Three years after Gerald Groff secured a major expansion of religious rights in the workplace, the Christian postal worker fired for refusing to work Sundays is now urging the Supreme Court to stamp out an allegedly heretical reading of the precedent bearing his name.

Nearly half of U.S. states, religious and "health freedom" groups, military service members, the Equal Employment Opportunity Commission's former top lawyer, and a fired Christian fire chief already rejected by SCOTUS joined Groff in friend-of-the-court briefs asking the justices to review the firing of Washington state firefighters for refusing COVID-19 vaccination.

"For nearly 50 years" before Groff, "religious accommodations were rejected for only slight difficulty to employers," says Groff's brief, submitted on his behalf by the Independence Law Center. But the 9th U.S. Circuit Court of Appeals skipped the "factual development" required by Groff and made a "shallow and speculative" finding.

SCOTUS must grant review to ensure "claims of religious-discrimination victims are not prematurely dismissed based on misbegotten judicial factfinding," former Stockton, Calif. fire Chief Ronald Hittle said in his brief, filed by Groff's former lawyers at Baker Botts. The 9th Circuit also granted summary judgment to Stockton in Hittle's firing.

"As three circuits have now recognized, the fact-intensive standard" SCOTUS imposed in Groff "demands jury resolution of disputed evidence about whether accommodating an employee’s religious beliefs would pose an undue hardship," Hittle's brief reads.

Justices Clarence Thomas and Neil Gorsuch dissented from their colleagues' refusal to review Hittle's case, which alleged discrimination based on his Christian associations. SCOTUS must revisit its framework to evaluate circumstantial evidence in discrimination disputes, which has no grounding in Title VII employee rights "or any other source of law," the duo said.

Reportedly the most overturned appeals court since 2007, the 9th Circuit upheld Snohomish Regional Fire and Rescue in refusing religious accommodations for the eight plaintiffs, deemed "healthcare providers" subject to then-Democratic Gov. Jay Inslee's COVID vaccine mandate. The three-judge panel was nominated by GOP Presidents George W. Bush and Donald Trump.

Their employer need only show a "reasonable concern" that granting religious accommodations would cause "undue hardship" – defined in Groff as "excessive" or "unjustifiable" costs, the threshold under which employers can reject requests — and SRFR did that by arguing it might lose a "lucrative contract" with a state prison, the panel said.

"An undue hardship may include an evaluation of the risk of hardship, not just an accounting of damages actually suffered," the panel said, noting SRFR's insurer said it wouldn't cover liability claims for unvaccinated employees allegedly infecting patients, despite COVID vaccination not preventing transmission and the insurer confirming "it had never faced such a lawsuit."

The 9th Circuit's "reasonable concern" novelty would blow a hole through Groff, letting employers reject accommodations without worrying about what a jury might find, says the SCOTUS petition filed by First Liberty Institute, which recently convinced a court to block a Washington school district's "viewpoint discrimination" against a Christian ministry.

SCOTUS must break the "entrenched" deadlock between federal circuit courts, with the 3rd, 7th and 8th rejecting "good-faith yet mistaken" reasons for rejecting accommodations and the 1st, 6th and 9th allowing "mere reasonable concern," the plaintiffs' lawyers said.

They showed "next-door fire departments" gave the same accommodations with no hardship and that SRFR suffered none before nor after the seven-month mandate, the petition says. If "empirical evidence disproving an employer’s claimed undue hardship is not good enough to create a triable issue of fact [...]it is hard to see what could."

Red states have 'little trouble' granting 'vast majority' of accommodations

The high court has taken a keen interest in the right to a jury trial in recent years, notably forbidding the Securities and Exchange Commission in 2024 from using its own employees – administrative law judges – to apply civil penalties in lieu of a federal court.

Last month, SCOTUS heard oral argument in a challenge to the Federal Communications Commission's practice of giving regulated entities a Hobson's choice when it levies forfeiture penalties: dare the government to sue for payment in a jury trial or pay the penalty and guarantee review by an appeals court but no jury.

The Groff ruling gave other religious discrimination plaintiffs leverage. 

Earlier this year, an Indiana school district settled for a reported $650,000 with a Christian teacher fired for refusing to use his gender-confused students' preferred names and pronouns, after Groff compelled a chastened 7th Circuit to reinstate and remand John Kluge's case for a jury trial.

The fired Washington firefighters' SCOTUS petition drew far more interest than another COVID vaccination challenge on religious grounds by fired New York healthcare workers, despite the justices asking the Trump administration to weigh in on the latter. The Justice Department stunned President Trump's supporters by asking SCOTUS to reject the petition.

Twenty-two GOP attorneys general told the court that "even when important governmental functions like firefighting and first response are implicated," they've had "little trouble granting the vast majority of their [public] employees’ requested religious accommodations," even for "otherwise mandatory vaccine requirements" during COVID's height.

Led by Nebraska's Michael Hilgers, they argued that three federal circuits "have adopted an untenable and underprotective interpretation of Title VII" that endangers their predominantly religious citizenry and is likely to serve as a model for state courts and legislatures in writing their own antidiscrimination laws.

'Radical outlier'

Former EEOC general counsel Sharon Gustafson, who also supported Groff's petition, and her former attorney-adviser Rachel Morrison, now an Ethics and Public Policy Center fellow, filed a joint brief. They set up the EEOC's Religious Discrimination Work Group.

Three circuits are ignoring the commission's guidance manual on religious discrimination, which gives employers the "burden of persuasion" to show an accommodation would "in fact" create an "actual" undue hardship, Gustafson and Morrison said. 

The panel ignored the "plain text of Title VII" and improperly wrote off the neighboring fire departments, they said. "While not dispositive, the fact that" they could grant accommodations without a problem "suggests that there was not an actual undue hardship."

The ruling has already led another 9th Circuit panel astray on another COVID vaccine mandate, the duo said.

Earlier this month, a panel upheld a regional healthcare system's denial of religious accommodations to employees, crediting its "evidence of substantial risks to health, safety, and operations" and clarifying "an employer is not required to prove exclusively financial hardship" or grant "individualized accommodations" if any causes an undue hardship.

Current and former military service members Hunter Doster, Robert Schelske and Nickolas Kupper, who successfully challenged military COVID vaccine mandates as religious discrimination because non-religious exemptions were far easier to get, called the 9th Circuit's interpretation a "radical outlier" by recognizing "speculative hardship."

"When an employer grants exceptions to a policy that poses comparable risks from a safety perspective, or comparable employees in the same industry are accommodated without incident, that evidence bears directly on" the burden of religious accommodation requests, the trio said.

The 9th Circuit "casually dismisses" this evidence as irrelevant "hindsight" and has "repeatedly failed to grasp the import of comparator evidence in the religious discrimination context," they said, noting it rejected an emergency injunction against California's COVID restrictions on religious gatherings while the state permitted "unrestricted" secular gatherings.