63 F.4th 1215
9th Cir.2023Background
- Brianna Bolden-Hardge, a devout Jehovah’s Witness, objected to California’s public-employee loyalty oath because it requires “faith and allegiance” to the U.S. and California Constitutions and implies willingness to bear arms.
- She received a job offer from the California State Controller’s Office, requested an addendum to the oath declaring primary allegiance to God and refusal to bear arms, and the Controller’s Office rescinded the offer when it rejected the addendum.
- Bolden-Hardge sued the Controller’s Office and the State Controller (official capacity) alleging Title VII (failure-to-accommodate and disparate impact), FEHA (failure-to-accommodate), and federal/state Free Exercise violations; she sought damages (except under the state Free Exercise claim) and declaratory/injunctive relief.
- The district court dismissed all claims and denied leave to amend; Bolden-Hardge appealed.
- The Ninth Circuit (Friedland, J.) reversed in part: it held she stated Title VII and FEHA claims for failure to accommodate and disparate impact and that the district court abused its discretion by denying leave to amend her federal Free Exercise/damages claim against the official in her individual capacity; it also found she currently lacks standing to seek prospective relief but may amend.
- At the pleading stage the court rejected the Controller’s Office’s argument that accommodating would be a presumptive undue hardship because it would violate state law, and it held that obvious disparate impact need not be pled with statistics.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for prospective relief | Bolden‑Hardge can seek reinstatement or injunctive relief from Controller’s Office | She is not currently seeking employment there, so no imminent injury | No standing for prospective relief as pleaded; may amend to plead intent to reapply |
| Damages under §1983 / official-capacity suits | Seeks damages for Free Exercise violations | State entities/officials in official capacity not liable under §1983 | §1983 damages unavailable against state/official-capacity defendants as pleaded; leave to amend to sue official individually should have been allowed |
| Failure-to-accommodate (Title VII & FEHA) prima facie | Oath conflicts with sincerely held religious belief requiring primary allegiance to God | Oath does not force allegiance to religion over constitution; no conflict | Adequately pleaded a bona fide religious belief and conflict; prima facie case stated |
| Undue-hardship defense based on state-law violation | Accommodation would not necessarily create an enforcement risk; other agencies accommodated | Allowing accommodation would violate California Constitution, so undue hardship as matter of law | Employer not entitled to a presumption of undue hardship at pleading stage; factual showing of enforcement risk required |
| Disparate-impact pleading / need for statistics | Oath has an obvious disparate impact on Jehovah’s Witnesses; statistics unnecessary | Plaintiff must plead statistical evidence of disparate impact | Obvious disparate impact need not be supported by statistics at pleading stage; prima facie disparate-impact claim stated |
Key Cases Cited
- Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (Congress may abrogate state sovereign immunity under certain statutes)
- Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989) (§1983 does not permit damages suits against state entities or officials sued in their official capacities)
- Griggs v. Duke Power Co., 401 U.S. 424 (1971) (establishes disparate-impact framework and business‑necessity defense)
- Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) (courts should not second‑guess sincerity of asserted religious beliefs; narrow inquiry into honesty of conviction)
- Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707 (1981) (test for sincerity of religious beliefs in Free Exercise context)
- Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826 (9th Cir. 1999) (private‑employer undue‑hardship when accommodation would require violating law)
- United States v. Bd. of Educ., 911 F.2d 882 (3d Cir. 1990) (public‑employer undue‑hardship analysis focuses on actual risk of enforcement)
- ASARCO, LLC v. Union Pac. R.R. Co., 765 F.3d 999 (9th Cir. 2014) (affirmative defenses may be resolved at dismissal only when obvious from the face of the complaint)
- Hemmings v. Tidyman’s Inc., 285 F.3d 1174 (9th Cir. 2002) (elements of a prima facie disparate‑impact claim)
- Cole v. Richardson, 405 U.S. 676 (1972) (upholding certain loyalty oaths as consistent with governmental interests)