I hope everyone had a happy holiday weekend. In many places around the world, today is also a holiday as it is Easter Monday.


On April 7, 2023, the Seventh Circuit came down with a decision discussing the de minimis rule when it comes to accommodating an employee’s religious needs. I got to thinking about how would that case play out if the ADA concept of undue hardship was used in religious accommodation cases. As you know, the court is currently considering a case that would abolish the de minimis exception in favor of the ADA/Rehabilitation Act concept of undue hardship. The Supreme Court’s reasoning would probably go something like this. The case establishing undue hardship with respect to religious accommodations was decided by the Supreme Court in June of 1977 in TWA v. Hardison, here. As anybody who has seen Crip Camp knows, the very first Rehabilitation Act regulations didn’t come around until May of 1977 after the late Judy Heumann led a sit in, in San Francisco. If you look at the U.S. Department of Education website, it tells you that they were the first Department to come up with Rehabilitation Act regulations and other departments used their regulations as their model. The Rehabilitation Act and their final regulations were used as the basis for the ADA in 1990 (as readers know, the ADA extended the Rehabilitation Act and its paradigm to: employers of 15 or more employees; nonfederal governmental entities; and places of public accommodations as defined in title III of the ADA). So, there is no way the Supreme Court in June 1977 would have been aware of the U.S. Department of Education regulations in May of 1977. Even if they were, the regulations would not have applied to TWA v. Hardison. One the ADA was enacted, the EEOC and the DOJ both put in their own final regulations. The ADA and the Rehabilitation Act regulations share common definitional terms, such as what is an undue hardship. Case law has only expanded on that over the years. As a result of all this, the Supreme Court may very well say that when they decided that undue hardship meant de minimis, that notion has now been overruled by parallel statutes and final regulations now in place for decades. Therefore, TWA v. Hardison is overruled and the ADA scheme for undue hardship is what is meant when it comes to what has to be done to accommodate the sincerely held religious beliefs of employees. The blog entry for the week deals with two topics. First, how does it play out under the current de minimis situation when you have an employee of the school system (who teaches music at the high school and is the only teacher for that discipline), whose sincerely held religious beliefs says transgender is something that he cannot promote. Second, even assuming that the ADA paradigm of undue hardship would be the law with respect to deciding this particular case, would the employee still lose?


The case of the day is Kluge v. Brownsburg Community School Corporation decided by the Seventh Circuit on April 7, 2023, here. It is 134 pages, but it isn’t that hard to condense. As usual, the blog entry is divided into categories and they are: facts; majority reasoning that the reasonable accommodation requested by plaintiff was more than de minimis; Judge Brennan’s dissenting opinion; plaintiff still likely loses, in my opinion, even under ADA paradigm; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.




Kluge, the plaintiff, was the music director for the high school in Brownsburg, Indiana, which is 28 minutes from Indianapolis by car without traffic. The high school realized that two transgender individuals were going to be entering the freshman class, so the high school convened study groups to figure out how to deal with it. They eventually decided that they would develop a system where the teachers would call all students by the name that appears in a certain school document. If BOTH a parent and a healthcare provider said that the student wanted to be called by a preferred name that was different from their legal name, then the school would put that name on the school document that everyone had to use. The plaintiff explained to the school that his religious beliefs prohibited him from promoting transgender in any shape or form. So, the school and the plaintiff worked out a system where he could call everyone in his class by their last name. There is some debate as to whether the plaintiff over the next year slipped up with respect to pronoun use and first name use, but he did stick to calling everyone by their last names with perhaps some exceptions on occasions. Interestingly enough, at the formal band award ceremony, the plaintiff did call everyone by the name that appeared on the school document saying that the formality of the occasion dictated that he temporarily make an exception to how he went about his business during the school day with respect to the names that he used.


The last name approach simply didn’t work and it caused all kinds of trauma among the students because the transgender students felt they were being singled out since there were no other reason why a teacher would be using last names. It also made students that were not transgender extremely uncomfortable and they took that with them into other classrooms. Finally, parents got really upset as well. In the end, the school gave the plaintiff a choice to either call people by the name on the school document or resign. He resigned and then tried to take back the resignation. When the school would not take back the resignation, he sued claiming that the school discriminated against him on the basis of religion and his sincerely held religious beliefs.



Majority Reasoning That the Reasonable Accommodations Requested by Plaintiff Was More Than De Minimis


  1. In TWA v. Hardison the United States Supreme Court said that requiring the employer to bear more than a de minimis cost is an undue hardship.
  2. The school produce uncontradicted evidence that plaintiff’s last names only practice stigmatized the transgender students and caused them demonstrable emotional harm as reported to the administration by staff who personally witnessed the emotional harm.
  3. Plaintiff was told that students reported feeling disrespected, targeted, isolated, and dehumanized.
  4. The school has a legitimate interest in the mental health of its students.
  5. An accommodation is not reasonable when it is detrimental to kids.
  6. The plaintiff’s practice also adversely affected the classroom environment for both transgender and non-transgender students as it made the classroom environment tense, awkward, and uncomfortable.
  7. Administration told the plaintiff that based on reports from students and faculty, his practice resulted in students being uncertain about how to behave and how to address their transgender classmates.
  8. The last name practice also disrupted other classrooms when student brought their concerns and discussions about the practice to other teachers in other classrooms.
  9. The school’s policies sought to address the special challenges transgender students face in school while balancing those concerns with the preferences of the students parents and healthcare providers.
  10. Allowing the last name practice, placed an undue hardship on Brownsburg’s mission to educate all of its students, and a desire to treat all students with respect and affirmation for their identity in the service of that mission.
  11. The plaintiff’s retaliation claim also fails because of the inability to show causation.




Judge Brennan’s Dissenting Opinion


  1. Judge Brennan would reverse the District Court in part and grant partial summary judgment for the plaintiff on the grounds that his religious beliefs are sincerely held and then he had a prime facie case for religious discrimination. He would allow for a trial to ascertain whether the last name policy was more than a de minimis cost.



Plaintiff Still Likely Loses, In My Opinion, Even under ADA Paradigm of Undue Hardship


  1. As readers of the blog know, an undue hardship under title I of the ADA can either be logistical (think fundamental alteration) or financial.
  2. Financial undue hardship is not an issue in this case. Logistical undue hardship is.
  3. The majority goes into extensive detail about how the ability of the school to operate effectively to educate its kids was fundamentally altered in the ADA/Rehabilitation Act sense by the last name reasonable accommodation policy.
  4. Since a fundamental alteration is present, i.e. logistical undue hardship, the plaintiff still loses.






  1. I do think it is extraordinarily likely that the Supreme Court using something along the lines of the reasoning at the very top of this blog entry, will say in the case they are currently considering that undue hardship for purposes of accommodating sincerely held religious beliefs needs to match up with the ADA and the Rehabilitation Act.
  2. This case illustrates the proposition, in my opinion anyway, that even under the higher standard of the ADA/Rehabilitation Act with respect to what is an undue hardship, it is still possible for a plaintiff to lose.
  3. Hazarding a guess as to what the Supreme Court would do when faced with a case is a fool’s errand. Nevertheless, while one never knows what the Supreme Court will do, I would not like the chances of the plaintiff in this case before the United States Supreme Court even after the United States Supreme Court comes down with a decision saying that undue hardship in the religious accommodation arena matches up with undue hardship in the ADA/Rehabilitation Act arena.
  4. The majority opinion is some 76 pages in the dissenting opinion is some 58 pages. The majority opinion goes into great detail as to the negative effects of plaintiff’s reasonable accommodation on the school operations over a year period while using plaintiff’s reasonable accommodation.
  5. Both the majority and dissenting opinion agree that something along the lines of the ADA’s fundamental alteration defense exists in religious accommodation cases, though they disagree as to where that line might be.
  6. On July 28, 2023, the Seventh Circuit Court of Appeals remanded the case back to the District Court to apply to the case the standard set forth in Groff v. DeJoy.