Amicus Curiae Brief — Ansonia Board of Education v. Philbrook

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PH F. SPANIOL, JR,

Iu the Supreme Court of the United BLERK

ara

OCTOBER TERM, 1985

ANSONIA BOARD OF EDUCATION, ET AL., PETITIONERS

Vv.

RONALD PHILBROOK, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AND THE EQUAL

EMPLOYMENT OPPORTUNITY COMMISSION AS

AMICI CURIAE SUPPORTING AFFIRMANCE

CHARLES FRIED

Solicitor General

WM. BRADFORD REYNOLDS

RICHARD K. WILLARD

Assistant Attorneys General

CAROLYN B. KUHL

Deputy Solicitor General

MICHAEL CARVIN

Deputy Assistant Attorney General

RICHARD J. LAZARUS

Assistant to the Solicitor General

BRIAN K. LANDSBERG

HAROLD J. KRENT

LOUISE A. LERNER

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

JOHNNY J. BUTLER

General Counsel (Acting)

Equal Employment Opportunity

Commission

Washington, D.C. 20507

QUESTION PRESENTED

Whether Title VII of the Civil Rights Act of 1964

requires a school board and teachers’ union to accom-

modate further a teacher whose religious beliefs require

that he miss approximately six days of work per year

when the current union contract provides for three days

of paid leave for mandatory religious observance and

prohibits the use for religious observance of three days

of paid leave provided by the contract for “necessary

personal business” and when the school board allows addi-

tional days of unpaid leave for mandatory religious

observance.

(1)

TABLE OF CONTENTS

Interest of the United States 2.2.2.0... eee 1

ee cassddusdannousoesvocenese 2

i meteors 8

Argument:

An employer reasonably accommodates the reli-

gious beliefs of an employee within the meaning

of Title VII of the Civil Rights Act by offering the

employee a combination of paid and unpaid leave

for mandatory religious observance unless the em-

ployer’s paid leave policy discriminates against

SE 11

A. An employer complies with Title VII when it

reasonably accommodates the religious beliefs

of an employee by eliminating any conflict be-

tween those beliefs and employment require-

ments while reasonably preserving the employ-

ee’s employment status _......00.0..0... eee eee 12

B. The school board policy of providing an em-

ployee with paid and unpaid leave for manda-

tory religious observance is reasonable as a

matter of law unless the school board’s paid

leave policy discriminates against religion........ 18

C. Accommodation of Philbrook’s religious beliefs

neither offends Title VII nor implicates the

rs We se cetbusubsdieeuestceses 25

RSET ea a ed 29

(III)

TABLE OF AUTHORITIES

Cases: Page

Alexander v. Choate, No. 83-727 (Jan. 9, 1985) ...... 21

American Postal Workers Union v. Postmaster

OU CO ee 15, 17, 18

Bowen v. Roy, No. 84-780 (June 11, 1986) ......11, 15, 17, 28

Brener Vv. Diagnostic Center Fospital, 671 F.2d

SPs aa 1S SIRS SR en ro 18

Dewey v. Reynolds Metals Co., 402 U.S. 689 ............ 2

Estate of Thornton v. Caldor, Inc., No. 83-1158

Ci TR TD cktirintincsitncinsesiduitassuitemsirembeteestees 16, 27-28

Furnco Construction Corp. Vv. Waters, 438 U.S. 567.. 16

Monroe Vv. Standard Oil Co., 452 U.S. 549 _.............. 19, 20

Nashville Gas Co. v. Satty, 484 U.S. 136 _................ 19

Parker Seal Co. v. Cummins, 429 U.S. 65, vacated

and remanded, 433 U.S. 908 ..................----.-----.-+++- 2

Pinsker v. Joint Dist. No. 28J of Adams & Arapa-

SS of REESE eee 19, 20

Pullman-Standard vy. Swint, 456 U.S. 273 -............... 23

Trans World Airlines, Inc. v. Hardison, 432 U.S.

cota tanccenhass at ni ataiieidlceted cleat asl 2, 8, 13, 14, 21, 26, 27, 28

United Steelworkers v. Weber, 443 U.S. 193 -........ 16

Walz v. Tax Comm’n, 397 U.S. 664 -........................ 28

Whirlpool Corp. v. Marshall, 445 U.S. 1 -................. 20

Wisconsin v. Yoder, 406 U.S. 205 .......................--... 28

Constitution, statutes and regulations:

U.S. Const. :

CI aii ies ticatinsasdaeabiihaasendaameaiaaaanislaiiailnads 6

Establishment Clause .............. 8, 10, 12, 26, 27, 28

Free Exercise Clause ............................---- 6, 15, 28

Civ'l Rights Act of 1964:

Tit. Tl, 48 U.S.C. BOGGa 66 806. .......22202---22----------- 2

Tit. III, 42 U.S.C. 2000b e¢ seq. .........................- 2

» BA Lf OR! ee ” 2

Tit. VII, 42 U.S.C. 2000e et seg. ........................ 1,2

Ee ID cirscccesccnennscnsccsussccsveenns 2, 8, 13, 15

ETD 2

42 U.S.C. 2000e-2 (a) (1) .................cseeconeeeee 14

Constitution, statutes and regulations—Continued : Page

42 U.S.C. B0GGe-B (a) (2) ..........-.ecccceceecaeeeess 14

42 U.S.C. 2000e-6 (a) .................................... 1

42 U.S.C. 2000e-6 (f) (1) .............................. 1

Ee 2, 25

Rehabilitation Act of 1973, § 504, 29 U.S.C. 794... 21

Pub. L. No. 88-352, § 703, 78 Stat. 255 0... 12

Pub. L. No. 92-261, § 2(7), 86 Stat. 103.000 12

SEITE, CCT SR Sa 2,24

EE ne a 2

ES TEA, A aC a 2

ER TS a a aD 25

29 C.F.R.:

Section 1605.2 (c) (2) (ii)-.......... isadbaeclniesids ie ie 17

sets hesdimeciticsdaas 16, 20, 21

Section 1605.2 (d) (1) (i) -......0..ccccecccceeeeeeeeeeeeee 19

Miscellaneous:

124 Cong. Rec. (1978) :

EEE ae 25

SETS ORs De na nn a SO 25

$1 Fed. Reg. 8870 (1966) .......................................... 13, 19

BE __, eecen 13

Leave Time for Observing Religious Holidays:

Hearing Before the Subcomm. on Compensation

and Employee Benefits of the House Comm. on

Post Office and Civil Service, 95th Cong., 2d Sess.

ES ERA ae ee ee ta 25

S. Rep. 95-1143, 95th Cong., 2d Sess. (1978) 25

In the Suprenve Court of the United States

OCTOBER TERM, 1985

No. 85-495

ANSONIA BOARD OF EDUCATION, ET AL., PETITIONERS

RONALD PHILBROOK, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AND THE EQUAL

EMPLOYMENT OPPORTUNITY COMMISSION AS

AMICI CURIAE SUPPORTING AFFIRMANCE

INTEREST OF THE UNITED STATES

This case concerns the extent of an employer’s obliga-

tion under Title VII of the Civil Rights Act of 1964,

42 U.S.C. 2000e et seq., to accommodate the religious be-

liefs and practices of employees. Pursuant to Title VII,

the Attorney General and the Equal Employment Oppor-

tunity Commission have substantial responsibility for en-

forcement of federal laws providing for equal employ-

ment opportunity (see 42 U.S.C. 2000e-5(a) and (f)

(1)).* In addition, the federal government is obligated

1The Attorney General also has responsibility for enforcement

of a variety of other federal laws proscribing discrimination on

(1)

to comply with Title VII in its capacity as the nation’s

largest employer (42 U.S.C. 2000e-16; see also 5 U.S.C.

5550a (allowing federal employees to work overtime to

restore hours taken off for religious observance) ). Al-

though this action was brought by a private plaintiff

against a school board and a union, the issues raised are

similar to those arising in suits brought by and against

the federal government. Hence, the resolution of the

issues presented in this case will directly affect the gov-

ernment’s enforcement and compliance responsibilities

under Title VII. The strong federal interest in these

and related issues prompted our participation as amicus

curiae in Trans World Airlines, Inc. v. Hardison, 432

U.S. 63 (1977), Parker Seal Co. v. Cummins, 429 U.S.

65 (1976), vacated and remanded, 433 U.S. 903 (1977),

and Dewey v. Reynolds Metals Co., 402 U.S. 689 (1971).

STATEMENT

Respondent Ronald Philbrook (Philbrook), a high

school teacher, brought this action in federal district

court for damages and equitable relief against petitioner

Ansonia School Board (school board) and respondent An-

sonia Federation of Teachers (union), alleging that the

school board and union had violated Title VII of the

Civil Rights Act of 1964, 42 U.S.C. 2000e et seg., by

failing reasonably to accommodate Philbrook’s need to

be absent from work on days of mandatory religious ob-

servance (J.A. 3-8). Title VIi requires that an employer

“reasonably accommodate” an employee’s religious ob-

servance or practice unless doing so would cause “undue

hardship” on the employer’s business. See 42 U.S.C.

2000e-2 (a), 2000e(j). Following a two-day trial, the dis-

trict court dismissed the complaint on the ground that

account of religion, including those requiring nondiscrimination in

housing (42 U.S.C. 3601 et seq.), public accommodations (42 U.S.C.

2000a et seq.), public facilities (42 U.S.C. 2000b et seqg.), public

education (42 U.S.C. 2000c-6), and certain other federally pro-

tected activities (18 U.S.C. 245).

9 > eR nee

Philbrook had failed to prove a violation of Title VII.

On appeal, the court of appeals reversed, holding that

Philbrook had made out a prima facie case of religious

discrimination under Title VII. The court of appeals

also instructed the district court to determine on remand

whether Philbrook’s proposed accommodations would

cause the schoo! board “undue hardship.”

1. Philbrook is a high school teacher of typing and

business and, since 1968, has been a member of the

Worldwide Church of God (Pet. App. 2a, 27a). Phil-

brook’s religious beliefs require that he refrain from

secular employment on designated holy days, the pre-

cise dates of which vary from year to year (id. at 2a,

27a-28a). Observance of the holy days wouiu require

Philbrook to miss an average of six school days each

year (ibid.).

The school board’s leave policies since 1968 have been

established by a series of collective bargaining agree-

ments entered into between the school board and the

union (Pet. App. 3a, 28a-29a).? Although the leave

policies have changed in certain respects since 1968,

those provisions regarding leave for mandatory religious

observance have remained basically the same. An em-

ployee is allowed three days of paid leave each year for

mandatory religious observance. Days taken off for that

purpose are not deducted from the 18 days of annual paid

leave otherwise provided for by the agreement.’ The

collective bargaining agreements have consistently pro-

vided that the school board will deduct approximately

one day’s salary for each day of unauthorized absence.‘

* Pertinent portions of the collective bargaining agreements

since 1967 are reproduced at J.A. 71-101.

*The 1968-1969 agreement is the sole exception. Under that

agreement, days taken off for religious holy days were deducted

from available annua! leave (see J.A. 75).

* There are approximately 180 days in the school year and the

salary deduction is currently 1/180 of the employee’s annual salary

(Pet. App. 4a n.1; J.A. 63, 101). Prior to the 1971-1972 agreement,

The employee may use the other 18 days of paid an-

nual leave, which currently may be accumulated over

several years to 180 days, only for those purposes set

out in the agreement. Some of the categories of leave

have specified annual limits, separate from the overall

18-day ceiling. Mandatory religious observance is not a

permissible purpose for use of any of the 18 days (Pet.

App. 5a n.°; J.A. 99). Examples of permissible cate-

gories to which an employee may, within applicable

limits, apply the 18 days of annual leave include a per-

sonal or immediate family illness, a death in the im-

mediate family, a funeral, an immediate family wedding,

graduation, or religious ceremony, and a national vet-

erans or national or state teachers conference. See Pet.

App. 4a-5a n.2; J.A. 98-99. Also included within the

18-day ceiling is a maximum of 3 days of paid annual

leave for “necessary personal business,” the scope and

operation of which has been more expressly defined in

each succeeding agreement.’ Since 1978, the agreements

have allowed employees to use one of the three days

of necessary personal business leave without prior ap-

proval as long as the employee provides the immediate

supervisor with 48-hour notice (J.A. 95, 99). Consist-

ent with the general proscription on the use of any of

the 18 days of annual leave for mandatory religious

observance and with the more specific prohibition on the

use of necessary personal business leave for a purpose

covered by any other category of leave, the agreements

since 1970 have expressly provided that necessary per-

the deduction was 1/200 of the employee’s annual salary (Pet. App.

4a n.1; J.A. 76, 78, 81).

5The 1982-1985 agreement exciudes from “necessary personal

business” any activity covered by any other leave category, inciud-

ing travel associated with any such provision. In addition, the

agreement specifically excludes several activities, including attend-

ance of, or participation in a marriage or sporting or recreational

event, and the “[dJjay following marriage or wedding trip” ‘J.A.

100).

sonal business does not include any religious observance

(id. at 80, 83, 86, 89, 92, 96, 100).

Since 1968, Philbrook has taken the three days of

paid leave for mandatory religious observance allowed

by the collective bargaining agreements. From the out-

set, the school board has permitted Philbrook to take

unpaid leave for religious holidays in excess of the

three days and, prior to 1976, Philbrook took some days

of unpaid leave on religious holy days (Pet. App. 6a,

32a). Since 1976, however, Philbrook has taken no days

of unpaid leave on account of religious holy days and

has instead either worked or scheduled hospital visits

on those days in order to charge the absence to annual

leave (ibid.). Philbrook states that family financial

needs prevented him from taking days of unpaid leave

after 1976 (ibid.). The school board has rejected Phil-

brook’s requests that the school board either allow him

to apply “personal business” paid annual leave to re-

ligious holy days; pay him, when he takes “leave with-

out pay” for religious reasons, the difference between the

cost of a substitute (approximately $30 per day) and his

salary (approximately $130); or allow him to make up

for missed workdays by doing meaningful school work at

other times (Pet. App. 6a-7a, 18a & n.9}.

2. In 1973, Philbrook filed a complaint against the

school board and the union with the state Commission

on Human Rights and Opportunities and the federal

Equal Employment Opportunity Commission (EEOC)

(Pet. App. 7a). Both the state commission and the

EEOC found reasonable cause to believe that the leave

policy established by the collective bargaining agree-

ments unlawfully discriminated against religion by pre-

venting Philbrook from using “necessary personal busi-

ness” paid annual leave for his days of religious observ-

ance in excess of three days (ibid.; J.A. 104-117). The

state and federal agencies each undertook conciliation

efforts, which failed to reach an accord among the parties

(Pet. App. 7a; see J.A. 104-110, 118-123). In September

1977, the EEOC issued Philbrook a right-to-sue letter

(Pet. App. 7a).

3. In December 1977, Philbrook filed a complaint in

federal district court alleging that the school board and

the union had violated Title VII and the Free Exercise

Clause of the First Amendment. Following a tv >-day

trial, the district court dismissed the complaint on the

ground that Philbrook had failed to prove unlawful re-

ligious discrimination under either the First Amendment

or Title VII (Pet. App. 26a-37a). According to the

court, because Philbrook was entitled to take leave with-

out pay he had “not been placed by the School Board

* * * or by the Union * * * in a position of violating

his religion or losing his job” (id. at 37a) and there-

fore he had failed to state a claim for relief (id. at 35a,

36a) .°

4. The court of appeals reversed, reaching only the

Title VII claim (Pet. App. la-2la).7 The court first

ruled that Philbrook had made out a prima facie case

of unlawful religious discrimination (id. at 8a-lla). The

court rejected the district court’s apparent ruling that a

valid claim of religious discrimination under Title VII

requires a showing that the employee would- be dis-

charged for exercising his religious beliefs (id. at 1la-

12a). The court also rejected the school board’s defense

that providing Philbrook with three days of paid leave

and additional days of unpaid leave for religious observ-

ance satisfied Title VII (id. at 18a-l5a). Even as-

® The sincerity of Philbrook’s religious beliefs is not an issue

before the Court. While expressing “some doubts’ about the

sincerity of Philbrook’s religious beliefs, the trial court declined to

make any finding concerning their sincerity (Pet. App. 33a-34a).

The court of appeals also assumed the sincerity of his beliefs (id.

at 9a).

TIn remanding the case to the district court for further pro-

ceedings, the court of appeals noted that the “First Amendment

issues remain open, if [Philbrook] should lose on the Title VII

issues on remand” (Pet. App. 21a n.12). Philbrook’s Free Exercise

cjaim is not currently before the Court.

suming that the school board’s accommodation was “rea-

sonable,” the court held, Title VII’s duty to accommodate

the religious beliefs of employees requires the employer

to accept the proposal the employee prefers unless that

accommodation causes undue hardship on the employer’s

conduct of his business (id. at 14a).

The court of appeals also rejected the school board’s

claim that the district court’s dismissal of Philbrook’s

complaint should nonetheless be affirmed because the

current record demonstrates that Philbrook’s proposed

accommodations would, as a matter of law, cause undue

hardship (Pet. App. 16a-17a). With respect to Phil-

brook’s proposal that the school board allow him to use

“necessary personal business” leave, the court conceded

that “[t]he critical factual question * * * is the past and

current scope of [that] leave provision[]” (id. at 16a).

The court was uncertain, however, of the scope of the

“necessary personal business” category,® and concluded

that “if the * * * provision is as broad as [Philbrook]

claims, it becomes difficult to believe that dropping the

religious exception causes undue hardship” (id. at 16a-

17a (footnote omitted) ).

The court similarly refused to reject out-of-hand Phil-

brook’s alternative proposal that the school board should

pay him the difference between the cost of the substitute

and his salary and allow him to make up for time off

(Pet. App. 17a). The court explained that the trial

court had not yet focused on the cost of the proposed

accommodation nor considered possible ways to minimize

those problems (ibid.).

Finally, the court of appeals took issue with the dis-

trict court’s and the school board’s suggestion that Phil-

brook was seeking subsidization of his religious beliefs

and impermissible preferential treatment based on those

*'The court explained that while “[t]he provision does include

the words ‘legitimate and necessary’ [it] lef[aves] unsaid * * *

whether leaving the reason to the teacher’s discretion abrogates

this limiting language” (Pet. App. 16a).

beliefs, contrary to this Court’s decision in Trans World

Airlines, Inc. v. Hardison, 482 U.S. 63 (1977) (Pet.

App. 18a-20a). The court stressed that Philbrook “has

offered to pay the cost of the substitute and to make

up for time off: [he] does not ask for payment for time

when he is not working” (id. at 18a & n.9). The court

did not address the school board’s argument that the

proposed accommodations would violate the Establish-

ment Clause, leaving the issue open on remand (id. at

20a n.11).

One judge dissented from the panel opinion (Pet. App.

22a-24a). The dissent argued that the paid leave policy

was facially neutral and, while perhaps inadequate, did

not constitute employment discrimination within the

meaning of Title VII (id. at 22a-23a). “Paid leave from

employment,” the dissenting judge reasoned, “is neither

contractually nor Constitutionally mandated” (id. at

24a).

SUMMARY OF ARGUMENT

1. Title VII of the Civil Rights Act of 1964 makes un-

lawful employment practices that discriminate on the

basis of an employee’s religion and in addition includes

the affirmative obligation that employers reasonably ac-

commodate the religious beliefs of their employees unless

such accommodation would cause undue hardship to the

conduct of their business. Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63, 74 (1977). The courts below

sharply differed in their construction of this mandate,

but in our view, both courts misread Title VII.

Contrary to the opinion of the district court, Title VTI

is not concerned solely with eliminating employment

practices that unjustifiably force an employee to choose

between his religion and his job. Title VII extends to

less onerous deprivations, forbidding discrimination with

respect to any terms of employment (including compen-

sation, conditions, or privileges) and requiring accom-

modation of conflicts between employment status and

religious beliefs. See 42 U.S.C. 2000e(j).

Although the court of appeals properly rejected the

district court’s crabbed reading of Title VII, the court

overstated the extent of an employer’s accommodation

obligation. According to the court of appeals, “|w]here

the employer and the employee each propose a reason-

able accommodation, Title VII requires the employer to

accept the proposal the employee prefers unless that ac-

commodation causes undue hardship on the employer’s

conduct of his business” (Pet. App. 14a (emphasis

added) ). We disagree. The employer’s duties under Ti-

tle VII end once the employer offers the employee a rea-

sonable accommodation. Under the literal terms of the

statute, the undue hardship inquiry is necessary only

where the employer claims that no reasonable accommoda-

tion is possible.

A “reasonable accommodation,” within the meaning of

Title VII, moreover, is concerned solely with reconciling

conflicts between the employee’s status as an employee

and his religious beliefs. Hence, a proposed accommoda-

tion is not rendered “unreasonable” on the ground that

it interferes with secular, nonemployment-related needs

of the employee. For example, the reasonableness of an

employer’s proffered accommodation does not, unless mo-

tivated by an impermissible discriminatory motive, turn

on its compatibility with competing demands on the em-

ployee’s time generated by secular activities outside of

work. The accommodation is reasonable as long as the

employer has both eliminated any conflict between the

employee’s employment responsibilities and religious be-

liefs or observance and reasonably preserved the employ-

ee’s employment status.

2. Whether the school board’s leave policy satisfies

Title VII is a difficult question which cannot be com-

pletely ans\ red without further factual inquiry on re-

mand. We agree with the intimation of both courts that

Title VII does not generally require employers to pro-

vide employees with days of paid leave for observance of

religious holy days. The gravamen of Philbrook’s com-

plaint, however, does not depend on a general claim of

entitlement to paid leave for mandatory religious observ-

ance. Philbrook bases a request for paid leave on his

allegation that the school board’s leave policy unlawfully

discriminates against religion by expressly disallowing

the use of “necessary personal business” paid leave for

days of mandatory religious observance. An employer’s

leave policy is not unlawfully discriminatory, however,

whenever it excludes the use of certain categories of paid

leave for mandatory religious observance. An employer

should normally be free to establish distinct categories

of paid leave for specific, nonwork-related secular ac-

tivities when the employer also provides a comparable

category of paid leave for mandatory religious observance.

Whether the school board’s leave policy impermissibly

discriminates on the basis vf religion, therefore, depends

on the scope of the various paid leave categories provided

for in the school board’s contract. In particlular, if the

“necessary personal business” leave category is narrowly

drawn and applied, we perceive no legal infirmity in the

school board’s policy, primarily because the school board

has provided for comparable paid leave for mandatory

religious observance. If, on the other hand, the necessary

personal business leave category is more broadly applied

—granting, in effect, paid leave for any secular activity

—the distinction drawn is of potential concern to Title

VII. The trial court has not yet addressed these im-

portant factual questions and thus a remand is required.

For similar reasons, we find unavailing the school board’s

alternative argument that the current record shows that

further accommodation is, in all events, excused because

it would cause “undue hardship.” A finding of undue

hardship, too, would be appropriate only after factual

inquiry and findings by the trial. court in the first

instance.

Finally, we do not share the scnool board’s view that

the complaint should be dismissed because any further

Title VII accommodation would impermissibly advance

religion in violation of the Establishment Clause. “An

exemption adopted by Congress to accommodate religious

beliefs [does] not violate the First Amendment’s Es-

tablishment Clause” (Bowen v. Roy, No. 84-780 (June

11, 1986), slip op. 18 n.19 (Burger, C.J.)). We there-

fore join respondent Philbrook in asking this Court to

affirm the judgment below, reversing the district court’s

dismissal of the complaint and remanding the case for

further proceedings.

ARGUMENT

AN EMPLOYER REASONABLY ACCOMMODATES

THE RELIGIOUS BELIEFS OF AN EMPLOYEE

WITHIN THE MEANING OF TITLE VII OF THE

CIVIL RIGHTS ACT BY OFFERING THE EMPLOYEE

A COMBINATION OF PAID AND UNPAID LEAVE

FOR MANDATORY RELIGIOUS OBSERVANCE UN-

LESS THE EMPLOYER’S PAID LEAVE POLICY DIS-

CRIMINATES AGAINST RELIGIOUS ACTIVITIES

This case concerns the extent to which Title VII re-

quires employers to accommodate the religious beliefs of

their employees. In Part A we discuss the responsibili-

ties the statute places on employers generally. We con-

clude that an employer satisfies Title VII when he pro-

vides an accommodation that both eliminates any conflict

betwe.2 the employee’s religious beliefs and employment

requirements and reasonably preserves the employee’s

employment status. The express words of the statute

also compel the conclusion that the employer meets his

Title VII obligation by proposing to the employee one

possible reasonable accommodation. The employer is not

obliged to accept the particular accommodation preferred

by the employee.

In Part B we discuss whether the school board’s leave

policy, which does eliminate any direct conflict between

Philbrook’s religious beliefs and his employment require-

ments, also reasonably preserves Philbrook’s employment

status. Generally an employer does not interfere with

the employee’s employment status when it accommodates

religious conflicts by providing for unpaid leave for reli-

gious holidays. But if the employer’s paid leave policy

discriminates against religion, the policy violates Title

VII. Further factual inquiry is necessary to determine

whether the school board’s paid leave policy fails to pre-

serve Philbrook’s employment status by treating secular

reasons for absences more favorably than religious rea-

sons for absences.

Finally, in Part C we discuss whether either Title

VII’s nondiscrimination mandate or the Establishment

Clause forbids accommodation efforts that, in effect, pro-

vide a “preference” or “privilege” to certain employees

based on conflicts between their religious needs and em-

ployment status. We conclude that Title VII’s literal

terms require such accommodations in certain circum-

stances and that the Establishment Clause does not for-

bid that result.

A. An Employer Complies With Title VII When It Rea-

sonably Accommodates The Religious Beliefs Of An

Employee By Eliminating Any Conflict Between Those

Beliefs And Employment Requirements While Reason-

ably Preserving The Employee’s Employment Status

When Congress first enacted Title VII in 1964, the

law provided, without elaboration, that employment dis-

crimination on the basis of the employee’s religion, like

discrimination on the basis of race, color, sex, or national

origin, was unlawful. Pub. L. No. 88-352, § 703, 78 Stat.

255. Not until Congress amended Title VII in 1972 did

the law expressly require employers to accommodate the

religious beliefs of employees. Pub. L. No. 92-261, § 2(7),

86 Stat. 103. The 1972 amendment, borrowing largely

from revisions by EEOC in 1967 to guidelines first pro-

mulgated in 1966,° had “[t]he intent and effect of * * *

®*The original EEOC guidelines outlining the accommodation

duties of an employer provided that an employer should “accom-

modate * * * the reasonable religious needs of employees * * * where

mak[ing] it an unlawful employment practice under [Ti-

tle VII] for an employer not to make reasonable accom-

modations, short of undue hardship, for the religious

practices of his employees and prospective employees.”

See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63,

74 (1977).%°

In Trans World Airlines, Inc. v. Hardison, supra, this

Court addressed the same issue posed in this case: “the

extent of the employer’s obligation under Title VII to

accommodate an employee whose religious beliefs pro-

hibit him from working on [certain days]” (432 U.S. at

66). The statutory touchstone of employer compliance

differs, however, in this case. In Hardison, the employer

had discharged the employee because the employee, based

on his religious beliefs, was unwilling to work on Satur-

days. Hence, whether the employer had violated Title

VII turned on whether the employer had demonstrated

that it was unable reasonably to accommodate the em-

ployee’s Saturday absences without undue hardship in the

conduct of its business. This Court held that an accom-

modation eliminating the conflict would impose “undue

hardship” on the employer because it would “require [the

employer] to bear more than a de minimis cost” (id. at

84).

such accommodation can be made without serious inconvenience to

the conduct of the business” (31 Fed. Reg. 8370 (1966)). In 1967,

EEOC revised the guidelines to provide that the employer should

“make reasonable accommodations to the religious needs of em-

ployees * * * where such accommodations can be made without

undue hardship on the conduct of the employer’s business” (32

Fed. Reg. 10298). The 1972 amendment to Title VII adopts much

of the 1967 guideline. See note 10, infra.

10 Congress amended Title VII to include an express accommoda-

tion requirement by adding Section 701(j), which defines religion

as “includ[ing] all aspects of religious observance and practice,

as well as belief, unless an employer demonstrates that he is unable

to reasonably accommodate to an employee’s or prospective em-

ployee’s religious observance or practice without undue hardship on

the conduct of the employer’s business” (42 U.S.C. 2000e(j) ).

In this case, the school board has not discharged

Philbrook and it primarily contends that its leave policy

already provides a reasonable accommodation. This case,

therefore, concerns the distinct question (not addressed

in Hardison) of what constitutes a reasonable accom-

modation, including whether the employer may choose its

preferred accommodation when several are possible.

The courts below sharply differed in their responses

to this basic issue of Title VII construction, but we be-

lieve that both courts, in different ways, misapprehended

the scope of an employer’s obligations under Title VII.

The district court dismissed Philbrook’s complaint on

the threshold ground that he “ha[d] not been placed by

the School Board or * * * by the Union * * * in a posi-

tion of violating his religion or losing his job” (Pet.

App. 37a). The trial court’s disposition of the case,

therefore, appears to rest on the supposition that Title

VII’s nondiscrimination mandate limits only employer de-

cisions to discharge an employee.”

The court of appeals properly rejected this narrow

view of Title VII’s scope. Title VII is not concerned

solely with employment discrimination resulting in dis-

charge of an employee. Title VII is concerned as well

with less onerous deprivations including those affecting

the employee’s “compensation, terms, conditions, or privi-

leges of employment” (42 U.S.C. 2000e-2(a)(1)). Title

VII, moreover, broadly denounces efforts by the employer

“to limit, segregate, or classify his employees * * * in

any way which would deprive or tend to deprive any

individual of employment opportunities or otherwise ad-

versely affect his status as an employee” (42 U.S.C.

2000e-2 (a) (2) ).% An employer therefore must do more

11 The school board presses the analogous argument that “the

failure to provide such a benefit does not support a charge of dis-

crimination under Title VII.” See Pet. Br. 21; see also Equal

Employment Advisory Council Amici Br. 9-14; AFL-CIO Amicus

Br. 5-12.

12 The argument of amicus AFL-CIO (Br. 5-12) that Congress

made religious discrimination unlawful due primarily to congres-

than just eliminate any conflict between the employee’s

religious beliefs and employment requirements. The em-

ployer’s accommodation. obligations under Title VII ex-

tend to efforts to preserve the employee’s employment

status, including both employment opportunities and priv-

ileges.** See American Postal Workers Union v. Post-

master General, 781 F.2d 772, 776-777 (9th Cir. 1986).

The court of appeals, however, erred in overstating

the extent of an employer’s accommodation obligations

under Title VII. Its conclusion that an employer must,

absent a showing of undue hardship, accept the particu-

lar accommodation preferred by the employee is inconsist-

ent with the clear import of the statutory language.

Title VII provides that it is unlawful for an employer

to discriminate on the basis of religion “unless an em-

ployer demonstrates that he is unable to reasonably ac-

commodate * * * an employee’s * * * religious observance

or practice without undue hardship on the conduct of the

employer’s business” (42 U.S.C. 2000e(j)). Under the

sional concern with religious observers being denied employment

altogether is not to the contrary. The AFL-CIO agrees that com-

pliance with Title VII includes a duty not to inflict “hardships

needlessly” (Br. 9 n.4) and not to discriminate with respect to

the terms of employment (id. at 12-14).

18 For this reason, the school board’s attempt (Pet. Br. 14-15)

to draw support from this Court’s Free Exercise precedent is mis-

guided. The Free Exercise Clause allows certain neutral systems

of awarding benefits, but, “[a]s a matter of legislative policy,”

Congress enacted Title VII “to make religious accommodations”

and, consequently, different considerations apply. Cf. Bowen v.

Roy, No. 84-780 (June 11, 1986), slip op. 18 (Burger, C.J.).

The school board’s analogy (Pet. Br. 18-20) to decisions of this

Court involving allegations of sex-based discrimination is similarly

flawed. Under the school board’s erroneous reading of Title VII,

an employer who treated all religions the same—by refusing any

accommodation to all—would comply with Title VII. Title VII's

prohibition on religious discrimination, however, includes an affirma-

tive accommodation requirement that is not expressly extended to

other prohibited categories of discrimination such as discrimination

on the basis of sex.

literal terms of the statute, the employer need rely on a

showing of “undue hardship” only in those cases where

the employer is claiming that no reasonable accommoda-

tion is possible. “{U]ndue hardship” therefore is simply

a defense to an employer’s failure to offer a reasonable

accommodation. As long as the employer is reasonably

accommodating the employee, the employer is under no

obligation to show that an alternative accommodation

preferred by the employee would cause it undue hardship.

The sole judicial inquiry is whether the employer’s pro-

posed accommodation is reasonable.

Furthermore, because the statutory language requires

only a “reasonable” accommodation of an employee’s re-

ligious needs, his employment status need not be abso-

lutely preserved. Cf. Estate of Thornton v. Caldor, Inc.,

No. 83-1158 (June 26, 1985), slip op. 2 (O’Connor, J.,

concurring). Reasonable preservation of employment sta-

tus is sufficient. When the burdens on employment status

are de minimis, employment status has been reasonably

preserved, but the adverse effects, if any, should not

be material and substantial. Whether a particular ac-

commodation reasonably preserves employment status

turns, moreover, on an objective assessment of the em-

ployment relationship. And because the employer in-

herently retains its traditional management prerogatives

to the extent they do not directly conflict with Title VII’s

requirements, the employer, not the employee, has the

right to choose among reasonable accommodations."* Cf.

United Steelworkers v. Weber, 443 U.S. 193, 207 (1979) ;

Furnco Construction Corp. v. Waters, 488 U.S. 567, 578

(1978).

14 In assessing the reasonableness of the accommodation provided

by the employer, courts should consider the range of alternative

accommodations suggested by the EEOC’s guidelines. 29 C.F.R.

1605.2(d). However, if an employer selects one accommodation

suggested by the guidelines over another suggested accommodation,

or if the employer selects a different accommodation that the court

nonetheless finds to be reasonable, the employer need not show

that the employee’s preferred accommodation would cause undue

hardship.

Moreover, the reasonableness of an employer’s proffered

accommodation does not turn on its compatibility with

competing demands on the employee’s time generated by

secular activities outside of work.” Thus, neither the

employee’s own subjective assessment of the accommoda-

tion nor his secular, non-employment related needs are

relevant to the inquiry. See American Postal Workers

Union, 781 F.2d at 776. Title VII is concerned only with

redressing impermissible discrimination within the em-

ployment relationship and not with rewriting employ-

ment contracts to redress employee grievances generally.”*

15 For example, an employee may find a particular accommoda-

tion involving a shift in work hours undesirable because he would

prefer not to work with certain other employees or because the new

schedule would conflict with outside recreational interests. Neither

of these considerations, however, would bear on the reasonableness

of the accommodation within the meaning of Title VII. Title VII

requires accommodation of the employee’s religious beliefs, includ-

ing preservation of the employment relationship, not accommodation

of secular, nonemployment related interests of the employee. Such

matters are, as always, governed by specific employment contracts

and outside the scope of Title VII, unless, of course, an employee

demonstrated that the employer deliberately selected a particular

accommodation adverse to the employee because of his religious

beliefs or observances in order “to discriminate invidiously or * * *

covert[ly] suppress[] * * * particular religious beliefs.” See Bowen

v. Roy, slip op. 9.

16 This reading is not inconsistent with the current EEOC

guidelines which provide that “the employer * * * must offer the

alternative which least disadvantages the [employee] with respect

to his or her employment opportunities” (29 C.F.R. 1605.2 (c) (2) (ii)

(emphasis added)). The guidelines confirm that only impacts on

the employee’s employment status are relevant. We do not believe

the guidelines should be read as endorsing the view that a mere

de minimis or insubstantial burden on an individual’s employment

status is sufficient to render a proposed accommodation unreason-

able. Certainly neither the statutory language of Title VII nor its

legislative history suggests such a lopsided construction of either

the term “reasonable” or “accommodation.” See, e.g., 118 Cong.

Rec. 706 (1972) (remarks of Sen. Randolph) (“usually the * * *

B. The School Board Policy Of Providing An Employee

With Paid And Unpaid Leave For Mandatory Religious

Observance Is Reasonable As A Matter Of Law Unless

The School Board’s Paid Leave Policy Discriminates

Against Religion

1. For the reasons previously given (pages 15-16, su-

pra), we agree with the school board that if the current

leave pclicy provides a reasonable accommodation,” re-

mand for an undue hardship inquiry is unnecessary and

Philbrook’s complaint should be dismissed. Because, how-

ever, we believe that further factual inquiry is necessary

to determine whether the current accommodation is rea-

sonable, we nonetheless conclude that remand is warranted

and support the judgment of the court of appeals.

We agree at the outset with the intimation of both

courts below that Title VII does not generally require

employers to provide employees with days of paid leave

for observance of religious holy days.** Indeed, an em-

employer and the employee[] are of an understanding frame of

mind and heart * * * and * * * desire to achieve an adjustment’’) ;

see also American Postal Workers Union Vv. Postmaster General, 781

F.2d 772, 777 (9th Cir. 1986) (stressing need for “bilateral cooper-

ation”); Brener v. Diagnostic Center Hospital, 671 F.2d 141, 145-

146 (5th Cir. 1982) (same).

17 The court of appeals’ statement (Pet. App. 13a-l4a) that the

school board’s accommodation was reasonable was rooted in its

erroneous assumption that Title VII would nonetheless require an

undue hardship inquiry. The statement was not based, as required

by Title VII, on consideration of the degree to which the accom-

modation eliminated conflicts between the employee’s religious

observances and work requirements, while preserving employment

status.

18 The district court dismissed Philbrook’s complaint based, in

part, on the court’s view that Philbrook claimed such a general

entitlement to paid leave for religious holy days. See Pet. App.

35a, 36a. The court of appeals appears to have agreed that Title VII

creates no such general entitlement and to have ruled in favor of

Philbrook only because the court concluded that Philbrook’s claim

did not rest on such a broad proposition. Jd. at 18a & n.9, 20a.

ployer proposal to allow an employee to take unpaid leave

for observance of religious holy days would, in many cir-

cumstances, constitute a reasonable accommodation as a

matter of law. See, e.g., Pinsker v. Joint Dist. No. 28]

of Adams & Arapahoe, 735 F.2d 388, 3€1 (10th Cir.

1984) ; ef. Monroe v. Standard Oil Co., 452 U.S. 549, 564

(1981) (“fA] ‘reasonable accommodation’ to employee-

reservists because of missed worktime has already been

made by Congress in [the statute]. There, Congress de-

cided what allowance employers should make to reservists

whose duties force them to miss time at work: provide

them a leave of absence.”). Direct conflict between em-

ployment requirements and religious beliefs is elimi-

nated by the provision of unpaid leave because the em-

ployer is not requiring the employee to work on a re-

ligious holy day. And, at least as a general proposition,

“Tt}he 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 em-

ployment opportunities or job status” (Nashville Gas Co.

v. Satty, 434 U.S. 1386, 145 (1977) ).”

The basic premise of the employment relationship is,

of course, that the employer provides compensation in

exchange for work performed by the employee. If the

employee is denied a day’s pay for a day not worked,

he has not suffered any denial of a privilege or condition

ef employment and thus has suffered no burden on his

19 Current EEOC guidelines support the reasonableness of an

accommodation in which the employer offers the employee unpaid

leave. The guidelines provide that a “[rjeasonable accommodation

* * * is generally possible where a voluntary substitute with sub-

stantially similar qualifications is available” (29 C.F.R. 1605.2

(d) (1) (i)). Presumably, the employer is not obliged to pay both the

substitute and the employee taking time off from work. Former

EEOC guidelines speak more directly and leave no doubt as to

the reasonableness of an accommodation allowing unpaid leave.

See 3] Fed. Reg. 8370 (1966) (“An employer may permit absences

from work on religious holidays, with or without pay, but must

treat all religions with substantial uniformity in this respect.’’).

employment status. He has simply been denied a “bonus”

beyond that generally granted to his fellow emy.ioyees for

secular purposes. Title VII does not compel subsidization

of an employee’s religious beliefs beyond that provided to

other employees for similar secular purposes. See Pinsker

v. Joint Dist. No. 28J of Adams & Arapahoe, 735 F.2d at

391 (school board was not required to provide plaintiff

with additional paid leave for religious observance be-

yond the two days of “special leave” provided to all

employees).

The commonsense notion that unpaid leave provides a

reasonable accommodation as a matter of law is not,

however, without limitation. An employer’s leave ‘policy

may impermissibly discriminate against religion by, for

example, providing paid leave for certain secular, non-

employment related activities, but denying paid leave for

similar religious activities. Title VII does not “uncondi-

tionally impos[e] upon employers an obligation to con-

tinue to pay their employees their regular paychecks

when they absented themselves from work for [religious]

reasons * * *{, but such payments may be required if

aj]n employer ‘discriminates’ against an employee [by]

treat[ing] that employee less favorably than he treats

other similarly situated” (Whirlpool Corp. v. Marshail,

445 U.S. 1, 18-19 (1980) (footnote omitted) ).*°

20 So, too, if the relative amount of unpaid leave that must be

taken by the employee is substantial, the employer should be obliged

to consider the possibility of a shift in work hours. Cf. Monroe

v. Standard Oil Co., 452 U.S. at 564; id. at 575 (Burger, C.J.,

dissenting) (“[{important] ‘incident or advantage of employment’

[includes] opportunity for full-time work undiminished by * * *

absences for military training”). For example, if the employee’s

current work schedule requires him to take off one day each week

for the Sabbath, an employer’s proposal to allow unpaid leave would

not amount to a reasonable preservation of employment status; the

relative amount of unpaid leave required would be substantial.

See 29 C.F.R. 1605.2(d). If, moreover, the employer conducts

business 24 hours a day, seven days a week, the employer should

consider the possibility of a shift in work hours that would allow

2. Philbrook’s complaint does not depend, at bottom,

on the general claim that Title VII entitles employees

who need to take days off for religious observance with

paid leave. If it did, we would readily agree with the

school board that the complaint should be dismissed. Nor

does the complaint depend on the equally erroneous no-

tion that the school board’s leave policy is discriminatory

because the amount of paid leave is inadequate. Cf. Alez-

ander Vv. Choate, No. 83-727 (Jan. 9, 1985).*" Instead,

Philbrook complains that the school board’s leave policy

discriminates against religion by barring the use of

“necessary personal business” leave for mandatory re-

ligious observance (J.A. 3-4).

The school board’s fairly intricate leave policy provides

many specific categories of paid leave, including three

days of paid leave for mandatory religious observance.

It also provides three days of paid leave for “necessary

personal business,” but leave for “necessary personal

business” may not be used for any purpose described in

the specific leave categories, and thus may not be used

for religious leave.

As a general rule, an employer is free to establish dis-

tinct and exclusive categories of paid leave for specific,

the employee to work full-time. Cf. ibid. Of course, as in Hardison,

the employer might well establish that a work-schedule change

causes undue hardship. See 432 U.S. at 76-77. The employee would

nonetheless be entitled to that additional consideration and a hard-

ship showing.

21 We disagree with the proposition, advanced by the court of

appeals, that the school board’s leave policy “facially discriminates

on the basis of religion” because it “afford[s] some teachers all the

[paid] leave they need for religious reasons while not extending

that benefit to members of religious groups that have more than

three holy days per year” (Pet. App. 12a). This Court rejected

a similar contention in Alexander v. Choate, supra. There, the

Court held that a 14-day limitation on inpatient hospital coverage

for Medicaid recipients did not discriminate against handicapped

recipients in violation of Section 504 of the Rehabilitation Act of

1978, 29 U.S.C. 794, even assuming that the limitation might dis-

proportionately affect the handicapped.

nonwork-related secular activities as long as the employer

also provides a comparable category of paid leave that

can be used for mandatory religious observance.” More-

over, an employer’s leave policy is not impermissibly dis-

criminatory whenever it excludes the use of certain cate-

gories of paid leave for mandatory religious observance.

Surely the school board does not discriminate against

Philbrook by forbidding him from using the five days

allocated for “death in the family” for his religious ob-

servance. Nor does an atheist employee suffer discrimina-

tion when he is denied use of the three days for religious

observance to supplement some other specified leave

category.

Thus we agree with the court of appeals that “[tjhe

critical factual question * * * is the past and current

scope of the personal business leave provisions” (Pet.

App. 16a). Although Title VII does not impose limita-

tions on the employer’s authority to structure a leave

policy as long as the categories of leave either are so

op: . ended as to provide the employee with complete dis-

cretion, or are strictly confined to employment-related

purposes, the school board’s “necessary personal busi-

ness” category raises the important question whether

leave for secular, nonemployment purposes is being

granted more generously than leave for religious pur-

poses. If, as amicus AFL-CIO contend. (Br. 14-17), the

necessary personal business leave category is both nar-

rowly drawn and applied, we would agree that its ex-

22 This is not to say that every time an employer provides any

leave for a limited, specific, secular purpose it myst make leave

available for religious purposes in order reasonably to preserve the

religious observer’s employment status. For instance, Title VII

would certainly not require that an employer who allows employees

paid leave for personal illness, must, for that reason, provide paid

leave for religious holidays. Nor would an employer always be

required to establish paid religious leave if it provides any leave for

some secular, nonemployment related purpose—such as military

duty—in order reasonably to accommodate the religious needs of

its employees.

clusion of religious leave, in addition to other types of

secular leave, does not amount to impermissible religious

discrimination. If, however, the “necessary personal busi-

ness” category is, in practical effect, an all-purpose secu-

lar leave provision that the union contract provides in

addition to the array of specific secular paid leave cate-

gories also included in the leave policy, we would agree

with Philbrook (as would amicus AFL-CIO (Br. 13-

14)) that the overall leave policy discriminates against

religion in violation of Title VII.

Based on the current record, however, we can only

speculate as to the actual scope of the necessary personal

business category and for this reason we believe that

remand is warranted. As the court of appeals noted

(Pet. App. 16a-17a), although the wording of the leave

category, particularly the term “necessary,” suggests a

narrow construction, the category’s allowance for teacher

discretion and Philbrook’s claim that such leave is freely

granted for secular purposes create substantial doubt

about the category’s actual scope in application. More-

over, because the district court applied an incorrect legal

standard, remand is appropriate to permit the trial

court to apply the correct legal standard to the facts

of this case in the first instance. Pullman-Standard v.

Swint, 456 U.S. 273, 291-292 (1982) .*

23 Of course, while the court of appcals concluded the remand was

necessary to consider the school board’s undue hardship (Pet. App.

17a), we believe remand is necessary to address whether the school

board’s current accommodation, as reflected in its leave policy,

discriminates against religion.

*4 Even if this Court should find as a matter of law that the school

board’s leave policy is not a reasonable accommodation, remand

would be necessary because the scope of the necessary personal

business leave category would bear on the school board’s ability to

demonstrate undue hardship. For example, if the necessary business

provision was broadly applied in practice, the school board would

be hard-pressed to contend thet extending its scope to include

religious holy days would cause undue hardship.

3. Philbrook’s remaining contentions may be disposed

of briefly. Philbrock argues that the school board’s cur-

rent accommodation is unreasonable because the cost of

a substitute teacher is less than his lost salary for a

day of absence and, consequently, the school board’s re-

duction of his pay is excessive. But Fhilbrook’s request

is simply 2 slight variation on the notion, already re-

jected, that Title VII entitles employees to paid leave,

regardless of its treatment of other employees. Absent

a showing (and we know of none) that the school board

follows the novel policy of providing employees absent

for secular reasons with the equivalent of aa employ-

ment agency’s commission (based on any salary differen-

tial), Philbrook’s request lacks merit.

Philbrook’s related argument that the school board’s

current accommodation is unreasonable because the school

board has not considered the possibility of allowing him

to do meaningful work at school at other times is simi-

larly unavailing. This case is not one. where the avail-

ability of work-schedule changes limits the reasonable-

ness of using unpaid leave to accommodate an employee’s

religious beliefs (see note 20, supra). The purpose of a

work-schedule shift is to allow the employee to accom-

plish the same (or equivalent) work, but at a different

time. What Philbrook requests is the right to do some

other “meaningful work” at a different time, presumably

because he can only teach his classes at certain pre-

scribed times. We do not believe that the employer’s ac-

commodation obligation extends to determining whether

it might be able to employ the individual in a different

capacity.”

25 Notably, Congress has chosen to “reasonably accommodate”

the religious beliefs of federal employees by allowing federal em-

ployees to “elect to engage in overtime work for time lost for meet-

ing * * * religious requirements” (5 U.S.C. 5550a). Consistent with

the explicit statutory concern with maintaining the efficiency of

government operations, the implementing regulations provide that

the employing federal agency need not allow such a shift in work

C. Accommodation Of Philbrook’s Religious Beliefs Nei-

ther Offends Title VII Nor Implicates The Establish-

ment Clause

The school board (Pet. Br. 28-30) suggests that Title

VII does not require further accommodation of Phil-

book’s religious beliefs because any additional accommo-

dation would amount to unequal treatment of employees

based on religion in violation of Title VII’s nondiscrimi-

hours when it would “interfere with the efficient accomplishment

of an agency’s mission” (5 C.F.R. 550.1002(b)). See also 124 Cong.

Rec. 15436 (1978) (remarks of Rep. Solarz) (“if the provision of

overtime compensatory work provides an undue hardship on the

agency or interfere[s] with its efficiency, the agency need not grant

such work’). Members of Congress expressed their belief that

forcing federal employees to “choose between meeting the require-

ments of their faith and suffering a reduction of income or a loss

of vacation time * * * is unnevessary, in most cases.” S. Rep. 95-

1143, 95th Cong., 2d Sess. 10 (1978) ; 124 Cong. Rec. 15435 (1978)

(remarks of Rep. Solarz) (“discriminatory and unnecessary”’) ; id.

at 15436 (remarks of Rep. Harris) (“unnecessarily punitive and

discriminatory”). The Senate Report accompanying the legislation

specifically added that “[fjederal agencies are expected to find

meaningful overtime work for employees who request overtime in

anticipation of time lost for religious observance” (S. Rep. 95-

1148, supra, at 11). Of course, how Congress chose, in its discre-

tion, to accommodate the religious beliefs of federal employees

does not establish a binding standard of reasonable accommodation

on the private sector, particularly when Congress nowhere in the

legislation or its legislative history indicated any intent to impose

equivalent requirements on the private sector. Nor did Congress

suggest that the legislation reflected its own interpretation of what

constituted mandatory employer compliance with Title VII, which

is applicable to federal employment (see 42 U.S.C. 2000e-16). The

Senate Report refers only once to Title VII, and even then only as

incidental support for its action. See S. Rep. 95-1143, supra, at 10.

Testimony during the House hearings on the legislation refers to

the federal need to comply with Title VII, but nowhere suggests

congressional sentiment that the then-pending proposal was neces-

sary to secure compliance with Title VII. See generally, Leave

Time for Observing Religious Holidays: Hearings Before the Sub-

comm. on Compensation and Employee Benefits of the House Comm.

on Post Office and Civil Service, 95th Cong., 2d Sess. (1978).

nation mandate. Alternatively, the school board contends

(id. at 30-31) that such unequal treatment would, if

required by Title VII, impermissibly advance religion in

violation of the Establishment Clause. Both contentions

misapprehend the scope and meaning of Title VII’s rea-

sonable accommodation requirement.

Contrary to the school board’s submission, Title VII’s

nondiscrimination mandate is not offended when an em-

ployer accommodates an employee’s religious beliefs by

providing the employee with a privilege not available to

all employees. If it were, Title VII’s reasonable accom-

modation obligation would be rendered meaningless. The

fundamental premise of the reasonable accommodation ob-

ligation is that facially equal treatment, alone, is not nec-

essarily sufficient under Title VII. Hence, an employer

that discharges an employee who refuses, for religious

reasons, to work on certain days of the week cannot de-

fend the discharge solely on the ground that all em-

ployees are subject to the same employment requirements

and penalties. Title VII requires that the employer dem-

onstrate that it was unable reasonably to accommodate

the employee without causing undue hardship to the con-

duct of the employer’s business. To be sure, any accom-

modating step taken by the employer beyond facially

equal treatment could be characterized as resulting in a

religious “preference” or “privilege,” but, whatever its

label, Title VII cannot be read as prohibiting the very

action plainly required by its literal terms.

Instead, Title VII’s nondiscrimination mandate limits

employer efforts reasonably to accommodate an employ-

ee’s religious beliefs only to the extent that those efforts

adversely affect the employment status, including employ-

ment opportunities and privileges, of other employees.

Thus, as in Hardison, Title VII does not require that an

employer give the employee a day off when the employer

“would have had to deprive another employee of his

shift preference at least in part because he did not

adhere to a religion that observed the Saturday Sabbath”

(432 U.S. at 81). But absent such adverse effects on the

employment status of other employees, Title VII dues not

restrict employer efforts at reasonable accommodation.”®

Indeed, the contrary view might call into question the

school board’s current practice of granting Philbrook

paid and unpaid leave for religious holy days. Accord-

ingly, should the district court on remand find that the

scope of the necessary personal business leave category

is the equivalent of an all-purpose secular paid leave

category, Title VII would not prevent the school board

from allowing Philbrook to use such leave for religious

holy days. There would be no apparent adverse effect on

other employees; the school board would simply hire a

substitute to take Philbrook’s classes and other employ-

es would be free, as before, to use their paid annual

1, ve for the purposes specified in the collective bargain-

in, agreement.”

ior does the Establishment Clause bar the possibility

of further accommodation in this case. Title VII is “a

statute outlawing employment discrimination based on

race, color, religion, sex, or national origin [and] has

the valid secular purpose of assuring employment op-

portunity to all groups in our pluralistic society” (Es-

*6 For example, an employer may allow an employee who is an

Orthodox Jew to wear a yarmulke, notwithstanding a general pro-

hibition on the wearing of headgear, without violating Title VII.

27 We do not believe the Court’s statement in Hardison, 432 U.S.

at 85, that Title VII did not require the employer to adopt an ac-

commodation in which “the privilege of having Saturdays off would

be allocated according to religious beliefs” should be read as sug-

gesting a different result. The Court’s concern was with “con-

stru({ing] [Title VII] to require an employer to discriminate

against some employees” (ibid. (emphasis added)) and, in Hardi-

son, the privilege of taking Saturdays off was clearly a privilege

of employment under the collective bargaining agreement. Most

importantly, allowing the religious employee to take Saturday off

would either have interfered with the seniority rights of other

employees to take the day off or have caused the employer undue

hardship (i.e., more than de minimis cost). See 482 U.S. at 84.

tate of Thornton v. Caldor, Inc., No. 83-1158 (June 26,

1985), slip op. 2 (citation omitted) (O’Connor, J., con-

curring). Although, Title VII may, as just described,

sometimes require that the employer provide the em-

ployee “special” or “preferential” treatment in response

to the employee’s religious beliefs, such “treatment of

religious practitioners does not present the dangers of

‘sponsorship, financial support, and active involvement of

the sovereign in religious activity,’ against which the Es-

tablishment Clause is principally aimed” (Hardison, 432

U.S. at 90-91 n.4 (Marshall, J., dissenting), quoting

alz v. Tax Comm’n, 397 U.S. 664, 668 (1970)). See

(June 11, 1986) (Burger,

Moreover, this Court has held that the Free Exercise

Clause does mandate accommodation in the nature of a

“preference” or “privilege.” See Wisconsin v. Yoder,

406 U.S. 205 (1972). The Establishment Clause should

not prohibit the government from requiring private par-

ties to take accommodating actions similar to those re-

quired by the Free Exercise Clause. The spectre of a

constitutional collision between the Free Exercise and

Establishment Clauses underscores the need to distin-

guish for Establishment Clause purposes between gov-

ernmental actions and laws intended to “induce” religion

and those intended merely to “accommodate” sincerely-

held religious beliefs. In our view, although neutral gov-

ernmental accommodation efforts, such as Title VII, may

in some sense facilitate religious practice, they pose no

threat to the fundamental principle of separation of

church and state embodied in the Establishment Clause.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.