# Minkus v. Metropolitan Sanitary District of Greater Chicago > Court of Appeals for the Seventh Circuit · June 6, 1979 · 600 F.2d 80 URL: https://www.frixlaw.com/law-library/cases/8909971 ## Case - **Full name:** Herbert MINKUS v. The METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO ("MSD") Board of Trustees of the Metropolitan Sanitary District of Greater Chicago Bart T. Lynam, Individually and as General Superintendent of the MSD Allen S. Lavin, Individually and as Attorney for the MSD and Donald R. Morrison, Individually and as Director of Personnel for the MSD - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** June 6, 1979 - **Citations:** 600 F.2d 80; 19 Fair Empl. Prac. Cas. (BNA) 1499; 20 Empl. Prac. Dec. (CCH) 30,118; 1979 U.S. App. LEXIS 14218 - **Precedential status:** Published - **Opinion:** Concurrence by Pell - **Judges:** Pell, Wood - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8909971 ## Opinion text PELL, Circuit Judge, concurring. Although, for reasons stated below, I tend to regard the stipulated facts of this case as demonstrating a result beyond a proper outer reach in the application of Title VII to a claim by a possible employee of failure to accommodate his religious beliefs, I concur in the result reached in Judge Wood’s opinion, reading that opinion, as I *85 do, that it holds that a further development of facts and circumstances is necessary and that therefore summary judgment was inappropriate. As Professor Kenneth T. Lopatka 1 has observed in a careful and scholarly analysis of the present area of the law: Because each case involving reasonable accommodation or undue hardship is highly dependent on the particular factual setting, general principles are not easily obtained from the cases. The decisional process involves balancing the quantum of hardship incurred by the employer in various accommodative schemes and the concomitant burdens that the schemes place on the religious employee. The outcome of the balancing process defies precise prediction. (Footnote omitted). (Id. at 107). While I would tend to think that Judge McGarr did have all of the genuine material issues of fact before him required for the entry of a summary judgment, and did, under the decisional process guideline stated by Professor Lopatka, carefully balance the respective quanta, and although I would have thought therefore that an affirmance was proper in this case, I recognize that some of the factual matters which Judge Wood’s opinion specified as needing further development creates an arguable case for a full evidentiary trial. This case aptly illustrates the structural difficulties of obtaining summary judgment in a religious discrimination case. Notwithstanding that I am concurring, albeit somewhat reluctantly, I think it appropriate because the case is being remanded for further proceedings to note some of the salient facts which seem to indicate a contrary result to that which we have reached. Title VII’s protection in the present area extends, of course, not only to the existing employee but also to the prospective employee. There seem to be, however, very few cases dealing with the latter category. Two such cases are Jordan v. North Carolina National Bank, 565 F.2d 72 (4th Cir. 1977), and Reid v. Memphis Publishing Company, 369 F.Supp. 684 (W.D.Tenn.1973), aff’d. 521 F.2d 512 (6th Cir. 1975), cert. denied, 429 U.S. 964 , 97 S.Ct. 394 , 50 L.Ed.2d 333 . In both of these cases it appears, however, that the plaintiff would have been employed except that religious beliefs precluded working on certain days. The present case had not even reached the point of whether it would have been possible for the District to have accommodated the religious beliefs of Minkus if he had been employed although the record shows that the position in question requires an individual to perform heavy manual labor at the District’s sewage treatment plants which are in operation 24 hours per day, 7 days per week. Further, the record shows that dependent upon the District’s need, an individual laborer may be required to work an 8 hour, morning, afternoon, or night shift for five consecutive days, including weekends. This situation, it would seem, would present virtually insurmountable problems of accommodation as would be indicated from an analysis of the factors listed in Professor Lopatka’s article for the person who has achieved employee status: The major factors which enter into the decision of whether the hardship involved is “undue” are the size of the work force, the type of shift scheduling involved in the employer’s operation, the skilled status of the religious employee, the existence of a pool of qualified replacements, the risk of impairment in the performance of essential public services, and the safety considerations involved in the reduced manning of crews or in requiring employees to work successive shifts to substitute for the religious employee. (Footnotes omitted.) (Emphasis added as to those matters particularly applicable here.) 1977 U.Ill.L.F. at 108. Further, in contrast to those cases where it is clear that the applicant would have gotten the position except for the interference with her or his performance on the job *86 because of religious belief, it is far from clear that Minkus would have gotten the job even if he had taken the examination. There were 1,444 candidates who took the examination in question. Of these 1,264 passed the examination, 2 some 28 of whom were on a preferred status by virtue of prior employment. Of the 1,264 individuals who passed the test, only 111 were permanently appointed to the position in question. Another factor of interest is that so that the relatively unskilled labor group who were applying for this job would not have to take time off from other jobs to take the examination, it was scheduled for Saturday, when the greatest number would not be working. I do not know the number of Orthodox Jewish people in the Chicago area whose Sabbatarian views were those entertained by Minkus and who might be interested in the employment in question. Presumably, it would seem, in a city the size of Chicago there would be more than a few. Yet strangely, there is no indication in the record that the traditional scheduling of the examination on Saturday had ever created a problem. This is particularly pertinent in view of the fact, insofar as accommodating Minkus on the particular examination is concerned, that Minkus did not raise the religious claim until just about two weeks before the date the examination was to be given. Other factors have been adverted to in the opinion of Judge Wood, and were treated in Judge McGarr’s Memorandum Opinion wherein he considered each of the proposed alternative methods of accommodation and on balance found them insufficient. In sum, the cumulative effect of all of these various factors makes a strong case for affirmance of a summary judgment. Also, I note the persuasive analysis of Professor Lopatka, 1977 U.Ill.L.F. at 103-05, raising a question of constitutionality as to this particular part of Title VII violating the First Amendment prohibition on laws “respecting an establishment of religion”: A congressional prohibition of intentional discrimination on religious grounds is clearly a neutral government stance. A congressional mandate, however, which requires the modification of seniority systems, overtime schedules, vacation schedules, and other generally applicable employment practices to fit the objections of employees with certain religious beliefs but which does not afford similar treatment to other employees who have the same preferences but who do not claim religious scruples (or who hold the same beliefs, but whose religions do not require their translation into action) arguably constitutes a preference on account of religion. The argument that a preference exists is especially strong because the religious advantage burdens the other employees and the employer. Id. at 103. The constitutionality question, however, would not have to be reached in the present status of the case. . Lopatka, A 1977 Primer on the Federal Regulation of Employment Discrimination, 1977 U.Ill.L.F. 69, 101 et seq. (1977). . I am assuming arguendo, indeed, as a practical matter, that Minkus would have passed the examination. From my reading of the simple examination for this “blue collar” job it was primarily designed to weed out those who could not read and understand elementary words of the English language. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8909971. Public record. Not legal advice.