# Opposition — A. O. Smith Corp. v. Nottelson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 1046

## Text

Office-Supreme Court, US
x i, we 4)

Nos. 81-97 and 81-323 OCT 16 1981

——— +--+ —STEVAS

CLERK in

In the Supreme Court of the Hutter Brae ——

OCTOBER TERM, 1981

A.O. SMITH CORPORATION, PETITIONER
v.

DARREL C, NOTTELSON AND
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

SMITH STEEL WorKERS D.A.L.U. 19806, AFL-CIO,
PETITIONER

v.

DARREL C, NOTTELSON AND
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
IN OPPOSITION

Rex E, LEE
Solicitor General
Department of Justice
Washington, D.C. 20530
(202) 633-2217
CONSTANCE L. DUPRE

Acting General Counsel

Equal Employment Opportunity Commission

Washington, D.C. 20506

QUESTIONS PRESENTED *

(1) Whether Section 701(j) of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e(j), which
mandates reasonable accommodation of religious
practices, requires unions and employers to exempt
religious objectors from union dues requirements un-
less undue hardship can be shown.

(2) Whether Section 701(j) of Title VII violates
the Establishment Clause of the First Amendment.

(3) Whether the court of appeals correctly af-
firmed the district court’s finding that A.O. Smith
Corporation could reasonably have accommodated
Nottelson’s religious objection to union dues payments
without undue hardship.

* Petitioner in No.'81-97 also seeks review of the holding
of the court of appeals with respect to an award of attorney’s
fees, upon which question the Commission expresses no view.

(1)

TABLE OF CONTENTS

Page

SS TOUUD ; sien cetsnninssanctcbinecpsncinsiensectenessetinsncsnnaintpiiiacnninns 1

I ti oo Ao | ccasemaisebaiieemealbbilies 2

Statutes and constitutional provisions involved ............ 2

I eat Sc loi ceunaheiiciniaitiamunibchinacneh 3

STII scichs factsiiniestlsignpalidectvesntnchouestenenaninsesientnicienndbion 9

ei a ssispeneeabientnnnnneunnaeeiniionedh 22

TABLE OF AUTHORITIES
Cases:

Alexander Vv. Gardner-Denver Co., 415 U.S. 36...... 18, 21
Anderson V. General Dynamics, Convair Aerospace
Division, 589 F.2d 897; cert. denied, 442 U.S.

I saa tae i sacell cilseehintiontedbonnes 9, 18
Anderson V. General Dynamics, Convair Aerospace

Divieton, 648 FBG 1B47 .........ccccscccscscccesccssessssessens 14

Berenyt V. INS, 885 U.S, 680 .000........ccccccccccceeseeees 21

Bowe V. Colgate-Palmolive Co., 416 F.2d 711.......... 21
Buckley Vv. American Federation of Television and
Radio Artists, 496 F.2d 305, cert. denied, 419

SS IID Waiiih crhsiancstcdinkedt ec cacdhantdadinehineranaiesbaesesitahsens 19
Burns v. Southern Pacific Transportation Co.,

589 F.2d 408, cert. denied, 439 U.S. 1072 .......... 9
Committee for Public Education v. Nyquist, 418

Mt: WEEE sisceonseillbtibile ith enh cindssncssdnstonientbasoldeestatn 7,8, 15, 18

Cooper V. General Dynamics, Convair Aerospace
Division, 583 F.2d 163, cert. denied, 433 U.S.
LA ETE CSE” 228 SEEN eC OL BOE I 9, 10
Cummins Vv. Parker Seal Co., “516 F.2d 544, aff'd,
429 U.S. 65, vacated and remanded on other

ATL, aosincescsssccsccotemneninsifeeteransoonnt 14
Emporium Capwell Co. v. Community Organiza-

I II TR ota. st cnscondpimennntntevesmnanitnsiodins 13
Epperson V. Arkansas, 398 U.S. 97 o..........ccccccccceeeee 16

(mir)

Cases—Continued Page
Gillette v. United States, 401 U.S. 487 ....0.000.... 17
Graver Mfg. Co. Vv. Linde Co., 386 U.S, 2711. ............ 21
Griggs V. Duke Power Co., 401 U.S, 424 .............. 8, 15-16
Lemon V. Kurtzman, 408 U.S. 602 .0....0.....0060000 20
Linscott v. Miller Falls Co., 440 F.2d 14, cert. de-

a GI WIN CTE cinioncinsisnidh igiiacligh occinhntasinecbaaiesenianes 19-20
McDaniel Vv. Essex International, Inc., 571 F.2d

ES TR A i SRO PAO 9, 10,13
NLRB v. Catholic Bishop of Chicago, 440 U.S

melas abaticel ANBat es LR RRR Cea RR Soe dh 20
New York v. Cathedral Academy, 434 U.S. 125...... 20
Norman V. Missouri Pacific R.R., 414 F.2d 78 ...... 21
Railway Employees’ Department v. Hanson, 351

Ra RE id et CeO 19, 20

Rankins v. Commission on Professional Compe-
tence, 24 Cal. 8d 167, 598 P.2d 852, 154 Cal.
Rptr. 907, appeal dismissed for want of a sub-

stantial federal question, 444 U.S, 986 .............. 9,19
Redmond Vv. GAF Corp., 574 F.2d 897.000.000.000 10
Robinson Vv. Lorillard Corp., 444 F.2d 791 .............. 21
School District of Abington Township v. Schempp,

ER TA RAR EA ARERR i rs a ea 16
Sherbert v. Verner, 374 U.S. 898 .o.....ccccceeecces 19
Stone Vv. Graham, 449 U.S. 89 20............cccccccccceseeeeees 16

Thomas V. Review Board of the Indiana Employ-

ment Security Division, No. 79-952 (Apr. 6,

ME ti ic in a 19
Tilton V. Richardson, 408 U.S. 672 .............0.00000 17
Tooley Vv. Martin-Marietta Corp., 648 F.2d 1239.... 14
Trans World Airlines, Inc. v. Hardison, 432 U.S.

ge EE TS lesa TSS 6, 18, 14, 15, 16, 21
United States v. Macintosh, 288 U.S. 606 .............. 14
United States v. Seeger, 380 U.S. 168 -..................... 21
Walz v. Tax Commission, 897 U.S. 664 .........0.......... 17
Welsh v. United States, 398 U.S. 883 ..........00000..... 21
Wisconsin V. Yoder, 406 U.S. 208 200.........cccccccccees 18

Zorach V. Clauson, 348 U.S. 806 oo... 17

Vv

Constitution, statutes and regulation:

United States Constitution :
First Amendment:
Establishment Clause ...... 7, 14, 15, 17, 18, 19, 20
Free Exercise Clause .............-..-..c--essseee 20
Civil Rights Act of 1964, Title VII, 42 U.S.C.
2000e et seq.:
Section 701(j), 42 U.S.C. 2000e(j) ............... passim
Section 703(a), 42 U.S.C. 2000e-2(a) .......... 8,15
Section 708(c), 42 U.S.C. 2000e-2(c) ............ 3,15

Section 703(c) (1), 42 U.S.C. 2000e-2(c)(1).. 9-10
Section 703(c) (2), 42 U.S.C, 2000e-2(c) (2).. 10
Section 703(c) (3), 42 U.S.C. 2000e-2(c) (3).. 10
Section 703(h), 42 U.S.C. 2000e-2(h) ............. 13

National Labor Relations Act, 29 U.S.C. 151, as
amended by Pub. L. No. 96-593, 94 Stat. 3452:

Section 19, 94 Stat. 3452 (to be codified at 29

ON a iar caantsctitenaineinsanstomibtiedl 2-3, 11-12
Se ED cicicsctesecstessasesesecscassreece 11
Miscellaneous:
126 Cong. Rec. (daily ed. Feb. 11, 1980):
i III cichclannashbieasnccennceutintisiptemnstichingninatnpahioveies 12
STTIIIITTIIY fash iehshidicrtneeinesniciedsneniapupitinnbasiemnvecageineneahosien 12
“he SLANE eS ee ae 12

126 Cong. Rec. S16616 (daily ed. Dec. 13, 1980).... 12

In the Supreme Court of the United States

OCTOBER TERM, 1981

No. 81-97
A.O. SMITH CORPORATION, PETITIONER
Vv.

DARREL C. NOTTELSON AND
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

No. 81-323

SMITH STEEL WorKERS D.A.L.U. 19806, AFL-CIO,
PETITIONER

uv.

DARREL C. NOTTELSON AND
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A-1
to A-22)" is reported at 643 F.2d 445. The mem-

1“Pet, App.” refers to the appendix to the petition in No.
81-97. “Pet. Supp. App.” refers to the supplemental appendix
to the petition in No. 81-97. “A.” refers to the joint appendix
filed in the court of appeals.

(1)

orandum opinions of the district court of December 7,
1979 (Pet. Supp. App. B-1 to B-18) and April 18,
1980 (Pet. Supp. App. B-25 to B-44) are reported
at 481 F. Supp. 756 and 489 F. Supp. 94. The dis-
trict court’s memorandum opinion of September 18,
1980 (Pet. Supp. App. B-45 to B-53) is not reported.
An earlier memorandum opinion of the district court,
entered on December 20, 1976, is reported at 423 F.
Supp. 1345.
JURISDICTION

The judgment of the court of appeals was entered
on February 27, 1981, and petitions for rehearing
were denied on April 20, 1981 (Pet. Supp. App. E-1
to E-2). The petition for a writ of certiorari in No.
81-97 was filed on July 15, 1981. In No. 81-323,
Justice Stevens extended the time for filing the peti-
tion for a writ of certiorari to and including August
18, 1981, and the petition was filed on that date. The
jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

“ STATUTES AND CONSTITUTIONAL
PROVISIONS INVOLVED

The relevant statutory and constitutional provi-
sions are set forth in the petition in No. 81-323 (Pet.
2-4). Also relevant is Section 19 of the National
Labor Relations Act, Pub. L. No. 96-593, 94 Stat.
3452 (to be codified at 29 U.S.C. 169), which
provides:

Any employee who is a member of and adheres
to established and traditional tenets or teachings
of a bona fide religion, body, or sect which has
historically held conscientious objections to join-
ing or financially supporting labor organizations
shall not be required to join or financially sup-
port any labor organization as a condition of
employment; except that such employee may be
required in a contract between such employees’

employer and a labor organization in lieu of
periodic dues and initiation fees, to pay sums
equal to such dues and initiation fees to a non-
religious, nonlabor organization charitable fund
exempt from taxation under section 501(c) (3) of
title 26 of the Internal Revenue Code, chosen by
such employee from a list of at least three such
funds, designated in such contract or if the con-
tract fails to designate such funds, then to any
such fund chosen by the employee. If such em-
ployee who holds conscientious objections pur-
suant to this section requests the labor organiza-
tion to use the grievance-arbitration procedure on
the employee’s behalf, the labor organization is
authorized to charge the employee for the reason-
able cost of using such procedure.

STATEMENT

1. Darrel C, Nottelson, a member of the Seventh
Day Adventist Church, brought this Title VII em-
ployment discrimination action in the United States
District Court for the Eastern District of Wisconsin.
Nottelson, a long-time employee of A.O. Smith Cor-
poration, claimed that his employer and Smith Steel
Workers, D.A.L.U. 19806, AFL-CIO, the bargaining
agent for A.O. Smith’s employees, had discriminated
against him because of his religion, in violation of
Sections 701(j) and 703(a) and (c) of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. 2000e(j),
2000e-2(a) and (c), by causing him to be discharged
from his employment when he refused, because of his
religious convictions, to pay union dues (Pet. App.
A-2 to A-4).

The collective bargaining agreement between Local
19806 and A.O. Smith contains a union security clause
requiring union membership as a condition of employ-
ment (Pet. App. A-2; A. 419-420). Nottelson was

4

first employed by A.O. Smith in 1947, and he joined
the union at that time (Pet. App. A-2). In May
1966, Nottelson became a member of the Seventh Day
Adventist Church, which teaches that it is morally
wrong to be a member of, or pay dues to, a labor
union (ibid.). In December 1974, at a meeting also
attended by a representative of the Seventh Day Ad-
ventist Church, Nottelson advised Local 19806 presi-
dent Paul Blackman that he objected to the payment
of union dues because his sincerely held religious be-
liefs prevented him from supporting labor unions
(ibid.; A, 188-190, 269). Nottelson and the church
representative proposed that Nottelson be allowed,
in lieu of paying dues, to donate an equivalent amount
to a mutually agreeable non-religious charity (A.
190). Nottleson’s representative also informed Black-
man of various accommodations that other labor or-
ganizations had made in similar circumstances (A.
192-198; see also A. 337-346). Nottelson and his
representative also called to Blackman’s attention an
AFL-CIO Executive Council statement urging all af-
filiated unions to “adopt procedures for respecting
sincere personal religious convictions as to union
membership” and “to insure that this policy is fully
and sympathetically implemented by all local unions”
(A. 199, 480; see Pet. App. A-10).

On January 1, 1975, Nottelson ceased paying union
dues and began paying an equivalent amount to the
American Cancer Society, without the assent of the
union (Pet. App. A-2). Thereafter, on April 15,
1975, Nottelson was expelled from the union, which
then requested his discharge by A.O. Smith, pursuant
to the collective bargaining agreement (Pet. App.
A-3; A. 486-438).

Nottelson’s employer apparently learned of the con-
troversy on March 11, 1975, when Nottelson and his

5

church representative informed the company’s per-
sonnel director of Nottelson’s predicament (A. 68).
The personnel director indicated that the company
would not deviate from the collective bargaining
agreement (A. 68-71). Shortly thereafter, the com-
pany informed the union that it was willing to waive
the union security clause provision as to Nottelson
(A. 73).2 On April 24, 1975, however, the company
discharged Nottelson, pursuant to the union’s request
(Pet. App. A-3). This action followed.’

2. On December 20, 1976, the district court denied
the union’s motion to dismiss, holding that the rights
of an individual employee under Title VII could not
be “eliminated by the agreement between the union
and his employer,” and that, absent a showing of
hardship, the union must attempt to accommodate a

*The company proposed to the union that Nottelson be
allowed to place his dues in escrow, pending litigation of the
dispute (A, 76). The union rejected this proposal, which
would not have been acceptable to Nottelson in any event
(A. 76, 83, 211).

* After requesting Nottelson’s discharge, the union “offered
to remove [his] name from its membership listings, but in-
sisted that [he] continue to pay an amount equal to the dues
to [the] union ‘for services both past and presently being
rendered’” (Pet. Supp. App. B-3; see also Pet. App. A-10
n.8). Nottelson rejected this offer on religious grounds (Pet.
Supp. App. B-3 to B-4).

Pursuant to a temporary restraining order entered by the
district court, Nottelson returned to work on May 1, 1975.
The restraining order, as extended, continued in force until
July 10, 1975, when the district court denied Nottelson’s
motion for a preliminary injunction on the ground that the
court lacked jurisdiction because the Commission had not is-
sued a right-to-sue letter. Thus, Nottelson was again dis-
charged on July 11, 1975 (Pet. App. A-3). Nottelson there-
after received a right-to-sue letter and filed an amended com-
plaint on October 29, 1975 (ibid.).

religious objection to the payment of dues (423 F.
Supp. at 1348). At trial, union officials defended
the union’s unwillingness to accommodate Nottelson
by claiming, as a general matter, that an employee’s
exemption would allow him to receive the benefits of
union representation without sharing the costs and
thus would encourage “free riders” (Pet. App. A-9).
Local president Blackman testified that he was aware
that the AFL-CIO Executive Council had urged that
religious objectors be accommodated, and that other
unions had accommodated religious beliefs such as
those of Nottelson, without suffering harm (id. at A-
10). It was also established that the union has ap-
proximately 4,900 members, who pay monthly dues of
$10 (A, 51, 188, 287), that the union would not be
harmed by the loss of Nottelson’s dues, and that no
union members except Nottelson had objected to pay-
ing union dues and offered to pay the equivalent
amount to charity (Pet. App. A-10). The local presi-
dent guessed that exempting Nottelson might create a
“steamroller effect” (ibid.). For its part, the com-
pany conceded that it would not have suffered any
undue hardship if, with the union’s consent, it had
accommodated Nottelson’s religious beliefs by exemp-
ting him from the union security clause (A. 410).

8. Based on the trial evidence and this Court’s
opinion in Trans World Airlines, Inc. v. Hardison,
432 U.S. 638 (1977), the district court held (Pet.
Supp. App. B-14) that “the accommodation suggested
by [Nottelson], whereby [he] would contribute an
amount equal to union dues to a non-religious charity,
does not constitute undue hardship within the mean-
ing of 42 U.S.C. §2000e(j).” The district court
stated (Pet. Supp. App. B-14 to B-15):

7

{Nottelson’s] offer of accommodation would be
only a de minimus [sic] cost to defendants.
There is no evidence that many workers other
than [Nottelson] would seek a similar accom-
modation due to their religious beliefs. Indeed,
defendant union would lose only ten dollars a
month, certainly a minimal amount, by allowing
this single worker to pay that figure to a non-
religious charity. In addition, [Nottelson] was
not attempting to accept the benefits offered by
defendant union as a free rider. He offered to
fulfill this responsibility by contributing an
amount equal to the union dues to a normal
charity. As such, the cost to defendants of ac-
cepting [Nottelson’s] offer would have been only
de minimus [sic].

The court therefore found that, “[g]Jiven the reason-
ableness of [Nottelson’s] offer of accommodation and
its de minimus [sic] cost, defendants have failed to
carry their burden of establishing that its acceptance
would constitute an undue hardship within the mean-
ing of the statute” (Pet. Supp. App. B-16 to B-17).

Prior to the entry of judgment, defendants moved
for reconsideration on the ground, among other things,
that Section 701(j) of Title VII, 42 U.S.C. 2000e(j),
violated the Establishment Clause of the First Amend-
ment. The district court rejected that argument (Pet.
Supp. App. B-34 to B-35), following this Court’s anal-
ysis in Committee for Public Education v. Nyquist,
413 U.S. 756, 773 (1973).*

* Each defendant also argued that the other should pay the
full amount of the backpay liability, but the district court
rejected these arguments on the ground that both defendants
were culpable (Pet. Supp. App. B-35 to B-37).

4. The court of appeals affirmed by divided vote.‘
The court held that Section 701(j) of Title VII, 42
U.S.C. 2000e(j), creates an exception to the general
authorization for union security clauses contained in
the National Labor Relations Act, 29 U.S.C. 151 et
seq., and that both the company and the union were
therefore required, absent undue hardship to them,
to accommodate Nottelson’s religiously motivated re-
fusal to pay union dues (Pet. App. A-7). The court
of appeals further held that, in determining whether
the company and union had shown undue hardship,
the district court had applied the correct legal stand-
ard, i.e., whether accommodation would involve more
than de minimis cost, and that the record fully sup-
ported the district court’s findings that no undue
hardship had been established (Pet. App. A-8 to
A-12).

The court of appeals also upheld the constitution-
ality of Section 701(j) under the three-part test ar-
ticulated in Committee for Public Education v. Ny-
quist, supra, 413 U.S. at 772-773. The court con-
cluded (Pet. App. A-13 to A-15; quoting also Griggs
v. Duke Power Co., 401 U.S. 424, 429 (1971)) that:
(1) the statute has a secular purpose—“ ‘to achieve
equality of employment opportunities’”; (2) it does
not impermissibly advance religion, but merely
“reliev[es] * * * individuals of a special burden
that others do not suffer by permitting them to ful-
fill their societal obligations in a different manner”;
and (8) it does not foster “excessive government

*The court of appeals granted the Commission leave to
intervene in this action on June 19, 1980 (Pet. App. A-6).
The decision of the court of appeals was entered on February
27, 1981 (id. at A-1), and rehearing en banc was denied on
April 20, 1981 (Pet. Supp. App. E-1 to E-2).

entanglement with religion.”* Judge Pell dissented
on constitutional grounds (Pet. App. A-18 to A-22).

ARGUMENT

Every court of appeals that has addressed the ques-
tion has held that Section 701(j) of Title VII, 42
U.S.C. 2000e(j), requires that unions and employers
exempt employees who object, on religious grounds, to
the payment of union dues, unless such an accom-
modation would constitute undue hardship.’ Not only
is there no conflict among the circuits, but the issue
lacks prospective importance because in December
1980, Congress amended Section 19 of the National
Labor Relations Act, 29 U.S.C. 169, to create a sig-
nificantly broader exemption for persons who object
on religious grounds to the payment of union dues,
and thereby readjusted the relationship between the
provisions of Title VII and the National Labor Re-
lations Act. Further review is therefore unwarranted
at the present time.

1. a. As the court of appeals correctly held, Sec-
tion 701(j) requires that employers and unions °* ac-

*The court of appeals held (Pet. App. A-12 to A-13), in
the alternative, that its holding was required by Rankings v.
Commission on Professional Competence, 24 Cal. 8d 167, 593
P.2d 852, 154 Cal. Rptr. 907, appeal dismissed for want of a
substantial federal question, 444 U.S. 986 (1979).

7™See Anderson v. General Dynamics, Convair Aerospace
Division, 589 F.2d 397, 400-401 (9th Cir, 1978), cert. denied,
442 U.S. 921 (1979); Burns v. Southern Pacific Transporta-
tion Co., 589 F.2d 408, 405 (9th Cir. 1978), cert. denied, 439
U.S. 1072 (1979) ; McDaniel v. Essex International, Inc., 571
F.2d 338, 341 (6th Cir. 1978) ; Cooper v. General Dynamics,
Convair Aerospace Division, 583 F.2d 163, 169-170 (5th Cir.
1976), cert. denied, 433 U.S, 908 (1977).

* Although Section 701(j) does not specifically refer to
union accommodation of employee religious practices, the
union’s obligation is based on Section 703(c) (1) of Title VII,
42 U.S.C. 2000e-2(c) (1) (a labor organization may not “ex-

10

commodate “all aspects of [employée] religious ob-
servance and practice” (Section 701(j) of Title VII,
42 U.S.C. 2000e(j); emphasis added). The plain
language of the statute indicates “that it applies to
all religious observances and practices and is not
limited to claims of discrimination based on require-
ments of Sabbath work.” McDaniel v. Essex Interna-
tional, Inc., 571 F.2d 338, 342 (6th Cir. 1978);
Cooper v. General Dynamics, Convair Aerospace
Division, 553 F.2d 163, 168 (5th Cir. 1976). Cf.
Redmond v. GAF Corp., 574 F.2d 897, 900 (7th Cir.
1978) (“we note that the very words of the statute
* * * leave little room for * * * a limited interpreta-
tion’”’).’

clude or * * * expel from its membership, or otherwise dis-
criminate against, any individual because of * * * religion
** *”) on Section 703(c) (2) of Title VII, 42 U.S.C, 2000e-
2(c) (2) (a labor organization may not “limit, segregate, or
classify its membership * * * in any way which would deprive
or tend to deprive any individual of employment opportuni-
ties, or would limit such employment opportunities or other-
wise adversely affect his status as an employee * * *, because
of such individual’s * * * religion * * *”), and on Section
708(c) (8) of Title VII, 42 U.S.C, 2000e-2(c) (3) (a labor
organization may not “cause or attempt to cause an employer
to discriminate against an individual in violation of this
section”).

* Petitioner A.O. Smith Corporation states (Pet. 50; em-
phasis in original): “It is noteworthy that as late as
March 30, 1972, after the March 24, 1972 passage of § 701(j),
the EEOC’s position on this issue was that ‘a union shop
was not unlawful’ and that a ‘Charging Party’s refusal [to
pay dues] on religious grounds is protected by neither Title
VII nor the First Amendment.’ Sixth Annual Report, Equal
Employment Opportunity Commission, p. 12 (1972).” As
Local 19806 more accurately points out (Pet. 13), the state-
ment contained in the 1972 Annual Report merely described
a Commission determination that occurred in 1971, prior to
the enactment of Section 701(j). Although the Commission

il

b. Both the company (Pet. 50-51) and Local 19806
(Pet. 14-17) seek to avoid the broad sweep of this
provision by arguing that Congress’ consideration of
legislation to amend the National Labor Relations
Act, with respect to the payment of union dues by re-
ligious objectors, shows that Congress did not intend
Section 701(j) to ‘apply in this area.” Thus, peti-
tioners seek to understand Congress’ intent in enact-
ing Section 701(j) by canvassing the legislative his-
tory of these proposed amendments to the NLRA. See
Local 19806 Pet. 14-17 & n.9. That legislative history
is singulariy unhelpful, however, because it neither
contains any reference to Section 701(j) nor pro-
vides any explanation for this omission. Moreover,
petitioners’ reliance on post-enactment “legislative
history” is incomplete at best because they ignore the
legislative history of the December 1980 amend-
ment" to the NLRA. Citing with approval the rele-

had previously promulgated a guideline (29 C.F.R. 1605.1(b)
(1967)) similar to Section 701(j), the Commission did not
believe that its guidelines could create an exception to the
National Labor Relations Act. However, such an exception
was expressly created by Congress in 1972, when it enacted
Section 701(j).

1° Among other things, this argument ignores the differ-
ence in scope between 701(j) and the proposed NLRA
amendments. For instance, unlike Section 701(j), the pro-
posed NLRA amendments (see Local 19806 Pet. 14-15 n.9),
including those enacted in 1974 and 1980, did not contain an
undue hardship defense, and thus required exemption for
religious objectors regardless of the resulting hardship to
the union. Congressional action or inaction with respect to
these bills is therefore irrelevant to the meaning of Sec-
tion 701(j).

1! Congress amended the NLRA on December 24, 1980 (see
Pub. L. No. 96-593, 94 Stat. 3452) to provide a broad exemp-
tion for employees belonging to a “bona fide religion, body,

12

vant decisions of the courts of appéals, the sponsors
of that amendment clearly indicated their understand-
ing that Section 701(j) of Title VIT also provides pro-
tection to union dues objectors.”

or sect which has historically held conscientious objections to
joining or financially supporting labor organizations” from
payment of union dues or fees. The law provides that such
employees may be required by a bargaining agreement to con-
tribute a sum equal to union dues and fees to a nonreligious
charity and pay costs incurred by unions in pursuing griev-
ance-arbitration procedures where these are undertaken at
the employee’s request. Because the 1980 amendment to the
NLRA has added another element to the overall regulatory
scheme in this area, we believe that it would be appropriate
for this Court to consider the questions raised here in a case
in which the lower courts have considered the significance
of this amendment (if a conflict in the circuits develops).

12 See 126 Cong. Rec. S16616 (daily ed. Dec. 13, 1980)
(remarks of Senator Melcher) ; 126 Cong. Rec. H760 (daily
ed. Feb. 11, 1980) (remarks of Rep. Thompson: “[T]he bill
would make the National Labor Relations Act consistent with
section 701(j)” and the “option of allowing a qualifying indi-
vidual the right to pay the equivalent of [union] dues to a non-
religious charity clearly constitutes a ‘reasonable accommo-
dation’ to the individual’s religious beliefs.”); ibid. (re
marks of Rep. Hinson: The “legislation reflects an accom-
modation among constitutional principles; the basic rights
protected in Title VII * * *, [and] the rights created by the
National Labor Relations Act * * *.”) ; id. at H763 (remarks
of Rep. Clausen: “[T]he purpose of this bill is to resolve any
conflict and to express congressional intent as to the reason-
ableness of a charity substitution accommodation which all of
the Federal courts of appeals ruling on the issue have found
to be an accommodation acceptable under Title VII.”) ; ibid.
(remarks of Rep. Duncan: “The conscience amendment recon-
ciles * * * the National Labor Relations Act and the
* * * reasonable accommodation section, 43 USCA 2000e(j)
[sic].”) ; id. at H764 (remarks of Rep. Erlenborn: “[T]his
bill accepts the principles of religious liberty as guaranteed
by our Constitution and implemented by the Equal Employ-
ment Opportunity Act.’’).

13

ce. Finally, the court of appeals’ holding that Sec-
tion 701(j) affords some protection to employees
who object on religious grounds to the payment of
union dues is fully consistent with the well-established
principle that our “national labor policy embodies the
principles of nondiscrimination as a matter of highest
priority.” Emporium Capwell Co. v. Community Or-
ganization, 420 U.S. 50, 66 (1975); Alexander v.
Gardner-Denver Co., 415 U.S. 36, 47 (1974). See
McDaniel v. “ssex International, Inc., supra, 571
F.2d at 343; Anderson v. General Dynamics, Convair
Aerospace Division, supra, 589 F.2d at 400-401.
Petitioners stand this principle on its head when they
contend that Congress’ general (and earlier) author-
ization of union security arrangements in the Na-
tional Labor Relations Act shows that Congress did not
intend, despite the broad languae used in Section
701(j), to allow even minor modifications of such
arrangements when their effect is to discriminate
against individuals whose deeply-held religious beliefs
prevent them from paying union dues. Moreover,
contrary to petitioners’ contention, their argument is
not supported by this Court’s decision in Trans World
Airlines, Inc. v. Hardison, supra, in which this Court.
held only that “[w]ithout a clear and express indi-
cation from Congress, we cannot agree * * * that an
agreed upon seniority system must give way when
necessary to accommodate religious observances”
(432 U.S. at 79; emphasis added). In Section 703
(h) of Title VII, 42 U.S.C. 2000e-2(n), Congress
accorded special status to bona fide seniority systems
and, for that reason, Section 701(j) does not invali-
date a bona fide seniority system “even if the system
has some discriminatory consequences” (432 U.S. at
82). However, Title VII contains no such exception
relating to bona fide union security arrangements
and Section 701(j)’s mandate of reasonable accom-

14

modation of “all aspects of religious observance”
must therefore extend to religious objections to dues
payments.”

2. The court of appeals also correctly held that Sec-
tion 701(j) does not violate the Establishment Clause
of the First Amendment. The requirement that em-
ployers reasonably accommodate their employees’ re-
ligious practices, when accommodation imposes no
more than a de minimis burden on others (7'rans
World Airlines, Inc. v. Hardison, supra, 432 U.S. at
84) is, as the court of appeals concluded, fully con-
sistent with “our happy tradition” of “avoiding un-
necessary clashes with the dictates of conscience”
(Pet. App. A-14; quoting United States v. Macintosh,
283 U.S. 605, 684 (1931) (Hughes, J., dissenting) ).
As the court of appeals noted (Pet. App. A-14), the
purpose and effect of Section 701(j) are modest:
“Section 701(j) is * * * plainly intended to re-
lieve individuals of the burden of choosing be-
tween their jobs and their religious convictions where
such relief will not unduly burden others.” In-
deed, each court of appeals to have considered the
issue has upheld the constitutionality of Section
701(j). See Tooley v. Martin-Marietta Corp., 648
F.2d 1239 (9th Cir. 1981); Anderson v. General
Dynamics, Convair Aerospace Division, 648 F.2d
1247 (9th Cir. 1981); Cummins v. Parker Seal Co.,
516 F.2d 544 (6th Cir. 1975), aff'd by an equally
divided Court, 429 U.S. 65 (1976), vacated and re-
manded on other grounds, 433 U.S. 903 (1977).

Based on this Court’s decision in T'rans World Air-
lines, Inc. v. Hardison, supra, 482 U.S. at 85, the

Not only does Title VII fail to grant a special status to
union security arrangements, as it does to bona fide seniority
systems, but (as the court of appeals recognized) broad ex-
ceptions to the general authorization of union security clauses
are also found in the NLRA. See Pet. App. A-7.

15

court of appeals correctly recognized (Pet. App.
A-14) that Section 701(j) simply describes more
fully what is prohibited as religious discrimination
under Title VII, and thereby includes adverse em-
ployment actions taken against persons whose reli-
gious observances conflict with work rules, if the con-
flict may be resolved without significantly burdening
coworkers or imposing more than de minimis costs on
unions or employers."* This provision clearly passes
muster under Committee for Public Education v.
Nyquist, supra, 413 U.S. at 773 (“to pass muster
under the Establishment Clause, the law in question,
first, must reflect a clearly secular legislative pur-
pose, * * * second, must have a primary effect that
neither advances nor inhibits religion * * * and,
third, must avoid excessive government entanglement
with religion * * *”).

a. In Trans World Airlines, Inc. v. Hardison,
supra, 432 U.S. at 85, this Court identified the
“paramount concern of Congress in enacting Title
VII” as the “elimination of discrimination in em-
ployment” because of religion, race, sex, and national
origin. The reasonable accommodation requirement
of Section 701(j) serves the same clearly secular
legislative purpose as that served by Title VII gen-
erally, for it does no more than define “religion” (so
as to identify those circumstances in which religious
practices may properly be taken into account) in a
way reasonably calculated to ensure that employ-

“Of course, neither petitioner contends that Title VII's
basic prohibition (Section 703(a) and (c), 42 U.S.C. 2000e-
2(a) and (c)) of religion-based discrimination is either be-
yond the legislative power of Congress or an “establishment
of religion.” Likewise, Section 701(j) does not violate the
Establishment Clause because it simply defines the conduct
that constitutes such discrimination.

16

ment practices “fair in form, but discriminatory in
operation” (Griggs v. Duke Power Co., supra, 401
U.S. at 431), are effectively covered by the basic pro-
hibition of Title VII."

There is no merit to A.O. Smith’s contrary assertion
(Pet. 25-26) that “it is evident that the purpose of [Section
701(j)] was to aid certain sects by giving them a statutory
‘right’ to have their Sabbath practices accommodated by em-
ployers.” Although A.O. Smith points to certain remarks of
Senator Randolph, the sponsor of the legislation, which re-
marks (Pet. App. C-1 to C-9) do indeed evidence concern for
the plight of certain Sabbatarian sects, a fair reading of the
legislative history shows that these remarks were intended
merely to be illustrative in the sense of presenting a specific
example of the need for general legislation to further advance
the goal of prohibiting religion-based employment discrimina-
tion. Indeed, in Trans World Airlines, Inc. v. Hardison, supra,
432 U.S. at 74-75, this Court had occasion to consider the leg-
islative history of Section 701(j), and stated that “[t]he pro-
ponent of the measure, Senator Jennings Randolph, expressed
his general desire ‘to assure that freedom from religious dis-
crimination in the employment of workers is for all time
guaranteed by law,’ 118 Cong. Rec. 705 (1972).” The obvious
secular purpose of Section 701(j) contrasts sharply with the
clearly religious motivation underlying the state statutes that
this Court has invalidated because of impermissible purpose.
See School District of Abington Township v. Schempp, 374
U.S. 208, 222-225 (1963) (purpose of state law requiring
Bible reading in public schools is to promote religion) ;
Epperson Vv. Arkansas, 398 U.S. 97, 107-108 (1968) (purpose
of state law banning teaching of evolution in public schools
was to promote the biblical theory of the origins of man);
Stone v. Graham, 449 U.S, 39, 41, 42 (1980) (state stat-
ute requiring the posting of Ten Commandments in public
schoolrooms violates Establishment Clause because the stat-
ute’s “preeminent purpose”’—‘to induce the schoolchildren
to read, meditate upon, perhaps to venerate and obey * * *
a sacred text in the Jewish and Christian faiths * * * is
plainly religious”).

17

b. Petitioners contend that Section 701(j) imper-
missibly favors certain religious sects over others and
religious employees over non-religious because re-
ligious dues objectors, unlike other employees or other
non-religious dues objectors, are permitted to receive
the benefits of collective bargaining without paying
dues. But petitioners fail to recognize that any ac-
commodation, including those previously upheld by
this Court, may be said to aid or benefit religious
practice or groups in some sense. See, e.g., Gillette v.
United States, 401 U.S. 487, 462 (1971) (upholding
exemption for religious conscientious objectors to
service in the armed services); Zorach v. Clauson,
343 U.S. 306 (1952) (upholding release of students
from public schools to attend religious centers for
religious instruction or devotional exercise.)'* In-
deed, virtually any provision designed to give religious
belief and practice breathing space in which to sur-
vive “aids” religious activity. However, as this Court
has said, “[t]he crucial question is not whether some
benefit accrues to a religious institution as a conse-
quence of the [legislation], but whether its principal
or primary effect advances religion.” Tilton v. Rich-
ardson, 403 U.S. 672, 679 (1971).

16 Such legislation has been upheld despite its indirect or
incidental burden on non-accommodated parties. For example,
when conscientious objectors are exempted from service in
the armed forces, others necessarily will be required to serve
in their stead. Gillette v. United States, supra, 401 U.S. at
448-450. Similarly, churches may be exempted from property
taxes, thus presumably increasing the amount that other
property owners must pay. Walz v. Tax Commission, 397
U.S. 664 (1970). The minor adjustments required in this
case, permitting the diversion of union dues to a charitable
organization for a person whose religion forbids contributions
to unions, are certainly no more significant than those that
have previously been upheld under the First Amendment.

18

Section 701(j) does no more than extend equal em-
ployment opportunity protection to a class of individ-
uals whose religious observances might otherwise
needlessly cost them their jobs. This Court has recog-
nized that there is a constitutional difference between
the active support or “direct and substantial ad-
vancement” (Committee for Public Education v.
Nyquist, swpra, 413 U.S. at 783 n.89) prohibited by
the Establishment Clause, and the “indirect or re-
mote” effect of essentially defensive protection such
as that afforded by Section 701(j). See Wisconsin v.
Yoder, 406 U.S. 205, 284-235 n.22 (1972)."

7 At all events, petitioners’ contention that Section 701(j)
impermissibly benefits religious objectors, while impermissibly
burdening others, ignores the record facts here. Under the
approved accommodation, Nottelson will expend the same
amount of “dues” as his union co-workers. Moreover, there
was no showing that the diversion of Nottelson’s dues to
charity would require any increase in the amount required
to be paid by the other members (Pet. App. A-10). Indeed,
the court of appeals noted (ibid.) that even if dues had to
be raised as a result of this accommodation, the cost of any
such “subsidization” would be de minimis (2.4 cents per year
per member). Because Nottelson must pay the same amount
that union members pay, others will not be encouraged to
take the same course, absent similar religious beliefs. More-
over, the alternative to this accommodation—the discharge of
Nottelson from his employment—is contrary to the funda-
mental policy of Title VII in that such a discharge would be
based upon his adherence to his religious beliefs and, obvi-
ously, totally unrelated to his ability to do his job. Finally,
the contention of Local 19806 (Pet. 22), that this case presents
the Court with the important task of “harmoniz[ing] Gillette
[which upholds the selective exemption] with the line of cases
invalidating ‘special economic benefits’ to particular religious
sects” is specious. This case does not involve diversion of
union funds to religious institutions or financial support of
religious activity of any sort.

19

A.O. Smith also contends (Pet. 28-31) that, be-
cause the obligation relieved by Section 701(j) is not
one imposed by the government, the Establishment
Clause prohibits the government from legislating
affirmatively to relieve this burden. However, gov-
ernmental action to accommodate the religious prac-
tices of its own employees—which requires other
government employees to make the necessary adjust-
ment—does not impermissibly tip the balance toward
government establishment of religion. Rankins v.
Commission of Professional Competence, 24 Cal. 3d
167, 593 P.2d 852, 154 Cal. Rptr. 907, appeal dis-
missed for want of a substantial federal question,
444 U.S. 986 (1979). If the government may reason-
ably accommodate the religious observances of its
own employees without violating the Establishment
Clause, the government must also be free to require
private employers to do the same thing to prohibit
religious-based discrimination in interstate commerce.
In each instance, the reasonable accommodation
merely implements societal “neutrality in the face of
religious differences.” Sherbert v. Verner, 374 U.S.
398, 409 (1963); Thomas v. Review Board of the
Indiana Employment Security Division, No. 79-952
(Apr. 6, 1981), slip op. 12."

We note, of course, that the burden that was relieved
here by Section 701(j)—the mandatory payment of union
dues—arises from an obligation that has been sanctioned by
federal labor law and policy. See Linscott v. Miller Falls
Co., 440 F.2d 14, 16-17 (1st Cir.), cert. denied, 404 U.S. 872
(1971). See also Buckley v. American Federation of Televi-
sion and Radio Artists, 496 F.2d 305, 311 (2d Cir.), cert. de-
nied, 419 U.S, 1093 (1974) ; Railway Employees’ Department
v. Hanson, 351 U.S. 225, 232 (1956). In the absence of Sec-
tion 701(j), therefore, “if the company declined to discharge
the plaintiff [because he refused to pay union dues], the union

20

c. The court of appeals properly held (Pet. App.
A-15) that Section 701(j) does not foster exces-
sive government entanglement with religion because
“(t]he government is required only to determine
whether a belief is “religious” within the meaning
of the statute * * * and whether it is sincerely held.”
Courts routinely are required to undertake such an
inquiry to adjudicate claims arising under the Free
Exercise and Establishment Clauses, such as, for in-
stance, claims involving statutory tax exemptions for
religious institutions and conscientious objector
status under the laws relating to conscription.

The entanglement doctrine has been invoked only
where legislation requires that the government in-
trude excessively into the affairs of religious insti-
tutions. See NLRB v. Catholic Bishop of Chicago,
440 U.S. 490 (1979); New York v. Cathedral Acad-
emy, 434 U.S. 125 (1977); see also Lemon v. Kurtz-
man, 403 U.S, 602, 614 (1971). Government intru-
sion has been held “excessive” where it entails per-
vasive monitoring of such institutions by secular au-
thorities and, therefore, carries the threat of gov-
ernment direction and control of religion—precisely
the evil at which the Establishment Clause is aimed.
See Lemon v. Kurtzman, supra, 408 U.S. at 616-620;
NLRB vy. Catholic Bishop of Chicago, swpra, 440 U.S.
at 508. As the court of appeals correctly held, a
court’s determination of the religious nature of a

could institute a federally supported suit, if not an unfair
labor practice charge, for failure to live up to its bargaining
agreement.” Linscott v. Miller Falls Co., supra, 440 F.2d
at 17. Thus, even if the state may constitutionally mandate
accommodation only with respect to burdens imposed by it,
this “imprimatur of the federal law” (Railway Employees’
Department v. Hanson, supra, 351 U.S. at 232) justifies Con-
gress’ decision to relieve the burden thus imposed upon those
who object on religious grounds to the payment of union dues.

21

Title VII plaintiff’s practices or beliefs involves no
similar interference with religious institutions. See
generally United States v. Seeger, 380 U.S. 163
(1965); Welsh v. United States, 398 U.S. 333
(1970).

3. A.O. Smith also contends that the courts below
erred in finding that it could have accommodated Not-
telson’s beliefs without undue hardship. In part, the
company contends (Pet. 46) that an employer can es-
tablish an undue hardship defense, as a matter of
law, by showing that accommodation would require
its unilateral departure from a collective bargaining
agreement. However, this argument is clearly incon-
sistent with the well established principle (Pet. App.
A-11; citations omitted) “that Title VII rights can-
not be bargained away and that a collective bargain-
ing agreement therefore does not of itself provide a
defense for Title VII violations.” See Bowe v. Col-
gate-Palmolive Co., 416 F.2d 711, 715 (7th Cir.
1969); Norman v. Missouri Pacific R.R., 414 F.2d
78, 80-84 (8th Cir. 1969); Robinson v. Lorillard
Corp., 444 F.2d 791, 799 (4th Cir. 1971); cf. Alex-
ander v. Gardner-Denver Co., supra. Thus, an em-
ployer is not immune from liability under Title
VII simply because its discriminatory policy is
embodied in a collective bargaining agreement. More-
over, to the extent that A.O. Smith argues that, as
a matter of fact, it would be subject to more than
de minimis harm if it were to accommodate Nottelson,
that factual question was decided adversely to the
company by both courts below and does not therefore
warrant review by this Court. Berenyi v. INS, 385
U.S. 630, 685 (1967) ; Graver Mfg. Co. v. Linde Co.,
336 U.S. 271, 275 (1949). Indeed, both courts be-
low applied the legal standard set forth in Hardison:

22

undue hardship exists where the cost imposed by the
accommodation is more than de minimis (Pet. App.
(A-9; Pet. Supp. App. B-14).

CONCLUSION

The petitions for a writ of certiorari should be
denied.

Respectfully submitted.
Rex E. LEE
Solicitor General
CONSTANCE L. DUPRE
Acting General Counsel

Equal Employment Opportunity Commission

OCTOBER 1981

&. 6. GOVERNMENT PainTiNG OFrice, 1901 e506) 652

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2540%3A4. Public record. Not legal advice.