Keeping Tabs on the Ninth Circuit
April 07, 2023 - This Week at the Ninth

This Week At The Ninth: Religious Beliefs and Loyalty Oaths

Vintage Pen

This week, the Court addresses whether a state may refuse a religious accommodation to a government employee who is required to sign a loyalty oath as a condition of employment.


The Court holds that a plaintiff stated an employment-discrimination claim by alleging that she was denied the reasonable accommodation of modifying a state loyalty oath to conform with her religious beliefs.

The panel: Judges Schroeder, Graber, and Friedland, with Judge Friedland writing the opinion.

Key highlight:  “[C]onstruing all facts and inferences in Bolden-Hardge’s favor, it is possible to understand the [loyalty] oath as requiring state employees to place their allegiance to the federal and state constitutions over their allegiance to God for the purposes of their work. Indeed, California’s apparent rationale for the oath requirement is to ensure that if an oath taker’s religion ever comes into conflict with the federal or state constitutions, religion must yield. It is in fact this very rationale that the Controller’s Office invokes in defending the oath requirement. . . . We therefore hold that Bolden-Hardge has adequately alleged that the ‘faith and allegiance’ component of the loyalty oath poses a conflict with her religious beliefs.”

Background: The California Constitution requires all public employees, except those “as may be by law exempted,” to swear to support the United States and California Constitutions and to “bear true faith and allegiance” to those constitutions. Plaintiff Brianna Bolden-Hardge is a devout Jehovah’s Witness who believes her faith prevents her from swearing allegiance “to any human government” over “the Kingdom of God.” In 2017, she was offered a position with the California Office of the State Controller, which asked her to take California’s loyalty oath. Plaintiff requested an accommodation by which she would sign the oath “with an addendum specifying that her allegiance was first and foremost to God and that she would not take up arms.” The Controller’s Office rejected her proposal. Plaintiff refused to sign the oath without a modification and her job offer was accordingly rescinded. She subsequently worked at other state agencies that either did not require her to sign a loyalty oath or permitted her to sign an oath with an addendum. 

Plaintiff sued the Controller’s Office and the Controller in her official capacity, alleging their refusal to allow her proposed addendum violated Title VII, the California Fair Employment and Housing Act (FEHA), and the Free Exercise Clauses of the federal and state constitutions. She sought prospective injunctive relief and damages. The district court dismissed her claims without leave to amend.

Result: The Ninth Circuit reversed.

The Court first held that plaintiff’s standing to bring her claims was lacking in two respects. First, she “lack[ed] the actual and imminent threat of future injury required to have standing to seek prospective relief on any of her claims” because she had not adequately alleged she was still seeking employment at the Controller’s Office. Second, she could not obtain damages for her federal free-exercise claim under 42 U.S.C. § 1983 because that statute does not provide a cause of action to sue state entities or officials in their official capacity. The Court determined, however, that plaintiff could amend her complaint to cure both these defects.

The Court then held plaintiff had stated damages claims under Title VII and FEHA. Both statutes “require employers to accommodate job applicants’ religious beliefs unless doing so would impose an undue hardship.” Failure-to-accommodate claims are analyzed under a burden-shifting framework: if the employee successfully pleads a prima facie case of failure to accommodate, the employer can show it was justified in not accommodating the employee’s beliefs or practices.

The Court determined plaintiff had satisfied her prima facie burden. Observing that “the burden to allege a conflict with religious beliefs is fairly minimal,” the Court declined to “interrogate the reasonableness” of plaintiff’s beliefs. Instead, it merely determined she had adequately alleged a conflict between her beliefs and the loyalty-oath requirement because it was “possible to understand the oath as requiring state employees to place their allegiance to the federal and state constitutions over their allegiance to God for the purposes of their work.” 

To rebut plaintiff’s prima facie case, the Controller’s Office was required to show “either that it initiated good faith efforts to accommodate reasonably the employee’s religious practices or that it could not reasonably accommodate the employee without undue hardship.” Tiano v. Dillard Dep’t Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998). Because the latter showing—undue hardship—is an affirmative defense, dismissal on that ground is proper “only if the defendant shows some obvious bar to securing relief on the face of the complaint” or in “any judicially noticeable materials.” ASARCO, LLC v. Union Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014). Assuming without deciding that plaintiff’s proposed addendum would violate the California Constitution, the Court held the Controller’s Office had not established as a matter of law that this would impose undue hardship. Although private employers may establish undue hardship if accommodation would expose them to liability for violating state law, those employers “have no ability to create or enforce that law.” By contrast, violating the oath requirement would not subject the Controller’s Office to an enforcement action. The Court also observed that allowing the Controller’s Office to refuse accommodation based solely on state law “would essentially permit states to legislate away any federal accommodation obligation, raising Supremacy Clause concerns.”

The Court finally held plaintiff had stated a claim of disparate impact under Title VII. To plead a prima facie case, a plaintiff must “(1) show a significant disparate impact on a protected class or group; (2) identify the specific employment practices or selection criteria at issue; and (3) show a causal relationship between the challenged practices or criteria and the disparate impact.”  Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1190 (9th Cir. 2002). In holding plaintiff met these requirements, the Court rejected defendants’ argument that plaintiff needed to produce statistical evidence: the disparate impact of the loyalty oath on Jehovah’s Witnesses was obvious without such statistics. It also rejected defendants’ argument that the loyalty oath was justified as a “business necessity” because this assertion was not apparent from the face of plaintiff’s complaint—particularly in light of the state’s alleged practice of exempting some employees from the oath requirement.