Amicus Curiae Brief — Ansonia Board of Education v. Philbrook

a Supreme Court, us. |

FILED

No. 85-495

—_—_—_—_—_—_—_—_— ed, 1588

IN THE JOSEPH . ranch, JR.

Supreme Court of the Muited Seater

OCTOBER TERM, 1985

ANSONIA BOARD OF EDUCATION, et al.,

Petitioners,

Vv.

RONALD PHILBROOK,

Respondent.

On a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF AMICI CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL AND

THE NATIONAL SCHOOL BOARDS ASSOCIATION

IN SUPPORT OF THE PETITiONERS

AUGUST W. STEINHILBER ROBERT E. WILLIAMS

GWENDOLYN H. GREGORY DOUGLAS S. McDOwWELL *

THOMAS A. SHANNON WILLIAM S. FRANKLIN

National School MCGUINEsSS & WILLIAMS

Boards Association 1015 15th Street, N.W.

1680 Duke Street Suite 1200

Alexandria, VA 22314 Washington, D.C. 20005

(708) 888-6712 (202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

* Counsel of Record

w I

ILSON - EPES PRINTING Co.,

NC. - 738-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES ooo... ecco ceccceceeeceeeeeeee.

INTEREST OF THE AMICUS CURIAE EQUAL EM-

PLOYMENT ADVISORY COUNCIL ..............

INTEREST OF THE AMICUS CURIAE NATIONAL

SCHOOL BOARDS ASSOCIATION ow

STATEMENT OF THE CASE |W

SUMMARY OF ARGUMENT

ARGUMENT

I. A PLAINTIFF MAY NOT ESTABLISH A

PRIMA FACIE CASE OF RELIGIOUS DIS-

CRIMINATION UNDER TITLE VII WHERE

THE EMPLOYER HAS MADE REASONABLE

ACCOMMODATION OF THE EMPLOYEE’S

RELIGIOUS BELIEFS OR PRACTICES, AND

HAS ALLOWED THE PLAINTIFF TO TAKE

UNPAID LEAVES OF ABSENCE FROM

WORK FOR RELIGIOUS OBSERVANCES

Il. WHERE AN EMPLOYER HAS MADE REA-

SONABLE ACCOMMODATIONS TO THE

RELIGIOUS BELIEFS AND PRACTICES OF

EMPLOYEES, TITLE VII DOES NOT RE-

QUIRE THE EMPLOYER TO MAKE ANY

AND ALL ADDITIONAL ACCOMMODA-

TTONS PROPOSED BY AN EMPLOYEE,

EVEN IF SUCH ACCOMMODATIONS

WOULD NOT CAUSE UNDUE HARDSHIP

TO THE EMPLOYER

A. Courts Can Determine Whether an Employer

Has “Reasonably Accommodated” an Em-

ployee’s Religious Practices Without Refer-

ence to the “Undue Hardship” Standard...

14

14

ii

TABLE OF CONTENTS—Continued

Page

B. Other Circuits Have Rejected the Panel’s

Proposed Approach, Under Which an Em-

ployer Always Would Have to Accept an

Employee’s Preferred Means of Accommoda-

tion Unless It Would Cause Undue Hardship

TE 17

C. The Decision Below Is Inconsistent With

This Court’s Furnco Decision and Reversal

Would Preserve Traditional Management

Prerogatives While Promoting Voluntary

Efforts to Accommodate Employees’ Reli-

a aimnmseanine 23

En slataasdeieds 26

iii

TABLE OF AUTHORITIES

Cases: Page

Alexander v. Gardner-Denver Co., 415 U.S. 36

ID ccencscecessnnssssnacnensnsenssssanessnsmmessssnasecsesininsssemmentenss 26

American Postal Workers Union, San Francisco

Local v. Postmaster General, 781 F.2d 772 (9th

Cir. 1984) .. -_ cian ...8,17, 18, 19, 22

American ostal “Workers: Union - v. - Postmaster

Generai, 35 FEP Cases 1484 (N.D. Calif. 1984) .. 18

Anderson v. General Dynamics Convair Aerospace

Div., 648 F.2d 1247 (9th Cir. 1981), cert. de-

nied, 454 U.S. 1145 (1982) ooo... 3

Anderson v. General Dynamics Convair Aerospace

Div., 589 F.2d 397 (9th Cir. 1978), cert. denied,

442 U.K. 921 (1979) ...0 eee eee 10-11, 12, 16

Brener v. Diagnostic Center Hospital, 671 F.2d

141 (5th Cir. 1982) 2000. 22

Brown v. General Motors Corp., 601 F.2d 956 (8th

0 |) ) ee 11, 12

Chrysler Corp. v. Mann, 561 F.2d 1282 (8th Cir.

1977), cert. denied, 434 U.S. 1039 (1978)........ 22

EEOC v. Caribe Hilton International, 597 F.

Supp. 1007 (D.P.R. 1984) 220000000 11, 14

Furnco Construction Corp. v. Waters, 438 U.S. 567

SII -cxihdsrndasennneaaeisdesnantennaveustecedmuiinisineanstteatehenesennstoctenes 8, 23

Gavin v. Peoples Natural Gas Co., 613 F.2d 482

CBE GERD. BBD) a. nnncenccvercerenccncnccoccsccreccnsccrococcsoecnsees 2

Mann v. Milgram Food Stores, Inc., 730 F.2d 1186

CBE Clr. 2GBA) nn. nn..nccnnnnenncccccececnccensesccccscecsnceseee 20

McDaniel v. Essex International, Inc., 571 F.2d

338 (6th Cir. 1978) 2.0... cceecececeeeeeeeeeseeneeee 16

Nottelson v. Smith Steel Workers D.A.L.U. 19806,

643 F.2d 445 (7th Cir. 1981), cert. denied, 454

U.S. 1046 (1981) cece cere eee 2

Philbrook v. Ansonia Board of Education, 39 FEP

Cases 1333 (D.Ct. 1984) 2000 6

Philbrook v. Ansonia Board of Education, 757

F.2d 476 (2d Cir. 1985) ......6, 7, 10, 11, 12, 14-15, 16, 22

Pinsker v. Joint District Number 28] of Adams

and Arapahoe Counties, 735 F.2d 388 (10th

Cir. 1984) oo cece eeceeeeeeeeeees 7, 12, 138, 15, 19-20

iv

TABLE OF AUTHORITIES—Continued

Page

Redmond v. GAF Corp., 574 F.2d 897 (7th Cir.

PRR eRe Clete ee nee en ee wee eR a Fess 11, 12, 22

Stern v. Teamsters “General” Local Union No.

200, 39 FEP Cases 1526 (E.D.Wis. 1986), ap-

peal docketed, No. 86-1224 (7th Cir., Feb. 13,

SUITED iiceshctinsiessicihcstaaltilasetnachth chdasedlidsiscsiisaatadaaadnaamemnmunsiieanaas 20-21

Texas Department of Community Affairs v. Bur-

| en 24

Thornton v. Caldor, Inc., 105 S.Ct. 2914 (1985)... 2

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

a a epee 2, 10, 25

Turpen v. Missouri-Kansas-Texras Railroad Co.,

736 F.2d 1022 (Sth Cir. 1984) ......................... 10, 12, 22

United States v. City of Albuquerque, 545 F.2d 110

(10th Cir. 1976), cert. denied, 133 U.S. 909

a oe ee Ee Pike tee ee 25

United Steelworkers of America v. Weber, 443

RE eT ae TEE LT 24

W.R. Grace & Co. v. Local 759, 461 U.S. 757

A Lk ane See Aannn ne eS eka Rane 26

United States Constitution:

8 RSE 1 oe ven EPR Oi cere 4,6

Statutes:

Civil Rights Act of 1964, Title VII, as amended,

BD Whee B ID OO GD, cccececeiccccccnictetivenintemeencescsisies passim

Section 701 (j), 42 U.S.C. § 2000e(j) 9, 10, 15, 22

Section 703 (a), 42 U.S.C. § 2000e-2 (a)... 9,15

National Labor Relations Act, as amended, 29

U.S.C. § 151 eft seq. .................. satiiadaniaddsiatibinaahnanmeas 21

LSE ot fn 21

Regulations:

SE ee ee ee Ee he 3

29 C.F.R. § 1605.2 (c) (2)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-495

ANSONIA BOARD OF EDUCATION, e¢ al.,

. Petitioners,

RONALD PHILBROOK,

Respondent.

On a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF AMICI CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL AND

THE NATIONAL SCHOOL BOARDS ASSOCIATION

IN SUPPORT OF THE PETITIONERS

The Equal Employment Advisory Council (EEAC)

and the National School Boards Associatign (NSBA),

with the written consent of all parties, respectfully

submit this brief as amici curiae in support of the

petitioners.’

INTEREST OF THE AMICUS CURIAE

EQUAL EMPLOYMENT ADVISORY COUNCIL

EEAC is a voluntary, nonprofit association organ-

ized to promote the common interest of employers

and the general public in sound government policies,

' The consents of all parties have been filed with the Clerk

of the Court.

2

procedures and requirements pertaining to nondis-

criminatory employment practices. Its membership

comprises a broad segment of the employer com-

munity in the United States, including both individ-

ual employers and trade and industry associations.

Its governing body is a board of directors composed

primarily of experts and specialists in the field of

equal employment opportunity, whose combined ex-

perience gives the Council a unique depth of under-

standing of the practical and legal considerations

relevant to the proper interpretation and application

of EEO policies and requirements.

EEAC members are either employers or associa-

tions of employers that are subject to the require-

ments of Title VII of the Civil Rights Act of 1964

and related regulations. Accordingly, EEAC has a

vital interest in the issue here before this Court,

namely, whether Title VII requires an employer that

already has made reasonable accommodation of the

religious beliefs and practices of its employees, to

make further accommodations proposed by an em-

ployee if the employee’s proposed accommodations

would not cause “undue hardship” to the employer’s

business.

Because of its interest in the religious accommoda-

tion requirements of Title VII, EEAC has filed nu-

merous briefs amicus curiae in this Court and in

the United States Courts of Appeals in cases inter-

preting those provisions. Trans World Airlines, Inc.

v. Hardison, 432 U.S. 68 (1977) ; Thornton v. Caldor,

Ine., 105 S.Ct. 2914 (1985); Gavin v. Peoples Nat-

ural Gas Co., 613 F.2d 482 (3rd Cir. 1980); Nottel-

son v. Smith Steel Workers D.A.L.U. 19806, 643

F.2d 445 (7th Cir. 1981), cert. denied, 454 U.S. 1046

3

(1981); and Anderson v. General Dynamics Convair

Aerospace Div., 648 F.2d 1247 (9th Cir. 1981), cert.

denied, 454 U.S. 1145 (1982).”

INTEREST OF THE AMICUS CURIAE

NATIONAL SCHOOL BOARDS ASSOCIATION

Amicus Curiae, National School Boards Associa-

tion (NSBA), is a nonprofit federation of this na-

tion’s state school boards associations, the District of

Columbia school board and the school boards of the

offshore flag areas of the United States. Established

in 1940, NSBA is the only major national educa-

tional organization representing school boards and

their members. Its membership is responsible for the

education of more than ninety-five percent of the

country’s public school children.

The individuals who compose the school boards of

this country are elected or appointed community rep-

resentatives. They are responsible under state law

for the fiscal management, staffing, continuity and

educational productivity of the public schools within

their jurisdictions.

The funding for salaries and other expenses of the

school district comes directly from public moneys,

including state and federal funds and local property

taxes. School boards have a duty to the taxpayers to

assure that all activities are conducted in the most

administratively sound and cost effective manner.

That is not to say that the civil rights of both em-

* Because of its concerns with the legal and practical prob-

lems inherent in EEOC’s approach to religious accommoda-

tion, EEAC filed extensive comments with EEOC regarding

that agency’s “Proposed Guidelines on Discrimination Be-

cause of Religion.” See 29 C.F.R. § 1605 (1980).

4

ployees and students are not of serious concern to

boards. However, a balance must be struck between

the rights of employees and the needs of the district

in serving its students. School district operations are

extremely labor intensive, and there are few teach-

ers or other employees whose duties can remain un-

attended during operating hours. It should be the

sole province of the school] district to select the rea-

sonable accommodation of its employees’ religious be-

liefs and practices, which causes the least disruption

of the educational process. To require otherwise

would seriously erode the management prerogatives

of school boards.

Congress did not intend by its “reasonable accom-

modation” language to allow employees to dictate to

their employe: the means of the accommodation. Un-

like private employers, school districts are bound by

both religion clauses of the first amendment: first,

to accommodate the ‘‘free exercise” interests of their

employees and second, to assure that accommodation

does not go so far as to result in establishment of

religion. If the decision below is affirmed, school dis-

tricts will find it even yore difficult to walk that

precarious line between the two religion clauses.

STATEMENT OF THE CASE

Respondent Ronald Philbrook has been employed

by Petitioner Ansonia Board of Education (“the

Board”) as a teacher at Ansonia High School since

1462. Since 1968, Philbrook has been a member of

the Worldwide Church of God, which requires its

members to abstain from secular employment on cer-

tain holy days. Because several of those holy days

usually fall on school days, Philbrook is required to

miss about six school days per year.

5

Since the late 1960’s, collective bargaining agree-

ments between the Board and the Ansonia Federation

of Teachers, the union that represents Philbrook and

other Ansonia teachers, have provided for three days

of paid annual leave for observance of religious holi-

days. The contracts provide additional days (cur-

rently 18) of paid leave for illness and other pur-

poses, including three days for “necessary personal

business.” The contract, however, prohibits use of

these personal business leave days for various speci-

fied purposes, including religious observances and any

other purpose for which paid leave is otherwise pro-

vided. (Pet. App. 5a, n.2).

In order to accommodate Philbrook’s need for addi-

tional days off to observe his church’s holy days, the

Board has consistently allowed him to take unpaid

leave over and above the three days of paid leave

provided under the contract. Philbrook, however, has

requested additional accommodations. First, he has

asked to be allowed to use paid personal business

leave for religious observances. In the alternative,

he has offered to pay the cost of hiring a substitute

instead of being required to take unpaid leave.’ In

addition, he has offered to supervise the substitutes

and to work at other times to make up for his un-

authorized absences. The Board, however, has re-

jected both proposals.

Philbrook filed suit in the United States District

Court for the District of Connecticut, alleging that

the Board’s policy of not allowing personal business

leave to be used for religious observances constituted

religious discrimination in violation of Title VII, and

*In 1984, a substitute cost $30 per day, while Philbrook’s

salary would have been docked over $130 for each day of

unpaid leave.

6

also violated the free exercise clause of the First

Amendment. After a trial, the district court found

for the Board. Philbrook v. Ansonia Board of Educa-

tion, 39 FEP Cases 1333 (D.Ct. 1984).

On appeal, a divided panel of the United States

Court of Appeals for the Second Circuit reversed.

Philbrook v. Ansonia Board of Education, 757 F.2d

476 (2d Cir. 1985). The panel majority held that

Philbrook had established a prima facie case of reli-

gious discrimination under Title VII, by showing that

he had informed the Board of his need for additional

leave on holy days, and that he suffered a detriment

(loss of pay) because of the conflict between his re-

ligious practices and the Board’s employment require-

ments. Jd. at 482. The panel also found that the

Board had not successfully rebutted the prima facie

ease. Although it found the Board’s policy of provid-

ing three days of paid leave, and additional days of

unpaid leave, for religious services to be reasonable,

the panel ruled that the Board still had to demon-

strate that it could not comply with Philbrook’s pro-

posed accommodations without undue hardship. /d.

at 484-485. The panel held that “Where the employer

and the employee each propose a reasonable accom-

modation, Title VII requires the employer to accept

the proposal the employee prefers unless that accom-

modation causes undue hardship on the employer’s

conduct of his business.” Jd. at 484 (emphasis

added). The court of appeals remanded the case to

the district court for a determination of whether

either of Philbrook’s proposed accommodations would

cause undue hardship to the Board. /d. at 485.‘

*The Court of Appeals did not rule on the First Amend-

ment issue, and that issue has not been presented on this

appeal.

7

Judge Pollack filed a vigorous dissent in which he

noted that the Board’s policy neither made distinc-

tions among employees nor denied Philbrook the op-

portunity to work or to observe his church’s holy

days. 757 F.2d at 488. Judge Pollack also observed

that the Board had made reasonable accommodation

of Philbrook’s religious practices, and drew attention

to Pinsker v. Joint District Number 28/ of Adams

and Arapahoe Counties, 735 F.2d 388 (10th Cir.

1984), in which the Tenth Circuit rejected the sug-

gestion that Title VII requires an employer that has

made reasonable accommodations to adopt a leave pol-

icy that is less burdensome to an employee’s religious

practices. 757 F.2d at 489.

SUMMARY OF ARGUMENT

The panel majority below erred in holding that

Philbrook had established a prima facie case of reli-

gious discrimination against the Board. To establish

a prima facie case, a plaintiff must show that his

religious beliefs or practices conflicted with the em-

ployer’s work requirements, and that he was disci-

plined, discharged, or otherwise denied some benefit

or privilege of employment for failing to comply with

the conflicting work requirement. Philbrook’s reli-

gious pract’ces, however, did not conflict with the

Board’s employment requirements. To the contrary,

the Board net only allowed him to take as much leave

as he needed for religious observances, but also, un-

der the terms of its collective bargaining contract,

afforded him the first three days of such leave each

year with pay—a benefit not enjoyed by other em-

ployees who did not te <2 religious leave.

Moreover, Philbrook was not discharged, disciplined

or denied any benefit or privilege that he would have

8

received but for his religious beliefs. The Board al-

lowed him to take leave without pay over and above

the three days per year of paid leave for religious

observances to which all employees were entitled un-

der the collective bargaining agreement. When he

took such unpaid leave, he was not being “disciplined,”

but merely was not receiving pay for days on which

he did not work. He remained eligible for all the

same contractually-specified amounts of paid leave

for personal business, illness, and other purposes as

all other employees.

Even if Philbrook is viewed as having established

a prima facie case, however, the panel still erred in

holding that the Board was required by Title VII to

accept Philbrook’s proposed accommodations if they

did not cause the Board undue hardship, since the

court had found the Board’s leave policy to be a rea-

sonable accommodation of Philbrook’s religious be-

liefs. American Postal Workers Union, San Fran-

cisco Local v. Postmaster General, 781 F.2d 772 (9th

Cir. 1986). Title VII requires employers to make

reasonable accommodations of employees’ beliefs or

to demonstrate inability to make such accommoda-

tions without undue hardship. Where, as here, an

employer is found to have reasonably accommodated

an employee’s religious practices, the Title VII in-

quiry ends, because the employer has fulfilled its duty

to accommodate. Where an employer has implemented

nondiscriminatory employment practices that advance

its legitimate business goals, Title VII has not been

violated, and courts may not step in and restructure

the emp loyer’s practices. Cf. Furnco Construction

Corp. v. Waters, 438 U.S. 567 (1978). Reversal of

the decision below will encourage employers to adopt

voluntary measures to accommodate employees’ reli-

9

gious beliefs and thereby will promote the goal of

achieving voluntary compliance with the requirements

of Title VIT.

ARGUMENT

I. A PLAINTIFF MAY NOT ESTABLISH A PRIMA

FACIE CASE OF RELIGIOUS DISCRIMINATION

UNDER TITLE VII WHERE THE EMPLOYER HAS

MADE REASONABLE ACCOMMODATION OF THE

EMPLOYEE’S RELIGIOUS BELIEFS OR PRAC-

TICES, AND HAS ALLOWED THE PLAINTIFF TO

TAKE UNPAID LEAVES OF ABSENCE FROM

WORK FOR RELIGIOUS OBSERVANCES.

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq., prohibits employers from discriminat-

ing against employees on the basis of religion, 42

U.S.C. § 2000e-2(a), unless an employer demonstrates

that it cannot “reasonably accommodate” an employ-

ee’s religious observances or practices without “undue

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

§ 2000e(j).° Although neither Title VII nor its leg-

° Section 703 (a) of the Civil Rights Act provides that:

It shall be an unlawful employment practice for an

employer—

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s... religion... ; or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would

deprive or tend to deprive any individual of employ-

ment opportunities or otherwise adversely affect his

status as an employee, because of such individual’s

... religion. ...

42 U.S.C. § 2000(e)-2(a). Section 701(j) of the Act qualifies

§ 703(a)’s proscription of religious discrimination as follows:

10

islative history indicates the degree to which an em-

ployer must accommodate the religious practices of

employees, see Trans World Airlines, Inc. v. Hardi-

son, 432 U.S. 63, 74-75 (1977), this Court has held

that the duty to accommodate does not require em-

ployers to take steps inconsistent with otherwise valid

collective bargaining agreements. Jd. at 79. The

Court in Hardison also held that Title VII does not

require employers to discriminate against some em-

ployees in order to accommodate the religious beliefs

or practices of other employees. Jd. at 81. Finally,

the Court in Hardison ruled that an accommodation

imposing more than a de minimis cost on the em-

ployer constitutes an “undue hardship.” Jd. at 84

(footnote omitted).

The panel below set forth a proper statement of

the plaintiff’s prima facie burden of proof in a dis-

crimination case under Title VII:

A plaintiff in a [Title VII] case makes out a

prima facie case of religious discrimination by

proving: (1) he or she has a bona fide religious

belief that conflicts with an employment require-

ment; (2) he or she informed the employer of

this belief; (3) he or she was disciplined for

failure to comply with the conflicting employment

requirement.

757 F.2d at 481. See also Turpen v. Missouri-

Kansas-Texas Railroad Co., 736 F.2d 1022, 1026 (5th

Cir. 1984); Anderson v. General Dynamics Convair

The term “religion” includes all aspects of religious ob-

servance and practice, as well as belief, unless an em-

ployer demonstrates that he is unable to reasonably ac-

commodate to an employee’s or prospective employee’s

religious observance or practice without undue hardship

on the conduct of the employer’s business.

42 U.S.C. § 2000e(j).

11

Aerospace Div., 589 F.2d 397, 401 (9th Cir. 1978),

cert. denied, 442 U.S. 921 (1979); Redmond v. GAF

Corp., 574 F.2d 897, 901 (7th Cir. 1978); Brown v.

General Motors Corp., 601 F.2d 956, 959 (8th Cir.

1979). The panel majority erred, however, in con-

cluding that Philbrook had “almost certainly” satis-

fied this prima facie standard. 757 F.2d at 481.

Assuming, as amici do, that Philbrook’s religious

beliefs are genuine, the panel majority erred in two

respects in finding that he had established a prima

facie case of religious discrimination under the test

set forth above. First, the Board’s employment re-

quirements simply did not conflict with Philbrook’s

religious beliefs and practices. Far from it: when-

ever Philbrook has needed to be absent from work

for religious observances, he has always been allowed

to do so. Indeed, under the collective bargaining

agreement, Philbrook has taken the first three days

of such absences each year with pay and enjoyed

three more paid days off than nonreligionist employ-

ees. Although he was required to take unpaid leave

for additional days of religious observances, the fact

remains that the Board’s requirements did not conflict

with Philbrook’s need to be absent on those days.

Second, Philbrook was not “disciplined for failure to

comply with the conflicting employment requirement.”

757 F.2d at 481. “Discipline,” in the employment con-

text, suggests some form of punishment for failing to

observe an employer’s rules or policies. The term

scarcely can be stretched so far as to cover the

Board’s declining to pay Philbrook for all of his ab-

sences on holy days.’ Perhaps for that reason, the

* An employer, after all, is under no obligation to pay em-

ployees for work they do not perform for religious reasons.

EEOC v. Caribe Hilton International, 597 F. Supp. 1007, 1012

(D.P.R. 1984).

12

majority later characterized Philbrook as having

“suffered a detriment’”—not as having been disci-

plined—because his religious beliefs conflicted with

the Board’s employment requirements. 757 F.2d at

482. Upon examination, however, the “detriment”

the majority perceived becomes illusory. Philbrook

received pay for every day he worked and for as

many days on which he missed work for religious

reasons as any other employee was ertitled to re-

ceive. He likewise remained eligible to take as many

days off with pay for non-religious personal business,

illness, and other contractually-sanctioned purposes as

any other employee. Thus, in no meaningful sense

was he placed at a detriment relative to other employ-

ees because of his religion.

Indeed, the panel’s holding strays even farther from

its supporting case law than the above analysis indi-

cates. Turpen, Brown, Anderson and Redmond, on

which the panel based its analysis of the prima facie

case, all involved employees that were discharged be-

cause of the alleged incompatibility of their religious

beliefs and their employers’ work requirements. It

surely is a far cry from those discharge cases to the

situation before this Court, in which Philbrook not

only has not been fired, but has been given as much

leave as he needed for religious observances, and ac-

tually has been paid for the first three days of such

leave every year.

In a recent decision involving strikingly similar

facts, the Tenth Circuit Court of Appeals held that a

school district had not violated Title VII, even though

its religious leave policy was less favorable to employ-

ees than that of the Board. Pinsker v. Joint District

Number 28J of Adams and Arapahoe Counties, 735

F.2d 388 (10th Cir. 1984). In Pinsker, a Jewish

13

school teacher claimec that the school district had

violated Title VII by providing a maximum of two

days paid annual leave for observance of Jewish holi-

days. In some years three Jewish holidays fell on

school days, and the plaintiff had to use one day of

unpaid leave in those years for religious observances.

The Tenth Circuit rejected the plaintiff’s conten-

tion that the school district was required by Title VII

to institute a leave policy that would be less burden-

some to his religious practices. The court held that

the plaintiff had not made out a prima facie case of

discrimination:

Defendant’s policy and practices jeopardized

neither Pinsker’s job nor his observation of re-

ligious holidays. Because teachers are likely to

have not only different religions but also differ-

ent degrees of devotion to their religions, a

school district cannot be expected to negotiate

leave policies broad enough to suit every employ-

ee’s reliyious needs perfectly. Defendant’s pol-

icy, although it may require teachers to take oc-

casional unpaid leave, is not an unreasonable

accommodation of teachers’ religious practices.

Thus, the trial court correctly determined that

plaintiff did not make a prima facie showing of

discrimination.

735 F.2d at 391 (emphasis added).

Amici submit that the Tenth Circuit’s reasoning

in Pinsker should be followed by this Court. Like

the plaintiff in Pinsker, Philbrook has not been forced

to choose between his job and the observance of his

church’s holy days. The leave policy in question here

has removed any potential conflict between the Board’s

employment requirements and Philbrook’s religious

needs. Moreover, Philbrook has not been deprived of

14

any benefit or privilege of employment by the Board

because of his religious practices. He simply has not

been paid for some (but not all) of the holy days on

which he did not work. See EEOC v. Caribe Hilton,

supra n.6. Accordingly, the panel should not have

found that Philbrook had established a prima facie

case of religious discrimination.

Il. WHERE AN EMPLOYER HAS MADE REASON-

ABLE ACCOMMODATIONS TO THE RELIGIOUS

BELIEFS AND PRACTICES OF EMPLOYEES,

TITLE VII DOES NOT REQUIRE THE EMPLOYER

TO MAKE ANY AND ALL ADDITIONAL ACCOM-

MODATIONS PROPOSED BY AN EMPLOYEE,

EVEN IF SUCH ACCOMMODATIONS WOULD NOT

CAUSE UNDUE HARDSHIP TO THE EMPLOYER.

A. Courts Can Determine Whether an Employer Has

“Reasonably Accommodated” an Employee’s Reli-

gious Practices Without Reference to the “Undue

Hardship” Standard.

Even if the panel were correct in holding that

Philbrook had established a prima facie case, it

still erred in ruling that the Board violated Title

VII by refusing to accommodate Philbrook’s religious

needs in precisely the manner he requested. As noted,

the panel majority agreed with the Board that the

Board’s policy of affording three days of paid leave

and additional days of unpaid leave for religious ob-

servances was a reasonable accommodation of Phil-

brook’s religious beliefs and practices. 757 F.2d at

484. The panel went on to declare, however, that the

Board’s duty to accommodate “cannot be defined with-

out reference to undue hardship,” id., and that

Where the employer and the employee each pro-

pose a reasonable accommodation, Title VII re-

quires the employer to accept the proposal the

15

employee prefers unless that accommodation

causes undue hardship on the employer’s con-

duct of his business.

Id. (emphasis added). This broad proposition is un-

supported by case law—indeed, is contrary to case

law—and if affirmed would expand impermissibly the

scope of employers’ duty to accommodate their em-

ployees’ religious beliefs and practices under Title

VII.

To begin with, the court’s assertion that “the duty

to accommodate . . . cannot be defined without refer-

ence to undue hardship” is simply wrong. Sections

703(a) and 701(j), read together, provide that an

employer may not discriminate against any individual

because of his religion, “unless an employer demon-

strates that he is unable to reasonably accommodate

to an employee’s . . . religious observance or practice

without undue hardship on the conduct of the em-

ployer’s business.” 42 U.S.C. $§ 2000e-2(a), 2000e(}).

The clear import of this proviso is that an employer

that does “reasonably accommodate” such practices

does not violate Title VII. In such circumstances, the

issue of “undue hardship” simply does not arise, be-

cause the employee’s religious practices have been ac-

commodated. Only if the employer does not reason-

ably accommodate the employee would the issue of

“yndue‘hardship” even be addressed.

The Tenth Circuit has recognized the common sense

proposition that “[s]imply put, Title VII requires

reasonable accommodation or a showing that reason-

able accommodation would be an undue hardship on

the employer.” Pinsker, supra, 735 F.2d at 390 (cita-

tion omitted; emphasis added). Similarly, the Sixth

Circuit has held that Ҥ '701(j) requires that a rea-

16

sonable accommodation be made or a showing that to

do so would work an undue hardship.” McDaniel v.

Essex Internationul, Inc., 571 F.2d 338, 341 (6th Cir.

1978) (emphasis added). Likewise, the Ninth Cir-

cuit has stated that it is the employer’s burden to

show that it made good faith efforts to accommodate

the employee’s religious beliefs and, if those efforts

were unsuccessful, to demonstrate inability to reason-

ably accommodate those beliefs without undue hard-

ship. Anderson, supra, 589 F.2d at 401 (citation

omitted ).’

7The panel majority relied on regulations issued by the

Equal Employment Opportunity Commission (EEOC) in sup-

port of its suggested approach. 757 F.2d at 485. Those regu-

lations, found at 29 C.F.R. § 1605.2(c) (2) provide that:

When there is more than one method of accommodation

available which would not cause undue hardship, the

Commission will determine whether the accommodation

offered is reasonable by examining:

(i) The alternatives for accommodation considered

by the employer or labor organization ; and

(ii) The alternatives for accommodation, if any,

actually offered to the individual requiring accom-

modation. Some alternatives for accommodating

religious practices might disadvantage the individ-

ual with respect to his or her employment oppor-

tunites [sic], such as compensation, terms, condi-

tions, or privileges of employment. Therefore, when

there is more than one means of accommodation

which would not cause undue hardship, the em-

ployer or labor organization must offer the alterna-

tive which least disadvantages the individual with

respect to his or her employment opportunities.

(Emphasis added. )

The EEOC regulations, however, suffer from the same in-

firmity as the panel majority’s reasoning—they put the cart

before the horse. As noted, Title VII requires reasonable

17

B. Other Circuits Have Rejected the Panel’s Proposed

Approach, Under Which an Employer Always

Would Have to Accept an Employee’s Preferred

Means of Accommodation Unless It Would Cause

Undue Hardship to the Employer.

The panel’s proposed approach was explicitly re-

jected in a recent decision of the Ninth Circuit Court

of Appeals. American Postal Workers Union, San

Francisco Local v. Postmaster General, 781 F.2d 772

(9th Cir. 1986). In that case, the plaintiffs were

Postal Service window clerks whose religious beliefs

precluded them from processing draft registration

materials. A Postal Service regulation, however, re-

quired window clerks to process such materials or, in

the event of a religious conflict, to transfer to a posi-

tion that did not require such processing. The right

to transfer was contained in a collective bargaining

agreement, and the Postal Service declined to make

any other accommodations. /d. at 774.

The plaintiffs sued the Postmaster General, claim-

ing that the Postal Service violated Title VII by re-

fusing to allow them to remain in their positions as

window clerks and to refer draft registrants to other

such clerks, rather than having to handle draft regis-

tration materials or transfer to other positions. The

district court found for the plaintiffs. Assuming that

the opportunity to transfer constituted “reasonable

accommodation,” the court ruled that because the

plaintiffs considered that accommodation “wholly in-

adequate,” the Postal Service was required to imple-

ment the plaintiffs’ proposal unless it would constitute

accommodation or a demonstration that reasonable accom-

modation cannot be made without undue hardship. If, as in

this case, reasonable accommodation has been made, the issue

of undue hardship never arises.

18

undue hardship. American Postal Workers Union v.

Postmaster General, 35 FEP Cases 1484, 1488 (N.D.

Calif. 1984). Because it found that the plaintiffs’

proposed accommodation would not cause undue hard-

ship, the district court held that the Postal Service

had violated Title VII. Jd. at 1488.

The Ninth Circuit (per curiam) reversed, explain-

ing that the district court had failed to distinguish

between situations in which the employer’s accom-

modation effectively eliminates an employee’s religious

conflict, and those in which the employer’s accom-

modation fails to eliminate that conflict. 781 F.2d at

776. The court of appeals found that the Postal Serv-

ice’s proposed accommodation effectively eliminated

the plaintiffs’ religious conflicts, and that the plaintiffs

rejected that accommodation “not because the trans-

fer failed to eliminate their religious conflict, but be-

cause they believed the accommodation would place

them in a less attractive employment status.” Id.

The court held that:

The position advanced by [plaintiffs] stands for

the proposition that an employer must accept any

accommodation, short of “undue hardship,” pro-

posed by an employee, regardless of whether the

employee rejects an accommodation proposed by

the employer solely on secular grounds. Title

VII does not compel that conclusion.

Id. (emphasis added). The court went on to hold

that an employer need implement the employee’s ac-

commodation (assuming that it does not involve un-

due hardship) only if the employer’s proposed accom-

modation fails to eliminate the employee’s religious

conflict :

Where an employer proposes an accommoda-

tion which effectively eliminates the religious

19

conflict faced by a particular employee, however,

the inquiry under Title VII reduces to whether

the accommodation reasonably preserves the af-

fected employee’s employment status.

Id, at 776-777. The court of appeals ruled that the

district court had erred in requiring the employer to

accept the employees’ proposed accommodation unless

that accommodation would cause undue hardship, and

remanded the case to the district court for a deter-

mination whether the Postal Service’s proposed ac-

commodation would reasonably preserve the plain-

tiffs’ employment status. Jd. at 777.

The Ninth Circuit’s analysis in Postal Workers

demonstrates clearly that the Board has discharged

its duty of reasonable accommodation in this case.

Its leave policy has, beyond question, eliminated Phil-

brook’s perceived religious conflict. Moreover, Phil-

brook’s employment status not only has been “reason-

ably preserved,” but has not been affected at all. Ac-

cordingly, the Board has satisfied its obligetion under

Title VII, and it was improper for the panel to

address the issue of whether Philbrook’s proposals

would involve undue hardship.

At least two other courts of appeals have implicitly

rejected the approach taken by the panel majority in

this case. In Pinsker, supra, the Tenth Circuit ruled

that the school district had reasonably accommodated

the plaintiff’s religious practices by affording two

days of paid leave, and an additional day of unpaid

leave, for religious observances. The court of appeals

rejected the plaintiff’s contention that the district

should institute a more favorable leave policy (for

example, by allowing all teachers additional days for

religious leave or by permitting teachers to make up

20

religious leave by doing other work). 735 F.2d at

390. The court observed that:

Title VII requires reasonable accommodation.

It does not require employers to accommodate

the religious practices of an employee in exactly

the way the employee would like to be accom-

modated. Nor does Title VII require employers

to accommodate an employee’s religious practices

in a way that spares the employee any cost what-

soever.

Id. at 390-391 (citations omitted; emphasis added).

Having found that the school district had reasonably

accommodated the plaintiff, the court did not require

the school district to show that the employee’s pro-

posed additional accommodations would pose an un-

due hardship.

Likewise, in Mann v. Milgram Food Stores, Inc.,

730 F.2d 1186 (8th Cir. 1984), the Eighth Circuit

affirmed a district court decision that an employer

that had made reasonable efforts to accommodate an

employee’s religious beliefs before discharging him

had not violated Title VII. The court of appeals held

that “Neither the fact that Mann made alternative

accommodation suggestions nor that Milgram’s did

not accept those suggestions establishes that the dis-

trict court’s findings in this regard are clearly erro-

neous.” Jd. at 1189 (footnote omitted). Again, the

court did not require the employer, which had rea-

sonably accommodated the employee, to demonstrate

that the employee’s proffered accommodations would

have meant undue hardship to the employer’s opera-

tions.

To similar effect is the district court decision in

Stern v. Teamsters “General” Local Union No. 200,

21

39 FEP Cases 1526 (E.D. Wis. 1986), appeal dock-

eted, No. 86-1224 (7th Cir., February 13, 1986). In

that case, the court held that an employer and union

had reasonably accommodated an employee whose re-

ligious beliefs prevented him from joining or finan-

cially supporting the union, by allowing him to pay

the equivalent of union dues to a nonreligious charity.

Id. at 1529. The court found no violation of Title

VII even though the employee had sought instead to

be allowed to pay the equivalent of union dues to a

religious broadcaster. Jd. The court granted sum-

mary judgment to the employer and union because

they had offered the employee a reasonable accom-

modation that he refused to accept. Jd.®

In addition, several courts of appeals have ruled

that an employee seeking accommodation of his re-

ligious practices must try to reconcile the require-

ments of his faith with the employment requirements

of his employer through means provided by the em-

ployer. As the Fifth Circuit has explained:

Although the statutory burden to accommodate

rests with the employer, the employee has a cor-

relative duty to make a good faith attempt to

satisfy his needs through means offered by the

8 In Stern, the accommodation offered by the employer and

union was of the kind explicitly sanctioned in a 1980 amend-

ment to the National Labor Relations Act. See 29 U.S.C.

§ 169. The logic of the Stern decision, however, is not limited

to instances in which Congress has specifically approved of

certain kinds of accommodation. Rather, it is that where

(because of Congressional approval or other reasons) an em-

ployer’s proposed accommodation is found to be reasonable,

Title VII does not require the employer to accept an em-

ployee’s alternative proposal, even if the latter would not

involve undue hardship.

22

employer. A reasonable accommodation need not

be on the employee’s terms only.

Brener v. Diagnostic Center Hospital, 671 F.2d 141,

146 (5th Cir. 1982) (footnote omitted). See also

Postal Workers, supra, 781 F.2d at 777; Chrysler

Corp. v. Mann, 561 F.2d 1282, 1285-86 (8th Cir.

1977), cert. denied, 434 U.S. 1039 (1978); cf. Red-

mond v. GAF Corp., supra, 574 F.2d at 901-902.

Those decisions clearly reject the panel’s approach,

under which an emplovee would have no duty to

attempt to satisfy his needs by means of the em-

ployer’s procedures, no matter how reasonable those

procedures might be. As the Ninth Circuit has ex-

plicitly recognized, the approach suggested by the

panel majority in this case

would have the effect of shifting the entire re-

sponsibility for accommodation to the employer,

by granting an employee the unequivocal right

to have every alternative assessed under the “un-

due hardship” standard. Such a result runs con-

trary to the basic premise of § 701(j), 7.e., mu-

tual cooperation.

Postal Workers, supra, 781 F.2d at 777.°

® Brener v. Diagnostic Center Hospital and Turpen v. Mis-

souri-Kansas-Texas Railroad Co., relied on by the majority,

offer little support for its approach. As noted supra, the

Fifth Circuit’s emphasis in Brener on the employee’s duty to

seek accommodation through means offered by the employer,

see 671 F.2d at 145-146, is incompatible with the panel’s ap-

proach.

The panel also cited a reference in Turpen to the “interlock-

ing” nature of the “reasonable accommodation” and “undue

hardship” provisions of § 701(j). 757 F.2d at 484. The Fifth

Circuit’s reference was made, however, only in passing, and

then in an entirely different context from the one presented in

this case. See 736 F.2d at 1026.

23

C. The Decision Below Is Inconsistent with This

Court’s Furnco Decision and Reversal Would Pre-

serve Traditional Management Prerogatives While

Promoting Voluntary Efforts to Accommodate Em-

ployees’ Religious Beliefs.

The panel majority’s proposed approach also is in-

compatible with reasoning previously employed by

this Court. In Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978), a case involving the validity of

an employer’s hiring procedures under Title VII, the

Court ruled that the employer was required to show

only that employment decisions were based on legiti-

mate considerations (and not on race), and were

made to enable the employer to achieve business

goals. Id. at 577. The Court rejecte1 the suggestion

that Title VII required the employer to adopt hiring

procedures that would maximize the hiring of minor-

ities. 7d. at 577-578. In ruling that Title VII does

not allow courts to second-guess employers’ legiti-

mate, nondiscriminatory business decisions, the Court

noted that “Courts are generally less competent than

employers to restructure business practices, and un-

less mandated to do so by Congress they should not

attempt it.” Jd. at 578.

The Court’s reasoning in Furnco applies with

equal force in this case. Where an employer such as

the Board has reasonably accommodated the religious

needs of employees, it is not required to make addi-

tional accommodatiens proposed by employees, even

if such accommodations would not involve undue

hardship. The plain meaning of Furnco is that it

is the purpose of Title VII to prevent employment

discrimination, not to allow courts and agencies to

tinker at will with employers’ legitimate, nondiscrim-

inatory practices.

24

The majority’s approach, moreover, would under-

cut the clearly expressed intention of Congress in

enacting Title VII that management prerogatives not

be unnecessarily interfered with. This Court in

United Steelworkers of America v. Weber, 443 U.S.

193, 206 (1979), noted that:

Title VII could not have been enacted into law

without substantial support from legislators in

both Houses who traditionally resisted federal

reculation of private business. Those legislators

demanded as a price for their support that “man-

agement prerogatives, and union freedoms...

be left undisturbed to the greatest extent pos-

sible.” (Citation omitted. )

In Weber, id. at 207, the Court further cautioned

that Congress did not intend Title VII to “diminish

traditional management prerogatives” or “to limit

traditional business freedom.” See also Texas Depart-

ment of Community Affairs v. Burdine, 450 U.S. 248,

259 (1981). Under the panel’s approach, however,

management’s traditional prerogative to set and en-

force leave policies would be replaced to a significant

extent by a system of ad hoc leave policies dictated

largely by employees.

Finally, the panel’s approach, if adopted, could dis-

courage employers and school boards from voluntarily

adopting policies designed to accommodate employees’

religious practices. Currently, many employers uni-

laterally, or in collective bargaining agreements with

unions, establish policies and procedures under which

employees’ religious needs may be accommodated.

Such procedures, in addition to formal provisions of

leave for religious observances, include arrangements

for voluntary swaps of shifts or overtime work among

employees, flexible scheduling, and transfers and reas-

25

signments to jobs that do not require work on em-

ployees’ holy days. Most collective bargaining agree-

ments contain seniority provisions, which this Court

has held can represent “significant accommodation”’

to both the religious and secular needs of employees.

Hardison, supra, 432 U.S. at 78. See also United

States v. City of Albuquerque, 545 F.2d 110, 113-114

(10th Cir. 1976), cert. denied, 432 U.S. 909 (1977)

(reasonable accommodations embodied in fire depart-

ment’s rules and regulations).

Should the panel majority’s approach be adopted,

however, the incentive for employers and unions vol-

untarily to anticipate the religious needs of employees

and to fashion policies to accommodate those needs

would be greatly diminished. Having been put in the

onerous position of having, in effect, to negotiate a

separate accommodation for every employee whose

religion may require accommodation, many employers

may decide not even to attempt to adopt an accommo-

dation policy generally applicable to all employees,

but rather may deal with the issue on an ad hoc

basis. One unfortunate consequence could be that

employees who were unaware of their rights under

Title VII, and hence did not seek accommodation of

their beliefs, might receive no accommodation at all.

If the panel’s approach is rejected, on the other

hand, employers still will have a significant incen-

tive to attempt voluntarily to accommodate employ-

ees’ religious practices. Employers will be encour-

aged to formulate policies likely to be upheld as

“reasonable” accommodations, because implementing

such accommodations will satisfy the duty to accom-

modate under Title VII. Such a result is entirely

consistent with the frequently recognized goal of pro-

26

moting voluntary compliance with the requirements

of Title VII. See, e.g., Alexander v. Gardner-Denver

Co., 415 U.S. 36, 44 (1974); W.R. Grace d& Co. v.

Local 759, 461 U.S. 757, 770-771 (1983).

CONCLUSION

For the reasons stated, the decision of the Court of

Appeals should be reversed.

Respectfully submitted,

AUGUST W. STEINHILBER ROBERT E. WILLIAMS

GWENDOLYN H. GREGORY DOUGLAS S. MCDOWELL *

THOMAS A. SHANNON WILLIAM S. FRANKLIN

National School McGUINESS & WILLIAMS

Boards Association 1015 15th Street, N.W.

1680 Duke Street Suite 1200

Alexandria, VA 22314 Washington, D.C. 20005

(703) 838-6712 (202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

* Counsel of Record

March 31, 1986

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