Amicus Curiae Brief — Ansonia Board of Education v. Philbrook

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) ——gUN: 27 1986

No. 85-495 | JOSEPH F. SPANIOL, ms

——— a

—

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

ANSONIA BOARD OF EDUCATION, et al.,

Petitioners,

Vv.

RONALD PHILBROOK,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF THE PRESBYTERIAN CHURCH (U5S.A.),

THE NATIONAL COUNCIL OF THE CHURCHES OF

CHRIST IN THE U.S.A. AND THE CHRISTIAN

LEGAL SOCIETY AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

Of Counsel: DOUGLAS LAYCOCK

SAMUEL E. ERICSSON Counsel of Record

MICHAEL J. WOODRUFF 727 E. 26th St.

KIMBERLEE Woop COLBY Austin, TX 78705-5799

P. O. Box 1492 (512) 471-3275

Merrifield, VA 22116

(703) 560-7314

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF AUTHORITIES

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE ........................

SUMMARY OF ARGUMENT

ARGUMENT

reer eee eee eee ee ee ee

ee eel

I. If the Employer Is Guilty of Disparate Treat-

II.

Il.

ment, There Is No Need to Reach Any Issue of

Accommodation

Ce eel

The Employer Is Guilty of Disparate Treatment,

Because Its Rule Facially Discriminates on the

Basis of Religious Observance .............................

A. The Rule Facially Discriminates on the Basis

of Religious Observance .................................

B. The Discriminatory Restriction on the Use

of Personal Business Leave Is Not Saved

by the Separate Provision for Religious

IIE: | cindiidasishicscdihncisnctinanbtnniieliiianstbhabdaialdaltties

C. The Facially Discriminatory Rule Cannot Be

Justified By Its Tendency to Reduce the

Average Number of Leave Days Claimed ......

D. If the Court Grants Relief from the Facially

Discriminatory Rule, No Accommodation

Issue Remains in the Case

This Court Can Decide the Disparate Treat-

ment Issue Because Its Resolution Would Sup-

port the Judgment Below and Because It Is

Fairly Included in Question I of the Petition for

Certiorari

CID TGETEEI ccc cccensccesssnsrcnsscsennesnontenanienanennsinnetnereTess

Page

TABLE OF AUTHORITIES

Cases Page

Blum v. Bacon, 457 U.S. 182 (1982) ............-....-.---. 16

City of Los Angeles v. Manhart, 435 U.S. 702

a cian 5, 10, 13

Connecticut v. Teal, 457 U.S. 440 (1982) -................ 5, 11

Dothard v. Rawlinson, 433 U.S. 321 (1977) .......... 4,5

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

ne 4,11

Griggs v. Duke Power Co., 401 U.S. 424 (1971)... 5,6

Hills v. Gautreaux, 425 U.S. 284 (1976) ................. 16

International Brotherhood of Teamsters v. United

States, 481 U.S. 824 (1977) ...............-.----...---20----+-+- 4,5

McDonald v. Santa Fe Trail Transportation Co.,

Ce es Be I bncccerititretiepiccrtibvsicneerencte 5

McDonnell-Douglas v. Green, 411 U.S. 792 (1973) .. 5

Newport News Shipbuilding and Dry Dock Co. v.

EEOC, 462 U.S. 669 (19688) .................-2..-----+0---0-- 10, 13

New York City Transit Authority v. Beazer, 440

8 eRe tet 2 5

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

476 (2d Cir. 1985), cert. granted, 106 S.Ct. 848

EID ccnscoocncosvusatineccsvevenereves- <epbnesntonesqeamesvancsissceneceed 9, 13-15

Phillips v. Martin-Marietta Corp., 400 U.S. 542

(| a ae 6, 10

Sherbert v. Verner, 374 U.S. 398 (1973) ................- 9

Thomas v. Review Board, 450 U.S. 707 (1981) ....... 9

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

BI itbienittcancreevtsinnemsigtinttesumiigeeieasteoed 4, 7,8, 12

United States v. Arthur Young & Co., 465 U.S. 805

AES as 15, 16

United Steelworkers v. Weber, 448 U.S. 193

iT TES SEE Pe LY ST ee 5

Wisconsin v. Yoder, 406 U.S. 205 (1972). » -cetiiintiieatiadtiae 9

Constitutions

U.S. Const., amend. I, free exercise clause ............. 2,9

iii

TABLE OF AUTHORITIES—Continued

Statutes Page

Title VII of the Civil Rights Act of 1964, generally,

42 U.S.C. § 2000e et seq. (1982) ...................------.. passim

§ 701(j), 42 U.S.C. § 2000e(j) (1982) .............. 6, 7

§ 703 (a), 42 U.S.C. § 2000e-2(a) (1982) ......... 6

§ 703 (a) (1), 42 U.S.C. § 2000e-(a) (1) :

a ceemenipmenesncenee 13

§ 708 (e), 42 U.S.C. § 2000e-2(e) (1982) .......... 5

§ 703 (h), 42 U.S.C. § 2000e-2(h) (1982) .......... 5

Supreme Court Rules

Supreme Court Rule 21.1(a) .............----------------------- 15

Legislative History

118 Cong. Rec. 705-706 (1972) ......................--00--20+++- 6,7

rr 6

Articles

Brody, Congress, the President, and Federal Equal

Employment Policymaking: A Problem in Sepa-

ration of Powers, 60 B.U. L. Rev. 239 (1980)... 4

Furnish, A Path Through the Maze: Disparate

Impact and Disparate Treatment Under Title

VII of the Civil Rights Act of 1964 After Beazer

and Burdine, 23 B.C. L. Rev. 419 (1982) ............ 4

McConnell, Accommodation of Religion, 1985 Sup.

gS EN a a On 8

Developments in the Law—Employment Discrimi-

nation and Title VII of the Civil Rights Act of

1964, 84 Harv. L. Rev. 1108 (1971) -.................. 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-495

ANSONIA BOARD OF EDUCATION, et al.,

Petitioners,

Vv.

RONALD PHILBROOK,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF THE PRESBYTERIAN CHURCH (U.S.A.),

THE NATIONAL COUNCIL OF THE CHURCHES OF

CHRIST IN THE U.S.A, AND THE CHRISTIAN

LEGAL SOCIETY AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICI CURIAE

The Presbyterian Church (U.S.A.) is a national, Chris-

tian denomination with churches in all fifty states. It

has approximately 3,150,000 active members and approxi-

mately 11,750 congregations organized into 195 Presby-

teries and twenty Synods. The highest governing body of

the Church is the General Assembly, composed of approx-

imately six hundred delegates elected by the Presbyteries.

The Church has long taught that Christians have a duty

to participate in public affairs, and the General Assem-

bly determines the Church’s policy on important issues.

The positions taken in this brief implement policies of

the General Assembly opposing all forms of discrimina-

tion and vigorously supporting religious liberty.

The National Council of the Churches of Christ in the

United States of America is a federation of thirty-one

Protestant and Eastern Orthodox religious bodies in the

United States with aggregate membership totaling ap-

proximately 43,000,000. It is governed by a Governing

Board of 250 members chosen by the member denomina-

tions in proportion to their size and support. The Govern-

ing Board determines the policies of the organization

through debate, amendment and adoption of carefully

prepared statements and resolutions brought to it by its

subordinate program divisions. Several of these policies

affirm the principle of religious liberty, and it is on the

basis of these policies that it enters this case,

The Christian Legal Society is a non-profit Christian

professional association, founded in 1961, with a present

membership of 3,500 judges, attorneys, law professors,

and law students. Concerned about constitutional rights,

it founded the Center for Law and Religious Freedom

in 1975 to protect and promote the freedoms guaranteed

by the First Amendment through advocacy and educa-

tion. The Center has been active in public education

issues.

Amici are especially interested in this case, because the

petition for certiorari raises issues far broader than those

actually raised by the facts of record. This is a simple

case of disparate treatment, and it is not necessary to

decide broader and more difficult issues of accommoda-

tion. The disparate treatment issue at the heart of this

case is the first order of consideration and is of critical

importance to large numbers of religious employees. Sole

consideration of that narrow issue is dispositive of this

case.

SUMMARY OF ARGUMENT

The statute and the case law identify three distinct

kinds of discrimination under Title VII of the Civil

Rights Act of 1964: disparate treatment, disparate im-

pact, and failure to reasonably accommodate religious

practice. This case requires the Court to articulate the

relationship among these legal theories.

There is no need to reach any issue of accommodation

if the employer is guilty of disparate treatment or dis-

parate impact. The duty to accommodate is relevant only

to facially neutral rules that are justified by business

necessity even though they preclude or penalize an em-

ployee’s religious observance. In such a case, the em-

ployee whose religious observance is penalized must re-

quest an exemption from the generally enforceable rule.

Only such a request for special treatment triggers the

duty to accommodate, and only then is it necessary to

determine whether the proposed accommcdation is rea-

sonable, whether it would impose undue hardship, or

whether the employer must accept the employee’s proposed

accommodation.

The employer in this case is guilty of disparate treat-

ment. The employer’s rule facially discriminates on the

basis of religion. Employees are entitled to three days

of personal business leave for secular business but not

for religious observance. It is no defense that a separate

rule authorizes three days of leave for religious obser-

vance. In combination, these rules authorize six days of

paid leave, but only for employees who use exactly three

of those days for religious observance. These rules favor

some religions and disfavor others. But regardless of

who benefits, the explicitly religious restriction on the

use of personal business leave is illegal disparate treat-

ment. Whether and how often employees observe their

religion on personal leave days is irrelevant to any legiti-

mate interest of the employer.

ARGUMENT

I. If The Employer Is Guilty of Disparate Treatment,

There Is No Need to Reach Any Issue of Accommo-

dation.

This case requires the Court to articulate the relation-

ship among disparate treatment, disparate impact, and

accommodation. That relationship is manifest in the

structure of the statute, but no case has yet required the

Court to state it explicitly.

This Court has decided many disparate treatment and

disparate impact cases, and the relationship between

those theories is well developed. It is stated in some

of the Court’s opinions and elaborated in the academic

literature. See, e.g., Dothard v. Rawlinson, 433 U.S. 321,

328-29, 332-33 (1977); International Brotherhood of

Teamsters v. United States, 431 U.S. 324, 335-36 n.15

(1977) ; Furnco Construction Corp. v. Waters, 438 U.S.

567, 581-83 (1978) (Marshall, J., concurring in part) ;

Brody, Congress, the President, and Federal Equal Em-

ployment Policymaking: A Problem in Separation of

Powers, 80 B.U.L. Rev. 239, 240-69 (1980); Furnish,

A Path Through the Maze: Disparate Impact and Dis-

parate Treatment Under Title VII of the Civil Rights

Act of 1964 After Beazer and Burdine, 23 B.C. L. Rev.

419 (1982).

But this Court has decided only one accommodation

case, Trans World Airlines v. Hardison, 482 U.S. 63

(1977). That case plainly fit only under accommodation

theory, and thus provided no occasion to explore the rela-

tionship between accommodation and disparate treatment

or disparate impact. A brief review of those better known

theories will help clarify their relationship with accom-

modation theory.

The simplest form of discrimination is disparate treat-

ment. Disparate treatment simply means treating an

individual differently because of his race, color, sex,

religion, or national origin. This Court’s leading dis-

parate treatment cases include City of Los Angeles v.

Manhart, 4385 U.S. 702 (1978) (different pension formu-

las for men and women); Jnternational Brotherhood of

Teamsters v. United States, 481 U.S. 324, 328-43 (1977)

(refusal to hire blacks); McDonald v. Santa Fe Trail

Transportation Co., 427 U.S. 278, 275-85 (1976) (differ-

ent discipline for blacks and whites guilty of same of-

fense against employer); and McDonnell-Douglas v.

Green, 411 U.S. 792 (1973) (refusal to hire black appli-

cant). The defenses to a proven incident of disparate

treatment are few and narrow. They include the bona

fide occupational qualification defense, § 703(e), 42 U.S.C.

§ 2000e-2(e) (1982), Dothard v. Rawlinson, 433 U.S.

821, 332-37 (1977); and the defense that the disparate

treatment is pursuant to a valid affirmative action plan,

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

The other common form of discrimination is disparate

impact. A plaintiff makes out a prima facie case of dis-

parate impact by showing that a facially neutral rule or

employment practice falls more harshly in fact on a pro-

tected group than on other employees. But the range of .

defenses to a charge of disparate impact is much broader

than to a charge of disparate treatment. From the ex-

plicit statutory defenses in § 703(h), 42 U.S.C. § 2000e-

2(h) (1982), the Court has developed the generalized de-

fense of business necessity: an employer may continue a

facially neutral practice with disparate impact if the

practice is justified by an important and nondiscrim-

inatory business purpose. This Court’s leading disparate

impact cases include Connecticut v. Teal, 457 U.S. 440

(1982) (promotion test with disparate impact on black

employees) ; New York City Transit Authority v. Beazer,

440 U.S. 568, 582-87 (1979) (drug testing program al-

leged to have disparate impact on black and Hispanic

employees) ; Dothard v. Rawlinson, 433 U.S. 321, 328-32

(1977) (height and weight requirement with disparate

impact on female applicants) ; and, of course, Griggs v.

Duke Power Co., 401 U.S. 424 (1971) (employment test

with disparate impact on black applicants).

Both disparate treatment and disparate impact are based

on the original text of the statute. § 703(a), 42 U.S.C.

§ 2000e-2(a) (1982). Both apply to all five classifications

forbidden by the statute: race, color, sex, religion, and

national origin. Both had been articulated in this Court’s

eases before the 1972 amendments to the Act. Griggs v.

Duke Power Co., 401 U.S. 424 (1971) (disparate im-

pact); Phillips v. Martin-Marietta Corp., 400 U.S. 542

(1971) (disparate treatment).

The accommodation theory is based on § 701(j), 42

U.S.C. § 2000e(j) (1982), which was unanimously added

by a floor amendment in 1972. 118 Cong. Rec. 705, 731

(1972). The amendment did two things. First, it de-

fined “religion” to include “religious observance and prac-

tice.” The primary effect of this definition is to insert

the phrase “including religious observance and practice”

wherever the word “religion” appears in the original

statutory text. Second, the amendment required em-

ployers to reasonably accommodate religious observance

and practice, but only if that could be done without un-

due hardship.

Plainly the amendment did not repeal the disparate

treatment or disparate impact theories or exempt reli-

gious discrimination from their application. An employer

who refused to hire Catholics or Jews would be guilty of

disparate treatment, and no inquiry into accommodation

would be required. A merchant who required sales clerks

to have a diploma from a Catholic high school would be

guilty of disparate impact without business necessity, and

no inquiry into accommodation would be required. More-

over, the statutory definition of religion makes disparate

treatment and disparate impact theory applicable to dis-

crimination based on religious observance and practice.

Thus, an employer who required his employees to refrain

from attending church would be guilty of disparate treat-

ment of religious observance, and no inquiry into accom-

modation would be required. An employer who accom-

modated Seventh Day Adventist Sabbatarians but refused

to accommodate Orthodox Jewish Sabbatarians would be

guilty of disparate treatment, and no inquiry into the

extent of his duty to accommodate would be required.

The purpose of the accommodation amendment was to

reach cases not reached by either disparate treatment

or disparate impact theory. The particular case Con-

gress had in mind is plainly stated in the brief legislative

history. The amendment was sponsored by Senator Ran-

dolph, and he was concerned about Sabbatarians whose

employers required work on the Sabbath. 118 Cong. Rec.

705-706 (1972). A rule requiring work on Saturday or

Sunday is facially neutral; it does not explicitly dis-

criminate on the basis of religion or religious observance.

Such a rule has severe disparate impact on Sabbatarians,

but the rule is plainly justified by business necessity for

many employers. The airline parts warehouse in Hardi-

son could not close on weekends, 432 U.S. at 66, and

neither can many manufacturers or merchants.

Thus, Senator Randolph’s Sabbatarian constituents had

no claim under traditional discrimination theories. The

accommodation clause was intended to go further. Em-

ployers would not be required to close on any employee’s

Sabbath, but they would be required to rearrange work

schedules to exempt Sabbatarians from work on their

Sabbath if that could be done without undue hardship.

An employer who reasonably accommodated Sabbatarians

would obviously have a defense to a disparate treatment

charge brought by a non-Sabbatarian required to work

1 This Court treated the amendment as clarifying Congressional

intent and read its meaning into the unamended statute. Trans

World Airlines v. Hardison, 432 U.S. 63, 76 n.11 (1977). But

lower courts had not consistently recognized the right to accom-

modation of religious practice prior to the amendment. Jd. at 75

n.10.

on weekends, but the pre-existing law of disparate treat-

ment and disparate impact was not limited in any other

way.

The patté¥n in this original example of accommodation

is quite general—indeed, it is definitional. Accommoda-

tion claims arise only if a facially neutral rule that is

justified by business necessity has disparate impact on a

religious group or religious practice. If the rule is not

facially neutral, it is illegal under disparate treatment

theory. If the rule is not justified by business necessity,

it is illegal under disparate impact theory. Only where

neither of those theories applies is it necessary to con-

sider an accommodation claim and decide the difficult is-

sues of reasonableness and undue hardship.

In many cases of religious discrimination, it will be

obvious that the rule is facially neutral and that it is

justified by business necessity. Thus, a large proportion

of religious discrimination claims are also accommoda-

tion claims. Perhaps that is why some lawyers and judges

immediately begin to talk about accommodation as soon

as they see a religious discrimination claim.

But the appropriate sequence of inquiry is first to con-

sider whether the plaintiff has a disparate treatment or

disparate impact claim. This sequence is both logical and

prudential. Accommodation always involves special treat-

ment of the religious employee. This special treatment is

justified by his special needs and the statutory commit-

ment to religious pluralism, but special treatment may be

misunderstood or resented by other employees. Moreover,

how much accommodation is reasonable and how much

would impose undue hardship pose difficult balancing

questions for the courts. Compare the majority and dis-

senting opinions in Trans World Airlines v. Hardison,

482 U.S. 68 (1977); see generally McConnell, Accommo-

dation of Religion, 1985 Sup. Ct. Rev. 1. There is no

need to incur these difficulties if the case can be decided

under disparate treatment or disparate impact.

Equally important, the inquiry into accommodation will

inevitably be confused if the parties and the Court have

not clearly analyzed the nature of the challenged rule. It

is nonsense to ask how much an employer should accom-

modate an employee seeking relief from a facially dis-

criminatory rule. Facially discriminatory rules are for-

bidden, and employees have no obligation to be “reason-

able” in accommodating to them. As this brief shows in

part II.D, this kind of confusion is evident in the opinions

below.

II. The Employer Is Guilty of Disparate Treatment, Be-

cause Its Rule Facially Discriminates on the Basis of

Religious Observance.

A. The Rule Facially Discriminates on the Basis of

Religious Observance.

As the Court of Appeals correctly held, plaintiff chal-

lenges a facially discriminatory rule. Philbrook v. Ansonia

Board of Education, 757 F.2d 476, 483 (2d Cir. 1985),

cert. granted, 106 S.Ct. 848 (1976). The collective bar-

gaining agreement explicitly states, in two separate pro-

visions, that personal business leave days may not be used

for any religious observance. Id. at 479 n.2, 110 and

{11.b.4. The employer would give plaintiff three r ore

days of paid leave if, and only if, he promised not to use

the time for religious observance.

This explicit restriction on religious observance i: the

central fact in the case. No employer can restrict reli-

gious observance in off-duty hours, or condition a benefit

such as personal business leave on the recipient’s willing-

ness to forego religious observance. All such restrictions

violate Title VII. And when the employer is a government

agency, such as the school board here, such restrictions

violate the free exercise clause unless justified by the

most compelling reasons. See Thomas v. Review Board,

450 U.S. 707, 718 (1981) ; Wisconsin v. Yoder, 406 U.S.

205, 215 (1972); Sherbert v. Verner, 874 U.S. 398, 403

(1963).

The cost of a day’s leave to the employer does not de-

pend on whether the employee attends church on his day

of leave. Three days leave costs three days pay for a

substitute teacher and three days of substitute teaching

for the affected students. These costs are identical

whether the employee uses the time off for religious or

secular business. Thus, plaintiff is not asking for any-

thing the employer has not already agreed to provide.

Plaintiff’s requests for personal leave have been denied

solely because he intends to engage in religious rather

than secular activities. There can be no justification for

such a rule. The school simply has no legitimate interest

in whether the employee attends church on his days of

personal leave.

Another way to understand the discrimination here is

to recognize that the employer has one policy for em-

ployees with religious business and another for employ-

ees with secular business. That is the most obvious form

of discrimination. This Court held in its first Title VII

opinion that an employer could not have “one hiring pol-

icy for women and another for men.” Phillips v. Martin-

Marietta Corp., 400 U.S. 542, 544 (1971). In more recent

sex discrimination cases, the Court has applied “the

simple test” of “treatment that but for his sex would

be different.” Newport News Shipbuilding and Dry Dock

Co. v. EEOC, 462 U.S. 669, 683 (1983), quoting City of

Los Angeles v. Manhart, 435 U.S. 702, 711 (1978), quot-

ing Developments in the Law—Employment Discrimina-

tion and Title VII of the Civil Rights Act of 1964, 84

Harv. L. Rev. 1109, 1170 (1971). The policy here fails

the parallel simple test under the 1972 definition of reli-

gion: but for his religious observance, plaintiff’s treat-

ment would be different.

B. The Discriminatory Restriction on the Use of Per-

sonal Business Leave Is Not Saved by the Separate

Provision for Religious Leave.

The employer provides three days of leave for religious

observance in addition to the three days of leave for per-

sonal business. But this commendable accommodation

does not exonerate the employer from liability for its

discriminatory restriction on the use of personal busi-

ness leave. It is well settled that a violation of Title VII

cannot be justified by other acts of exemplary compliance,

or even by affirmative action on behalf of minorities.

Connecticut v. Teal, 457 U.S. 440, 452-56 (1982) ; Furnco

Construction Corp. v. Waters, 4388 U.S. 567, 579 (1978).

In any event, the three days of religious leave do not

offset or undo the discriminatory restrictions on the use

of personal business leave. The employer’s policy remains

discriminatory both on its face and in effect. The com-

bined effect of the two rules is that employees are entitled

to six days paid leave if and only if they use exactly

three of those days for religious observance. A Jewish

teacher who wanted three days leave for secular business

and three more days at Yom Kippur and Rosh Hashanah

would get six days paid leave. The only reason why that

teacher would get six days and plaintiff only three is

that plaintiff offers religious rather than secular reasons

for the three additional days. Plaintiff could also have

six days leave if he would forego religious observance on

three of them and offer exclusively secular reasons for

the leave. Thus, the employer is guilty of disparate treat-

ment of religious observance whether its rules are con-

sidered individually or collectively.

C. The Facially Discriminatory Rule Cannot Be Justi-

fied By Its Tendency to Reduce the Average Number

of Leave Days Claimed.

For any individual teacher, the cost of six days leave

is the same whatever the mix of secular and religious

reasons for leave. But the employer may view its restric-

tion on the religious use of personal leave days as a ra-

tioning scheme that reduces the average number of leave

days claimed. Some employees, like plaintiff here, will

not claim their three days for secular business. Many

other employees will not claim their three days for reli-

gious observance, because the entire school calendar has

been set up to accommodate the numerically dominant

faiths. School never meets on Sunday; it therefore never

meets on Easter. There is a long vacation at Christmas.

This schedule fully accommodates most Christians. School

never meets on Saturday, so most Sabbatarians are also

accommodated. Employees whose religious needs are fully

accommodated by the school’s regular calendar will have

no need to use leave days for religious observance.’

Thus, dividing the six days of leave into three days

of religious leave and three days of secular leave may

reduce the total number of leave days claimed. Each

employee is entitled to six days of personal leave, but

only if he has just the right combination of religious and

secular needs. Some employees will be able to claim all

six days, but many employees will claim fewer, and costs

will be lower on average.

The difficulty with this scheme is manifest. An em-

ployer cannot use race, color, sex, religion, or national

2 Plaintiff’s challenge to the employer’s explicit restriction on

religious observance does not depend on the employer’s substantial

accommodation of the numerically dominant faiths. But this

accommodation of the dominant faiths would be highly relevant

to the reasonableness of any request for scheduling accommodations

by plaintiff or other adherents of minority faiths. That the religious

holidays of minority faiths often fall on workdays is not some

ccincidence caused by minority deviation from the employer’s re-

ligiously neutral calendar. Minority requests for accommodation

are the inevitable result of the employer’s decision to accommodate

its calendar to the calendar of the largest faiths. Such accommo-

dation protects the religious liberty of the majority and is con-

venient for the employer; we tend to take it as the natural order

of things and forget that it accommodates religious observance.

But accommodation for the majority cannot be ignored in con-

sidering accommodation for minorities. With their one shift five

days a week and their intermittent vacations, schools are among

the most accommodating employers in the economy. They are at

the opposite extreme from the employer in Hardison, with its 24-hour

865-day operation and shift preferences allocated by a statutorily

protected seniority system.

origin as a criterion for rationing scarce resources. It

cannot achieve average cost savings by discriminating

against protected individuals on a forbidden basis. To

offer six days leave only to those who will use exactly

three of the days for religious observance is like offering

six days leave only to teachers of Puerto Rican descent.

Either rule would reduce the number of personal leave

days claimed, but either rule would be facially discrimi-

natory, and either rule would violate the core prohibition

of § 703(a) (1), 42 U.S.C. § 2000e-2(a)(1) (1982). If

the employer must reduce the use of personal leave days,

it must ration on some basis not forbidden by the statute,

i.€., on some basis other than race, color, sex, religion,

or national origin. Cost is not a justification for dis-

parate treatment. Newport News Shipbuilding and Dry

Dock Co. v. EEOC, 462 U.S. 669, 685 n.26 (1983) ; City

of Los Angeles v. Manhart, 435 U.S. 702, 716-17 (1978).

In fact, the rule forbidding religious activities on days

of personal business leave produces only trivial savings

for the employer. Because the school’s calendar accom-

modates most religious observances, and because the three

days of religious leave accommodates most of the rest,

few employees would use personal business days for reli-

gious observance. All the employer’s savings are extracted

from a very small group of employees—the handful of

religious minorities with four to six holy days that do

not fall on the more common holy days already recognized

by the school’s calendar and who are willing to forego

personal leave for secular business. Any decision to ex-

tract savings solely from this small and protected group

violates the central policy of the Act.

D. If the Court Grants Relief from the Facially Dis-

criminatory Rule, No Accommodation Issue Re-

mains in the Case.

The facial defects in the employer’s rule are the two

provisions forbidding employees to use personal leave for

religious observance. 757 F.2d at 479 n.2, 710 and

7 11.b.4. If the Court enjoins enforcement of those pro-

visions and awards back pay lost because of them, plain-

tiff’s claims are fully resolved. It is simply not necessary

to decide whether the duty to accommodate requires more

than three days of religious leave, or indeed, whether it

requires any religious lerve at all. Those issues are not

in the case.

The judges of the Court of Appeals were confused on

this point. The majority correctly noted that the employ-

er’s rule is “facially discriminatory,” 757 F.2d at 483,

and that plaintiff does not seek “preferential” or “privi-

leged” treatment, id. at 487. Even so, the majority tried

to analyze these facts in terms of accommodation. And

immediately after identifying the rule’s facial discrimina-

tion, the majority commented that the rule provides

“some teachers all the leave they need for religious rea-

sons while not extending that benefit to members of reli-

gious groups that have more than three holy days per

year.” Id. at 483. The dissenter mistakenly thought that

this observation was the basis of the majority’s holding.

Id. at 488 (Pollack, J., dissenting).

But this observation is irrelevant to the disparate treat-

ment issue. The observation would be relevant to a

teacher who wanted eight days of leave for religious

observance. Then the question would be whether two

more days of religious leave would be a reasonable ac-

commodation or whether it would impose undue hardship.

Similarly, the Court of Appeals’ observation would be

relevant if the employer allowed three days of personal

business leave usable for any purpose and allowed no

additioual days for religious observance. Whether em-

ployees who need more time for religious observance are

entitled to more leave days than other employees is an

accommodation question. But that question is not pre-

sented by this case. The only issue is whether the em-

ployer can forbid religious use of personal leave days

available to all. That is a disparate treatment question,

and the answer is clear. The Court should answer that

question first.*

III. This Court Can Decide the Disparate Treatment Issue

Because Its Resolution Would Support the Judgment

Below and Because It Is Fairly Included in Question

I of the Petition for Certiorari.

Question I of the petition for certiorari asked whether

the Court of Appeals erred in holding that plaintiff estab-

lished “a prima facie case of religious discrimination

under Title VII.” This question includes within its word-

ing any theory that would make out a prima facie case

of religious discrimination, including disparate treat-

ment. Thus, the petition fairly raises the disparate treat-

ment issue. See Supreme Court Rule 21.1(a).

Even if the petition stated only accommodation issues,

disparate treatment and disparate impact are “a logical

predicate” to any accommodation issue. (The quotation

is from United States v. Arthur Young & Co., 465 U.S.

805, 814 (1984).) Thus, disparate treatment and dis-

parate impact issues are logically included in any ac-

*An accommodation issue could conceivably arise on remand.

The Court of Appeals noted the employer’s contention that despite

the broad wording of the rule, personal leave days are in fact avail-

able only for a very narrow set of purposes. 757 F.2d at 485. If

this set of purposes is narrow enough, religious observance may

be more like important secular business for which leave is not

available than like the narrow set of purposes for which leave

is available. If the employer could show those facts, there would

be no discrimination in not allowing personal business leave to be

used for religious observance.

This defense is not very plausible, but the Court of Appeals

allowed the employer a second opportunity to prove it on remand.

757 F.2d at 485. If the employer shows that despite the discrim-

ination on the face of the rule, there is in fact no disparate treat-

ment in the operation of the rule, then the rule could stand as

applied and plaintiff’s disparate treatment claim would fail. Then

and only then would it be necessary to decide plaintiff’s accom-

modation claims.

commodation issue that can be resolved on one of the

narrower theories.

Finally, plaintiff would get no more relief on a dis-

parate treatment theory than on an accommodation

theory. Thus, the disparate treatment issue comes within

the well-settled rule that a judgment may be defended on

any ground that will fairly support it. United States v.

Arthur Young & Co., 465 U.S. 805, 814 n.12 (1984);

Blum v. Bacon, 457 U.S. 132, 187 n.8 (1982).

For each of these reasons, this Court is not bound to

perpetuate the error of imposing accommodation analysis

on disparate treatment facts.

CONCLUSION

This Court should affirm the judgment of the Court of

Appeals on the ground of disparate treatment rather than

accommodation. The employer would still be entitled to

rebut the prima facie showing of disparate treatment on

remand, but only by showing that religious observance is

most analogous to important secular business for which

personal business leave is unavailable.

Thus, the judgment should be affirmed and remanded

but further proceedings should be in accordance with this

Court’s opinion. For a similar disposition, see Hills v.

Gautreaux, 425 U.S. 284, 306 (1976).

Respectfully submitted,