# Amicus Curiae Brief — Ansonia Board of Education v. Philbrook > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0438%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1986 - **Citation:** 474 U.S. 1080 ## Text 4 Bey x 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 ee feu ae Naar Si vLoat, Soa 3 ae | Pe ete é i “MM 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 SS ARGUMENT I, THE COURT OF APPEALS CORRECTLY CONCLUDED THAT THE PLAINTIFF ESTABLISHED A PRIMA FACIE CASE A. 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= — Se Se Oe ee ee _- _—~ : ~ oa 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~ a > % (wi — -s : | 2.4 7 — : = by ss - sao i / 4 a Cc = nad _- % a - . _ 9 a a “ : . | wi ’ so ~ 4 : = ' i) i) } 7 ‘ 7 | i ; a | i : @4 i = we | . oo . vi ai a: ce in ai otis MN ch ¢ 2 i) i : 1 F ! os 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 . ; - ” é ~ale oo ' . ’ * ’ 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... nae ee — i) * ‘ Fe > — ; ' * "6 : 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- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0438%3A13. Public record. Not legal advice.