
gate, or classify” employees based on religion “in any way which would deprive or 
tend to deprive any individual of employment opportunities or otherwise adversely 
affect his status as an employee.” Id. 2000e-2(a)(2). Employers are prohibited from 
 
2 
https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination. EEOC’s Title VII guid-
ance was passed by the Commission after notice and public comment. While it is not legally binding 
on employers, it states the EEOC’s position on the issues it discusses and it contains extensive foot-
notes to caselaw that support its positions. 

 
 
4 
discriminating intentionally (disparate treatment) or through policies that have a 
disparate impact on religious employees. See Equal Emp’t Opportunity Comm’n v. 
Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 771 (2015). 
Religious accommodation requirement. In addition to those negative pro-
scriptions, employers are affirmatively required to “reasonably accommodate” an 
employee’s religious beliefs, observances, and practices unless the accommodation 
would pose an “undue hardship on the conduct of the employer’s business.” 42 U.S.C. 
2000e(j). Absent undue hardship, an employer’s failure to reasonably accommodate 
religious belief constitutes unlawful discrimination. In Abercrombie, the Court held 
that “Title VII requires otherwise-neutral policies to give way to the need for an 
accommodation.” 575 U.S. at 775. The Court further explained, “Title VII does not 
demand mere neutrality with regard to religious practices—that they be treated no 
worse than other practices. Rather, it gives them favored treatment,” creating an 
affirmative obligation on the employer. Ibid. 
An employee’s “sincerely held” religious objection to a workplace policy or job 
duty qualifies for a religious accommodation. EEOC Religion Guidance § 12-I-A-2 
(citing Seeger, 380 U.S. at 185); id. § 12-IV; EEOC Religion Guidelines, 29 C.F.R. 
1605.2. An employer is not required to provide an un-reasonable accommodation 
and is not necessarily required to provide the employee’s preferred accommodation. 
EEOC Religion Guidance § 12-IV-A-3 (citing Ansonia Bd. of Educ. v. Philbrook, 479 
U.S. 60, 68 (1986)). An employer is required to provide a reasonable accommodation. 
Ibid. For an accommodation to be reasonable, it “must not discriminate against the 

 
 
5 
employee or unnecessarily disadvantage the employee’s term’s conditions, or privi-
leges of employment.” Ibid. (citing Ansonia, 479 U.S. at 70). An employer’s proposed 
religious accommodation is not reasonable if the employer provides a more favorable 
accommodation to other employees for non-religious reasons, including medical rea-
sons. Ibid. (citing Ansonia, 479 U.S. at 70-71). 
Likewise, a religious accommodation is not reasonable “if it requires the em-
ployee to accept a reduction in pay rate or some other loss of a benefit or privilege of 
employment” and there is another accommodation available that would not require 
such a harm. EEOC Religion Guidance § 12-IV-A-3. When there is more than one 
reasonable accommodation that does not pose an undue hardship, “the em-
ployer  * * *  must offer the alternative which least disadvantages the individual 
with respect to his or her employment opportunities.” EEOC Religion Guidelines, 
29 C.F.R. 1605.2(c)(2)(ii). 
Employees who need religious accommodations should generally be accommo-
dated in their current positions unless there is no accommodation in that position 
that does not pose an undue hardship. EEOC Religion Guidance § 12-IV-C-3 (citing 
EEOC Religion Guidelines, 29 C.F.R. 1605.2(d)(iii)). Only when no such accommo-
dation is possible, should the employer consider reassignment or a lateral transfer 
as an accommodation. Ibid. (citing EEOC Religion Guidelines, 29 C.F.R. 
1605.2(d)(iii)). Similarly, an employer’s proposed accommodation that only partially 
eliminates the conflict is not reasonable, unless all reasonable accommodations that 
would eliminate the conflict would pose an undue hardship. Id. § 12-IV-A-3. 

 
 
6 
Undue hardship defense. “Undue hardship” is not defined in Title VII. In 
Trans World Airlines, Inc. v. Hardison the Supreme Court defined “undue hardship” 
to mean “more than a de minimis cost.” 432 U.S. 63, 84 (1977).3 Common examples 
of undue hardship are found when an accommodation would violate a seniority sys-
tem, infringe on the rights of other employees, require more than a minimal expense, 
impair workplace safety, or jeopardize security. EEOC Religion Guidance § 12-IV-
B. 
To demonstrate undue hardship, employers must rely on “objective information,” 
not “speculative hardships,” including the assumption that other employees might 
seek accommodations. EEOC, What You Should Know About COVID-19 and the 
ADA, the Rehabilitation Act, and Other EEO Laws at L.3, L.4 (last updated Oct. 28, 
2021) [hereinafter “EEOC COVID-19 Guidance”].4 Whether a reasonable accommo-
dation exists that does not pose an undue hardship is a fact-specific inquiry appro-
priate for a case-by-case determination. EEOC Religion Guidance § 12-IV-B-1. 
Reasonable accommodation process. To receive a religious accommodation, 
an employee should notify the employer of the conflict between a workplace require-
ment, policy, or practice and the employee’s sincerely held religious belief, ob-
servance, or practice. EEOC COVID-19 Guidance at L.1. 
 
3  
Several recent petitions for certiorari have asked the Court to revisit Hardison’s undue hardship 
standard. In one case, Patterson v. Walgreen Co., Justices Clarence Thomas, Samuel Alito, and Neil 
Gorsuch agreed that “in an appropriate case” the Court should “consider whether Hardison’s interpre-
tation should be overruled,” recognizing that “more than a de minimis burden” is not “the most likely 
interpretation of the statutory term ‘undue hardship.’” 140 S. Ct. 685, 685-686 (2020). 
4  
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-
and-other-eeo-laws. 

 
 
7 
An employer should assume an employee requesting a religious accommodation 
is doing so based on a sincerely held religious belief unless the employer “has an 
objective basis for questioning either the religious nature or the sincerity of a par-
ticular belief,” in which case the employer may make a “limited factual inquiry” and 
seek additional supporting information. EEOC COVID-19 Guidance at L.2. 
An employer and an employee should engage in a “flexible, interactive process” 
to identify workplace accommodations that do not impose an undue hardship on the 
employer. EEOC COVID-19 Guidance at K.6. An employer “should thoroughly con-
sider all possible reasonable accommodations,” which in the COVID-19 vaccine con-
text could include periodic testing, masking, social distancing, modified shifts, tele-
work, and—as a “last resort”—reassignment. Id. at K.2, K.6, L.3. 
To the extent that an employer grants medical exemptions, but not religious ex-
emptions, the employer must demonstrate that religious exemptions would pose an 
undue hardship that medical exemptions do not pose. See EEOC Religion Guidance 
§ 12-IV-A-3. Failure to treat like accommodation requests alike would give rise to 
an inference of pretextual religious discrimination. Cf. Ansonia, 479 U.S. at 71 (“un-
paid leave is not a reasonable accommodation when paid leave is provided for all 
purposes except religious ones   * * *  [because] [s]uch an arrangement would display 
a discrimination against religious practices that is the antithesis of reasonable-
ness”). 
II. 
New York’s vaccine mandate conflicts with Title VII. 
Despite Title VII’s requirement that employers reasonably accommodate em-
ployees’ religious beliefs, on August 26, 2021, New York adopted an “emergency” 

 
 
8 
regulation that mandates COVID-19 vaccination for healthcare employees and cat-
egorically prohibits religious exemptions. N.Y. Comp. Codes R. & Regs. tit. 10, § 2.61 
(2021). That same regulation, however, allows broad medical exemptions whenever 
“any licensed physician or certified nurse practitioner certifies that immunization 
with COVID-19 vaccine is detrimental to the health of [the employee], based upon a 
pre-existing health condition.” Id. § 2.61(d). For such medical exemptions, the New 
York regulation provides that employers may grant “any reasonable accommoda-
tion.” Id. § 2.61(d)(1) 
Applicants’ sincerely held religious beliefs. In this case, the Applicants hold 
uncontested sincere religious beliefs against being injected with any of the COVID-
19 vaccines approved by the FDA. Appx.143-145. These religious beliefs relate to 
the documented connection between the vaccines and the use of aborted fetal cell 
lines in the vaccines’ testing, development, or production. Appx.143-145. 
Prior to the August 26 mandate, several Applicants had received religious ac-
commodations from their employers, who had determined (a) that the Applicants 
had sincerely held religious beliefs that prohibited them from receiving the COVID-
19 vaccine, (b) that an agreed upon reasonable accommodation existed, and (c) that 
the accommodation did not pose an undue hardship on the employer. Appx.148 ¶ 49; 
Appx.152 ¶ 77; Appx.163 ¶ 142; Appx.169 ¶ 173. Yet, because of the August 26 man-
date, some employers revoked previously granted religious accommodations and 
other employers refused to consider their employees’ religious accommodation re-
quests. Appx.148 ¶ 49; Appx.152 ¶ 77; Appx.158-159 ¶ 112; Appx.163-164 ¶¶ 142-

 
 
9 
143; Appx.169 ¶ 174. 
New York’s mandate prohibits religious accommodations. New York’s vac-
cine mandate purports to prohibit employers from providing employees the reason-
able religious accommodations required by Title VII. As the district court below ex-
plained, “The plain terms of [New York’s mandate] do not make room for ‘covered 
entities’ to consider requests for reasonable religious accommodations.” Appx.75. 
While New York’s scheme is an outlier, New York is not the only state attempting 
an end run around Title VII. See, e.g., Does 1-3 v. Mills, No. 21A90, 2021 WL 
5027177 (U.S. Oct. 29, 2021) (denial of application for injunctive relief challenging 
the lack of religious exemptions in Maine’s emergency COVID-19 vaccine mandate). 
If upheld, New York’s mandate would effectively nullify Title VII’s religious accom-
modation requirements for effected employees. 
The Second Circuit’s erroneous reasoning. The Second Circuit suggests that 
under New York’s mandate, an employer may accommodate its employees’ religious 
beliefs by transferring those employees to different positions not covered by the 
mandate. Appx.41-42. But such an “accommodation” would not be reasonable under 
Title VII, which permits job transfers as accommodations only when other reasona-
ble accommodations do not exist. Even lateral transfers themselves can be adverse 
employment actions. See Ortiz-Diaz v. U.S. Dep’t of Hous. & Urban Dev., 867 F.3d 
70, 81 (D.C. Cir. 2016) (Kavanaugh, J., concurring) (“transferring an employee be-
cause of the employee’s [protected basis] (or denying an employee’s requested trans-
fer because of the employee’s [protected basis]) plainly constitutes discrimination 

 
 
10 
with respect to ‘compensation, terms, conditions, or privileges of employment’ in vi-
olation of Title VII” (quoting 42 U.S.C. 2000e-2(a))); see also ibid. (Under the plain 
meaning of the statutory text, “[a]ll discriminatory transfers (and discriminatory 
denials of requested transfers) are actionable under Title VII.”). 
Here, an employer’s ability under New York’s mandate to make “any reasonable 
accommodation” for medical exemption requests creates an assumption that the 
same accommodations are available for those with religious exemption requests. 
Therefore, the proposed transfer accommodations for religious exemption requests 
are not reasonable because other reasonable accommodations exist. Indeed, prior to 
August 26, several Applicants had already received these religious accommodations 
from their employers. 
New York’s mandate cannot nullify Title VII. Whether Title VII requires 
any particular religious accommodation is not the question in this case. Rather, the 
immediate question before the Court is whether New York can legally issue a man-
date that nullifies the right to Title VII religious accommodation with respect to 
COVID-19 vaccination. That answer is “no.” 
New York’s mandate requires employers to document and report to the State 
their compliance with the vaccine mandate, and non-compliant employers are sub-
ject to penalties. N.Y. Comp. Codes R. & Regs. tit. 10, § 2.61(c)-(f). However, Title 
VII relieves an employer from “any liability, duty, penalty, or punishment” under 
any State law “which purports to require or permit the doing of any act which would 
be an unlawful employment practice under [Title VII].” 42 U.S.C. 2000e-7. 

 
 
11 
The U.S. Constitution’s Supremacy Clause establishes that federal laws “shall 
be the supreme Law of the Land,” U.S. Const. art. VI, para. 2. State laws can provide 
additional protections for religion, but state law cannot take away rights provided 
by federal law. 
III. 
Federal vaccine mandates recognize Title VII. 
In contrast to New York’s mandate, federal vaccine mandates have rightly rec-
ognized Title VII’s religious accommodation provision. President Joe Biden’s Sep-
tember 9, 2021, executive order mandating vaccination for all Federal employees, 
recognizes its mandate is “subject to such exceptions as required by law.” Exec. Or-
der No. 14043 § 1, 86 Fed. Reg. 50,989, 50,989 (Sept. 9, 2021). One of those laws is 
Title VII’s religious accommodation requirement. Consequently, the federal govern-
ment provides standardized religious accommodation request forms for any federal 
employees who seek an accommodation with respect to this federal COVID-19 vac-
cine mandate.5 
On November 5, 2021, the federal government issued two additional vaccine 
mandates—one for healthcare workers funded by the Centers for Medicare & Med-
icaid Services (CMS) within the Department of Health and Human Services (HHS) 
and another for employees of “large” employers covered by the Occupational Safety 
and Health Administration (OSHA) within the Department of Labor. Medicare and 
 
5  
See, e.g., EEOC, Religious Accommodation Request Form, https://www.eeoc.gov/sites/de-
fault/files/2021-10/EEOC%20Religious%20Accommodation%20Request%20Form%20-
%20for%20web.pdf; Safer Federal Workforce Task Force, Template: Request for a Religious Exemption 
to the COVID-19 Vaccination Requirement (last updated Oct. 29, 2021), https://www.saferfederal-
workforce.gov/downloads/RELIGIOUS%20REQUEST%20FORM_FINAL%20RE-
VIEW_20211003%2010.29%2011am.pdf. 

 
 
12 
Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination, 86 Fed. 
Reg. 61,555 (Nov. 5, 2021); COVID-19 Vaccination and Testing; Emergency Tempo-
rary Standard, 86 Fed. Reg. 61,402 (Nov. 5, 2021). 
CMS’s vaccine mandate for healthcare workers—“compelled” by the need “to pro-
tect the health and safety” of staff and patients—reiterates that “employers must 
comply with applicable Federal anti-discrimination laws and civil rights protec-
tions,” including Title VII. 86 Fed. Reg. 61,555, 61,560, 61,568. The mandate ex-
plained that this means employers must “provide appropriate accommodations, to 
the extent required by Federal law, for employees who request and receive exemp-
tion from vaccination because of a   * * *  sincerely held religious belief, practice, or 
observance.” 86 Fed. Reg. 61,555, 61,569. 
OSHA’s vaccine mandate—premised on the existence of a “grave danger” in 
workplaces of employers with 100 or more employees—likewise recognizes that em-
ployees “may be entitled to a reasonable accommodation.” 86 Fed. Reg. 61,402, 
61,552. As such, consistent with Title VII, the mandate’s vaccination requirement 
does not apply to employees “[w]ho are legally entitled to a reasonable accommoda-
tion under federal civil rights laws because they have   * * *  sincerely held religious 
beliefs, practices, or observances that conflict with the vaccination requirement.” 
Ibid. Both CMS’s and OSHA’s mandates direct employers to consult EEOC’s religion 
guidance and COVID-19 guidance for evaluating and responding to religious accom-
modation requests. See 86 Fed. Reg. 61,555, 61,572; 86 Fed. Reg. 61,402, 61,522, 
61,532, 61,552. 

 
 
13 
The U.S. Department of Justice recognizes: “Civil rights protections and respon-
sibilities still apply, even during emergencies. They cannot be waived.”6 Likewise, in 
light of the COVID-19 Public Health Emergency, HHS reminded “entities covered by 
civil rights authorities” that they should “keep in mind their obligations under laws 
and regulations that prohibit discrimination on the basis of  * * *  exercise of con-
science and religion in HHS-funded programs.”7 
CONCLUSION 
Without intervention by this Court, Applicants will lose Title VII’s vital protec-
tions of their religious beliefs. This Court should grant the application and enjoin 
operation of New York’s mandate as to Applicants. 
 
Respectfully submitted. 
 /s/ Rachel Morrison           
SHARON FAST GUSTAFSON 
FIRST LIBERTY INSTITUTE 
2001 West Plano Parkway 
   Suite 1600 
Plano, Texas 75075 
(703) 527-0147 
sharon.fast.gustafson@gmail.com 
RACHEL N. MORRISON 
   Counsel of Record 
ETHICS & PUBLIC POLICY CENTER 
1730 M Street, N.W. 
   Suite 910 
Washington, D.C. 20036-4548 
(202) 682-1200 
rmorrison@eppc.org 
 
Counsel for Amici Curiae 
NOVEMBER 2021 
 
6  
U.S. Dep’t of Just., Civil Rights and COVID-19 (last updated May 12, 2021), https://www.jus-
tice.gov/crt/Civil_Rights_and_COVID-19. 
7  
HHS Office for Civil Rights in Action, Bulletin: Civil Rights, HIPAA, and the Coronavirus Disease 
2019 (COVID-19) 1 (Mar. 28, 2020), https://www.hhs.gov/sites/default/files/ocr-bulletin-3-28-20.pdf.

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