The opinion
Abrams, J.
(concurring, with whom Liacos, J., joins). Since failure to make a consistent effort to obtain work is a sufficient basis for denying benefits under G. L. c. 151A, § 24 (b), I concur in the result reached by the majority. For the reasons stated herein, however, I would order benefits paid to the claimant pending final resolution of this claim.
One ground for denying the claimant benefits was that he was "available for part time work only.” The ground for this finding appears to derive its only support from the claimant’s statements to the review examiner that he would not work on Saturdays and that he observed "the Sabbath from Friday at sundown until Saturday at sundown.” The claimant stated, in substance, that he had to be home by sundown on Friday, that he would not work *111 on Saturday, but that he had worked on Sundays and was willing to work on Sundays. Despite this testimony the review examiner found the claimant "available for work Monday through Thursday” which finding was unsupported by the record and was either mistaken or deliberately false.
Assuming that the review examiner was mistaken as to the clear testimony before him, the board found, without record support and contrary to the clear evidence, that the claimant was unavailable for work "from Friday noon until Sunday at sundown” (emphasis supplied). The board’s finding also is either mistaken or deliberately false.
Implicit in both findings, if viewed as mistaken, is the notion that Sunday is the proper and correct Sabbath. It goes without saying that any decision by a State agency that, in order to qualify for benefits, a claimant must be available for work on a day which the claimant observes as the Sabbath is invidious and unconstitutional discrimination. Sherbert v. Verner, 374 U.S. 398 (1963). See Lincoln v. True, 408 F. Supp. 22 (W.D. Ky. 1975).
Moreover, the board apparently sensed the error in the review examiner’s unsupported and erroneous finding but did nothing to correct the examiner’s error; rather, it made an erroneous and unsupported finding of its own as to the claimant’s unavailability for work. In view of the agency’s inability to accept the principle that any requirement that a claimant work on a day on which it is necessary for him not to work in order to comply with his religion is clearly impermissible, I would place on the agency the burden of clearly demonstrating that any new decision is in no way tainted by religious discrimination.
Because of the high probability that religious discrimination was an underlying factor in the finding that the claimant was available only for part-time work and that such discrimination probably tainted the ultimate decision to deny the benefits sought, I would require the board to make explicit and detailed findings to support *112 any new decision to deny benefits. In accordance with other decisions in which a prima facie showing of discrimination has been made, see Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130 (1976), I think that the board must show in any new decision “not only evidence of the reason for its action but also underlying facts in support of that reason.” Such a requirement would ensure that any nondiscriminatory reason set forth by the board is the real reason and not merely a pretext. See Wheelock College v. Massachusetts Comm’n Against Discrimination, supra at 139.
Since evidence of discrimination by the board and by the review examiner is a reasonable inference from the record, I would order the payments of benefits to the claimant pending final resolution of his claim.