Brianna Bolden-Hardge v. California State Controller ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIANNA BOLDEN-HARDGE, No. 21-15660
Plaintiff-Appellant,
D.C. No.
v. 2:20-cv-02081-
JAM-DB
OFFICE OF THE CALIFORNIA
STATE CONTROLLER; MALIA M.
COHEN, * in her official capacity as OPINION
California State Controller,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted November 17, 2022
San Jose, California
Filed April 3, 2023
Before: Mary M. Schroeder, Susan P. Graber, and
Michelle T. Friedland, Circuit Judges.
Opinion by Judge Friedland
*
Malia M. Cohen has been substituted for her predecessor, Betty T. Yee,
under Fed. R. App. P. 43(c)(2).
2 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER
SUMMARY **
Employment Discrimination / Free Exercise
Reversing the district court’s dismissal of Brianna
Bolden-Hardge’s complaint challenging a state employer’s
refusal to allow a religious addendum to the public-
employee loyalty oath set forth in the California
Constitution, and remanding, the panel held that Bolden-
Hardge stated claims under Title VII and the California Fair
Employment and Housing Act and was entitled to leave to
amend her claims under the Free Exercise Clauses of the
federal and state constitutions.
Bolden-Hardge, a devout Jehovah’s Witness, objected to
California’s loyalty oath because she believed it would
violate her religious beliefs by requiring her to pledge
primary allegiance to the federal and state governments and
to affirm her willingness to take up arms to defend them.
When she was offered a position at the California Office of
the State Controller, the Controller’s Office asked her to take
the loyalty oath. She requested an accommodation to 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 this proposal and
rescinded the job offer. Bolden-Hardge returned to a lower-
paying job at the California Franchise Tax Board, which then
required her to take the oath but permitted her to include an
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 3
addendum like the one that she had proposed to the
Controller’s Office.
Bolden-Hardge sued the Controller’s Office and the
California State Controller in her official capacity, alleging
violations of Title VII under both failure-to-accommodate
and disparate-impact theories. She also asserted a failure-to-
accommodate claim against the Controller’s Office under
the California Fair Employment and Housing Act
(“FEHA”), and she alleged that the refusal by both
defendants to accommodate her religious beliefs violated the
Free Exercise Clauses of the federal and state constitutions.
Bolden-Hardge sought declaratory relief for all of her
claims, and she sought damages for all of her claims except
the California free-exercise claim.
The panel held that, as currently pleaded, Bolden-
Hardge’s alleged injury was redressable only through a
claim for damages. The panel held that she lacked the actual
and imminent threat of future injury required to have
standing to seek prospective relief on any of her claims, but
she could attempt to cure this defect by amendment. The
panel held that Bolden-Hardge could seek damages from the
Controller’s Office on her claims under Title VII, which
abrogates states’ sovereign immunity, and FEHA, which
similarly subjects state employers to suits for damages. As
currently pleaded, she could not obtain damages for her free-
exercise claim under 42 U.S.C. § 1983, which does not
provide a cause of action to sue state entities or state officials
in their official capacities. The panel held, however, that the
district court abused its discretion in denying Bolden-Hardge
leave to amend to seek damages from the State Controller in
her individual capacity.
4 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER
The panel held that, because Bolden-Hardge had
standing to seek damages on her claims under Title VII and
FEHA, it had jurisdiction to consider the merits of those
claims. The panel held that Bolden-Hardge pleaded a prima
facie case of failure to accommodate religion under Title VII
and FEHA by alleging that she held a bona fide religious
belief that conflicted with the “faith and allegiance”
component of the loyalty oath, which was an employment
requirement. Assuming without deciding that
accommodating Bolden-Hardge would violate the California
Constitution, the panel held that the Controller’s Office
could not rebut Bolden-Hardge’s prima facie case by arguing
that violating state law would pose an undue hardship as a
matter of law. The panel explained that the presumption of
undue hardship applies only when accommodating an
employee’s religious beliefs would require a private
employer to violate federal or state law. Where the employer
is part of the very state government that is responsible for
creating and enforcing the law, and there is no indication that
violating that law would subject the public employer to an
enforcement action by another part of state government,
deeming accommodation a presumptive undue hardship at
the pleadings stage would permit states to legislate away
federal accommodation obligations. The panel noted that the
Third Circuit has similarly focused on the risk of
enforcement in assessing undue hardship.
The panel held that Bolden-Hardge pleaded a prima facie
case of disparate impact, which requires a plaintiff to (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. The panel held that to satisfy the first prong of a
BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 5
prima facie case, the plaintiff need not support her claim
with statistics where a disparate impact is obvious. The panel
further held that, at this stage of the case, the Controller’s
Office did not show that it was entitled to a business
necessity defense.
COUNSEL
James A. Sonne (argued) and Zeba A. Huq, Stanford Law
School Religious Liberty Clinic, Stanford, California;
Wendy E. Musell, Law Offices of Wendy Musell, Oakland,
California; Joshua C. McDaniel, Harvard Law School
Religious Freedom Clinic, Cambridge, Massachusetts; for
Plaintiff-Appellant.
Kelsey Linnett (argued), Supervising Deputy Attorney;
Christopher D. Beatty, Deputy Attorney General; Chris A.
Knudsen, Senior Assistant Attorney General; Rob Bonta,
Attorney General of California; Office of the California
Attorney General; Oakland, California; for Defendants-
Appellees.
Eugene Volokh; Aris Prince and Anastasia Thatcher,
Certified Law Students; UCLA School of Law First
Amendment Clinic; Los Angeles, California; for Amici
Curiae Professors Daniel Conkle, Richard Garnett, Douglas
Laycock, Michael McConnell, Gregory Sisk, and Nelson
Tebbe.
6 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER
OPINION
FRIEDLAND, Circuit Judge:
Brianna Bolden-Hardge challenges a state employer’s
refusal to allow a religious addendum to the public-
employee loyalty oath set forth in the California
Constitution. We reverse the district court’s dismissal of her
Complaint. Bolden-Hardge has stated claims under Title VII
and the California Fair Employment and Housing Act, and
she should have been granted leave to amend her claims
under the Free Exercise Clauses of the federal and state
constitutions. Although the state employer has asserted
defenses that might ultimately prevail, none of them can be
considered at the motion to dismiss stage.
I.
A.
The California Constitution requires all public
employees, except those “as may be by law exempted,” to
swear or affirm to “support and defend the Constitution of
the United States and the Constitution of the State of
California against all enemies, foreign and domestic” and to
“bear true faith and allegiance” to those constitutions. Cal.
Const. art. XX, § 3. Bolden-Hardge, a devout Jehovah’s
Witness, believes that her faith precludes her from “swearing
primary allegiance to any human government” over “the
Kingdom of God” or pledging to engage in military activity.
She objects to California’s loyalty oath because she believes
that it would require her to pledge primary allegiance to the
federal and state governments and to affirm her willingness
to take up arms to defend them, both of which she says would
violate her religious beliefs.
BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 7
In 2016, Bolden-Hardge began working for the
California Franchise Tax Board without first signing a
loyalty oath. The next year, however, she applied to the
California Office of the State Controller and was offered a
higher-paying position. The Controller’s Office asked her to
take California’s loyalty oath, and Bolden-Hardge requested
an accommodation to sign the oath with an addendum
specifying that her allegiance was first and foremost to God
and that she would not take up arms. Her proposed
addendum read:
I, Brianna Bolden-Hardge, vow to uphold the
Constitutions of the United States and of the
State of California while working in my role
as an employee of the State Controller’s
Office. I will be honest and fair in my
dealings and neither dishonor the Office by
word nor deed. By signing this oath, I
understand that I shall not be required to bear
arms, engage in violence, nor to participate in
political or military affairs. Additionally, I
understand that I am not giving up my right
to freely exercise my religion, nor am I
denouncing my religion by accepting this
position.
The Controller’s Office rejected this proposal. Because
Bolden-Hardge refused to sign the oath in its unmodified
form, the agency rescinded her job offer.
Bolden-Hardge subsequently returned to her lower-
paying job at the Tax Board, which then required her to take
the oath but permitted her to include an addendum like the
one that she had proposed to the Controller’s Office.
8 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER
Bolden-Hardge later obtained positions with two other state
agencies, neither of which required her to sign a loyalty oath.
B.
Bolden-Hardge filed this action in federal court against
the Controller’s Office and the California State Controller in
her official capacity, alleging that their refusal to allow
Bolden-Hardge’s proposed addendum to the loyalty oath
violated Title VII of the 1964 Civil Rights Act under both
failure-to-accommodate and disparate-impact theories. She
also asserted a failure-to-accommodate claim against the
Controller’s Office under the California Fair Employment
and Housing Act (“FEHA”). Finally, she alleged that the
refusal by both Defendants to accommodate her religious
beliefs violated the Free Exercise Clauses of the federal and
state constitutions.
Bolden-Hardge sought damages for the failure-to-
accommodate, disparate-impact, and federal free-exercise
claims, but not for the California free-exercise claim. For all
claims, she sought a declaratory judgment that the
Controller’s Office’s actions violated her rights and an
injunction barring the agency from refusing similar
accommodations. On her free-exercise claims she sought
relief from both Defendants, but on her Title VII and FEHA
claims she sought relief from only the Controller’s Office.
Defendants moved to dismiss Bolden-Hardge’s
Complaint for lack of subject matter jurisdiction and for
failure to state a claim. The district court granted the motion
in full. The court denied leave to amend, reasoning that
Bolden-Hardge could not plead any further facts to save any
of her claims because the case involved primarily legal
issues rather than factual ones.
BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 9
Bolden-Hardge timely appealed.
II.
We review de novo an order granting a motion to dismiss
for failure to state a claim, “accept[ing] the complaint’s well-
pleaded factual allegations as true, and constru[ing] all
inferences in the plaintiff’s favor.” Koala v. Khosla, 931
F.3d 887, 894 (9th Cir. 2019) (quoting Ariz. Students’ Ass’n
v. Ariz. Bd. of Regents, 824 F.3d 858, 864 (9th Cir. 2016)).
Jurisdictional questions, including issues of standing, also
are reviewed de novo. See Ctr. for Biological Diversity v.
Bernhardt, 946 F.3d 553, 559 (9th Cir. 2019). We review a
district court’s denial of leave to amend for abuse of
discretion. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th
Cir. 2000) (en banc). “Dismissal without leave to amend is
improper unless it is clear, upon de novo review, that the
complaint could not be saved by any amendment.” Krainski
v. Nevada ex rel. Bd. of Regents, 616 F.3d 963, 972 (9th Cir.
2010) (quoting Thinket Ink Info. Res., Inc. v. Sun
Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004)).
III.
We first consider whether Bolden-Hardge has standing
to pursue each of her claims. To have standing, a plaintiff
must show that she suffered an injury in fact that is fairly
traceable to the challenged conduct and likely to be
redressed by a favorable decision. Spokeo, Inc. v. Robins,
578 U.S. 330, 338 (2016). If a plaintiff seeks prospective
relief, she must show that the threat of future injury is “actual
and imminent, not conjectural or hypothetical.” Summers v.
Earth Island Inst., 555 U.S. 488, 493 (2009). Past wrongs
may serve as evidence of a “real and immediate threat of
repeated injury,” but they are insufficient on their own to
support standing for prospective relief. City of Los Angeles
10 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER
v. Lyons, 461 U.S. 95, 102-03 (1983) (quoting O’Shea v.
Littleton, 414 U.S. 488, 496 (1974)). With respect to
prospective relief related to employment specifically, a
plaintiff may have standing when she is in the process of
seeking work from, or reinstatement with, the employer
whose conduct she challenges, but lacks standing when there
is no indication of a continued wish to work for that
employer. See Walsh v. Nev. Dep’t of Hum. Res., 471 F.3d
1033, 1037 (9th Cir. 2006).
Defendants argue that Bolden-Hardge lacks standing to
seek prospective relief because she is no longer seeking
employment at the Controller’s Office. Defendants are
correct that the Complaint does not allege that Bolden-
Hardge wishes or intends to work for the Controller’s Office
in the future. Her Complaint indicates that, although she
experienced “prolonged underemployment” at the Tax
Board following the Controller’s Office’s rescission of her
job offer, she ultimately secured a satisfactory government
job. Her briefing before the district court, too, seemed to
concede that she is not seeking reinstatement of the job offer
with the Controller’s Office. Only in her opening brief on
appeal did Bolden-Hardge first mention the possibility of
reinstatement, noting parenthetically that, if given leave to
amend her Complaint, she might seek reinstatement as a
remedy. At oral argument before our court, counsel for
Bolden-Hardge stated that she is “open to exploring the
possibility” of returning to the Controller’s Office but did
not state that she is actively seeking work there.
Although Bolden-Hardge may sincerely desire to work
at the Controller’s Office, she did not allege this in her
Complaint, nor did she allege that she has taken any concrete
step to reapply to the Controller’s Office. She therefore
lacks the actual and imminent threat of future injury required
BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 11
to have standing to seek prospective relief on any of her
claims. Bolden-Hardge may, however, attempt to cure this
defect by amendment, as she has requested. See Northstar
Fin. Advisors Inc. v. Schwab Invs., 779 F.3d 1036, 1043-45
(9th Cir. 2015) (holding that plaintiffs may cure deficiencies
in standing allegations through supplemental pleadings).
As currently pleaded, then, Bolden-Hardge’s alleged
injury is redressable only through a claim for damages. It is
clear that she can seek damages from the Controller’s Office
on her Title VII claims because that statute abrogates states’
sovereign immunity. See Fitzpatrick v. Bitzer, 427 U.S. 445,
453 n.9 (1976). She also can seek retrospective damages
from the Controller’s Office under FEHA because state
employers are likewise subject to suits for damages under
that state law. See DeJung v. Superior Ct., 87 Cal. Rptr. 3d
99, 107-09 (Ct. App. 2008).
By contrast, as currently pleaded, Bolden-Hardge cannot
obtain damages for her free-exercise claim under 42 U.S.C.
§ 1983. She seeks damages on that claim both from the
Controller’s Office and from the State Controller in her
official capacity. But § 1983 does not provide a cause of
action to sue state entities or state officials in their official
capacities. Will v. Mich. Dep’t of State Police, 491 U.S. 58,
65-67, 71 (1989). To remedy this defect, Bolden-Hardge
sought leave from the district court to amend her Complaint
to seek damages from Betty Yee, the State Controller at the
time the job offer was rescinded, in her individual capacity.
See Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1990)
(permitting a § 1983 damages claim against state officials
sued in their individual capacities). Leave to amend should
be granted generously, after considering “bad faith, undue
delay, prejudice to the opposing party, futility of
amendment, and whether the plaintiff has previously
12 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER
amended the complaint.” United States v. Corinthian Colls.,
655 F.3d 984, 995 (9th Cir. 2011). There is no evidence in
this case of delay, prejudice, or bad faith; Bolden-Hardge has
not previously amended her Complaint; and it is not clear
that amendment would be futile. 1 Therefore, although the
district court was correct to dismiss the federal free-exercise
claim for lack of jurisdiction, it abused its discretion in
denying leave to amend on that claim.
Finally, Bolden-Hardge expressly did not seek damages
on her free-exercise claim under the California Constitution,
so she lacks standing to pursue that claim as currently
pleaded. She has not sought leave to amend her Complaint
specifically to add a claim for damages under the state
constitution, but she has made a general request for leave to
amend her Complaint to cure any defects. On remand, the
district court shall determine whether Bolden-Hardge is
seeking to amend this claim and, if so, whether leave to
amend should be granted.
Because Bolden-Hardge has standing to seek damages
on her claims under Title VII and FEHA, we have
jurisdiction to consider the merits of those claims.
IV.
A.
Title VII and FEHA forbid an employer from denying a
job to an applicant because of her religion. 42 U.S.C.
§ 2000e-2(a)(1); Cal. Gov’t Code § 12940(a). Both statutes
1
Given Bolden-Hardge’s lack of standing for her federal free-exercise
claim, we lack jurisdiction to reach that claim’s merits and cannot do
more than conclude that it is possible that she could state a claim by
amending.
BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 13
require employers to accommodate job applicants’ religious
beliefs unless doing so would impose an undue hardship. 42
U.S.C. § 2000e(j); Cal. Gov’t Code § 12940(l)(1). 2 Claims
under Title VII and FEHA for failure to accommodate
religion are accordingly analyzed under a burden-shifting
framework. See Heller v. EBB Auto Co., 8 F.3d 1433, 1440
(9th Cir. 1993) (Title VII); Merrick v. Hilton Worldwide,
Inc., 867 F.3d 1139, 1145 (9th Cir. 2017) (FEHA). 3 First,
the employee must plead a prima facie case of failure to
accommodate religion. Sutton v. Providence St. Joseph
Med. Ctr., 192 F.3d 826, 830 (9th Cir. 1999). Second, if the
employee is successful, the employer can show that it was
nonetheless justified in not accommodating the employee’s
religious beliefs or practices. Id.
1.
To plead a prima facie case of failure to accommodate
religion under Title VII and FEHA, a plaintiff must allege,
among other things, that she holds “a bona fide religious
belief” that conflicts with an employment requirement.
Heller, 8 F.3d at 1438 (Title VII); Friedman v. S. Cal.
2
Both laws apply to state employers such as the Controller’s Office. 42
U.S.C. § 2000e(f); Cal. Gov’t Code § 12926(d); see also Dothard v.
Rawlinson, 433 U.S. 321, 331 n.14 (1977) (Title VII); DeJung v.
Superior Ct., 87 Cal. Rptr. 3d 99, 107 (Ct. App. 2008) (FEHA).
3
“Because FEHA is interpreted consistently with Title VII,” Ambat v.
City & County of San Francisco, 757 F.3d 1017, 1023 n.2 (9th Cir.
2014), our analysis of the federal and state claims is the same. See Guz
v. Bechtel Nat’l Inc., 8 P.3d 1089, 1113 (Cal. 2000) (“Because of the
similarity between state and federal employment discrimination laws,
California courts look to pertinent federal precedent when applying our
own statutes.”); Soldinger v. Nw. Airlines, Inc., 58 Cal. Rptr. 2d 747, 762
n.11 (Ct. App. 1996) (noting that California courts look to federal cases
interpreting Title VII in evaluating failure-to-accommodate allegations).
14 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER
Permanente Med. Grp., 125 Cal. Rptr. 2d 663, 666 (Ct. App.
2002) (FEHA).
The parties contest whether Bolden-Hardge has
adequately pleaded a conflict between her job requirements
and religious beliefs. 4 Bolden-Hardge objects to the
component of the loyalty oath requiring its taker to swear or
affirm “true faith and allegiance” to the federal and state
constitutions. Cal. Const. art. XX, § 3. She contends that
her “sincerely held religious beliefs mandate that her
allegiance is first and foremost to the Kingdom of God” and
that she cannot “swear[] primary allegiance to any human
government.” The oath requirement conflicts with her faith,
4
The Controller’s Office briefly argues that both Title VII and FEHA
recognize conflicts only between religious beliefs and job duties and
therefore do not extend to the facts of this case, where the loyalty oath is
more a prerequisite than a duty. We are aware of no precedent, however,
that has so limited the scope of Title VII. General employment
prerequisites may be challenged in the disparate impact context, see
Griggs v. Duke Power Co., 401 U.S. 424, 433-34 (1971), and it would
be inconsistent with the purpose of Title VII to preclude disparate
treatment claims in which plaintiffs similarly allege conflicts with
employment prerequisites. See Albemarle Paper Co. v. Moody, 422 U.S.
405, 421 (1975) (describing one of Title VII’s “central statutory
purposes” as “eradicating discrimination throughout the economy”).
FEHA was likewise adopted with the “express purpose” of “preventing
and deterring unlawful discrimination in the workplace,” Harris v. City
of Santa Monica, 294 P.3d 49, 52 (Cal. 2013), and limiting that statute’s
reach to only job duties would be inconsistent with that purpose. Indeed,
the California Court of Appeal has rejected “too narrow a view of what
constitutes an employment ‘requirement,’” reasoning that “[a]ll
employees have two kinds of work requirements: those defined by the
particular duties of their position, and those defined by the general
policies of the employer,” both of which are actionable under FEHA. Ng
v. Jacobs Eng’g Grp., No. B185838, 2006 WL 2942739, at *6 (Cal. Ct.
App. Oct. 16, 2006) (unpublished).
BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 15
she argues, because it forces her to choose between her
religious beliefs and a government job. The Controller’s
Office, meanwhile, argues that the loyalty oath does not
require its takers to pledge loyalty to government over
religion, and it therefore poses no conflict with Bolden-
Hardge’s religious beliefs.
Bolden-Hardge insists that the Controller’s Office is
inviting us to opine impermissibly on whether her religious
views are reasonable. The Supreme Court has, albeit in the
free exercise context, cautioned against second-guessing the
reasonableness of an individual’s assertion that a
requirement burdens her religious beliefs, emphasizing that
a court’s “‘narrow function . . . in this context is to
determine’ whether the line drawn reflects ‘an honest
conviction.’” Burwell v. Hobby Lobby Stores, Inc., 573 U.S.
682, 725 (2014) (quoting Thomas v. Rev. Bd. of Ind. Emp.
Sec. Div., 450 U.S. 707, 716 (1981)). This principle does
not mean that courts must take plaintiffs’ conclusory
assertions of violations of their religious beliefs at face
value. See Oklevueha Native Am. Church of Haw., Inc. v.
Lynch, 828 F.3d 1012, 1016-17 (9th Cir. 2016) (deeming
inadequate plaintiffs’ assertion that a statute prohibiting
cannabis substantially burdened their religious beliefs
because they did not allege that cannabis served a religious
function and they conceded that their religious ceremonies
did not involve cannabis). Still, the burden to allege a
conflict with religious beliefs is fairly minimal. See Thomas,
450 U.S. at 715. With these principles in mind, we do not
interrogate the reasonableness of Bolden-Hardge’s beliefs
16 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER
and instead focus our inquiry on whether she has alleged an
actual conflict. We hold that she has done so. 5
The Controller’s Office correctly points out that the oath
does not expressly require a pledge of ultimate or primary
allegiance to the federal and state constitutions. But
construing all facts and inferences in Bolden-Hardge’s favor,
it is 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. 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. The oath is
critical, the Controller’s Office urges, because the
government’s workforce must be “uniformly and
unreservedly” committed to supporting and defending the
federal and state constitutions and to “the proper functioning
of constitutional government.” The Controller’s Office
insists that a “vague ‘first loyalty to God’ qualification to the
5
We also observe that Bolden-Hardge is not alone in her stated
convictions. As Bolden-Hardge notes, Jehovah’s Witnesses have
repeatedly challenged similar oath requirements as inconsistent with
their religious beliefs. See, e.g., Lawson v. Washington, 296 F.3d 799,
802 (9th Cir. 2002); Bessard v. Cal. Cmty. Colls., 867 F. Supp. 1454,
1456 (E.D. Cal. 1994); EEOC Decision No. 85-13, 38 Fair Empl. Prac.
Case (BNA) 1884 (1985), 1985 WL 32782. Although these cases do not
address whether a loyalty oath requirement poses a conflict with
Jehovah’s Witnesses’ religious beliefs for the purposes of a failure-to-
accommodate claim, they do support the notion that Bolden-Hardge’s
beliefs reflect “an honest conviction.” Burwell, 573 U.S. at 725 (quoting
Thomas, 450 U.S at 716).
BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 17
oath would effectively nullify the oath.” And it contends
that, “without an unqualified commitment to the
Constitution, a promise to adhere to constitutional rules,
except when they conflict with personal and undefined
religious beliefs, is no promise at all.” Although these are
persuasive arguments supporting the oath’s importance, they
belie the Controller’s Office’s position that the oath poses no
conflict with Bolden-Hardge’s pleaded religious beliefs. If
an employee cannot claim “first loyalty to God,” she must,
by implication, owe first loyalty to something else―here,
the federal and state constitutions.
The California Court of Appeal recognized this
implication when faced with a similar request to modify the
loyalty oath. In Smith v. County Engineer, 72 Cal. Rptr. 501(Ct. App. 1968), the court rejected a proposed addendum to
the oath that the court interpreted as allowing the plaintiff to
prioritize his commitment to God over that to the state and
nation. Id. at 508-09. Smith was decided before Title VII
was amended to apply to state employers, see Equal
Employment Opportunity Act of 1972, Pub. L. No. 92-261,
86 Stat. 103 (1972) (codified at 42 U.S.C. § 2000e et seq.),
so the court had no reason to consider whether the statute
required allowing such an addendum. But the court’s
characterization of the loyalty oath suggests that the
California Constitution requires public employees to swear
or affirm that “if [their] religious beliefs and the support and
defense of the constitution do not square,” it is the former,
and not the latter, that must yield. Smith, 72 Cal. Rptr. at
509.
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.
Because Bolden-Hardge has pleaded a conflict between her
18 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER
religious beliefs and this portion of the loyalty oath, we do
not consider her alternate arguments for a conflict, including
whether the portion of the oath requiring public employees
to “support and defend” the state and federal constitutions
conflicts with her religious objection to taking up arms. Cal.
Const. art. XX, § 3. The Controller’s Office does not
otherwise contest the sufficiency of Bolden-Hardge’s prima
facie case.
2.
We next consider whether the Controller’s Office can
rebut Bolden-Hardge’s prima facie case by demonstrating
that it was justified in not accommodating her religious
beliefs.
Once an employee establishes a prima facie case of
failure to accommodate religion, the burden shifts to the
employer 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). Undue
hardship is an affirmative defense, see Tabura v. Kellogg
USA, 880 F.3d 544, 557 (10th Cir. 2018), and accordingly
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).
The Controller’s Office argues that it is entitled to a
presumption of undue hardship as a matter of law because
accommodating Bolden-Hardge’s religious beliefs would
BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 19
require it to violate the California Constitution.6 In cases
involving private employers, we have held that “an employer
is not liable under Title VII [for failure to accommodate]
when accommodating an employee’s religious beliefs would
require the employer to violate federal or state law” because
“the existence of such a law establishes ‘undue hardship.’”
Sutton, 192 F.3d at 830; see also Bhatia v. Chevron U.S.A.,
Inc., 734 F.2d 1382, 1383-84 (9th Cir. 1984) (recognizing an
undue hardship where an accommodation would have
required the employer to risk liability for violating state law).
The Controller’s Office invites us to extend the Sutton
presumption to state employers, but we decline to do so.
In our cases applying the Sutton presumption, the
private-employer defendants faced potential liability for
violating the law and had no ability to create or enforce that
law. See Sutton, 192 F.3d at 837-38; Bhatia, 734 F.2d at
1383-84. We held that a private employer demonstrated an
undue hardship when the employer “established that if it
were to [accommodate the employee], it would risk liability
for violating” state law. Bhatia, 734 F.2d at 1384. Here, by
contrast, the Controller’s Office is part of the very state
government that is responsible for creating and enforcing the
oath requirement, and there is no indication that violating the
6
It is not clear that the California Constitution forbids addenda such as
the one that Bolden-Hardge proposed. See Smith, 72 Cal. Rptr. at 509
(deeming one particular modification of the loyalty oath unacceptable
but not holding that all modifications are barred as a matter of law). We
need not resolve that question of California law because, as we will
explain, even if the Controller’s Office would violate state law by
permitting Bolden-Hardge’s proposed addendum, the Controller’s
Office would not be entitled to a presumption of undue hardship. We
therefore assume without deciding that such an addendum would violate
California law.
20 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER
oath requirement would subject the Controller’s Office to an
enforcement action by some other part of the state
government. Notably, the oath provision in the California
Constitution contains no express enforcement mechanism.
And Bolden-Hardge has alleged that other state agencies
have accommodated her religious beliefs, yet the
Controller’s Office has not indicated that those agencies
faced enforcement.
Furthermore, to exempt the Controller’s Office from a
federal accommodation requirement solely because the
requested accommodation would violate state law would
essentially permit states to legislate away any federal
accommodation obligation, raising Supremacy Clause
concerns. See Malabed v. N. Slope Borough, 335 F.3d 864,
871 (9th Cir. 2003) (explaining that the preemption
provision in the Civil Rights Act of 1964 invalidates state
laws that are inconsistent with the Act’s purpose). Although
this concern is present in cases involving private employers
arguing per se undue hardship under state law, it is
heightened where the defendant is part of the very state
whose law would be violated. The state could otherwise
enact a law for the sole purpose of evading federal
accommodation requirements, even without any intent to
enforce the law or otherwise give it effect. Where there is
no indication of an actual threat of enforcement or liability
for violating that state law, the risk that the state is
attempting to evade federal accommodation requirements is
too high to allow for dismissal at the pleading stage because
of this sort of purported undue hardship. We therefore hold
BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 21
that the Controller’s Office is not entitled to a presumption
of undue hardship. 7
The Third Circuit has similarly focused on the risk of
enforcement in considering whether a public employer that
was sued for failing to accommodate religion faced an undue
hardship where such accommodation would violate state
law. In United States v. Board of Education, 911 F.2d 882(3d Cir. 1990), the Department of Justice alleged that the
Board of Education for the School District of Philadelphia
violated Title VII by refusing to employ or accommodate
public school teachers who sought to wear religious garb. Id.
at 885. The Board refused such accommodations because a
state statute threatened school administrators with “criminal
prosecution, fines, and expulsion from the profession” if
they allowed teachers to wear religious garb. Id. at 885, 891.
In concluding that the Board established an undue hardship,
the Third Circuit emphasized that accommodating religious
employees would expose administrators to serious
consequences. Id. at 891. It noted that the Pennsylvania and
United States Supreme Courts had deemed the state statute
constitutional and, therefore, “there was no assurance that
the prosecutorial authorities in Pennsylvania would not
enforce the statute against school administrators who failed
to carry out the dictates of the statute.” Id. at 890.
Importantly, the Third Circuit expressly declined to consider
7
Tagore v. United States, 735 F.3d 324 (5th Cir. 2013), addressed a
different question, because there the Fifth Circuit considered a federal
government employer’s assertion that violating a federal statute would
pose an undue hardship. See id. at 329-30. Tagore did not raise the same
Supremacy Clause concerns as this case because the public employer
there was not a state employer and was asserting a federal law obligation,
not a state law obligation.
22 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER
the different situation in which “the chances of enforcement
are negligible.” Id. at 891.
Bolden-Harge’s case presents exactly the sort of
situation that the Third Circuit carved out in Board of
Education: Here, nothing suggests that the Controller’s
Office would face legal consequences for accommodating
Bolden-Hardge. If anything, the Complaint suggests that
enforcement is unlikely, given Bolden-Hardge’s allegations
that other state agencies have accommodated her.
The Controller’s Office may ultimately provide evidence
that it would in fact face liability for accommodating
Bolden-Hardge. It may also be able to demonstrate an undue
hardship under a different theory, given its stated interest in
ensuring that government employees are committed to
upholding the federal and state constitutions. See Cole v.
Richardson, 405 U.S. 676, 684-85 (1972) (upholding a
loyalty oath against freedom of speech and assembly
challenges and recognizing that legislatures enacted such
oaths “to assure that those in positions of public trust were
willing to commit themselves to live by the constitutional
processes of our system”); Am. Commc’ns Ass’n, C.I.O. v.
Douds, 339 U.S. 382, 415 (1950) (“Clearly the Constitution
permits the requirement of [loyalty] oaths . . . . Obviously
the Framers of the Constitution thought that the exaction of
an affirmation of minimal loyalty to the Government was
worth the price of whatever deprivation of individual
freedom of conscience was involved.”). Any such defense,
however, is not obvious from the face of Bolden-Hardge’s
Complaint. This is especially so because the Complaint
alleges that other California agencies hired Bolden-Hardge
without requiring the oath, calling into question the
likelihood of enforcement, as well as the importance of any
state interest we might otherwise infer from Supreme Court
BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 23
caselaw upholding the constitutionality of loyalty oaths in
other contexts. We therefore cannot consider the
Controller’s Office’s undue hardship defense at this stage in
the proceedings. 8 ASARCO, LLC, 765 F.3d at 1004.
B.
We now turn to whether Bolden-Hardge has stated a
claim of disparate impact under Title VII. Title VII bars an
employer from using a “particular employment practice that
causes a disparate impact on the basis of . . . religion” unless
the employer can show that the practice is job-related and
“consistent with business necessity.” 42 U.S.C. § 2000e-
2(k)(1)(A)(i).
1.
To plead a prima facie case of disparate impact, 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).
The parties dispute what is required to satisfy the first
prong of this prima facie case. The Controller’s Office
asserts that pleading a prima facie case of disparate impact
requires the plaintiff to support her claim with statistics,
whereas Bolden-Hardge contends that statistics are not
8
We also do not address whether the undue hardship analysis under
FEHA differs from the analysis under Title VII. The Controller’s Office
has not argued that the undue hardship defense succeeds under FEHA
even if it fails under Title VII. Nor does either party argue that the
analysis of Bolden-Hardge’s Title VII and FEHA claims diverges at the
undue-hardship stage.
24 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER
required where a disparate impact is obvious, as she argues
it is here. We agree with Bolden-Hardge.
It is true that plaintiffs often support their claims of
disparate impact with statistics. See, e.g., Stout v. Potter,
276 F.3d 1118, 1122 (9th Cir. 2002); Robinson v. Adams,
847 F.2d 1315, 1318 (9th Cir. 1987). Yet statistics are not
strictly necessary. See Sakellar v. Lockheed Missiles &
Space Co., 765 F.2d 1453, 1456-57 (9th Cir. 1985)
(suggesting that statistics would not have been the only way
to prove a disparate impact on older individuals). This is
particularly true where a disparate impact is obvious. For
example, in Hung Ping Wang v. Hoffman, 694 F.2d 1146(9th Cir. 1982), we held that a plaintiff pleaded a prima facie
case because he observed that his employer’s language-skills
requirement would disproportionately affect minority
applicants. Id. at 1148-49. We reasoned that the
requirement “seem[ed] on its face to have a disparate impact
on minority applicants,” and we did not require the plaintiff
to demonstrate that impact with statistics to avoid dismissal.
Id. at 1149. Several of our sister circuits have likewise held
that Title VII plaintiffs are not limited to proving disparate
impact with statistics, even after discovery―suggesting that
statistics are certainly not always necessary at the pleading
stage. See, e.g., Lynch v. Freeman, 817 F.2d 380, 387-88
(6th Cir. 1987) (“While Title VII plaintiffs may be able to
prove some disparate impact cases by statistics, that is not
the only avenue available.”); Garcia v. Woman’s Hosp. of
Tex., 97 F.3d 810, 813 (5th Cir. 1996) (observing that if “all
or substantially all pregnant women” faced the same lifting
limitation, “they would certainly be disproportionately
affected” by an employer’s lifting requirement, making
“[s]tatistical evidence . . . unnecessary”).
BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER 25
Bolden-Hardge alleges a disparate impact similarly
obvious to that in Hoffman. She contends that her religious
beliefs are “consistent with [those] of other Jehovah’s
Witnesses,” who also believe that their faith forbids them
from swearing primary allegiance to any human
government. See supra note 5. As discussed with respect to
Bolden-Hardge’s failure-to-accommodate claim, as pleaded
this belief is in tension with the loyalty oath requirement:
The oath implicitly requires that its takers place their
allegiance to the federal and state constitutions over that to
God, which is exactly what Bolden-Hardge alleges her faith
forbids her from doing. Accepting as true Bolden-Hardge’s
well-pleaded allegation that other Jehovah’s Witnesses share
this belief, we must presume that the oath requirement will
impact “all or substantially all” Jehovah’s Witnesses seeking
government employment by making them feel they must
choose between government employment and their religious
beliefs—a burden not all prospective employees face.
Garcia, 97 F.3d at 813. This is precisely the sort of obvious
impact that a plaintiff need not support with statistics to
plead a prima facie case. See id.; Hoffman, 694 F.2d at 1149.
Bolden-Hardge therefore has satisfied the first prong of the
prima facie case for disparate impact, and the Controller’s
Office does not contest that she satisfied the remaining
prongs.
2.
The Controller’s Office contends that, even if Bolden-
Hardge pleaded a prima facie case of disparate impact, the
loyalty oath is justified because it is consistent with business
necessity. The business necessity defense permits
employment practices that have a disparate impact on a
protected class if the practices have “a manifest relationship
to the employment in question.” Griggs v. Duke Power Co.,
26 BOLDEN-HARDGE V. CALIFORNIA STATE CONTROLLER
401 U.S. 424, 432 (1971). Like undue hardship, business
necessity is an affirmative defense, see Freyd v. Univ. of Or.,
990 F.3d 1211, 1224 (9th Cir. 2021), and therefore cannot
be considered at the motion-to-dismiss stage unless the
defense’s success is obvious from the face of the complaint
or from judicially noticeable materials, see ASARCO, LLC,
765 F.3d at 1004.
The loyalty oath is a business necessity, the Controller’s
Office argues, because public employees must be
“committed to working within and promoting the
fundamental rule of law while on the job.” The Controller’s
Office emphasizes that the oath is meant to ensure that public
servants are committed to upholding the rule of law,
supporting and defending the federal and state constitutions,
and promoting the proper functioning of constitutional
government. It asserts that allowing addenda that indicate
an oath-taker’s primary loyalty to God would render the oath
meaningless and undermine critical state interests. This
assertion may well prove true and, if so, the Controller’s
Office may be able to defeat Bolden-Hardge’s disparate
impact claim at a later stage of the litigation. But this is not
apparent from the face of her Complaint or any judicially
noticeable materials, particularly given the state’s alleged
practice of exempting some employees from the oath
requirement. As with the Controller’s Office’s defense of
undue hardship, we therefore cannot affirm dismissal at this
stage on business necessity grounds.
V.
For the foregoing reasons, we REVERSE the decision
of the district court and REMAND for further proceedings
consistent with this opinion.