Case: 22-20517 Document: 00516896869 Page: 1 Date Filed: 09/15/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
September 15, 2023
No. 22-20517 Lyle W. Cayce
____________ Clerk
Elimelech Shmi Hebrew,
Plaintiff—Appellant,
versus
Texas Department of Criminal Justice,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-2929
______________________________
Before Dennis, Engelhardt, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge:
The Texas Department of Criminal Justice fired Elimelech Shmi
Hebrew after he refused to cut his hair and beard in violation of his religious
vow. Hebrew brought a Title VII suit, alleging religious discrimination and
failure to accommodate his religious practice. The district court granted
summary judgment in favor of defendants. In accordance with the Supreme
Court’s recent decision in Groff v. DeJoy, 143 S. Ct. 2279 (2023), we reverse.
Case: 22-20517 Document: 00516896869 Page: 2 Date Filed: 09/15/2023
No. 22-20517
I.
Elimelech Shmi Hebrew is a devout follower of the Hebrew Nation
religion. As part of his religion, he has taken a Nazarite vow to keep his hair
and beard long—a vow he has kept for over two decades.
In August 2019, Hebrew was hired by the Texas Department of Criminal Justice (“TDCJ”) as a Correctional Officer. On August 19, he reported
for duty to the TDCJ training academy. TDCJ officers quickly singled out
him among the forty trainees. The officers told Hebrew that he could not stay
at the academy unless he cut his hair and shaved his beard in compliance with
TDCJ’s grooming policy.
At the time, TDCJ’s grooming policy forbade male officers from having beards unless they had a medical skin condition. The policy also prohibited male officers—but not female officers—from having long hair. TDCJ
has since amended its policy to allow all male officers to grow quarter-inch
beards.
When approached at the training academy, Hebrew informed the officers that he took a religious vow to keep his hair and beard long, and nothing
could make him violate that vow. The officers then gave him an ultimatum:
break his vow and cut his hair, or leave the academy without pay while his
accommodation request was pending. Hebrew chose the latter option. The
officers lined him up against a wall and photographed him from the front and
side. ROA.502–03. They also gave him a religious accommodation request
form. Hebrew completed the form and requested an accommodation to keep
his hair and beard that same day. He was forced to leave the academy while
his application was pending and was placed on leave without pay. A week
later, Hebrew filed a second request for religious accommodation with the
appropriate documentation and a recitation of his Nazarite vow.
2
Case: 22-20517 Document: 00516896869 Page: 3 Date Filed: 09/15/2023
No. 22-20517
Two months after that, Hebrew received a letter from TDCJ denying
his requests. It said:
The Civil Rights Act of 1964, 42 USC 2000e(j) requires employers to reasonably accommodate employees by allowing
them the opportunity to worship or observe their religious
practices. Beards are prohibited for safety reasons as security
staff must be able to properly wear a gas mask when chemical
agents are being utilized throughout the unit. Long locks of hair
could be used against you by an offender overpowering you especially from behind. Also, with this amount of hair contraband
items cannot be easily detected during search procedures of the
unit. Additionally, beards and hair of this length are prohibited
per PD-28 Dress and Grooming Standards, therefore, your request to wear a long beard and long locks is DENIED with no
further actions.
ROA.518; see also 406 (internal email providing same reasoning).
Hebrew received the letter. But he chose to keep his hair and beard in
obedience to his religious vow. As a result, TDCJ terminated his employment.
Hebrew exhausted his administrative remedies. He then filed a pro se
lawsuit against TDCJ and various officers, which alleged claims of religious
discrimination and failure to accommodate under Title VII of the Civil Rights
Act of 1964. The district court dismissed several officers from the suit. The
remaining defendants, TDCJ and Executive Director of TDCJ Bryan Collier,
moved for summary judgment. The district court found that Hebrew had established a prima facie case of religious discrimination. Nonetheless, it found
that TDCJ had a legitimate, non-discriminatory reason for firing Hebrew—
to promote the safety of officers and security of prisons. The district court
also recognized that TDCJ failed to accommodate his religious practice. But
it rejected Hebrew’s failure to accommodate claim, reasoning that the accommodation would impose an undue hardship on TDCJ. The district court
3
Case: 22-20517 Document: 00516896869 Page: 4 Date Filed: 09/15/2023
No. 22-20517
emphasized that TDCJ would have to bear more than a de minimis cost because coworkers would have to “perform extra work to accommodate” Hebrew’s religious practice. ROA.884. The district court granted summary
judgment in favor of the defendants. Hebrew timely appealed.
We review the district court’s summary judgment order de novo. See
Playa Vista Conroe v. Ins. Co. of the W., 989 F.3d 411, 414 (5th Cir. 2021). We
must construe all facts in favor of Hebrew as the non-moving party.
II.
Title VII forbids religious discrimination in employment: “It shall be
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). The statute defines “religion” broadly to include “all aspects
of religious observance and practice, as well as belief.” Id. § 2000e(j).
Title VII also requires employers to accommodate the religious
observances or practices of applicants and employees. See id. §§ 2000e-2(a),
2000e(j). Such accommodations often go above and beyond the non-religious
accommodations they might otherwise provide. EEOC v. Abercrombie & Fitch
Stores, Inc., 575 U.S. 768, 775 (2015) (“Title VII does not demand mere
neutrality with regard to religious practices . . . . Rather, it gives them favored
treatment . . . .”). In short, Title VII imposes on employers both a negative
duty not to discriminate and a positive duty to accommodate.
We hold TDCJ breached both duties. TDCJ (A) failed to
accommodate Hebrew’s religious practice and (B) discriminated against him
on the basis of his religious practice.
4
Case: 22-20517 Document: 00516896869 Page: 5 Date Filed: 09/15/2023
No. 22-20517
A.
First, Hebrew’s failure to accommodate claim. Title VII requires
employers to accommodate “all aspects of religious observance and
practice” unless the employer demonstrates that he cannot accommodate
the employee’s religious observance or practice “without undue hardship on
the conduct of the employer’s business.” 42 U.S.C. § 2000e(j); see Antoine
v. First Student, Inc., 713 F.3d 824, 831 (5th Cir. 2013).
All agree that TDCJ failed to accommodate one of Hebrew’s
fundamental religious practices by requiring him to cut his long hair and long
beard in violation of his religious vow. The only question is whether TDCJ
has met its burden to show that granting Hebrew’s requested
accommodation—to keep his hair and beard—would place an undue
hardship on TDCJ. We (1) hold TDCJ cannot meet the undue hardship
standard, and (2) the Department’s counterarguments are unavailing.
1.
The Supreme Court recently clarified the undue hardship standard.
See Groff v. DeJoy, 143 S. Ct. 2279 (2023). Many lower courts, including the
district court in this case, had read a prior Supreme Court decision, Trans
World Airlines, Inc. v. Hardison,
432 U.S. 63 (1977), to hold an “undue
hardship” was “any effort or cost that is ‘more than . . . de minimis.’” Groff,
143 S. Ct. at 2286 (quoting Hardison,
432 U.S. at 84). In Groff, a unanimous
Court forcefully rejected this reading. The Court held that a showing of
“undue hardship” requires something far greater: an employer must prove
that the burden of accommodation “is substantial in the overall context of an
employer’s business.” Id. at 2294. The Court looked to various definitions
of “hardship” and concluded:
under any definition, a hardship is more severe than a mere
burden. So even if Title VII said only that an employer need
5
Case: 22-20517 Document: 00516896869 Page: 6 Date Filed: 09/15/2023
No. 22-20517
not be made to suffer a “hardship,” an employer could not
escape liability simply by showing that an accommodation
would impose some sort of additional costs. Those costs would
have to rise to the level of hardship, and adding the modifier
“undue” means that the requisite burden, privation, or
adversity must rise to an “excessive” or “unjustifiable” level.
Ibid. (citation omitted). This is a heavy burden and requires something far
greater than de minimis—something more akin to “substantial additional
costs or substantial expenditures.” Id. at 2295 (quotation omitted).
The Court went on to offer a formulation for lower courts to apply:
We think it is enough to say that an employer must show that
the burden of granting an accommodation would result in
substantial increased costs in relation to the conduct of its
particular business.
What matters more than a favored synonym for “undue
hardship” (which is the actual text) is that courts must apply
the test in a manner that takes into account all relevant factors
in the case at hand, including the particular accommodations at
issue and their practical impact in light of the nature, size, and
operating cost of an employer.
Ibid. (citation and quotation omitted).*
_____________________
*
The Groff Court’s reference to “all relevant factors in the case at hand” obliges
the lower courts to tailor their analysis of Title VII to each individual case. Ibid.; cf. Fulton
v. City of Philadelphia, 141 S. Ct. 1868, 1881 (2021) (“Rather than rely on broadly
formulated interests, courts must scrutinize the asserted harm of granting specific
exemptions to particular religious claimants.”) (citation and quotation omitted). The
reference to the “size and operating cost” of the employer, Groff, 143 S. Ct. at 2295,
suggests that, all other things being equal, larger businesses and institutions must bear a
heavier burden in proving undue hardship.
6
Case: 22-20517 Document: 00516896869 Page: 7 Date Filed: 09/15/2023
No. 22-20517
The Court also specified what an undue hardship is not. Because the
hardship must affect “the conduct of the employer’s business,” evidence of
“impacts on coworkers is off the table for consideration” unless such impacts
place a substantial strain on the employer’s business. Groff, 143 S. Ct. at 2296
(quoting 42 U.S.C. § 2000e(j)). Even if an impact on coworkers places a
substantial strain on the employer’s business, that impact “cannot be
considered ‘undue’” if it is attributable to religious bias or animosity. Ibid.
Finally, the Court noted that “Title VII requires that an employer
reasonably accommodate an employee’s practice of religion, not merely that
it assess the reasonableness of a particular possible accommodation or
accommodations.” Ibid. If a requested accommodation poses an undue
hardship, the employer must sua sponte consider other possible
accommodations. See id. at 2297. Only after thorough consideration of other
options may the employer deny the employee’s request for accommodation.
Cf. Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 455 (7th Cir. 2013)
(“On this issue, [the employer] bears the burden of proof, so it must show,
as a matter of law, that any and all accommodations would have imposed an
undue hardship.”) (cited in Groff, 143 S. Ct. at 2296).
TDCJ cannot meet the requirements of Title VII for at least four
reasons. First, TDCJ merely argues that the burden it would face is more than
de minimis. ROA.477. But as Groff held, a de minimis burden does not qualify
as an undue hardship. Thus, TDCJ’s claim fails at the starting line. Second,
TDCJ nowhere identifies any actual costs it will face—much less
“substantial increased costs” affecting its entire business—if it grants this
one accommodation to Hebrew. See Groff, 143 S. Ct. at 2295. TDCJ simply
identifies its security and safety concerns without regard to costs. Likewise,
TDCJ’s reference to possible additional work for Hebrew’s coworkers is
insufficient to show an undue hardship. See id. at 2296. Finally, TDCJ did not
present any evidence that it considered other possible accommodations. See
7
Case: 22-20517 Document: 00516896869 Page: 8 Date Filed: 09/15/2023
No. 22-20517
id. at 2297. It simply rejected Hebrew’s accommodation request without a
thorough examination of “any and all” alternatives. See Adeyeye, 721 F.3d at
455.
2.
TDCJ raises three counterarguments. None is persuasive.
First, TDCJ argues that this accommodation would pose an undue
hardship because Hebrew could hide contraband in his hair or beard. But the
district court admitted that TDCJ could simply search Hebrew before he
entered the prison facilities. See ROA.885. As its own expert attested, TDCJ
already “conducts searches of everyone who enters a unit, including its own
employees.” ROA.552. And TDCJ already searches officers’ hair and beards
if it suspects hidden contraband. ROA.553; cf. Holt v. Hobbs, 574 U.S. 352,
365 (2015) (holding beard searches address prison’s safety concerns in
context of religious discrimination claim under the Religious Land Use and
Institutionalized Persons Act of 2000 (“RLUIPA”)). TDCJ’s expert only
feared that “if all officers were permitted to have long hair and long beards,
the TDCJ may need to consider changing the way officers are searched.”
ROA.553. But a hypothetical policy reevaluation if everyone received an
accommodation cannot show that TDCJ faces an undue hardship if it grants
one accommodation. See Groff, 143 S. Ct. at 2295 (instructing us to look to
“the case at hand” and “the particular accommodations at issue” (emphasis
added)). The fact that a search of Hebrew might take a few extra minutes
would not pose a “substantial” or “undue hardship” “in the overall
context” of TDCJ’s $2.4 billion FY2022 budget. Id. at 2294; Explore
Expenditures, Texas Comptroller, https://perma.cc/5FVH-WHV9
(last visited September 12, 2023) (select “Expenditures”; then select
“FY2022”; then select “All Expenditures”; select “Texas Department of
8
Case: 22-20517 Document: 00516896869 Page: 9 Date Filed: 09/15/2023
No. 22-20517
Criminal Justice” from AGENCY dropdown; and finally select “General
Revenue Fund” from APPROPRIATED FUND dropdown).
Second, TDCJ points to the potential safety risks of wearing a gas
mask with a beard. Officers sometimes use chemical agents in prisons. When
they do, TDCJ encourages the use of gas masks “if time and if the situation
permits.” ROA.556. Beards can inhibit masks from properly sealing and
possibly expose officers to chemicals.
Importantly, both the mask instruction manual and TDCJ’s expert
stated that any length of beard can prevent proper sealing. ROA.557. In fact,
TDCJ’s expert acknowledged that he has seen men with “even limited facial
hair” unable to seal their masks. ROA.559. Nonetheless, when TDCJ denied
Hebrew’s accommodation, it allowed officers with medical conditions to
have quarter-inch beards. ROA.559. TDCJ now allows all male officers to
have quarter-inch beards. ROA.581. TDCJ has offered no evidence
whatsoever to show that there is a greater safety risk or hardship in allowing
Hebrew to keep his beard. Cf. Fraternal Order of Police Newark Lodge No. 12
v. City of Newark, 170 F.3d 359 (3d Cir. 1999) (Alito, J.) (holding that a no-beard policy with a medical exemption undermined the prison’s stated safety
rationale).
Third, TDCJ argues that inmates could grab Hebrew’s long beard or
hair in an attack and thereby incapacitate him. But again, TDCJ’s exception
for other individuals undermines its stated rationale. For example, TDCJ
permits female officers to have long hair for any reason, religious or secular.
And female officers with long hair face the same safety risk Hebrew allegedly
would. For example, TDCJ’s expert testified that he has seen a woman
attacked when an inmate grabbed her hair. ROA.559. Nonetheless, TDCJ
continues to allow women to have long hair. This purely secular exception
for some officers undercuts TDCJ’s proffered safety concerns in creating an
9
Case: 22-20517 Document: 00516896869 Page: 10 Date Filed: 09/15/2023
No. 22-20517
exception for Hebrew. Cf. Fraternal Order, 170 F.3d at 366; Fulton, 141 S. Ct.
at 1882. Thus, the policy does not even provide “neutral” treatment toward
religious observers, much less the “favored treatment” that Title VII
demands. Abercrombie,
575 U.S. at 775.
With respect to Hebrew’s beard, TDCJ has presented no evidence
that an officer with a long beard imposes an undue hardship. Cf. Garner v.
Kennedy, 713 F.3d 237, 247 (5th Cir. 2013) (concluding that TDCJ’s no-beard
policy for inmates failed under RLUIPA because TDCJ presented “no
evidence of any specific incidents affecting prison safety in those systems due
to beards”). TDCJ’s only evidence belabors the safety concerns of long hair
but not long beards. ROA.556. Even if such safety concerns did exist, TDCJ
would still bear the burden of demonstrating the “substantial increased
costs” needed to address said concerns. Groff, 143 S. Ct. at 2295. Thus,
TDCJ has not met its burden to show that it would face an undue hardship if
it accommodated Hebrew’s religious faith.
B.
Next, Hebrew’s Title VII religious discrimination claim. As the
Supreme Court has held, “the rule for disparate-treatment claims based on a
failure to accommodate a religious practice is straightforward: An employer
may not make an applicant’s religious practice, confirmed or otherwise, a
factor in employment decisions.” Abercrombie, 575 U.S. at 773. That means
an “employer violates Title VII” if the employee “requires an
accommodation of [a] religious practice, and the employer’s desire to avoid
the prospective accommodation is a motivating factor in his decision” to
terminate the employee.
Id. at 773–74. Notably, this “motivating factor”
standard is “broader than the typical but-for causation standard” and
encompasses many claims of religious discrimination. Nobach v. Woodland
Vill. Nursing Ctr., Inc.,
799 F.3d 374, 378 (5th Cir. 2015). An employer need
10
Case: 22-20517 Document: 00516896869 Page: 11 Date Filed: 09/15/2023
No. 22-20517
not even know about the employee’s religious practice; it violates Title VII so
long as it takes the action “with the motive of avoiding the need for
accommodating a religious practice.” Abercrombie, 575 U.S. at 774 (emphasis
in original). And motive is especially easy to infer where an employee has
submitted a request for an accommodation or where the employer knows of
the employee’s religious practice. See ibid.; Nobach,
799 F.3d at 378.
Hebrew’s religious practice was more than a motivating factor in
TDCJ’s termination decision. In fact, it was the only factor that led to his
discharge. Upon his arrival at the training academy, Hebrew told TDCJ about
his religious practice and requested an accommodation. TDCJ told him he
would not be able to remain at the training academy so long as he continued
to abide by his religious practice. TDCJ placed him on unpaid leave. And then
TDCJ fired him for his religious observance of his Nazarite vow. Hebrew has
sufficiently proved that TDCJ fired him “because of” his religious practice,
so we must reverse the district court’s entry of summary judgment. 42
U.S.C. § 2000e-2(a); see also id. § 2000e(j); Abercrombie, 575 U.S. at 773;
Nobach,
799 F.3d at 379.
TDCJ argues nonetheless that there is no Title VII violation because
its proffered reason for discriminating against Hebrew was neutral and based
on legitimate safety concerns. The employer in Abercrombie made the same
argument, contending “that a neutral policy cannot constitute ‘intentional
discrimination.’” 575 U.S. at 775. But the Supreme Court rebuffed this
argument, holding:
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,
affirmatively obligating employers not to fail or refuse to hire
or discharge any individual . . . because of such individual’s
religious observance and practice. An employer is surely
11
Case: 22-20517 Document: 00516896869 Page: 12 Date Filed: 09/15/2023
No. 22-20517
entitled to have, for example, a no-headwear policy as an
ordinary matter. But when an applicant requires an
accommodation as an aspect of religious . . . practice, it is no
response that the subsequent failure . . . to hire was due to an
otherwise-neutral policy. Title VII requires otherwise-neutral
policies to give way to the need for an accommodation.
Ibid. (quotations omitted). Likewise, in this case, TDCJ cannot hide behind
its “otherwise-neutral policy.”
Ibid. This policy must “give way” to
Hebrew’s requested accommodation.
Ibid. Plain and simple, “religious
practice is one of the protected characteristics that cannot be accorded
disparate treatment and must be accommodated.”
Ibid.
…
For decades, inferior federal courts read a single line from Hardison
for more than it was worth. The de minimis test had no connection to the text
of Title VII. See Small v. Memphis Light, Gas & Water, 952 F.3d 821, 826–28
(6th Cir. 2020) (Thapar, J., concurring). And by blessing “the denial of even
minor accommodation in many cases, “the de minimis test made it “harder
for members of minority faiths to enter the job market.” Groff, 143 S. Ct. at
2292 (citing amicus briefs from, inter alia, The Sikh Coalition, Union of
Orthodox Jewish Congregations of America, and Seventh-day Adventist
Church). No more. The decision in Groff enables Americans of all faiths to
earn a living without checking their religious beliefs and practices at the door.
For the foregoing reasons, we REVERSE the district court’s entry of
summary judgment and REMAND for proceedings consistent with this
opinion.
12
