Amicus Curiae Brief — Ansonia Board of Education v. Philbrook

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“ ? , Supreme Court, US.

/ ~~ FILED

No. 85-495 ‘| . 17 1986

in| JUN .

' JOSEPH F. SPANIOL, UR.

IN THE CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

Ansonia Board of Education, et al.,

Petitioners,

Ronald Phnilbrook, et al.,

Respondents.

CN “RIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

AMICUS CURIAE BRIEF OF THE

STATE OF CONNECTICUT IN SUPPORT

OF RESPONDENT PHILBROOK

JOSEPH I. LIEBERMAN

Attorney General of the

State of Connecticut

CLARINE NARDI RIDDLE

Deputy Attorney General

PHILIP A. MURPHY, JR.

Commission Counsel

Comm. on Human Rights

and Opportunities

(Of Counsel)

HENRY S. COHN*

ROBERT B. TEITELMAN

Assistant Attorneys

General

30 Trinity Street

Hartford, CT 06196

(203) 566-4990

*- Counsel of Record

—

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES........eeeeee00+ iil

INTEREST OF AMICUS CURIAE...... ecscces &

SUMMARY OF DT .~choe666660686666668 5

DRE ccc ccc ccc cccccccecccececeee se @

I, THE COURT OF APPEALS CORRECTLY

CONCLUDED THAT THE PLAINTIFF

ESTABLISHED A PRIMA FACIE CASE... 7

A. A PRIMA FACIE CASE OF RELI-

GIOUS DISCRIMINATION REQUIRES

ONLY A SHOWING THAT THE PLAIN-

TIFF HAS A BONA FIDE RELIGIOUS

BELIEF WHICH CONFLICTS WITH AN

EMPLOYMENT REQUIREMENT, THAT

THE PLAINTIFF INFORMED THE EM-

PLOYER OF THIS BELIEF, AND

THAT THE PLAINTIFF WAS DISCI-

PLINED FOR FAILURE TO COMPLY

WITH THE CONFLICTING EMPLOY-

MENT REQUIREMENT......ceecceceeee 7

l. The Clear Language of

Title VII Extends to

erms and Conditions of

Employment as Well as

DISCROTEOSB . ccccccccccccccce 44

aie

ow Ua

. . a or :

ya ee

i on

se. ;

2. Just as Cases of Race or

Sex Discrimination Are

Not Limited to Dis-

charges, Cases of Reli-

gious Discrimination

Should Not Be Limited to

DEBEROTHOB cc cccccccccccoccs

B. IN THIS CASE THE PLAINTIFF ES-

TABLISHED ALL OF THE ELEMENTS

OF A PRIMA FACIE i

Be The Plaintiff Had a Bona

Fide Religious Belief

Which Conflicted With an

Employment Requirement.....

2. The Plaintiff Informed

His Employer of this Be-

TS See ee

3 The Plaintiff Was Disci-

plined For Failing to

Comply With the Employ-

ment Requirement.......eee-.

II. THE SCHOOL BOARD IS OBLIGED TO

ACCEPT THE REASONABLE SUGGES-

TIONS OF ITS EMPLOYEE PROVIDED

THEY DO NOT CAUSE UNDUE HARD-

Dh h6b00606066660666666¢b600 8600

CONCLUSION *enree *enreneeesreseeeree#s#fee#fnmre#eete#ee#e

TABLE OF AUTHORITIES

CASES Page

American Postal Workers Union v.

Postmaster General, 781 F.2d

772 9th Cir. SO 35-37

Anderson Vv. General Dynamics

Convair, 589 F.2d 397 (9th

Cir. 1978), cert. denied, 442

U.S. 921 2 | ae 9,33,35-36

Brener Vv. Diagnostic Center

Hospital, 671 F.2d 141 (5th

Cir. lo! ee 9,31-32,39

Brown v. General Motors Corp., 601

F.2d 956 (8th Cir. a 9

Bundy v. Jackson, 641 F.2d 934

& ae Sr &

Burns _v. Southern Pac. Transp.

Co., 589 F.2d 403 (9th Cir.

1978), cert. denied, 439 U.S.

BOTS CES e occccesccesccees 9,39-37

Carroll v. Talman Federal S. & L.

Ass'n of Chicago, 604 F.2d

1028 (7th Cir. | a 17-18

E.E.0.C. v. Caribe Hilton, 597

F.Supp. 1007 (D. P.R. 1984)...... 9

-iii-

Bey

E.E.O.C. v. Shell Oil Co., __

U.S. . , 106 §.Ct. 1621

Dit eh hein eneadeeneeéeee6es de 41

Hishon v. King & Spalding,

U.S. ’ 104 §.Ct. 222

Pets te URE ee eee weeeeie 14,16

Inhabitants of Montclair Tp. v.

Ramsdell, 107 U.S. 147

ee eeee*eeses2eoe@ee#e#e#e#es 13

Oscar Mayer & Co. v. Evans, 441

U. S. 750 (1979). e*eee*e#ee#e#2s#es e*eee*ee#*es 41

Philbrook v. Ansonia Bd. of Ed.,

757 F.2d 476 (2d Cir. 1985),

cert. granted, SS

(106 S.Ct. 848 (1986)..... +. passim

Pinsker v. Joint Dist. No. 28J of

Adams and Arapahoe, 735 F.2d

388 10th Cir. 1984 eee e*ee<e*eee#es 10

Rogers v. E.E.0.C 454 F.2d 234

(Sth Cir. 1971) occ ie a eae 15-16

ton Vv Powell, 428 U.S. 465

1976 e*eeseeseee2s1eses¢#@#eee#stfe#nee7@e#8e#2ee8e8eee e*eees 27

Thomas ve Review Board, 450 U.S.

707 1981 @eeoeeoeeee*ee#es#s8#ersee@e@eee#7ee#e#e#s*¢ 26

Thornton, Estate of v. Caldor,

Inc., U.S. ———— 105 S.Ct.

2914 Seehoeweecessoees 4,5,27-29

Trans World Airlines, Inc., v.

Hardison, 432 U.S. 63

1977 @eeoeeoeeee*ees#se@estc~@ePrtm#sesesieseee#eeeee?e# 29-30

Turpen_v. Missouri - Kansas -

Tex Railroad Co., 736 F.2d

1022 (Sth Cir. 1984).......... 8,32

Vinson v. Taylor, 753 F.2d 141

D.C. Cir. 1985), reh'g

denied, 760 F.2d 1330 (1985)

(per curiam), cert. granted,

—— _. a ae oF

Cee idakcdccsadtnceseessiase 36-87

Yott v. North American Rockwell

Corp., 602 F.2d 904 (9th Cir.

Di _tcctiieen ceed dee dadeawbhed é 608 36

STATUTES

Title VII of the Civil Rights Act

of 1964, 42 U.S.C. $2000e, et

SCG ec cee eves eeeesessesesesses passim

42 U.S.C. 8 Se SP eedcccesescesese 28

42 U.S.C. § 2000e-2(a).. 12-13,15,16,18

42 U.S.C. § 2000e-5(c) -

2000e-5(e).....-. *eeseeteeenee*ese*enstees#e#te# 4

42 U.S.C. $ 2000e-8(b)..........200, 4

-Vv~-

=i Aes

Conn. Gen. Stat. § 46a-51(18)...... 2-3

Conn. Gen. Stat. § Dt. +6 eeeene és 2

REGULATIONS

29 C.F.R. S$ 1605.2(c)(2)...... 28,39-40

OTHER AUTHORITIES

Supreme Court Rule 36.4......ceeeeees 2

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

Ansonia Board of Education, et ail.,

Petitioners,

Vv.

Ronald Philbrook, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

AMICUS CURIAE BRIEF OF THE

STATE OF CONNECTICUT IN SUPPORT

OF RESPONDENT PHILBROOK

INTEREST OF AMICUS CURIAE

This brief is submitted by the

State of Connecticut as amicus curiae in

support of the position of respondent

Ronald Philbrook. This brief is

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submitted in accordance with Supreme

Court Rule 36.4.

The State of Connecticut has pro-

hibited discrimination, inter alia, on

the basis of religious creed.1/ In addi-

tion, the State of Connecticut's defini-

tion of discrimination on the basis of

religious creed?’ mirrors the definition

1/ (a) It shall be a discriminatory

practice in violation of this sec-

tion:

(1) For an employer... to dis-

charge from employment any individ-

ual or to discriminate against him

in compensation or in terms, condi-

tions or privileges of employment

because of the individuals race,

color, religious creed, age, sex,

marital status, national origin,

ancestry, present or past history

of mental disorder, mental retarda-

tion or physical disability....

Conn. Gen. Stat. S$ 46a-60 (emphasis

added).

2/ "Discrimination on the basis of re-

ligious creed” includes but is not

(footnote cont'd)

in Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e, et seq. (here-

inafter "Title VII"). These state stat-

utory provisions provide protection very

Similar to the protection provided in

Title VII. The State of Connecticut

agency charged with the duty of

enforcing this state statute is the Com-

mission on Human Rights and

Opportunities (hereinafter "CHRO"). The

(footnote cont'd from previous page)

limited to discrimination related

to all aspects of religious obser-

vances and practice as well as be-

lief, unless an employer

demonstrates that he is unable to

r onabl accommodate to an

employee's _ or prospective

employee's religious observance or

practice without under hardship on

the conduct of the employer's

business.

Conn. Gen. Stat. § 46a-51(18) (emphasis

added).

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CHRO is also an agency that cooperates

with the Equal Employment Opportunity

Commission pursuant to the provisions of

42 U.S.C. SS 2000e-5(c) - 2000e-5(e),

2000e-8(b). As such an agency, the CHRO

also investigates alleged violations of

Title VII occurring within the State of

Connecticut.

In addition, during the Court's

October 1984 term, the Attorney General

of the State of Connecticut, intervened

in a case, Estate of Thornton v. Caldor,

Inc., U.S. , 105 S.Ct. 2914

(1985). The difference between an abso-

lute requirement to accommodate religion

and a requirement that an employer make

a reasonable accommodation, such as_ the

requirement of Title VII, was addressed

in a concurring opinion in Thornton.

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105 S.Ct. at 2918 (O'Connor, J., concur-

ring). Legal issues that are present in

this case flow directly from leyal is-

sues that were addressed by Justice

O'Connor in her concurrence in Thornton.

Thus the State of Connecticut has a sub-

stantial interest in the proper resolu-

tion of the questions presented in this

case.

SUMMARY OF ARGUMENT

A prima facie case of religious

discrimination under Title VII is estab-

lished by showing three factors. These

are: (1) that the plaintiff has a bona

fide religious belief that conflicts

with an employment requirement; (2) that

the plaintiff has informed the employer

of this belief; and (3) that the

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plaintiff was disciplined for failing to

comply with this requirement. In this

case, the Court of Appeals correctly

concluded that the plaintiff established

@ prima facie case.

In this case, where the employer

has suggested an accommodation which did

not resolve the employee's claim of re-

ligious discrimination, the employee

must be permitted to suggest further

reasonable accommodations. These pro-

posals must be accepted by the employer,

provided the accommodations do not cause

undue hardship to the employer. Such a

rule allows the workplace to be open to

all religious faiths and allows the em-

ployee to participate in the concilia-

tion process envisioned by Title VII,

without burdening an employer.

Oe pee ti

ARGUMENT

THE COURT OF APPEALS CORRECTLY

CONCLUDED THAT THE PLAINTIFF

ESTABLISHED A PRIMA FACIE CASE

A PRIMA FACIE CASE OF _ RELI-

GIOUS DISCRIMINATION REQUIRES

ONLY A SHOWING THAT THE

PLAINTIFF HAS A BONA FIDE RE-

LIGIOUS BELIEF WHICH CONFLICTS

WITH AN EMPLOYMENT REQUIRE-

MENT, THAT THE PLAINTIFF IN-

FORMED THE EMPLOYER OF THIS

BELIEF, AND THAT THE PLAINTIFF

WAS DISCIPLINED FOR FAILURE

TO COMPLY WITH THE CONFLICTING

EMPLOYMENT REQUIREMENT

The initial question in this case

is the question of what constitutes a

prima facie case of religious discrimi-

nation under Title VII. For the reasons

discussed infra, this Court should con-

clude that @ prima facie case is

established where there is a bona fide

religious belief conflicting with an em-

ployment requirement, the employee has

informed the employer of this belief,

and the employee was disciplined for

failing to comply with the employment

requirement. 3/ This is the standard

3/ Courts of Appeal are in agreement

that two elements of the prima

facie case are the showing of a

bona fide religious belief con-

flicting with an employment re-

quirement and the showing that the

plaintiff informed the employer of

this belief. However, they take

different approaches with respect

to the third element of the prima

facie case. Some Courts of Appeal

have stated that an employee must

show that he was disciplined for

failing to comply with the employ-

ment requirement. Philbrook v.

Ansonia Bd. of Ed., 757 F.2d 476,

481 2d Cir. 1985), cert ranted,

___ —iULS. __, 106 S.Ct. 848 (1986);

Turpen v. Missouri - Kansas - Texas

Railroad Co., 736 F.2d 1022, 1026

(Sth Cir. 1984). Other Courts of

(footnote cont'd)

i ~~ —— ee ee ps ae = = 7 aed - iia — se rr Par 7 : - - 7

that was applied by the United States

Court of Appeals for the Second Circuit

in this case. Philbrook v. Ansonia Bd.

of Ed., 757 F.2d 476, 481 (2a Cir.

1985) .4/

(footnote cont'd from previous page)

appeal have stated that an employee

must show that he was discharged

for failing to comply with the em-

ployment requirement. Brener v.

Diagnostic Center Hospital, 671

F.2d 141, 144, (5th Cir. 1982);

Brown v. General Motors Corp., 601

F.2d 956, 959 8th Cir. 1979);

Anderson Vv. eneral Dynamics

Convair, 589 F.2d 397, 401 (9th

Cir. 1978), cert. denied, 442 U.S.

921 (1979); see also, E.E.O.C. v.

Caribe Hilton, 597 F.Supp. 1007,

1010 (D. P.R. 1984). One court has

indicated that an employee need

only be threatened wi*h discharge.

Burns v. Southern Pac. Transp. Co.,

589 F.2d 403, 405 (9th Cir. 1978),

cert. denied, 439 U.S. 1072 (1979).

4/ We also note that one Court of Ap-

peals, in addressing the merits of

a case that did not involve a dis-

(footnote cont'd)

There are a variety of approaches

taken by different courts. Whatever ap-

proaches have been used have not, until

this case, considered whether something

less than a discharge, or threat of a

discharge, is sufficient to make out a

prima facie case of religious discrimi-

nation. In each of the cases referred

(footnote cont'd from previous page)

charge, concluded that the plain-

tiff failed to establish the ele-

ment of a prima facie case

requiring a showing that a reli-

gious belief conflicted with an em-

ployment requirement. The Court of

Appeals for the Tenth Circuit noted

that "(dJefendant's policy and

practices jeopardized neither

Pinsker's job nor his observation

of religious holidays." Pinsker v.

Joint Dist. No. 28J of Adams and

Arapahoe, 735 F.2d 388, 391 (10th

Cir. 1984). This is entirely dif-

ferent from the instant case where

Ronald Philbrook's religious obli-

gations clearly conflicted with the

policy of his employer.

—y=

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to inn.3, at pp. 8 - 9, supra, other

than the instant case, the case devel-

oped out of a discharge, or threat of a

discharge. In these cases, the courts

did not have to look any further’ than

the discharge to reach the conclusion

that a prima facie case was established.

On the other hand, in the case at bar,

the plaintiff was not discharged nor was

he threatened with discharge. Thus, it

was necessary for the Second Circuit to

examine whether something less than a

discharge would suffice to establish a

prima facie case.

As argued infra, this Court should

conclude that the adverse impact of the

Ansonia Board of Education's policy on

the compensation, terms, conditions and

privileges of Ronald Philbrook's

o}ie

employment is enough to establish this

element of the prima facie case.

This

conclusion is supported by the clear

language of Title VII and by the

proach taken under Title VII with

spect to racial discrimination and

discrimination.

1. The Clear Language of Title

VII Extends to Terms and

Conditions of Employment as

Well as Discharges

The proper starting point

examining the intent of Title VII is

ap-

re-

sex

for

the

text of Title VII itself. Indeed, Title

VII clearly provides:

It shall be an unlawful

employment practice for an

employer-

(1) to fail or refuse to hire

or to discharge any individu-

al, or otherwise to

discriminate against any

individual with respect to his

compensation, terms, condi-

oi2=

tions or privileges of

employment because of such in-

dividual's race, color,

religion, sex or national ori-

GiRe ces

42 U.S.C. §$ 2000e-2(a) (emphasis added).

Clearly, Congress contemplated that

Title VII was intended to cover more

than just a discharge. This Court has

recognized that it is its duty "to give

effect, if possible, to every clause and

word of a statute.” United States v.

Menasche, 343 U.S. 528, 538-539 (1955)

(quoting Inhabitants of Montclair Tp. v.

Ramsdell, 107 U.S. 147, 152 (1883)).

Were the Court to interpret Title VII as

applying only to discharges, the lan-

guage regarding discrimination with re-

spect to compensation, terms, conditions

Or privileges of employment would be

without meaning.

o13-

ae eee

—

This Court has noted that there is

Significance to the language in Title

VII regarding compensation, terms, con-

ditions or ,rivileges of employment.

Benefits comprising the incidents of em-

ployment or forming "‘'an aspect of the

relationship between the employer and

employees,' [citation omittedj, may not

be afforded in a manner contrary to

Title VII." Hishon v. Kirg & Spalding,

U.S.

a au 9

(1984).

104 §.Ct. 2229, 2234

By including language in Title VII

regarding terms, conditions, and privi-

leges of employment, Congress expressed

a very clear desire to reach employment

discrimination other than discharges.

This approach to employment discrimina-

tion has been recognized by courts in

alge

the areas of race discrimination and sex

discrimination.

Re Just as Cases of Race or Sex

Discrimination Are Not Limited

to Discharges, Cases of

Religious Discrimination

Should Not Be Limited to

Discharges

Courts th-t« have addressed ques-

tions of the breadth of Title VII have

also concluded that it reaches beyond

discharges alone. The language of Title

VIi at 42 U.S.C. § 2000e-2(a)(1):

[R]vinces a Congressional in-

tention to define discrimina-

tion in the broadest possible

terms. Concress chose neither

to enumerate specific

discriminatory practices. nor

to elucidate in extenso the

parameter of such nefarious

activities. Rather, it chose

the path of wisdom by being

unconstrictive, knowing that

constant change is the order

of our day and that the

seemingly reasonable practices

of the present can easily be-

come the injustices of

-15-

tomorrow.... [T]Joday employ-

ment discrimination is a far

more complex and pervasive

phenomenon, as the nuances and

subtleties of discriminatory

employment practices are no

longer confined to bread and

butter issues.

Rogers v. E.E.0.C., 454 F.2d 234, 238

(Sth Cir. 1971).

Discrimination that may be re-

dressed by using Title VII, as_ the

Hishon decision directs, is not limited

to discharges. Hishon v. King &

Spalding, ___—*iU“«.S. at ___, 104 S.Ct. at

2234. A discharge is not needed in

order to state a prima facie case under

Title VII. An infringement of Title VII

is not "necessarily dependent upon the

victim's loss of employment or promo-

tion." Vinson v. Taylor, 753 F.2d 141,

144 (D.C. Cir. 1985), reh'g denied, 760

F.2d 1330 (1985), cert. granted,

@16-

U.S. te 106 S.Ct. 57 (1985). A

iscriminatory work environment is

enough, “regardless of whether tne com-

plaining employees lost any tangible job

benefits as a result of the discrimina-

tion." Bundy v. Jackson, 641 F.2d 934,

943-944 (D.C. Cir. 1981). Indeed, "sex-

ually stereotyped insults and demeaning

propositions" create a work atmosphere

that may violate Title VII. Bundy, 641

F.2d at 944; Vinson, 753 F.2d at

145-146.

Likewise, a dress code that re-

quires women to wear prescribed uniforms

but does not impose a requirement that

men weac uniforms, violates Title VII.

Carroll v. Talman Federal S. & L. Ass'n

of Cnicago, 604 F.2d 1028, 1030 (7th

@j7J~<

Cir. 1979). This too is discrimination

less onerous than a discharge that is

covered by Title VII.

These courts properly recognize

that Congress did not intend Title VII

to be limited only to discharges. In

the areas of race discrimination and sex

discrimination Title VII encompasses all

discrimination affecting terms, condi-

tions, and privileges of employment. No

principled distinction exists for em-

ploying a different standard when

evaluating religious discrimination.

In 42 U.S.C. § 2000e-2(a), Congress

included religion along with race and

sex as prohibited bases of discrimina-

tion in the workplace. Thus, religious

discrimination affecting terms, condi-

tions, and privileges of employment

-18-

should be treated in the same fashion as

race discrimination and sex discrimina-

tion. Congress intended Title VII to

include terms, conditions, and privileg-

es of employment, as well as discharges.

Since the plaintiff established that the

terms and conditions of his employment

interfered with bona fide religious be-

liefs of which he had informed his. em-

ployer, the Court should conclude that

he properly established a prima facie

case of religious discrimination.

-39—

IN THIS CASE THE PLAINTIFF ES-

TABLISHED ALL OF THE ELEMENTS

OF A PRIMA FACIE CASE

l. The Plaintiff Had a Bona Fide

Religious Belief Which

Conflicted With an Employment

Requirement

In this case, the plaintiff did

have a bona fide’ religious belief that

conflicted with an employment require-

ment. The plaintiff had a religious be-

lief that required him to refrain from

secular employment on holy days. Sever-

al of these holy days would fali during

5/ The Court of Appeals noted that a

finding of insincerity of the

plaintiff's religious belief would

be clearly erroneous based on the

record of the proceedings before

the District Court. Indeed, even

though the District Court decided

against the plaintiff, it expressly

declined to find insincerity of the

plaintiff's religious beliefs.

Philbrook, 757 F.2d at 481.

-29-

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the school year. In order for the

plaintiff to give effect to his reli-

gious beliefs by observing his religious

holidays, he would have to miss approxi-

mately six school days per year.

Pnilbrook v. Ansonia Bd. of Ed., 757

F.2d 476, 478 (2d Cir. 1985), cert.

Granted, _—-U.S. __, 106 S.Ct. 848

(1986). The plaintiff's salary would be

docked for missing some of these _ school

days. Philbrook, 757 F.2d at 479,6/

6/ This demonstrates the conflict be-

tween the plaintiff's religious be-

lief and an employment practice.

In order to give effect to his. re-

ligious belief, the plaintiff is

put in a position where he faces a

reduction in income. However, we

note that while this is sufficient

for establishing one element of the

prima facie case, the prima facie

case alone is not sufficient to es-

tablish a breach of Title VIi in a

case, like this, where the issues

(footnote cont'd)

«Zia

. ; -

”

~ale

’ * ’

The plaintiff demonstrated a reli-

gious belief conflicting with an employ-

ment requirement. By showing this r-li-

gious belief, refraining from secular

employment on holy days falling during

the school year, the plaintiff satisfied

this element of the prima facie case.

(footnote cont'd from previous page)

are contested. Rather, once the

prima facie case has been estab-

lished, the judicial inquiry moves

forward in order to focus upon the

reasonableness of proposed

accomodations, and any undue hard-

ship to the employer. This further

judicial inquiry is fully discussed

in part II of this brief, at pp. 26

- 41, infra.

-22-

2. The Plaintiff Informed His

Employer of this Belief

The Court of Appeals noted that the

plaintiff's unrebutted testimony demon-

Strated that he had informed both his

employer and union of the conflict be-

tween his religious belief and employ-

ment requirements. Philbrook, 757 F.2d

at 482.7/ Thus, this element of the

prima facie case was also established.

Philbrook, 757 F.2d at 482.

7/ The Court of Appeals remanded this

case, not for another finding as to

whether or not the plaintiff pro-

vided notice of this belief. Rath-

er, the purpose of the remand, as

to this issue, was only to clarify,

if necessary, the point in time

when the notice was provided for

the purpose of ascertaining what

damages were proper. Philbrook, 757

F.2d at 482.

=23<

De The Plaintiff Was Disciplined

For Failing to Comply With the

Employment Requirement

Finally, it is clear that the

plainti*s” was disciplined for failing to

comply with the employment requirement.

The plaintiff's terms and conditions of

employment were affected in that, even

under the proposal of the employer, the

plaintiff's salary would be docked sub-

stantially. 8/ Such action by the em-

ployer having an adverse effect on the

terms and conditions of the plaintiff's

employment is sufficient to establish

this element of the prima facie case

under Title VII.

8/ In 1984, the plaintiff's salary

would be docked $130 for each day

that he was absent without authori-

zation. This is the case even

though a substitute teacher would

only have cost the employer $30 per

day. Philbrook, 757 F.2d at

480 n.3.

-36-

For all of the reasons articulated

above, the plain iff established a prima

facie case of religious discrimination

under Title VII. Of course, the prima

facie case alone does not entitle the

plaintiff to prevail where the defen-

dants contested the claim. Rather, upon

finding a prima facie violation, the

burden shifts to the employer to demon-

Strate that it would be an undue hard-

ship for the employer to reasonably ac-

commodate the employee's religious

obligations. As argued at pp. 26 - 41,

infra, the petitioner board of education

is obliged to accept reasonable sugges-

tions of respondent Philbrook, provided

they do not cause undue hardship.

-2$-

Il.

THE SCHOOL BOARD IS OBLIGED TO

ACCEPT THE REASONABLE SUGGES-

TIONS OF ITS EMPLOYEE, PROVID-

ED THEY DO NOT CAUSE UNDUE

HARDSHIP

The second issue raised by the

School Board is whether Title viI1I?/ re-

quires the School Board to adopt the

reasonable accommodation suggestions of

its employee-teacher, should these prove

on remand to cause no undue hardship to

the Board. 19/ Your amicus contends that

9/ Respondent may well be entitled to

relief under the Free Exercise

clause. See Thomas v. Review

Board, 450 U.S. 707, 717 (1981)

("Here as in Sherbert, the employee

was put to a choice between fideli-

ty to religious belief or cessation

of work..."). The Second Circuit

left this issue for the District

Court on remand. Philbrook, 757

F.2d at 487, 488 n.12.

10/ This Court should not’ reach the

issue of whether undue hardship, as

(footnote cont'd)

-26-

the Board must defer to the employee's

non-burdensome suggestions.

As Justice O'Connor pointed

last term:

I do not read the Court's

opinion [in this case] as sug-

gesting that the religious ac-

commodat ion provisions of

Title VII of the Civil Rights

Act are similarly invalid.

These provisions preclude em-

ployment discrimination based

on a person's religion and re-

quire private employers to

reasonably accommodate the re-

ligious practices of employees

(footnote cont'd from previous page)

out

raised on pages 25-31 of Petition-

ers' brief, exists. This is a fac-

tual matter for the District Court.

Further, the issue improperly

raises matters not within the scope

of the questions presented in

tne

Petition for Certiorari. Stone v.

Powell, 428 U.S. 465, 480 n.15

(1976). The only issue raised in

the petition is whether the employ-

er must accept the suggestions of

the employee that do not pose

any

undue hardship. Petition for Cer-

tiorari, p. i.

o29a

unless to do so would cause

undue hardship to the employ-

er's business.

Estate of Thornton v. Caldor, Inc.,

U.S. » 105 §.Ct. 2914, 2919 (1985)

(emphasis added).11/ such deference to

the employee "has the valid secular

ll/ Justice O'Connor's interpretation

of Title VII parallel's the express

words of the section in question:

(j) The term “religion”

includes all aspects of

religious observance and

practice, as well as be-

lief, unless an employer

demonstrates that he is

unable to reasonably ac-

commodate to an employ-

ee's Or prospective em-

ployee's religious

observance or practice

without undue hardship on

the conduct of the em-

ployer's business.

42 U.§.C. $ 2000e(j) (emphasis

added); see also, discussion of

EEOC guidelines, at pp. 40 - 41,

infra.

-28-

purpose of assuring employment opportu-

nity to all groups in our pluralistic

society.” Estate of Thornton v. Caldor,

Inc., U.S. , 105 S.Ct. at 2919.

At the outset we emphasize that

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977), does not resolve the

present controversy. There, the employ-

ee's suggestions were specifically found

to be unduly burdensome by the District

Court. 432 U.S. at 83 n.14. In

Hardison, acceding to the employee's

suggestions would have violated the se-

niority provisions of the collective

bargaining agreement. Therefore, the

Court concluded that the employer had

made a reasonable effort to accommodate

the employee's religious belief.

-29~-

This case is unlike Hardison. The

employer here relies on an accommodation

drawn from the collective bargaining

agreement. The employee suggests two

alternatives that more adequately accom-

modate his’ religious needs. Factually

the employer suggests that a policy of

three days of paid leave and three days

of unpaid leave satisfies its duty.

Philbrook has counteroffered with two

alternatives: 1) to allow him to use

personal business leave for religious

holy days, or 2) to allow him to receive

his salary, less the cost of a substi-

tute teacher, with whom he would spend

extra work time.

The Second Circuit, having found a

prima facie case, has appropriately re-

manded the matter to the District Court

-30-

to determine if Philbrook's suggestions

pose an undue hardship. Philbrook, 757

F.2d at 485. This Court should conclude

that the Second Circuit was correct in

declaring that the employer must accept

the further suggestions of its employee

which resolve the dispute between them

where the reasonable suggestions do not

cause "undue hardship."

Both the Fifth and the Ninth Cir-

cuits have analyzed the concurrent du-

ties of the employer and employee to ob-

viate religious discrimination. In

Brener v. Diagnostic Center Hospital,

671 F.2d 141 (5th Cir. 1981), the em-

ployer offered a Sabbatarian employee

flexible hours and the possibility of

swapping amongst staff to satisfy the

employee's Saturday work schedule

-3i-

problem. Even though the Court of Ap-

peals rejected the employee's objection

to the employer's accommodations, 671

F.2d at 145, in fact the Court of Ap-

peals considered whether the "further

measures [suggested by the employee] to

accommodate him outside the pharmacy's

scheduling system would result in ‘undue

hardship' to the hospital and its em-

ployees.” 671 F.2d at 146. The Court

of Appeals affirmed the District Court's

conclusion that the employee's addition-

al suggestions were an undue hardship.

671 F.2d at 146; see also Turpen v.

Missouri-Kansas-Texas R. Co., 736 F.2d

1022, 1026 (Sth Cir. 1984) (factual de-

cisions of "reasonable accommodation"

and "undue hardship" are interlocking).

-33-

The Ninth Circuit has more exten-

sively considered this issue. In

Anderson v. General Dynamics, 589 F.2d

397 (9th Cir. 1978), cert. denied, 442

U.S. 921 (1979), the employee, dis-

charged for refusal to pay union dues,

established a prima facie case of reli-

gious discrimination. The Court of Ap-

peals declared:

The burden was thereafter upon

General Dynamics and the Union

to prove that they made good

faith efforts to accommodate

Anderson's religious beliefs

and, if those efforts were

unsuccessful, to demonstrate

that they were unable rea-

sonably to accommodate his be-

liefs without undue hardship.

Anderson, 589 F.2d at 401.

The companion case, Burns vV.

Southern Pac. Transp. Co., 589 F.2d 403

+ (9th Cir. 1978), cert. denied, 439 U.S.

19072 (1979), states the rule even more

expressly:

-33-

Once the -employer has made

more than a negligible effort

to accommodate the employee

(Trans World Airlines _ vy.

Hardison, supra, 432 U.S. at

77, 97 §.Ct. 2264) and that

effort is viewed by the worker

as inadequate, the question

becomes whether the further

accommodation requested would

constitute "undue hardship."

Once again, this term is not

defined by the Civil Rights

Act, but the burden of proving

undue hardship rests upon the

employer or union. The

Hardison Court found that the

employer had demonstrated

undue hardship where the ac-

commodation requested by the

employee (a four-day work

week) would have effectively

required preferential treat-

ment on the basis of religion

for Sabbatarians, causing sac-

rifices or dislocation in the

work schedules of

fellow-workers Or requiring

the employer to hire outsiders

to work Saturday shifts at

"premium wages." (Id. at

81-84, 97 S.Ct. 2264) The

Court held that where the _ im-

pacts upon co-workers or costs

are greater than de _ minimis,

undue hardship is demon-

Strated. (Id. at 84, 97 S.Ct.

2264)

-34-

Burns, 589 F.2d at 406 (emphasis added).

The Burns Court held that the employer

and the union had failed to demonstrate

undue hardship in accommodating the em-

ployee's request to pay an amount equiv-

alent to his union dues to charity.

The recent case of American Postal

Workers Union v. Postmaster General, 781

F.2d 772 (9th Cir. 1986)22/ complements

the Anderson - Burns rule. There, the

Postal Service's proposal “effectively

eliminated the religious conflict vis-

ited upon the affected employees." 781

12/ In American Postal Workers window

clerks objected to accepting draft

registration materials. The Post

Office management offered to trans-

fer the clerks to non-window posi-

tions. The clerks objected to the

transfers because of the secular

reason that the window positions

have a better employment status.

=-33-

F.2d at 776. The employees' objections

to the employer's attempted accommoda-

tion were based upon entirely "secular

grounds." 781 F.2d at 776.13/ The em-

ployer was then allowed to prove that

its accommodation preserved "the affect-

ed employee's employment status" in lieu

of proving that the employee's sugges-

tions constituted undue hardship. 781

F.2d at 776 - 777; see also Yott vy.

North American Rockwell Corp., 602 F.2d

13/ Had the employees’ objections not

been based on secular grounds, but

religious grounds, Burns would

apply. “If the accommodation pro-

posed by the employer fails to

eliminate the employee's religious

conflict, the employer must imple-

ment an alternative accommodation

proposed by the employee, unless

implementation of that accommoda-

tion would cause ‘undue hardship’

to the employer.” American Postal

Workers, 781 F.2d at 776 (emphasis

added).

~36-

~ ve ars Jee a ae Ge 7. >... nae ee —

* ‘ Fe

—

;

at ed ee ne

904, 907-908 (9th Cir. 1979) ("good

faith effort to accommodate” made by em-

ployer).

Clearly, this case parallels Burns.

As in Burns, the Ansonia School Board

"made no effort to accommodate {the em-

ployee's] particular religious beliefs.

In effect, they informed [the employee]

that his only alternative was to accept

the terms of the existing contract...."

Burns, 589 F.2d at 406. The suggestion

of the School Board that Philbrook take

three unpaid leave days hardly "elimi-

nated the religious conflict." American

Postal Workers, 781 F.2d at 776. As the

Second Circuit found, "(t]he school

board's leave policy forced [Philbrook]

to act in a way inconsistent with his

religious belief." Philbrook, 757 F.2d

-37-

at 482. Since the employee viewed the

employer's suggested accommodation as

inadequate, the Second Circuit appropri-

ately remanded the case to the District

Court to analyze the further suggestions

of the employee.

Affirming the decision of the Sec-

ond Circuit makes good sense. Except in

those circumstances where the employer

can prove that he has completely elimi-

nated the religious dispute, the employ-

ee should be permitted to offer other

accommodations which cause no undue

hardship. 24/

14/ Of course, the employer who acts in

good faith to resolve the matter

should not be held hostage to an

employee who objects to an employ-

er's suggestion solely for secular

reasons, even though an employer's

proposal completely resolves’. the

religious controversy and does not

in any other way disadvantage the

employee's job status.

-38-

eee)

As the Fifth Circuit's opinion in

Brener, in commenting on the duty of the

employee to cooperate with an employer's

efforts to accommodate, states:

[T]he statute's use of the

term ‘reasonable’ suggests:

bilateral cooperation is ap-

propriate in the search for an

acceptable reconciliation of

the needs of the employee's

religion and exigencies of the

employer's business.

Brener, 671 F.2d at 145-146.

By authorizing employee input in the na-

ture of the accommodation to be made

withovt imposing an undue burden on the

employer, the Second Circuit's decision

commands just that "bilateral coopera-

tion".

Finally, it is important to note

that the Equal Employment Opportunity

Commission has approved a regulation

paralleling the holding of the Second

Circuit:

-39-

“ie

When there is more than one

method of accommodation avail-

able which would not cause

undue hardship, the Commission

will determine whether the ac-

commodation offered is reason-

able by examining:

(i) The alternatives for ac-

commodation considered by the

employer or labor organiza-

tion; and

(ii) The alternatives for ac-

commodation, if any, actually

offered to the individual

requiring accommodation. Some

alternatives for accommodating

religious practices might dis-

advantage the individual with

respect to his or her employ-

ment opportunities, such as

compensation, terms, condi-

tions, or privileges of em-

ployment. Therefore, when

there is more than one _ means

of accommodation which would

not cause undue hardship, the

employer or labor organization

must offer the alternative

which least disadvantages the

individual with respect to

his or her employment

opportunities.

29 C.F.R. § 1605.2(c)(2) (emphasis

added).

-40-

This administrative interpretation is

entitled to "great deference”. Griggs

v. Duke Power Co., 401 U.S. 424, 433-434

(1971); Oscar Mayer & Co. v. Evans, 441

U.S. 750, 761 (1979); E.B.0.C. v. Shell

Oil Co., 104 S.Ct. 1621, 1636 n.36

(1984). The EEOC regulation supports

the Second Circuit's requirement that

under Title VII the employee's sugges-

tions, which do not pose for the employ-

er an undue hardship, are required to be

accepted by the employer.

CONCLUSION

For all of the reasons set forth in

this brief, the Court should conclude

that the United States Court of Appea'‘s

for the Second Circuit correctly decided

-4l-

this case.

Accordingly, the State of

Connecticut, as amicus curiae, requests

that the decision of the United States

Court of Appeals for the Second Circuit

be affirmed.

June,

1986

RESPECTFULLY SUBMITTED,

JOSEPH I. LIEBERMAN

Attorney General of the

State of Connecticut

CLARINE NARDI RIDDLE

Deputy Attorney General

HENRY S. COHN*

ROBERT B. TEITELMAN

Assistant Attorneys General

30 Trinity Street

Hartford, CT 06106

(203) 566-4990

PHILIP A. MURPHY, JR.

Commission Counsel

Comm. on Human Rights

and Opportunities

(Of Counsel)

*- Counsel of Record

o$2-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.