holding that an unpaid leave policy for religious observances was a reasonable accommodation because “the direct effect of unpaid leave is merely a loss of income for the period the employee is not at work; such an exclusion has no direct effect upon either employment opportunities or job status” but further opining that unpaid 9 leave would not be a reasonable accommodation where “paid leave is provided for all purposes except religious ones”
How later courts described this case
- holding that an unpaid leave policy for religious observances was a reasonable accommodation because “the direct effect of unpaid leave is merely a loss of income for the period the employee is not at work; such an exclusion has no direct effect upon either employment opportunities or job status” but further opining that unpaid 9 leave would not be a reasonable accommodation where “paid leave is provided for all purposes except religious ones”
- stating that, consistent with the goals expressed in the legislative history of the religious accommodation provision, “courts have noted that bilateral cooperation is appropriate in the search for an acceptable reconciliation of the needs of the employee’s religion and the exigencies of the employer’s business”
- explaining that “unpaid leave is not a reasonable accommodation when paid leave is provided for all purposes except religious ones,” even though that proposed accommodation did not pose a religious problem for the employee
- holding that where the employee acknowledges that the employer has offered a reasonable accommodation, "the employer need not further show that ... the employee's alternative would result in undue hardship"
Written by the judges who cited it.
The opinion
Justice Marshall,
concurring in part and dissenting in part.
I agree with the Court’s conclusion that, if the school board provides paid leave “for all purposes except religious ones,” ante this page, its accommodation of Philbrook’s religious needs would be unreasonable and thus violate Title VII. *72 But I do not find the specificity of the personal business leave, or the possibility that it may be used for activities similar to the religious activities Philbrook seeks leave to pursue, necessarily dispositive of whether the Board has satisfied its affirmative duty under § 701(j), 42 U. S. C. § 2000e(j), to reasonably accommodate Philbrook’s religious needs. Even if the District Court should find that the personal leave is restricted to specific secular uses having no similarity with Philbrook’s religious activities, Philbrook would still encounter a conflict between his religious needs and work requirements. In my view, the question would remain whether, without imposing an undue hardship on the conduct of its educational program, the school board could further reasonably accommodate Philbrook’s need for additional religious leave.
If, for example, the personal business leave were so limited that it allowed teachers paid leave for the sole purpose of meeting with their accountants to prepare their income tax returns (a purely secular activity), a proposal from Philbrook that he be allowed to prepare his tax return on his own time and use this paid leave for religious observance might be found imminently reasonable and lacking in undue hardship. The Board’s prior determination that the conduct of its educational program can withstand the paid absence of its teachers for up to six days each year for religious and personal reasons tends to indicate that granting Philbrook’s similar request in this case for a total of six days paid religious leave and no personal leave is reasonable, would cause the Board no undue hardship, and hence falls within the scope of the Board’s affirmative obligation under Title VII.
The Court suggests that requiring an employer to consider an employee’s proposals would enable the employee to hold his employer hostage in exchange for a particular accommodation. Ante, at 69. If the employer has offered a reasonable accommodation that fully resolves the conflict between the employee’s work and religious requirements, I agree that *73 no further consideration of the employee’s proposals would normally be warranted. But if the accommodation offered by the employer does not completely resolve the employee’s conflict, I would hold that the employer remains under an obligation to consider whatever reasonable proposals the employee may submit.
I do not accept the Court’s conclusion that the statute, “[b]y its very terms,” reheves the Board from this continuing duty to accommodate the special religious practices of its employees where doing so is reasonable and causes no undue hardship. Ante, at 68. The statute simply creates an affirmative duty to accommodate; it does not specify who must respond to whom. Nor am I persuaded that the legislative history cited by the Court disposes of this issue. The statement of Senator Randolph, who sponsored the amendment, that he hoped the “accommodation would be made with ‘flexibility’ and ‘a desire to achieve an adjustment,’ ” lends at least as much support to the concept of the employer’s continuing duty as it does to the Court’s reading of the statute. Ante, at 69 (quoting 118 Cong. Rec. 706 (1972)).
The EEOC’s guidelines on religious discrimination support an interpretation of the statute placing this continuing duty to accommodate on the employer. * Just last Term, in *74 Meritor Savings Bank v. Vinson, 477 U. S. 57, 65 (1986), we expressly relied on an EEOC guideline in holding that sexual harassment charges could provide the basis for a Title VII claim. The Court’s reluctance to accord similar weight to the EEOC’s interpretation here rests on nothing more than a selective reading of the express provisions of Title VII and the guidelines. Ante, at 69-70, n. 6. Title VII prohibits discrimination not only with respect to employment opportunities, § 708(a)(2), 42 U. S. C. § 2000e-2(a)(2), but also with respect to “compensation, terms, conditions, or privileges of employment.” § 703(a)(1), 42 U. S. C. §2000e-2(a)(l) (emphasis added). The EEOC guidelines consider compensation encompassed within the concept of “employment opportunities.” 29 CFR § 1605.2 (c) (1986). A forced reduction in compensation based on an employee’s religious beliefs can be as much a violation of Title VII as a refusal to hire or grant a promotion.
In this case, contrary to the Court’s conclusion, ante, at 70-71, the school board’s accommodation of Philbrook’s religious needs by merely allowing unpaid leave does not eliminate the conflict. Rather, the offer forces Philbrook to choose between following his religious precepts with a partial forfeiture of salary and violating these precepts for work with full pay. It is precisely this loss of compensation that entitles Philbrook to further accommodation, if reasonably possible without undue hardship to the school board’s educational program. It may be that unpaid leave will generally amount to a reasonable accommodation, but this does not mean that unpaid leave will always be the reasonable accommodation which best resolves the conflict between the needs of the employer and employee. In my view, then, an offer of unpaid leave does not end the inquiry: If an employee, in turn, offers another reasonable proposal that results in a more effective resolution without causing undue hardship, the employer should be required to implement it.
*75 The Court’s analysis in Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977), is difficult to reconcile with its holding today. In Hardison , the Court held that the employer’s chosen work schedule was a reasonable accommodation but nonetheless went on to consider and reject each of the alternative suggested accommodations. The course followed in Hardison should have been adopted here as well. “Once it is determined that the duty to accommodate sometimes requires that an employee be exempted from an otherwise valid work requirement, the only remaining question is ... : Did [the employer] prove that it exhausted all reasonable accommodations, and that the only remaining alternatives would have caused undue hardship on [the employer’s] business?” Id., at 91 (Marshall, J., dissenting) (emphasis added).
Accordingly, I would remand this case for factual findings on both the intended scope of the school board’s leave provision and the reasonableness and expected hardship of Philbrook’s proposals.
EEOC Guideline § 1605.2(c) states:
“(2) When there is more than one method of accommodation available which would not cause undue hardship, the Commission will determine whether the accommodation offered is reasonable by examining:
“(i) The alternatives for accommodation considered by the employer or labor organization; and
“(ii) The alternatives for accommodation, if any, actually offered to the individual requiring accommodation. Some alternatives for accommodating religious practices might disadvantage the individual with respect to his or her employment opportunities, such as compensation, terms, conditions, or privileges of employment. Therefore, when there is more than one means of accommodation which would not cause undue hardship, the employer or labor organization must offer the alternative which least disadvantages the individual with respect to his or her employment opportunities.” 29 CFR § 1605.2 (c) (1986).