Petition for Writ of Certiorari — Cook v. Chrysler Corp.
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IN THE
Supreme Court of the Gnited abies seceded
OCTOBER TERM, 1992
JESSE L. Cook,
Petitioner,
Vv.
CHRYSLER CORPORATION and
UNITED AUTOMOBILE AEROSPACE, AGRICULTURAL
IMPLEMENT WORKERS LOCAL 136,
Respondents.
Petition For A Writ Of Certiorari
To The United States Court of Appeals
For The Eighth Circuit
PETITION FOR WRIT OF CERTIORARI
LEE BOOTHBY
Counsel of Record
BooTHBY & YINGST
Suite 201, “ 42nd St., NW
Washington, DC 20016
(202) 3638- “oe
ROBERT W. NIXON
MITCHELL A. TYNER
12501 Old Columbia Pike
Silver Spring, MD 20904
(301) 680-6320
MICHAEL J. HOARE
One Metropolitan Square
24th Floor
St. Louis, MO 638102
(314) 241-7961
Counsel for Petitioner
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203
QUESTIONS PRESENTED
1. Whether non-seniority provisions, such as a uniform
attendance requireraent and procedure, contained in a col-
lective bargaining agreement, limit the scope of the rea-
sonable accommodation duty imposed upon employers by
section 701(j) of Title VII of the Civil Rights Act of 1964,
which has resulted in a conflict among the circuits.
2. Whether the mere existence of a nondiscriminatory
collective bargaining agreement containing a nondiscrimi-
natory seniority system (or the existence of some other
arrangement providing a general means to assist with em-
ployee scheduling) may by be deemed a substitute for the
active effort by the employer to seek a reasonable accom-
modation of an employee’s religious practices.
3. Whether, in determining if each available accommo-
dation would result in more than a de minimis cost to the
employer, the Court should consider the EEOC Guidelines
on Religious Discrimination and whether the trial court,
in making its findings, should have quantified the claimed
monetary costs and loss of efficiency and further should
have considered at least the following factors: (a) the size,
operating costs, and number of employees needing accom-
modation; and (b) whether the additional expenses, if any,
incurred were for costs similar to the regular payment of
premium wages of substitutes.
4. Whether an employer violates Title VII and this
Court’s teachings in Ansonia Bd. of Educ. v. Philhrook,
479 U.S. 60 (1986), when it refuses to use the same ac-
commodation means for one employee that it uses for all
other employees who seek accommodation for religious or
secular purposes.
PARTIES TO THE PROCEEDINGS
The parties to the proceedings below were Jesse Cook,
the petitioner, and Chrysler Corporation and United Au-
tomobile Aerospace, Agricultural Implement Workers Lo-
cal 1386, the respondents.
ili
TABLE OF CONTENTS
SRPRPEPEPENe BPRRSCMIN LED) ccsccesesescvscrcscescsscssevessescnses
EE REE MIME GS iscusvscstccuvecnssececcsassccesasceoneess
URE PAUSE EEOC A EIGS ccsscccccscoscrccsasescscassusscasesss
OPINIONS BELOW ...
JURISDICTION ............ ;
See ee ee eee eee eee eee eT
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REASONS FOR GRANTING THE WRIT ..................
I. CONTRARY TO THE CONCLUSION OF LAW
II.
OF THE COURTS BELOW, NON-SENIORITY
PROVISIONS CONTAINED IN A COLLEC-
TIVE BARGAINING AGREEMENT DO NOT
LIMIT THE SCOPE OF THE REASONABLE
ACCOMMODATION REQUIREMENT _IM-
POSED ON EMPLOYERS BY SECTION 701(j)
I Sid ANGcabintch bensduahesaksnasesaccasansanens
CONTRARY TO THE HOLDINGS OF THE
COURTS BELOW, THE EXISTENCE OF A
COLLECTIVE BARGAINING AGREEMENT OR
OTHER EMPLOYER ARRANGEMENT PRO-
VIDING SOME FLEXIBILITY TO ASSIST EM-
PLOYEES GENERALLY AS TO SCHEDULING
MAY NOT BE DEEMED A SUBSTITUTE FOR
THE ACTIVE EFFORT OF AN EMPLOYER
TO SEEK A MEANS BY WHICH AN EM-
PLOYEE CAN BE REASONABLY
REED cdanssehnnatncnsaisnessasvencesnvisesses
1]
16
III. THE COURT FAILED TO PROPERLY ANA-
LYZE THE ISSUE OF UNDUE HARDSHIP
WHEN DETERMINING THAT EACH AVAIL-
ABLE ACCOMMODATION WOULD RESULT
IN “MORE THAN A DE MINIMIS COST” TO
THE EMPLOYER AND IS INCONSISTENT
WEZES TOG GUTERAING acccsnessssansersnssasossnenes 21
IV. TITLE VII IS VIOLATED WHEN AN EM-
PLOYER UTILIZES A SPECIFIC MEANS OF
ACCOMMODATING OTHER EMPLOYEES FOR
EITHER RELIGIOUS OR SECULAR PUR-
POSES BUT DOES NOT PERMIT ANOTHER
EMPLOYEE SEEKING A RELIGIOUS AC-
COMMODATION TO BE ACCOMMODATED IN
DEOe CORDES MUMRROENIES tnkscccsneccosccvesnvesiessccstbics 24
Cael REE ccthaincuncapeeunnhesconvuanniiins cuniatedsadaiananhinaee 28
APPENDIX
APPENDIX A—Opinion of the Eighth Cir-
CURE CEE CE BIG osicccssccscvsscsisisessossncecess la
APPENDIX B—Judgment of the Eighth Cir-
CITE Se OE I Stscecittacesrvetcinaess 8a
APPENDIX C—Order Denying Petition for
Rehearing and Suggestion for Rehearing En
Banc by the Eighth Circuit Court of
BMI sisdvackdasantbniacalaakchcuhiiAcchusnimnanccodiackensoa 9a
APPENDIX D—Memorandum Opinion of the
United States District Court for the Eastern
District of Missouri (Eastern Division) ........ 10a
APPENDIX E—Guidelines on Discrimination
NE Gr TR cc cparencacccssssacstacsacccadinnveans 27a
TABLE OF AUTHORITIES
Cases: Page
Alexander v. Gardner-Denver Co., 415 U.S. 236
POUND -uschsnksecue capaivasvaseusebasenctduveanseanisaiionaneneseanns 20
Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60
EIU -cabacctcaiatiaiwecnasederecnuascsheune: nueueicanealiatin 19,20,26
Brown v. General Motors Corp., 601 F.2d 956 (8th
Ss. i sesincxasinsasnchuracna voncecanninsaciaceencnianemnnieans 12,13
Burns v. Southern Pac. Transp. Co., 589 F.2d 403
(9th Cir. 1978), cert. denied, 439 U.S. 1072
ERUPWET -conisesapocebcanneceasanseuabapn deetagsGateamuenpnaeemaietiin 20
Claybaugh v. Pacific Northwest Bell Tel. Co., 355
F. CU. © Tie. SR TPE) ceccenmcsinmcancan 23
Cook v. Chrysler Corp., 981 F.2d 336 (8th Cir.
RINE cictvccsghcs ecosaaeudealaiiomnedehncnmeianiae 10,11,14,17,23
Cook v. Chrysler Corp., 779 F. Supp. 1016 (E.D.
ia FO ce ee ee 9,10
Cooper v. General Dynamics, Convair Aerospace
Div., 533 F.2d 163 (5th Cir. 1976), cert. denied
sub nom International Ass’n of Machinists and
Aerospace Workers v. Hopkins, 433 U.S. 908
COG OP ccsstanarconcicxenaduceaeiecnendtocsun eearanaenammnstdan 15,22
EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir.
PIPED innate sidedeilciruianammninnerauereameapeeenanaieas 20,27
EEOC v. Ithaca Industries, Inc., 849 F.2d 116 (4th
Ro: MINIM cliuscunaiasianssusundeumcaneenacabaniamciamenncnideess 17
EEOC v. Universal Mfg. Corp., 914 F.2d 71 (5th
RAR. QUIET vasnccsckinciscicansustadetioekorsadklcemeaneaucoaibie 26
EEOC v. University of Detroit, 904 F.2d 331 (6th
Ce. TID saciarkccctausintiaiaasey sane ees 18
Estate of thornton v. Caldor, Inc., 472 U.S. 703
CRE cacicsciscsinctusuieunadocsaiceecsiehuantanvsoiiasigevamaee 21
Getz v. Commonwealth of Pennsylvania, Dept. of
Public Welfare, 802 F.2d 72 (3d Cir. 1986) ...
—"
qn
Table of Authorities Continued
Gordon v. MCI Telecommunications Corp., 791 F.
ee: G8 EEN. INL Es Ti cinntsencicccssiessancs
Hudson v. Western Airlines, Inc., 851 F.2d 261 (9th
PT ED “scisanvcscusacahasetdscssansdunbangbeeneikommatneen
Huston v. Local No. 93, Int’l Union, UAW, 559 F.2d
OFF Se SS BOT) catsticnsiccnrincunne
Johnson v. Angelica Uniform Group, Inc., 762 F.2d
TE TOUR Sls ROOOE ssishscstsiaclensenbaen
Ka Nam Kuan v. City of Chicago, 563 F. Supp. 255
SE Ts BUND vasskatainrnccbeiesiantcencuecmane
Lake v. B.F. Goodrich Co., 837 F.2d 449 (11th Cir.
1988), cert. denied, 488 U.S. 826 (1988) ........
McDaniel v. Essex Int'l, Inc., 696 F.2d 34 (6th Cir.
UIE canasicscandiavedasensccnsngtncdetplabeadeisetaltnomas
McDaniel v. Essex Int'l, Inc., 571 F.2d 338 (6th
BAS MUN TUED ccccdaccstcicinssitactsmaecuneuas ace et
Meadows v. Golden Grain Macaroni Co., 45 FEP
eB A ae Gy: Peeeenere: e ere
Nottelson v. A.O. Smith Corp., 643 F.2d 445 (7th
Cir. 1981), cert. denied, 454 U.S. 1046
NIE - siss-csnsnickhscvuiasiatauaane un senebneaasemsduabammaona: madbanase
Nottelson v. A.O. Smith Corp., 423 F. Supp. 1345
CE: WPI BOPU UND nasissvkveuntsnntoauianestnabieaselstanteeeans
Protos v. Volkswagen of America, Inc., 797 F.2d
BT UE MMs TOME treccvcccsshianseccncnantesbiaetabnnesnrs
Rohr v. Western Elec. Co., Inc., 567 F.2d 829 (8th
REE MINER D acccnsisnidvaniccneusbionanaxanuasiacaiumnaaannasesdtis
Shaffield v. Northrop Worldwide Aircraft Serv.,
Inc., 373 F. Supp. 987 (M.D. Ala. 1974) ........
Smith v. Pyro Mining Co., 827 F.2d 1081 (6th Cir.
SET bunsgusionadninsianinnnenshaueadasnebuaheaaiannuanantaedeneas
Tooley v. Martin-Marietta Corp., 648 F.2d 1239 (9th
Cir. 1981), cert. denied, 454 U.S. 1098
RET \snccahincscahsanannushennahane secade spunea ash cbuaagerneies
Page
21
18
21,24
vii
Table of Authorities Continued
Page
Toledo v. Nobel-Sysco., Inc., 892 F.2d 1481 (10th
ane: SUMED ‘Goncauinesdscochuevnteaxsabnicaietasinasues eoueudiucecaas 23
Trans World Airlines v. Hardison, 432 U.S. 68
EWE E chashckaconesenaenhted vaeuptaapyach conan ccacitincacesracnien passvm
Statutes and Rules:
42 U.S.C. § 2000e et seg. (Title VII of the Civil
Rights Act of 1964, as amended) .................. passim
Se reece Oe ND Siinosanmassceaceacacanacdecnchesstnivtecanianes 3
Oe is IE epcrasstts ca vaceeisivteseskecakscithustcessanee
Oe TE. I ccacncatncearcicnschcsaccnccasaaccancevenses 3
MUSE. See Sk cose 4,14
EEOC Guidelines on Discrimination Because of
Religion,
29 C.F.R. §§ 1605.1-1605.3,
Se A Ne WED ieecbavcciibincioasounncneencssenes 22
Be Sr a FID eakcsdcctissatecsemaderaeviseens 17
29 C.F.R. § 1605.2(e\1),
45 Fed. Reg. 72613-14 (1980) «...:...........00..000:. 22 23
Miscellaneous:
RD SB TI Ieee skits cnkindicclcciocecaeuesns 20
Re See, TOW. TEE CITI sovoviss scsasnceesccsccneerenecvcanas 22
Schlei & Grossman, Employment Discrimination
Law (2d ed. Cumulative Supp. 1983-85) ......... 12
IN THE
Supreme Court of the Cnited States
OCTOBER TERM, 1992
JESSE L. Cook,
Petitioner.
Vi
CHRYSLER CORPORATION and
UNITED AUTOMOBILE AEROSPACE, AGRICULTURAL
IMPLEMENT WORKERS LOCAL 136,
Respondents.
Petition For A Writ Of Certiorari
To The United States Court of Appeals
For The Eighth Circuit
PETITION FOR WRIT OF CERTIORARI
Jesse Cook petitions for a writ of certiorari to review
the judgment of the Court of Appeals for the Eighth Cir-
cuit. The opinion and judgment of the court of appeals
was entered in this case on December 7, 1992. The Petition
for Rehearing and Suggestions for Rehearing En Banc was
denied on January 21, 1993.
OPINIONS BELOW
The opinion of the Court of Appeals for the Eighth
Circuit is reported at 981i F.2d 336 (8th Cir. 1992), and
is reprinted in the Appendix herein at p. la, infra.
tr
The memorandum opinion of the United States District
Court for the Eastern District of Missouri, Eastern Di-
vision, which was entered on December 31, 1991, is re-
ported at 779 F. Supp. 1016 (E.D. Mo. 1991), and is
reprinted in the Appendix herein at p. 10a, infra.
JURISDICTION
Invoking federal jurisdiction under Title VII of the Civil
Rights Act of 1964, as amended by the Equal Employment
Opportunity Act of 1972, 42 U.S.C. § 2000e et seg., and
under 28 U.S.C. § 1331 (general federal question jurisdic-
tion), the petitioner brought this suit in the United States
District Court for the Eastern District of Missouri, Eastern
Division. On December 31, 1991, the district court entered
judgment in favor of the defendants Chrysler and the union
and against plaintiff Cook on the merits of plaintiff's com-
plaint. See pp. 10a-26a, infra.
On petitioner’s appeal, the Eighth Circuit on December
7, 1992, entered a judgment and order affirming the dis-
trict court’s judgment. See p. 8a, infra. Thereafter a timely
petition for rehearing and suggestions for rehearing en
bane was filed with the court of appeals. The court of
appeals on January 21, 1993, entered an order denying
the petition for rehearing and suggestions for rehearing
en banc. See p. 9a, infra.
The jurisdiction of this Court to review the judgment
of the Eighth Circuit is invoked under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
42 U.S.C. § 2000e(j) provides:
The term “religion” includes all aspects of reii-
gious observance and practice, as well as belief,
unless an employer demonstrates that he is un-
able to reasonably accommodate to an employee’s
or prospective employee’s religious observance or
practice without undue hardship on the conduct
of the employer’s business.
42 U.S.C. § 2000e-2(a) provides:
It shall be an unlawful employment practice for
an employer—
(1) to fail or refuse to hire or discharge any
individual, or otherwise to discriminate against
any individual with respect to his compensation,
terms, conditions, or privileges or employment,
because of such individual’s race, color, religion,
sex, or national origin; or
(2) to limit, segregate, or classify his employ-
ees or applicants for employment in any way
which would deprive or tend to deprive any in-
dividual of employment opportunities or other-
wise adversely affect his status as an employee,
because of such individual’s race, color, religion,
sex, or national origin.
42 U.S.C. § 2000e-2(c) provides:
It shall, be an unlawful employment practice for
a labor organization—
(1) to exclude or to expel from its membership,
or otherwise to discriminate against, any individ-
ual because of his race, color, religion, sex, or
national origin;
(2) to limit, segregate, or classify its member-
ship or applicants for membership, or to classify
or fail or refuse to refer for employment any
individual in any way which would deprive or
tend to deprive any individual of employment op-
portunities or would limit such employment op-
portunities or otherwise adversely affect his
status as an employee or an applicant for em-
ployment, because of such individual’s race, color,
religion, sex, or national origin.
42 U.S.C. § 2000e-2(h) provides in pertinent part:
Notwithstanding any other provision of this sub-
chapter, it shall not be an unlawful employment
practice for an employer to apply different stand-
ards of compensation, or different terms, condi-
tions, or privileges of employment pursuant to a
bona fide seniority or merit system, ... provided
that such differences are not the result of an
intention to discriminate because of race, color,
religion, sex, or national origin,.. .
STATEMENT OF THE CASE
Three days after notifying Chrysler of his need for a
religious accommodation because his work schedule re-
quired work during his Sabbath, petitioner Cook was told
by his immediate supervisor that no accommodation could
be made (A 154, 204-07, 225-26) and his Friday night
absences would not be excused (A 446-47). Chrysler su-
pervision was not only instructed by its Labor Relations
Department to refuse Friday night absences for Cook for
religious reasons but also told not even to contact labor
relations again with such a request (A 1197).
Cook was thereafter scheduled to work on Friday nights
and warned that if he left early he would be considered
a voluntary quit (A 208, 449, 610, 614, 615; see also A
618-21, 705-06). Roger Williams, another Sabbatarian em-
ployed at the plant who consistently left early on Friday
nights, however, was never considered a voluntary quit.
It was not Chrysler’s practice to consider an employee as
a voluntary quit when he or she left early but only in
violation of the rules of good conduct (A 1202-03).
On May 6, 1986, Cook’s area manager met with Cook
and gave him a “‘supervisor’s report.” (A 132, 215, 415-
16) The report stated:
On Friday, 2/28/86, employee J. L. Cook was
absent and subsequently was issued a Step 2 of
the Uniform Attendance Procedure for such ab-
sences.
Notwithstanding the receipt of a letter dated
January 16, 1986, from the St. Louis Central
Seventh-day Adventist Church, requesting the
Corporation’s consideration of Cook’s religious
preferences and to accommodate his absences on
Friday nights or Saturdays, Management has re-
viewed the entire facts and circumstances sur-
rounding this request and is unable to make such
accommodation. Specifically, employee Cook’s
seniority date is 1/14/86 and he cannot be trans-
ferred to the first shift by virtue of the Collective
Bargaining Agreement which only recognizes
seniority as the basis for its shift preference. Em-
ployee Cook does not have sufficient seniority to
be transferred to the first shift.
This report is to advise employee Cook that
any further absences will be considered in the
Same manner as any other absence.
Cook was told that future absences for religious reasons
would not be excused. If he continued to be absent, he
would progress through the Uniform Attendance Proce-
dure, which was set out in the collective bargaining agree-
ment, and would ultimately be discharged (A 247-48, 697-
700, 1233-48).
Cook continued to be absent on Friday nights. Chrysler
imposed progressive discipline consisting of mandatory time
off without pay (A 176-78). Although absentee conferences
were held at each discipline step, Chrysler failed to discuss
the possibility of accommodating Cook’s religious beliefs
(A 211-18; see also A 668-90, 698-700). When Cook reached
the final step of the absentee program, Chrysler and a
union representative informed him he was fired (A 159).
In spite of an earlier Eighth Circuit ruling in Huston
v. Local No. 98, Int’l Union, UAW, 559 F.2d 477 (8th Cir.
1977), which held that a union was not obligated to consent
to a shift change accommodation in violation of the sen-
iority provisions of a collective bargaining agreement, that
was the sole method of accommodation Chrysler chose to
consider. Chrysler’s labor relations manager testified that
he knew in advance that the union was not going to agree
to such an accommodation and that his request of the
union was merely to put the onus of non-accommodation
on the union (Kallaos Dep. at 151-53).
Cook’s area manager specifically acknowledged that
Cook was not terminated because of any production loss
and in fact had no knowledge of any loss as a result of
Cook’s Friday night absences (A 1255). The representative
from labor relations testified similarly (A 1050-51).
Although Chrysler maintained and the district court
found that there were additional ‘‘repairs’’ when Cook was
not on the job, his immediate supervisor testified that these
repairs only occurred in Cook’s absences when the regular
floater was not on the job and the “floater was more than
qualified to do the job.’”' (A 625; see also A 627, 628, 629,
and 630). In fact, even a temporary part-time worker
(‘TPT’) could have handled the job on a regular basis
(A 667).
‘The term “‘repairs’’ is misleading. It was Cook’s job to install the
spare tire and jack in the automobile trunk (A 21). Cook’s foreman
testified that it took about three days to learn the job (A 627, 667-
68). A “repair’’ on the line might be something as insignificant as a
misplaced spare tire and repairs relating to Cook’s job took approxi-
mately one minute (A 652). It was regular practice to have two re-
pairmen at the end of the line along with the inspectors (A 652-53).
Cook’s foreman said that if there were no repairs, these repairmen
would still be standing around getting paid (A 422).
Although there is absolutely no proof of any production
loss as a result of Cook’s Friday night absences, Chrysler
failed to investigate whether there were other line jobs to
which Cook could have been assigned to make it easier to
accommodate him. Cook’s foreman acknowledged that
there were ‘‘probably a lot of jobs’ but did not look into
them (A 639-40).2 Cook’s supervisor never consulted with
the union to find out whether it would be willing for Cook
to transfer to a different position on the line where it
might be easier to cover for him on Friday night nor did
he ever investigate to ascertain whether there were any
other sections within Cook’s department that might have
a job that would be easier to cover. Likewise, there was
no investigation to find out whether there were any po-
sitions outside of Cook’s department on the same shift
where there might have been available jobs (A 452). At
no time was there any inquiry by Cook’s supervisors as
to whether replacements could be scheduled regularly on
Friday nights so that they could learn Cook’s job and cover
for him. It was acknowledged that if this had been done,
it would have been much easier to have accommodated
Cook (A 458).
There is absolutely no evidence that Chrysler was re-
quired to hire an additional employee because of Cook’s
absences (A 816-19). In fact, the record is devoid of any
evidence that during the nine months Cook refrained from
working on Friday nights or arrived late Saturday nights
that any additional costs were incurred (A 525-56, 1255-
56). Cook was not paid for his absences. Floaters were
paid the same as Cook, and TPTs (Temporary Part Time
employees) were paid less. Floaters were part of the pool
to cover absences and were paid benefits regardless of
when they worked. And TPTs did not receive any benefits
so long as they remained temporary, i.e., under 120 days.
? Cook’s immediate supervisor testified that Cook was not transferred
because a regular ‘‘floater’’ could handle the job without repairs (A
631, 641, 707).
The representative from labor relations who was pri-
marily involved in disciplining and ultimately terminating
Cook testified that he believed that there was no loss in
production as a result of Cook not working on Friday night
and that he had never attempted to quantify or determine
if there was any loss (A 1050-51). The area manager ac-
knowledged that there were other employees absent from
work on nights other than Friday. When employees were
absent, Chrysler covered their position exactly the same
way that Cook’s absences were covered (A 1255-56). In
fact, on the line on which Cook worked prior to his dis-
charge, floaters or TPTs routinely replaced absent em-
ployees (A 428; 450-51).
There was never any report received that Cook’s po-
sition was not covered on Friday night when Cook was
absent (A 418-19). Although the area manager confirmed
that there were in fact records kept daily of hourly pro-
duction losses, he had no recollection of anyone trying to
determine any loss resulting from Cook’s Friday night ab-
sences (A 1255-56).
A representative of the Seventh-day Adventist Church
wrote to the labor relations department of Chrysler stating
that Cook would be willing to work on Friday afternoons
and evenings up to his Sabbath hours (Cook worked after
sundown Saturday) and that he was willing to cooperate
with any accommodation efforts made on his behalf so long
as it did not violate his religious beliefs. The letter sug-
gested the utilization of ‘‘floaters’’ that Chrysler hired to
handle absences (A 133-34).
Chrysler never explored with the union whether it would
accept Cook’s suggestion (A 544-48) because, even if the
union did not object, it violated Chrysler’s attendance cri-
teria (A 1025-26). The head of labor relations, however,
admitted such an arrangement would make it easier to
cover for Cook since it would permit Chrysler to plan
ahead (A 548-50). The union had no objection to utilizing
absentee replacements for Cook on Friday nights (A 858-
59). In fact, the union specifically asked Chrysler to ac-
commodate Cook by allowing him off on Friday nights,
utilizing the absentee pool, and permitting him to use the
paid absence allowance. This was the same proposal made
by Cook’s church representative (A 156, 938-43).
In the four months between May 6, 1986, when the
supervisor’s report was presented to Cook stating that no
excused absences would be permitted for religious reasons
until September 18, 1986, when Cook was discharged, other
than holding a single meeting with and taking telephone
calls from Cook’s church representative, Chrysler did noth-
ing to resolve Cook’s problem and made no further in-
vestigation concerning a possible accommodation (A 1104-
05; see also A 328, 1199-1200). Chrysler’s position was
simply that Cook’s refusal to work, although motivated by
religious convictions, was an act of misconduct requiring
discipline (A 998-99).
Several aspects of the district court’s memorandum opin-
ion require emphasis. The court found that the ‘“‘[t]he na-
tional agreement ... sets forth a no-fault absenteeism
policy, known as the Uniform Attendance Procedure. Cook,
779 F. Supp. at 1018; see p. 12a, infra. In its conclusions
of law, the court also stated that ‘“‘[e]xcusing Cook every
Friday night would circumvent the ‘book procedure’ spe-
cifically set up to afford everyone equal opportunity to
arrange absences.” Jd. at 1023; see p. 21a, infra. And
“{cjonstant Friday night absences would also conflict with
the chronic absenteeism policy.’’ Jd. The court then held
that “[clircumventing the book procedure and the chronic
absenteeism policy would violate the local agreement and
supersede the contractual rights of Cook’s fellow workers.
Id.
The district court found that “(t]he collective bargaining
agreements were a maze of restrictions’ and that
“‘{e]verywhere he [Kallaos] turned he ran into a ‘violation’
10
wall.’’ Jd. at 1024; see p. 24a, infra. The court concluded
that Chrysler was unable to accommodate Cook not simply
because of his lack of seniority but because of the existence
of the collective bargaining agreements. /d. at 1025; see
p. 25a, infra. However, the lower court at the same time
stated that Chrysler and the union had “‘provided a sen-
iority system, which in itself, represented a significant ac-
commodation to the needs, religious and secular, of all
employees.”’ Id.; see p. 25a, infra.
In the trial court and the court of appeals petitioner
Cook specifically raised each of the issues here presented.
These issues included the questions as to whether only the
seniority, as distinguished from all of the collective bar-
gaining provisions, stand as a legal roadblock to the sta-
tutory accommodation mandate. Cook also challenged the
district court’s claim that the collective bargaining agree-
ment itself represented an employee accommodation. The
court of appeals, however, concluded that a collective bar-
gaining agreement and other employer-designed arrange-
ments, which provided methods by which employees could
generally obtain days off, met the accommodation require-
ment imposed by Title VII. Cook, 981 F.2d at 339; see p.
da, mnfra.
Although the district court never quantified the dollar
cost nor the extent of inefficiency, which the court con-
cluded would have resulted from accommodating Cook, the
court of appeals held that “‘there is evidence to support
the district court’s finding that more than de minimis cost
was involved.” Jd. This holding was made even though the
trial court had included as part of its recitation of claimed
“costs,” employee benefits which were clearly not similar
to the regular payment of premium wages of substitutes
which was as issue in Trans World Airlines v. Hardison,
432 U.S. 63 (1977). The trial court had also failed to con-
sider the claimed costs in relation to the size and operating
costs of Chrysler and the number of individuals who would
1]
in fact need a particular accommodation at Chrysler Plant
No. 2.
The court of appeals held that ‘“‘[t]he collective bargain-
ing agreement provides both a system for determining
seniority and an absenteeism policy.’’ Cook, 981 F.2d at
338; see 4a, infra. It stated that “[e]fforts to accommodate
Cook would violate the terms of the collective bargaining
agreement and contravene the ‘book’ procedures.” /d. The
appeals court concluded that “‘Chrysler’s efforts satisfied
the requirements of Title VII in view of the obstacles
presented by the collective bargaining agreement. See
Trans World Airlines, Inc. v. Hardison, 432 U.S. at 83
n.14."" Cook, 981 F.2d at 339; see p. 4a-5a, infra.
REASONS FOR GRANTING THE WRIT
I. CONTRARY TO THE CONCLUSION OF LAW OF THE
COURTS BELOW, NON-SENIORITY PROVISIONS
CONTAINED IN A COLLECTIVE BARGAINING
AGREEMENT DO NOT LIMIT THE SCOPE OF THE
REASONABLE ACCOMMODATION REQUIREMENT
IMPOSED ON EMPLOYERS BY SECTION 701()
OF TITLE VII.
The conclusion of law of the district court, reaffirmed
by the court of appeals, that all provisions contained in a
collective bargaining agreement are inviolate even against
the religious accommodation requirements of Title VII, in
essence rewrites congressional legislation and effectively
confers on employers and unions operating with a collec-
tive bargaining agreement the ability to excuse themselves
from accommodating the religious beliefs and practices of
employees.
Religious accommodation law is in a state of disarray
with Title VII offering only empty promises and expensive
litigation to Sabbatarians who find themselves working in
union shops. For over 15 years since the decision by this
Court in Trans World Airlines v. Hardison, 432 U.S. 63
12
(1977), lower ‘“[cJourts have reached varying conclusions
on the degree of accommodation required if the proposed
accommodation would vary the terms of an established
bargaining agreement.” Schlei & Grossman, Employment
Discrimination Law, (2d ed. Cumulative Supp. 1983-85).
Courts of appeal have split as to whether Hardison held
that only seniority provisions contained in collective bar-
gaining agreements were impervious to Title VII religious
accommodation requirements or whether all provisions of
a bona fide collective bargaining agreement constituted a
bar to an employee’s accommodation request. Other courts
have given divergent definitions as to what is a ‘“‘seniority”’
provision. Some give an expansive, and others a more
restricted, definition to the term. As a result, the rights
of employees and the duties of employers and unions under
the religious accommodation requirements of Title VII ex-
pand or contract depending upon the district or circuit in
which the litigation occurs.
In some circuits, such as the Eighth Circuit, a unionized
employer can use a collective bargaining agreement as
almost an absolute shield against any duty of religious
accommodation. In other circuits, the employer must dem-
onstrate that a specific seniority provision would be vio-
lated if a specific accommodation arrangement were to be
employed.
The Eighth Circuit’s deference to all provisions con-
tained in a collective bargaining agreement surfaced prior
to this decision. That court in a per curiam opinion in
Rohr v. Western Elec. Co., Inc., 567 F.2d 829 (8th Cir.
1977), in dealing with a religious observer who offered to
work a four-day week or on Sunday when attempts to
reschedule him failed, found that “the collective bargaining
agreement prohibited Western Electric from authorizing
nonstandard workweeks.”’ Jd. at 830.
The Eighth Circuit, in Brown v. General Motors Corp.,
601 F.2d 956 (8th Cir. 1979), reviewing this Court’s de-
13
cision in Hardison, concluded that “[s]ection 703(aX1) ...
requires an employer to accommodate the religious ob-
servance of its employees unless such accommodation would
contravene the provisions of a valid collective bargaining
agreement or would cause the employer undue hardship.”’
Id. at 958. The Brown court, in stating the issue it was
to decide in that case, said that ‘‘[s]ince neither party
contends that such an arrangement would contravene the
collective bargaining agreement, the only remaining in-
quiry is whether the cost of the proposed accommodation
would be more than de minimis.”’ Jd.
In light of the decision in this case, it is clear that the
absence of an employer claim that the proposed accom-
modation (permitting the Sabbath observer to work a four-
day week with the fifth day being covered through a re-
placement pool) violated the union contract was critical
and explains the difference in results between Brown and
Cook.
In Hardison, this Court noted that both the plaintiff
and EEOC insisted ‘‘that the statutory obligation to ac-
commodate religious needs takes precedence over both the
collective-bargaining, contract and seniority rights of TWA’s
other employees.” Trans World Airlines v. Hardison, 432
U.S. at 79. This Court then found:
We agree that neither a collective-bargaining con-
tract nor a seniority system may be employed to
violate the statute, but we do not believe that
the duty to accommodate requires TWA to take
steps inconsistent with the otherwise valid agree-
ment. Collective bargaining, aimed at effecting
workable and enforceable agreements between
management and labor, lies at the core of our
nationai labor policy, and seniority provisions are
universally included in these contracts. Without
a clear and express indication from Congress, we
cannot agree with Hardison and the EEOC that
14
an agreed-upon seniority system must give way
when necessary to accommodate religious ob-
servances.
Id.
This Court further explained:
Our conclusion is supported by the fact that
seniority systems are afforded special treatment
under Title VII itself. Section 703(h) provides in
pertinent part:
“Notwithstanding any other provision of
this subchapter, it shall not be an unlawful
employment practice for an employer to ap-
ply different standards of compensation, or
different terms, conditions, or privileges of
employment pursuant to a bona fide senior-
ity or merit system ... provided that such
differences are not the result of an intention
to discriminate because of race, color, reli-
gion, sex, or national origin. ...’’ 42 U.S.C.
§ 2000e-2(h).
Id. at 81-82.
After analyzing the impact of section 703(h), the Court
then stated that “absent a discriminatory purpose, the
operation of a seniority system cannot be an unlawful em-
ployment practice even if the system has some discrimi-
natory consequences.” Jd.
The court of appeals in Cook plucked one snippet of this
Court’s analysis in Hardison and concluded that ‘‘the duty
to accommodate does not require an employer to take
steps inconsistent with an otherwise valid agreement.”’
Cook, 981 F.2d at 338; see 4a, infra. This analysis below
resulted in a determination that the uniform attendance
procedure contained in the collective bargaining agree-
ments were inviolate and stood as an impenetrable shield
against Cook’s accommodation claim.
In Getz v. Commonwealth of Pennsylvania, Dept. of Pub-
lic Welfare, 802 F.2d 72, 74 (3d Cir. 1986), the court found
that an accommodation was not required if it violated an
overtime provision of a collective bargaining provision. The
court cited its earlier decision in Protos v. Volkswagen of
America, Inc., 797 F.2d 129, 1383 (3d Cir. 1986), in which
it concluded that ‘“‘{iJn its central holding [in Trans World
Airlines, Inc. v. Hardison] the Court ruled that the rea-
sonable accommodation requirement did not compel an em-
ployer to abrogate a collective bargaining agreement in
order to enable an employee to satisfy religious observ-
ances.”
The majority of the religious accommodation decisions
in other circuits, however, have concluded that this Court’s
decision in Hardison relates specifically to seniority pro-
visions and not to the remaining provisions of a collective
bargaining agreement. The court in McDaniel v. Essex Int’l
Inc., 696 F.2d 34, 37 (6th Cir. 1982), recognized that the
Hardison Court’s deference to terms of the collective bar-
gaining agreement was limited to seniority rights. It ruled
that Title VII required the union to waive the union se-
curity clause in its contract in order to accommodate the
plaintiff. Every circuit that has ruled on this issue has
ruled the same way. See Cooper v. General Dynamics, Con-
vair Aerospace Div., 583 F.2d 163 (5th Cir. 1976), cert.
denied sub nom International Ass’n of Machinists and Aer-
ospace Workers v. Hopkins, 433 U.S. 908 (1977); Nottelson
v. A.O. Smith Corp., 643 F.2d 445 (7th Cir. 1981), cert.
denied, 454 U.S. 1046 (1981) Tooley v. Martin-Marietta
Corp., 648 F.2d 1239 (9th Cir. 1981), cert. denied, 454
U.S. 1098 (1981).
$In Nottelson v. A.O. Smith Corp., 643 F.2d 445, 452 (7th Cir. 1981),
the court stated that “‘[i]Jt is well settled, ... that Title VII rights
cannot be bargained away and that a collective bargaining agreement
therefore does not of itself provide a defense for Title VII violations.”’
16
Some courts have concluded that even if there were any
validity to a claim that a union contract presented an
obstacle to alternative means of accommodation, the em-
ployer is still under the obligation to seek the union’s
consent to a variance. See Shaffield v. Northrop Worldwide
Aircraft Serv., Inc., 373 F. Supp. 987 (M.D. Ala. 1974).
Other courts, however, differ with the view expressed in
Shaffield. For instance, in Meadows v. Golden Grain Mac-
aront Co., 45 FEP Cases 235 (N.D. Ill. 1987), the court
concluded that granting a leave of absence to an employee
to permit that employee to accrue seniority while not
working would be inconsistent with a bona fide seniority
system and thus not a reasonable accommodation. /d.
at 243.
This Court should clearly state whether the Third and
Eighth Circuit decisions based on Hardison—or those of
the Fifth, Sixth, Seventh, and Ninth—are correct. Leaving
Cook to stand will only continue to bring confusion to this
area of Title VII law and will essentially emasculate the
protections of Title VII at least when collective bargaining
agreements factor into the equation.
Il. CONTRARY TO THE HOLDINGS OF THE COURTS
BELOW, THE EXISTENCE OF A COLLECTIVE
BARGAINING AGREEMENT OR OTHER EMPLOYER
ARRANGEMENT PROVIDING SOME FLEXIBILITY TO
ASSIST EMPLOYEES GENERALLY AS TO SCHEDULING
MAY NOT BE DEEMED A SUBSTITUTE FOR THE
ACTIVE EFFORT OF AN EMPLOYER TO SEEK A
MEANS BY WHICH AN EMPLOYEE CAN BE
REASONABLY ACCOMMODATED.
The court of appeals, citing an earlier decision [Johnson
v. Angelica Uniform Group, Inc., 762 F.2d 671 (8th Cir.
1985)], held that “‘the collective bargaining agreement, cou-
pled with the ‘book’ method for obtaining days off, in itself
provided an accommodation of Cook’s religious needs.”
17
Cook, 981 F.2d at 339; see p. 5a, infra.‘ It is true that
this Court in Hardison stated:
We shall say more about the seniority system,
but at this juncture it appears to us that the
system itself represents a significant accommo-
dation to the needs, both religious and secular,
of all of TWA’s employees. As will become ap-
parent, the seniority system represents a neutral
way of minimizing the number of occasions when
an employee must work on a day that he would
prefer to have off.
Trans World Airlines v. Hardison, 432 U.S. at 78. Seizing
upon this language, the circuit court here concluded that
a collective bargaining agreement may suffice and replace
hands-on involvement of management in attempting to
work out an employee’s need for a religious accommoda-
tion. If that is this Court’s holding, then the Court has
effectively overruled the legislative intent of Congress.
Such a holding is in contrast to the recent holding of
the Fourth Circuit in EEOC v. Ithaca Industries, Inc., 849
F.2d 116 (4th Cir. 1988). In that case, the court noted
that the employer had ‘‘demonstrate[d] an effort to ac-
commodate all their employees when Sunday work was
assigned.’’ Nevertheless, the court concluded that ‘“‘[t]hese
accommodations, ... were clearly not for reasons of re-
ligion, nor were they specifically aimed at addressing
Dean’s beliefs.’’ The court observed that Ithaca had made
no efforts to utilize methods suggested by the EEOC
Guidelines, 29 C.F.R. § 1605.2(dX1Xi), and therefore con-
cluded that the employer violated Title VII by discrimi-
nating against the plaintiff. Jd. at 119.
‘In Johnson v. Angelica Uniform Group, Inc., 762 F.2d 671, 674 (8th
Cir. 1985), the court concluded that a collective bargaining agreement
in and of itself could be deemed a sufficient accommodation to meet
Title VII requirements.
18
The decision in Cook cannot be squared with the decision
in Ithaca. Clearly, the two circuits have substantially dif-
fering views as to whether or not an employer must ac-
tually engage in an active effort to search out an
accommodation for its employees. The Fourth Circuit has
concluded that it must. The Eighth Circuit in Cook has
clearly indicated that it need not. A clear implication of
the decision in Cook is that the mere existence of a col-
lective bargaining agreement constitutes sufficient em-
ployer accommodation, thus excusing the employer from
any active responsibility as to accommodation.’
This concept did not originate in Cook. The Ninth Circuit
in Hudson v. Western Airlines, Inc., 851 F.2d 261, 267
(9th Cir. 1988), held that an employer meets its duty to
seek a reasonable accommodation of an employee's reli-
gious needs by informing her of ‘“‘her options under the
collective bargaining agreement.’ In Hudson, the court
found that ‘‘the bases for accoriimodation contained in the
collective bargaining agreement_are recognized as reason-
able means of satisfying an employer’s burden under Title
VII.” Jd. at 226 (emphasis supplied).
The Ninth Circuit skirted the question of whether the
terms of the collective bargaining agreement did in fact
provide a means of accommodating the employee’s reli-
gious needs at all, rather than simply the potential means
to accommodate. Exactly the same has occurred here. The
court does not and cannot show that the provisions ex-
isting in the collective bargaining agreement would have
* The circuit court decision in Cook is internally inconsistent. Although
it states that the collective bargaining agreement provided a means of
accommodation, it simultaneously concluded that the collective bar-
gaining agreement was ‘‘a maze of restrictions” preventing Chrysler
from accommodating Cook’s religious beliefs and practices as to Sabbath
observance. However, a collective bargaining agreement must be suf-
ficiently flexible to permit religious accommodations required by Title
VII. See EEOC v. University of Detroit, 904 F.2d 331, 334-35 (6th Cir.
1990).
19
permitted Cook to self-accommodate. The holding in Hud-
son and implicitly the holding in Cook fail to distinguish
between a system of potential accommodation and an ac
tual accommodation.
Contrary to the reasonings of the Eighth and Ninth
Circuits, the Sixth Circuit Court of Appeals specifically
held in Smith v. Pyro Mining Co., 827 F.2d 1081 (6th Cir.
1987), that a collective bargaining agreement’s provision
permitting religious observers to swap days off with other
employees did not, in the case of the employee who had
a religious objection to seeking such a swap, provide that
employee with a reasonable accommodation.
We believe that Cook and the other cases, which hold
that a nondiscriminatory collective bargaining agreement
by itself may constitute a reasonable accommodation,
clearly misinterpret Hardison. While this Court in Har-
dison did determine that TWA made a reasonable effort
to accommodate and that other suggested alternatives
would constitute an undue hardship within the meaning of
the statute, this Court so ruled only after thoroughly and
extensively discussing the detailed findings of the district
court. See Hardison, 432 U.S. at 77.
The trial and appellate courts below failed to support
their conclusion that the collective bargaining agreement
did in fact \provide a reasonable accommodation.* Title VII
rights are distinct from those secured by a collective bar-
gaining agreement. Chrysler cannot, in essence, claim that
* Even if a collective bargaining agreement could be considered as a
substitute for active effort to accommodate, the Court would have to
first determine whether it ‘eliminates the conflict between employment
requirements and religious practices.’’ Ansonia Bd. of Educ. v. Phil-
brook, 479 U.S. 60, 68-69 (19856). The courts below failed to address
this question and hence failed to make the needed finding that the
scheduling or other provisions of the collective bargaining agreement
or the ‘“‘book’’ procedure would have in fact eliminated the conflict
between Cook’s employment requirements and his religious practices.
ail
20
by entering into the collective bargaining agreement, it
has effected a prospective waiver of Title VII protection.
Justice Powell stated in Alexander v. Gardner-Denver Co.,
415 U.S. 36, 51 (1974), that Title VII mghts are not sus-
ceptible to prospective waiver. See also Notielson v. A.O.
Smith Corp., 423 F. Supp. 1345, 1348 (E.D. Wis. 1976).
The legislative history of the reasonable accommodation
language of this statute clearly indicates that Congress
was concerned with cases such as this, which involve a
“refusal at times of employers to hire or continue in em-
ployment of employees whose religious practices rigidly
require them to abstain from work ... on particular hol-
idays.”’ 18 Cong. Rec. 705-06 (1972) (statement of Sen.
Jennings Randolph).
This Court in Ansonia, 479 U.S. at 70 observed:
In enacting § 701(j), Congress was understand-
ably motivated by a desire to assure the individ-
ual additional opportunity to observe religious
practices, but it did not impose a duty on the
employer to accommodate at all costs. [Emphasis
supplied. ]
If collective bargaining agreements in and of themselves
represent religious accommodation, Title VII changed
nothing. It is clear that when Congress adopted section
701Q), it did not believe that such agreements served that
purpose. If it had, it surely would not have enacted the
amendment. Thus, the employer is required to take some
good faith steps in negotiating with the employee to reach
a reasonable accommodation to the particular religious be-
liefs at issue. Burns v. Southern Pac. Transp. Co., 589
F.2d 403, 405-06 (9th Cir. 1978), cert. denied, 439 U.S.
1072 (1979); EEOC v. Hacienda Hotel, 881 F.2d 1504, 1513
(9th Cir. 1989); McDaniel v. Essex Int’l Inc., 571 F.2d
338, 343 (6th Cir. 1978).
Through the enactment of section 701(j), Congress placed
the burden on the employer to engage in active and bona
21
fide efforts to accommodate the religious needs of its em-
ployees and if unsuccessful, then to demonstrate that it
was unable to reasonably accommodate the plaintiff's re-
ligious beliefs without undue hardship. Lake v. B.F. Good-
rich Co., 837 F.2d 449, 451 (11th Cir. 1988), cert. denied,
488 U.S. 826 (1988).
Ill. THE COURT FAILED TO PROPERLY ANALYZE THE
ISSUE OF UNDUE HARDSHIP WHEN DETERMINING
THAT EACH AVAILABLE ACCOMMODATION WOULD
RESULT IN “MORE THAN A DE MINIMIS COST” TO
THE EMPLOYER AND IS INCONSISTENT WITH EEOC
GUIDANCE.
The court of appeals concluded that it could not upset
the district court’s finding that accommodating Cook would
result in more than a de minimis cost to Chrysler.’ Both
the court of appeals and the district court, however, have
applied the de minimis cost analysis in a manner incon-
sistent with the EEOC Guidelines on Religious Discrimi-
nation.
The district court failed to quantify and identify each
of the claimed costs for each type of accommodation and
also concluded that the cost was more than de minimis
when it involved such items as hospital and other benefits
to which workers at Chrysler were entitled.
7 In Gordon v. MCI Telecommunications Corp., 791 F. Supp. 431, 435
(S.D. N.Y. 1992), the district court noted that “‘[aJlthough the term
‘undue hardship’ is not defined in Title VII, the Supreme Court has
held that an accommodation that results in an imposition on other
workers or requires an employer to bear more than de minimis costs
in terms of money or efficiency creates an undue hardship.’’ Perhaps
the phrase ‘‘more than de minimis cost’? means a cost which would
result in “substantial economic burdens”’ in light of the Court’s more
recent holding in Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 709-
10 (1985), which raised the same Establishment Clause concerns as
those raised by the appellants in Hardison.
Oe
22
EEOC found that after Hardison ‘‘[t]he Court’s inter-
pretation of an undue hardship led to much confusion in
the employment sector. It left employers, employees, and
labor organizations unclear as to the extent of the sta-
tutory duty under Title VII to provide reasonable accom-
modation for the religious practices of an employee or
prospective employee.”’ 45 Fed. Reg. 72610 (1980) (pro-
viding background on the EEOC Guidelines on Discrimi-
nation Because of Religion).
The legislative history surrounding the adoption of sec-
tion 701(j) as an amendment to Title VII indicates that
“(t]he purpose of this subsection is to provide the statutory
basis for EEOC to formulate guidelines on discrimination
because of religion such as those challenged in Dewey v.
Reynolds Metals, 429 F.2d 324 (1970). ...’’ Cooper v. Gen-
eral Dynamics, 533 F.2d at 168 n.9, quoting 18 Cong.
Rec. 1861-1862 (1972).
After holding post-Hardison hearings, EEOC issued new
Guidelines on Discrimination Because of Religion. These
Guidelines are set forth in 29 C.F.R. §§ 1605.1-1605.3, 45
Fed. Reg. 72610-72615; see p. 27a, infra. The court of
appeals below, however, ignored these Guidelines in ana-
lyzing Chrysler’s undue hardship defense, particularly as
it relates to the application of the “more than de minimis
cost”’ criteria. This Court should provide guidance as to
whether the Eighth Circuit or the EEOC Guidelines rep-
resents the present state of the law concerning the issue
of undue hardship in religious accommodation cases.
The EEOC Guidelines, in discussing undue hardship,
states that ‘‘[t]he Commission will determine what consti-
tutes ‘more than a de minimis cost’ with due regard given
to the identifiable cost in relation to the size and operating
cost of the employer, and the number of individuals who
will in fact need a particular accommodation.”’ 29 C.F.R.
§ 1605.2(eX1), 45 Fed. Reg. 72613-14 (1980); see p. 32a,
infra.
23
The same Guidelines also states that the ‘“‘de minimis
cost’’ phrase as it was used in Hardison would be con-
strued ‘‘to mean that costs similar to the regular payment
of premium wages of substitutes, which was at issue in
Hardison,’ would constitute undue hardship. Jd. at 72614;
see p. 32a, infra.
The Guidelines further states that it ‘will presume that
the infrequent payment of premium wages for a substitute
or the payment of premium wages while a more permanent
accommodation is being sought are costs which an em-
ployer can be required to bear as a means of providing a
reasonable accommodation.” Jd.; see id.
The court in Ka Nam Kuan v. City of Chicago, 563 F.
Supp. 255, 259 (N.D. Ill. 1983), citing the EEOC Guide-
lines, stated that “‘[ul]ltimately, the question whether
defendants have imposed an undue burden on employees
, or whether the burden is de minimis, is a question
of fact that will depend on a variety of factors. ...’
Recently, the Tenth Circuit in Toledo v. Nobel-Sysco.,
Inc., 892 F.2d 1481, 1492 (10th Cir. 1989), citing Tooley
v. Martin-Maretta Corp., 648 F.2d at 1243, stated that
“(t]he magnitude as well as the fact of hardship must be
determined by examination of the facts of each case.”’
Chrysler introduced no quantifiable evidence as to the
magnitude of hardship. The district court made no finding
as to the magnitude, and the court of appeals never dis-
cussed the matter. The Eighth Circuit in fact held that
the additional costs need not be quantifiable. Cook, 981
F.2d at 339; see p. 6a, infra. When the trial court fails
to quantify what it believes to be more than de minimis
costs, it is impossible for a reviewing court to determine
whether the finding was or was not clearly erroneous.
Claybaugh v. Pacific Northwest Bell Tel. Co., 355 F.
Supp. 1, 6 (D. Ore. 1973), postulated that ‘“‘[ajs the degree
of business hardship increases, the quantity of conduct
which will satisfy the reasonable accommodation de-
24
creases.” The lower courts need further guidance from this
Court as to how to apply the de minimis costs analysis—
that is whether total dollars alone are sufficient or whether
consistent with the case-by-case application of the undue
hardship test, the various factors such as the size of the
employer, the method of filling vacancies for vacations and
other absences, and other factors must all be analyzed.
What is more than de minimis cost of course is a judicial
determination that must be made on a case-by-case basis.
But unless further guidance is provided as to the appli-
cation of the de minimis cost test, and trial courts are
required to quantify that cost, the test will be applied
unevenly.’ The ultimate result will be less resolution at
conciliation and more litigation.
IV. TITLE VII IS VIOLATED WHEN AN EMPLOYER
UTILIZES A SPECIFIC MEANS OF ACCOMMODATING
OTHER EMPLOYEES FOR EITHER RELIGIOUS OR
SECULAR PURPOSES BUT DOES NOT PERMIT
ANOTHER EMPLOYEE SEEKING A RELIGIOUS
ACCOMMODATION TO BE ACCOMMODATED IN THE
SAME MANNER.
Cook was denied an accommodation that another Sab-
batarian (with a different supervisor) in the same plant
* The court of appeals in Cook cited Lake v. B.F. Goodrich, 837 F.2d
449 (11th Cir. 1988), in support of its holding that the circuit court
will upset findings of undue hardship and more than de minimis costs
only if clearly erroneous. It is significant that both in Cook and in Lake
the courts of appeal observed that though they might have reached
another conclusion since there was evidence to support the district
court’s findings, the conclusions could not be found to be clearly er-
roneous. A reading of the district courts’ decisions in both cases reveals
why guidance from this Court concerning the issues raised in this
petition are vital to a more uniform application of the religious accom-
modation provisions of Title VII. Had Cook been decided by the court
in Alabama and Lake by the court in Missouri, the decisions in both
cases might easily have been the opposite. Fifteen years is sufficient
time for the lower courts to have squared their reasoning with one
another. Action by this Court is needed now.
ee l=:
was afforded. Chrysler also refused to excuse Cook’s ab-
sences because his religious reasons were not deemed as
important as the secular reasons of other employees. The
district court ignored the fact that Chrysler itself devised
specific methods to provide replacements for absent work-
ers. These methods included ‘absentee pool’’ (floaters),
“temporary part-time’ people (TPTs), and ‘‘vacation re-
placements.”’ The collective bargaining contract also con-
tains numerous provisions permitting employees to be
excused from work for secular reasons. These absences
may be for vacations (A 69), leave for union business (A
70), leave for bereavement (A 70), leave for jury duty (A
70-71), leave for short-term military duty (A 71-72). The
agreement also excuses short-term military or National
Guard duty not to exceed 30 calendar days (A 71). Most
important, Chrysler gives its supervisors discretion to ex-
cuse an employee (A 782). The only standing order against
providing an excused absence was contained in Chrysler’s
May 8 supervisor’s report prohibiting excused absences for
religious reasons (see A 132, 215, 415-16, 293-94).
Roger Williams, the other Sabbatarian employed at
Chrysler Plant No. 2, was informed by his supervisor that
if he kept his attendance up, Chrysler would allow him to
be off at sunset so that he could observe his Sabbath so
long as he came into work after sunset on Saturday. That
arrangement continued until May 8, 1986, when Chrysler
notified Cook that he would not be excused from work on
Friday nights (A 293-94).
After May 8, 1986, Williams from time-to-time was able
to get his name “‘in the book” so as to be excused from
work (A 297-98). But this was only because Williams’ su-
pervisor regularly checked ‘“‘the book”’ to see if anyone
had canceled out. Cook, on the other hand, was instructed
to stop using this procedure for his Friday night absences
(A 244). Instead of permitting Cook to utilize his paid
absence allowances (‘‘PAAs’’) as an accommodation when
Cook exercised his right to take eight hours leave under
26
Chrysler’s PAAs, Chrysler counted it as an unexcused ab-
sence (A 1212). Ordinarily, if an employee asked to use a
PAA in advance, the absence was excused with pay (A
542-43).° According to Cook’s area manager, he never con-
sidered excusing Cook’s Friday night absences on the basis
of religious conviction because ‘‘[Cook’s] reason was not
to me as important as anybody else’s reason to be off on
Friday night.”’ (A 1245). Chrysler thus gave preference to
secular reasons lacking statutory protection over religious
reasons originally granted such protection.
Williams, on the other hand, used his paid absence al-
lowance to be excused on Friday nights. Even after his
PAAs were exhausted, Williams’ foreman allowed him off
work Friday nights without penalty (A 299-300).
Cook, however, was told that he if left work early on
Friday nights he would be treated as voluntary quit (A
449, 610, 614-15). In addition, Williams was assigned the
position of a floater because, in that position it was easier
for management to permit Williams to leave on Friday
night (A 302, 399-400). The same accommodation, however,
was not considered for Cook.
In Ansonia Bd. of Educ. v. Philbrook, 479 U.S. at 71,
this Court ruled that ‘‘unpaid leave is not a reasonable
accommodation when paid leave is provided for all pur-
poses except religious ones.’”’ Employees’ absences were
normally excused when using their paid absence allowance
leaves, but Cook was not excused for religious reasons.
Other employees were not deemed to have quit work if
they left work early on Fridays, but Cook was warned
that he would be considered to have quit. Williams, on the
other hand, was even permitted to complete his 40 hour
*In EEOC v. Universal Mfg. Corp., 914 F.2d 71, 73 n.3 (5th Cir.
1990), the court stated that “both unpaid leave and voluntary rather
than mandatory shift swaps ordinarily would be reasonable; but dis-
criminating between religious and non-religious paid personal leave
would not.”’
27
workweek by leaving at sunset on Friday and returning
at sunset on Saturday. Cook was not so accommodated.
Such disparate treatment against Cook exhibits discrimi-
nation against religious practices that is the antithesis of
reasonableness. Jd.}°
It is submitted that an employer may not devise a means
to accommodate individuals needing to be off for secular
reasons and then deny utilization of that means for reli-
gious concerns, particularly when such an arrangement has
even been found workable by another supervisor for re-
ligious reasons.
In EEOC v. Hacienda Hotel, 881 F.2d 1504, 1513 n.7 (9th Cir.
1989), the court indicated that to the extent an employer provided
scheduling consideration for the personal safety concerns of one em-
ployee, it cannot discriminatorily deny such consideration for religious
needs of others.
28
CONCLUSION
For the above-stated reasons, the Petition for Writ of
Certiorari should be granted.
Dated: Apri] 21, 1993 Respectfully submitted,
LEE BOOTHBY
Counsel of Record
BooTHBY & YINGST
Suite 201, 4545 42nd St., NW
Washington, DC 20016
(202) 363-1773
ROBERT W. NIXON
MITCHELL A. TYNER
12501 Old Columbia Pike
Silver Spring, MD 20904
(301) 680-6320
MICHAEL J. HOARE
One Metropolitan Square
24th Floor
St. Louis, MO 63102
(314) 241-7961
Counsel for Petitioner
APPENDIX
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 92-1385
Jesse L. Cook,
Appellant,
v.
Chrysler Corporation; United Automobile Aerospace,
Agricultural Implement Workers Local 110,
Appellees.
Submitted: September 17, 1992
Filed: December 7, 1992
Appeal from the United States District Court for the
Eastern District of Missouri.
Before BEAM, Circuit Judge, FLOYD R. GIBSON, Senior
Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit
Judge.
BEAM, Circuit Judge.
Jesse Cook appeals an adverse decision in an action for
religious discrimination in employment. We affirm.
I. BACKGROUND
Jesse Cook was employed on the assembly line at Chrys-
ler’s St. Louis plants from 1976 until 1986, when he was
terminated for excessive absences. Cook is a Seventh Day
Adventist. His religious beliefs prohibit work from sun-
2a
down Friday to sundown Saturday. The terms and con-
ditions of Cook’s employment are determined in part by
a national collective bargaining agreement between Chrys-
ler and the International Union, United Automobile, Aer-
ospace and Agricultural Implement Workers of America
(UAW or Union). This national agreement is supplemented
by local agreements between Chrysler and the UAW local
representing employees at each Chrysler plant. Under the
agreement applicable to Cook, seniority is determined on
a plant-by-plant basis and seniority at a plant prevails over
seniority with the corporation. Shift assignments at the
St. Louis plants are determined by seniority.
Cook was laid-off at Chrysler St. Louis Assembly Plant
I and was later offered a position at St. Louis Assembly
Plant II, with a loss of seniority.1 Because he had no
seniority at Plant II, he was placed on the evening shift,
which requires that he work on Friday nights. He could
have retained his seniority if he had remained on lay-off
until recalled to Plant I.
The collective bargaining agreement provides a negoti-
ated no-fault absenteeism policy, known as the Uniform
Attendance Procedure. The policy deals with excessive and
chronic absenteeism and provides a six-step system of pro-
gressive discipline and also provides grievance and arbi-
tration procedures. Any employee absent more than twenty
percent of his regularly scheduled time is subject to dis-
charge. In addition, the local agreement at plant II was
amended in 1985 to address the particular problem of Fri-
day night absenteeism. Under the amended system, known
as the ‘‘excused in advance system’’ or “‘book procedure,”’
employees could sign up in a book for an excused day off
on a first-come-first-serve basis. Fridays are most sought
for excused absences.
‘The conditions for transfer between plants are also determined by
the collective bargaining agreement.
3a
After his transfer to Plant II in January, 1986, Cook
informed his supervisor of the need for accommodation of
his religious beliefs. Cook proposed a shift change, working
on a Sunday instead of Friday, or a flexible schedule. His
supervisor contacted the union shop steward and the labor
relations supervisor in an effort to find an accommodation.
Cook missed work every Friday night and was late every
Saturday night. He was disciplined after his sixth and
seventh absences, pursuant to the six-step procedure for
discipline, but was not disciplined for eight subsequent
absences while Chrysler and the UAW investigated his re-
quest. He was then informed that Chrysler could not ac-
commodate him by changing his shift. Cook continued to
miss work on Fridays and was eventually terminated.
Cook brought suit against Chrysler and the UAW (col-
lectively, ‘“‘defendants’’) in district court under Title VII
of the. Civil Rights Act of 1964. He alleged he was ter-
minated by Chrysler on the basis of his religion and also
alleged that the Union failed to represent him on the basis
of his religion. The district court entered judgment for
defendants after a bench trial. The district court found
that Chrysler’s efforts to accommodate Cook satisfied the
requirements of Title VII and that the Union had not
breached any duties to Cook.’
On appeal, Cook essentially contends that there is in-
sufficient evidence to support the judgment. He further
contends that the district court misinterpreted applicable
law.
II. DISCUSSION
Section 701(j) of Title VII provides that employers must
“reasonably accommodate” the religious beliefs or prac-
tices of their employees unless doing so would cause the
employers to suffer undue hardship. Trans World Airlines,
* There is no dispute that Cook’s religious beliefs are sincere and
that he established a prima facie case of discrimination.
4a
Inc. v. Hardison, 482 U.S. 63, 75 (1977). The statutory
language does not make clear the precise reach of this
obligation. Jd. at 74. Although neither a collective bar-
gaining agreement nor a seniority system may be em-
ployed to violate Title VII, the duty to accommodate does
not require an employer to take steps inconsistent with
an otherwise valid agreement. Jd. at 79. It is “‘anomalous
to conclude that by ‘reasonable accommodation’ Congress
meant that an employer must deny the shift and job pref-
erence of some employees, as well as deprive them of their
contractual rights, in order to accommodate or prefer the
religious needs of others.’”’ Jd. at 81. Title VII does not
require an employer to go that far. Jd. Differential treat-
ment resulting from accommodation runs afoul of section
2000(e)-2(aX1) (which sets forth unlawful employment prac-
tices) if it: 1) compromises other employees’ contractual
seniority rights as secured by a collective bargaining agree-
ment; or 2) confers a privilege, the cost of which is more
than de minimis, solely on the basis of the recipient’s
religious beliefs. Brown v. General Motors Corp., 601 F.2d
956, 962 (8th Cir. 1979). The present case presents both
such situations.
First, accommodating Cook would compromise other em-
ployees’ contractual rights as secured by the collective bar-
gaining agreement. The collective bargaining agreement
provides both a system for determining seniority and an
absenteeism policy. Efforts to accommodate Cook would
violate the terms of the collective bargaining agreement
and contravene the ‘‘book”’ procedures. Cook’s first pro-
posal for a change of shift would contravene the seniority
provisions. It is not disputed that shift preference is a
highly prized aspect of seniority. The record shows that
Chrysler approached the Union and tried to find a way
to accommodate Cook. The Union was not willing to grant
Cook a change of shift out of line with seniority. Chrysler’s
efforts satisfied the requirements of Title VII in view of
the obstacles presented by the collective bargaining agree-
5a
ment. See Trans World Airlines, Inc. v. Hardison, 432
U.S. at 83 n.14.
Further, the collective bargaining agreement, coupled
with the ‘‘book’”’ method for obtaining days off, in itself
provided an accommodation of Cook’s religious needs. /d.
at 78 (seniority system, establishing neutral way to min-
imize occasions when an employee would have to work on
a day he would prefer to have off, was in itself a signif-
icant accommodation to the religious and secular needs of
employees). See also Johnson v. Angelica Uniform Group,
Inc., 762 F.2d 671, 674 (8th Cir. 1985) (stating in dicta
that a collective bargaining agreement provided a reason-
able accommodation).
Second, the district court found that accommodating
Cook would result in more than a de minimis cost to
Chrysler. The district court’s conclusion in this regard is
ultimately a finding of fact. In particular, we will upset
findings of undue hardship and more than de minimis cost
only if clearly erroneous. Lake v. B.F. Goodrich Co., 837
F.2d 449, 451 (11th Cir.), cert. denied, 488 U.S. 826 (1988).
Though we might have reached another conclusion, there
is evidence to support the district court’s finding that more
than de minimis cost was involved. We cannot find this
conclusion clearly erroneous. All accommodation proposals,
other than a simple shift change, involved significant costs
to Chrysler: the proposal that Cook be allowed excused
absences every Friday meant that he would be a part-time
employee but would be paid full-time beneii.. ‘Chrysler
showed that a typical benefit package was costly to the
company; the cost of the benefit package lost because of
being absent twenty percent of the time is over $1,500
per year); allowing a temporary part-time employee (or
floater) to replace Cook every Friday night meant that
Chrysler either had to forego using a floater elsewhere or
hire another floater; absences affect the quality of work
because there are more repairs than usual and lower ef-
6a
ficiency when a floater is used on the line (there is no
way to guarantee the same floater to replace Cook without
hiring a new floater). There was also evidence that it was
not possible to allow Cook to substitute working on a
Sunday for a Friday; the collective bargaining agreement
required over-time pay on weekends and the plant was
normally closed on Sundays.’
Cook argues that this court’s decision in Brown v. Gen-
eral Motors Corp., 601 F.2d at 962, mandates that the
additional costs must be quantifiable. We disagree. Brown
stands only for the proposition that an employer’s costs
of accommodation ‘“‘must mean present undue hardship, as
distinguished from anticipated or multiplied hardship.”’ Jd.
at 961 (quotations omitted). In contrast to the speculative
evidence of future impact (calculated with an assumption
that more employees would seek Fridays off for religious
purposes) presented by General Motors in Brown, Chrysler
presented evidence of tangible present costs of accom-
modation. The costs, although not ascertained with exact-
itude, were present and real. We note further that in
Brown, neither party contended that the proposed accom-
modation contravened the collective bargaining agreement.
Id. at 958.
With respect to the Union, its refusal to waive or modify
the collective bargaining agreement’s seniority provisions
does not constitute unlawful discrimination. Huston v. Lo-
cal No. 938, International UAW, 559 F.2d 477, 481 (8th
Cir. 1977). We affirm the district court’s finding that the
Union did not breach any good-faith duties to represent
Cook’s interests.
* Even if, as Cook claims, hiring a new floater is not necessary, it
would be of no consequence. The apportioned cost of a floater’s time,
in combination with evidence that there is additional warranty costs
associated with temporary workers, is enough to support the district
court’s decision.
7a
III. CONCLUSION
For the reasons stated above, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
8a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 92-1385EMSL
Jesse L. Cook,
Appellant,
v.
Chrysler Corporation; United Automobile Aerospace,
Agricultural Implement Workers Local 110,
Appellees.
Filed
Feb 5, 1993
U.S. DISTRICT COURT
E. DISTRICT OF MO.
Appeal from the United States District Court for the
Eastern District of Missouri
JUDGMENT
This appeal from the United States District Court was
submitted on the record of the district court, briefs of the
parties and was argued by counsel.
After consideration, it is hereby ordered and adjudged
that the judgment of the district court in this cause is
affirmed in accordance with the opinion of this Court.
December 7, 1992
A true copy.
ATTEST: /s/ Michael E. Gans
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
iV
9a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 92-1385EMSL
Jesse L. Cook,
Appellant,
v.
Chrysler Corporation; United Automobile Aerospace,
Agricultural Implement Workers Local 110,
Appellees.
Order Denying Petition for Rehearing and Suggestion for
Rehearing En Banc
The suggestion for rehearing en banc is denied. The
petition for rehearing is also denied.
January 21, 1993
Order Entered at the Direction of the Court:
/s/ Michael E. Gans
Clerk, U.S. Court of Appeals, Eighth Circuit
10a
APPENDIX D
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
No. 87-1985C(5)
JESSE L. COOK
Plaintiff,
VS.
CHRYSLER CORPORATION and UNITED AUTOMOBILE,
AEROSPACE, AGRICULTURAL IMPLEMENT WORKERS
LOCAL 110,
Defendants.
FILED
DEC. 31, 1991
U.S. DISTRICT COURT
E. DISTRICT OF MO.
MEMORANDUM OPINION
Plaintiff filed this action alleging that defendants Chrys-.
ler and Local 110 UAW discriminated against him on the
basis of his religion. Plaintiff alleges that Chrysler dis-
charged him and the Local 110 UAW failed to properly
represent him due to his religion in violation of Title VII
of the Civil Rights Act of 1964. 42 U.S.C. §2000e et seg.
The case was tried before this Court sitting without a jury
on September 14-15 and 18-19, 1989 and December 17-18,
1990. This Court, having now considered the pleadings,
the testimony of the witnesses, the depositions testimony,
the documents in evidence and the stipulation of the par-
ties, and being fully advised in the premises, hereby makes
lla
the following findings of fact and conclusions of law as
required by Federal Rule of Civil Procedure 52.
FINDINGS OF FACT
Plaintiff Jesse Cook is a citizen of the United States
who resides within the Eastern Division for the Eastern
District of Missouri. Plaintiff Cook is an ‘employee’ within
the meaning of Title VII. Defendant Chrysler is a cor-
poration duly organized and existing under the law and is
an “employer” within the meaning of Title VII. The United
Automobile, Aerospace and Agricultural Implement Work-
ers of America (UAW) and the Local 110 UAW are “‘labor
organizations” within the meaning of Title VII.
At all times relevant to this cause of action, Chrysler
owned and operated two motor vehicle assembly plants in
Fenton, Missouri known as Plants 1 and 2. The UAW
represents production and maintenance workers employed
at both plants under a national collective bargaining agree-
ment with Chrysler. This national collective bargaining
agreement is supplemented by a local agreement at each
of the plants. The national collective bargaining agreement
was in effect during the time period relevant to plaintiff's
cause of action. Local 110 UAW (Union) is a local labor
union affiliated with the UAW and covered by the national
collective bargaining agreement with Chrysler. It repre-
sents more than 3000 production and maintenance workers
employed at Plant 2 and is a party to the local agreement
with Chrysler covering those employed at Plant 2. The
local agreement was in effect during the time period rel-
evant to plaintiff's cause of action.
The national agreement sets forth a two-shift production
schedule. Shift 1 operates Monday through Saturday from
8:00 AM to 4:00 PM. Shift 2 operates Monday through
Saturday from 4:00 PM to midnight. There is generally
no production work scheduled on Sunday; however if it is,
such work is considered double-time work and is compen-
12a
sated at a higher hourly rate. The work schedule or shift
times can not be changed by Chrysler without Union vote
and approval.
The national agreement also sets forth a no-fault ab-
senteeism policy, known as the Uniform Attendance Pro-
cedure. Under the Procedure, no discipline is mandated
for the first six (6) absences in any six (6) month period
(excused or unexcused) but additional unexcused absences
result in progressive discipline in six (6) successive steps.
For the first unexcused absence (after the first six non-
sanctioned absences), the worker is counseled by both
Chrysler management and the Union. The second is ad-
ditional counseling, the third is a five (5) day disciplinary
lay-off, the fourth is a fifteen (15) day disciplinary lay-off,
the fifth is a thirty (80) day disciplinary lay-off, and the
sixth results in permanant discharge from employment.
Chronic absenteeism is also addressed by the national
agreement. Any employee who is absent over 20% of the
time over a six (6) month period (counting a five-day work-
week) is counseled. If the absenteeism continues, the em-
ployee faces discharge.
In 1985, Plant 2’s local agreement with Chrysler was
amended to address a growing problem with absenteeism,
especially on Friday nights. An ‘‘excused in advance’’ pro-
gram was set up by which employees could sign up in a
book for an excused day or night on a first come, first
serve basis. Time off may be signed for no more that
thirty (30) days in advance. The book fills up for Friday
nights faster than any other time period.
Under the terms of the national agreement, if employees
are on lay-off at Plant 1 and there are openings at Plant
2, they are offered the option to work at Plant 2 in ac-
cordance with their seniority until all slots are filled. If
an employee is offered and refuses the transfer, s/he is
not entitled to receive the unemployment benefits provided
to laid-off workers under the national agreement. If an
13a
employee transfers, his/her seniority at the originating
plant does not count, and the seniority date at the new
plant is the date of transfer. The employee stays at the
new plant until s/he is laid-off, at which time s/he has the
option to return to the originating plant (if jobs are avail-
able) with the same seniority or stay laid-off.
Each plant negotiates separately for its own local agree-
ment with Chrysler. Seniority is on a plant-by-plant basis.
Employees at each plant are laid-off, recalled, and select
shifts on the basis of their seniority at that particular plant
and their seniority within each particular department in
the plant. There is no interchange of seniority between
the two plants. Seniority, at Plant 2, determines shift pref-
erence, vacation preference, job assignments, and other
various personnel matters.
Seniority provisions, especially shift preference, is highly
valued by workers. The right to assert shift preference is
embedded in Plant 2’s local agreement with Chrysler and
can not be amended, modified, or removed without
(renegotiation, ratification, and approval by membership
vote. The seniority provisions can not be changed or elim-
inated independently by UAW officers, Union officers, or
Chrysler management. The seniority provisions, especially
shift preference, is personal to each union member and is
asserted and defended by virtue of both the national agree-
ment and the local agreement.
The national agreement provides a procedure for the
adjustment of grievances, including challenges to discipline
assessed by Chrysler. The procedure begins at the super-
visor level, then proceeds to the area manager level, and
then to the plant manager level. If the grievance cannot
be resolved at any of these levels, the matter proceeds to
an appeal board, which consists of two Chrysler represen-
tatives and two UAW representatives. If the grievance
cannot be resolved, the UAW has the option of proceeding
to arbitrate the matter to a final decision. As a practical
l4a
matter, the grievances are handled by Union representa-
tives and Chrysler labor relations representatives.
Plaintiff Cook began his employment with Chrysler, at
Plant 1, in January 1976. During periods of lay-off, plaintiff
transferred back and forth between Plants 1 and 2. In
1983, plaintiff was recalled to Plant 1 on the second shift.
He remained at Plant 1 on the second shift until an in-
definite lay-off in November 1985. Plaintiff remained on
indefinite lay-off until January 14, 1986, when he elected
to transfer to Plant 2 on the second shift. January 14,
1986 became his seniority date at Plant 2.
At Plant 2, during the relevant time period, plaintiff
held one of the less desirable jobs on the assembly line.
His job was primarily to install the spare tire and jack in
the trunk of the car. This job was one of approximately
thirty (30) jobs on the assembly line. In order to keep
things running smoothly, plaintiffs job (as well as the
other jobs on the line) had to be completed within a des-
ignated timeframe. Plaintiff's job required a certain level
of competency not easily replaced. Absenteeism on the line
resulted in increased number of complaints and repairs.
In October 1985, shortly before his indefinite lay-off at
Plant 1, plantiff became a member of the Seventh Day
Adventist Church. One of the tenets of the Church is that
a member may not do manual labor or other types of
secular labor from sundown Friday to sundown Saturday.
While at Plant 1, after plaintiff became a Seventh Day
Adventist and shortly before his indefinite lay-off, plaintiff
was assessed Step 1 discipline under the Uniform Attend-
ance Procedure due to unexcused absences on Friday
nights. He transferred to Plant 2 before any additional
disciplinary measures were taken for his unexcused Friday
night absences.
On January 17, 1986, shortly after transferring to Plant
2, plaintiff delivered two letters to Edward Pope, Em-
ployment Supervisor at Plant 2. One letter was written
15a
to Mr. Pope advising him of plaintiff’s religious beliefs and
a request for accommodation; the other letter was from
plaintiff's pastor, W. E. Dagenais. Pope made copies of
the letters and told plaintiff to deliver his letters to
plaintiff's supervisor, Robert Brinkley.
Plaintiff then delivered his letters to Brinkley, who ad-
vised plaintiff that he would get back to him about the
accommodation request. Although it is unclear as to who
was contacted next about plaintiff’s request, it is agreed
that Ken Davenport (Union Shop Steward), Thomas Kal-
laos (Labor Relations Supervisor), and Donald Woemmel
(Union President) all were informed of plaintiff's situation.
In his letter of January 17, 1986, Cook acknowledges
that the local agreement with Chrysler (for Plant 2) makes
no provision for an accommodation for persons who “‘keep
the Sabbath”. He suggests possibilities whereby Chrysler
might accommodate him. These include flexible scheduling,
the use of compensatory time, making lateral transfers
without loss of seniority, arrange shift trades and/or time
swaps, and allow temporary accommodations while a per-
manent accommodation is being arranged.
After transferring to Plant 2 in January 1976, plaintiff
was absent every Friday night and late for work every
Saturday night. Pursuant to the Uniform Attendance Pro-
cedure, Cook was assessed Step 1 discipline after his sixth
absence and then was issued a Step 2 discipline for his
seventh absence. Thereafter, although Cook continued with
his Sabbath absences for more than eight weeks, he was
not disciplined. Cook was not told specifically why the
absences were not being disciplined but he was told by
Brinkley that Chrysler was looking into his accommodation
request.
Meanwhile, Thomas Kallaos was investigating possible
solutions to the problem. He determined that the only way
to accommodate Cook without violating the local agree-
ment was to see if Cook’s seniority would allow a transfer
16a
to the first shift. Kallaos checked Cook’s seniority and
discovered that he did not have seniority to allow such a
transfer. Kallaos then spoke with Reggie Crocker, Chrys-
ler’s Equal Employment Opportunity Supervisor in De-
troit, Michigan. Crocker advised Kallaos that if Cook did
not have seniority for a transfer to the first shift, then
Kallaos could ask the Union for permission to place Cook
on the first shift out of line with seniority. Crocker further
advised Kallaos that if the Union refused permission for
the transfer, then he had two options: 1) advise plaintiff
that the Union refused permission to transfer plaintiff to
the first shift out of line with seniority; or 2) transfer
plaintiff to the first shift anyhow and let the Union grieve
the action. Finally, Crocker advised Kallaos that if Cook
was not transferred to the first shift, then Cook had to
work Friday nights but that his tardiness could be accom-
modated on Saturday night. Absenteeism is not as much
of a problem on Saturday night as it is on Friday night.
If Cook was off every Friday night with or without pay,
Chrysler would still be required under the collective bar-
gaining agreement to pay the cost of his benefits, which
costs assume an employee works a full work week. The
cost of the benefit package lost because of being absent
20% of the time (approximately one day per week) is $1578
per year. The plant costs allocated to each employee which
are lost by an employee being absent one day every week
exceed $5000 per year.
Temporary part-time employees (TPTs) are persons hired
to cover casual absences; not regular permanant on-going
absences. By contract, TPTs work only on Mondays and
Fridays. If a TPT works more than 120 days, the National
Agreement with Chrysler provides for additional benefits
for that TPT. TPTs are generally trained on the job and
do not fill in for a regular worker on a constant basis.
Consequently, Chrysler can not guarantee the same TPT
would fill in for plaintiff every Friday night.
17a
“Floaters” are full-time employees who replace other
workers absent due to vacations, advanced excused ab-
sences, or medical emergencies and/or leaves. They work
the same shift schedules as regular line workers and are
paid full benefits. If a floater were to replace someone,
like plaintiff, on a constant regular basis, another floater
would have to be hired in order to keep an adequate num-
ber of floaters available (for the other absences).
After speaking with Crocker, Kallaos then spoke with
Don Woemmel. Kallaos asked permission to transfer Cook
to the first shift out of line with seniority. Woemmel re-
fused stating that such a transfer was in breach of the
local agreement and would prejudice the rights of the other
workers at Plant 2 with more seniority than Cook. He
reminded Kallaos that a waiver of shift preference rights
or modification of the local agreement could not be done
unilaterally by either Chrysler or the Union without the
affirmative vote and approval of the Union membership.
Kallaos then talked with Richard Burton, the Union’s
Regional Supervisor. Burton took the exact same stance
as did Woemmel, for the same reasons.
On May 6, 1986 Robert Brinkley and John McFarland
(Chrysler Plant Final Area Manager) met with plaintiff
and gave hin a written supervisor’s report. This report
informed plaintiff that he did not have seniority to transfer
to the first shift, that further absences on Friday nights
would be unexcused, and that these unexcused absences
would be treated like any other unexcused absence under
the Uniform Attendance Procedure. Another Seventh Day
Adventist, Roger Williams, was given the same supervi-
sor’s report. Williams had been accommodated for a time
being while at Plant 1. The same accommodation was short-
lived at Plant 2. After the May 6th supervisor’s report,
Williams used the book procedure and leaves of absence
to continue his employment. He eventually accrued enough
seniority to transfer to the first shift.
18a
Thereafter, Cook continued for the most part to accrue
unexcused absences on Friday nights. He was progres-
sively disciplined pursuant to the Uniform Attendance Pro-
cedure and the chronic absenteeism procedures. At each
unexcused absence disciplinary step, the Union filed a
grievance on behalf of Cook. On September 12, 1986
plaintiff absented himself and consequently on September
16, 1986 was issued Step 6 discipline and was discharged
by Chrysler.
The Union then proceeded to file a discharge gnevance
with the Appeal Board of the UAW. The Union sought
reinstatement of Cook and the use of a “‘floater’’ on the
nights he was absent. The Union also sought a continuing
excused absence for Cook’s Sabbath hiatus. Chrysler re-
jected the Union’s proposal. The Union did not take the
matter to arbitration because on the face of it the dis-
charge was proper under the Uniform Attendance Pro-
cedure and the chronic absenteeism procedures.
Plaintiff remained unemployed until May 1987 when he
began work with Central States Services. Since his dis-
charge through December 17, 1990, Cook earned
$73,558.45 in wages and unemployment compensation. If
Cook had remained employed at Chrysler through Decem-
ber 17, 1990, he would have earned $141,929.73.
On September 27, 1986 Cook filed an EEOC charge of
religious discrimination against Chrysler. The EEOC is-
sued a Right to Sue letter on July 30, 1987. Cook filed
this action on October 27, 1987. He seeks reinstatement,
back pay, seniority, lost benefits, and legal fees.
CONCLUSIONS OF LAW
Plaintiff Cook has brought suit alleging employment dis-
crimination on the basis of religion. The Court has juris-
diction pursuant to §706 of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §2000e-5. Plaintiff has satisfied all
the procedural prerequisites to suit under Title VII. The
19a
parties all agree that plaintiff has met the burden of es-
tablishing a prima facie case of religious discrimination in
that 1) plaintiff has a bona fide religious belief that con-
flicts with an employment requirement; 2) plaintiff in-
formed both Chrysler and the Union of this belief (i.e.
working Friday nights violated the Seventh Day Adventist
prohibition against secular work on the Sabbath); and 3)
plaintiff was disciplined and eventually discharged for fail-
ure to comply with the conflicting employment require-
ment. Johnson v. Angelica Uniform Group, Inc., 762 F.2d.
671, 673 (8th Cir. 1985); Brown v. General Motors Corp.,
601 F.2d. 956, 959 (8th Cir. 1979).
Title VII, as amended, makes it an unlawful employment
practice for an employer to discriminate against an em-
ployee on the basis of religion. 42 U.S.C. §2000e-2(a\1).
This section of Title VII must be read in conjunction with
the section which defines religion to include all aspects of
religious observance and practice, as well as beliefs, the
employer must reasonably accommodate unless s/he can
demonstrate undue hardship in so doing. 42 U.S.C.
§2000e(j). Title VII also makes it an unlawful employment
practice for a labor organization to discriminate against
any person because of religion or to cause or attempt to
cause an employer to discriminate on the basis of religion.
42 U.S.C. §2000e-2(c).
Once a plaintiff has made out a prima facie case of
religious discrimination, the burden shifts to the employer
to produce evidence showing that it can not reasonably
accommodate the employee without incurring undue har-
ship. Protos v. Volkswagan of America, Inc., 787 F.2d. 129,
134 (8rd Cir. 1986). The employer’s burden is one of “‘pro-
duction rather than persuasion, and the plaintiff bears the
ultimate burden of establishing by a preponderance of the
evidence that defendant could have reasonably accommo-
dated his religious beliefs and practices without undue
hardship. ..’’. Boomsma v. Greyhound Food Management,
Inc., 639 F.Supp. 1448, 1452 (W.D. Mich. 1986), appeal
20a
dismissed, 815 F.2d. 76 (6th Cir. 1987). Furthermore, once
the employer has demonstrated that it has offered a rea-
sonable accomodation to the employee, the statutory in-
quiry ends. Ansonia Board of Education v. Philbrook, 479
U.S. 60, 68-69 (1986). The employer must produce evidence
of undue hardship only if it professes an inability to offer
any reasonable accommodation. ‘‘[T]he extent of undue
hardship on the employer’s business is at issue only where
the employer claims that it is unable to offer any reason-
able accomodation without such hardship.” Ansonia, at 69.
Plaintiff contends that defendant Chrysler chose to ig-
nore his situation instead of taking steps to reasonably
accommodate him by transferring him to the first shift or
excusing his Friday night absences and using TPTs or
floaters to fill in for him. He further argues that the Union
failed to protect his employment rights by refusing Chrys-
ler permission to transfer plaintiff out of seniority and by
failing to arbitrate his discharge grievance. The Court finds
that Chrysler and the Union both met their Title VII ob-
ligations.
Both Chrysler and the Union testified uncontrovertably
that the national agreement and the local agreement con-
trolled the degree of flexibility each had in addressing
plaintiff's situation. Thomas Kallaos, Donald Woemmel, and
Melvin Jarvis (Alternate Shop Steward) all testified that
there were no alternatives for Cook without violating the
collective bargaining agreements. Transferring plaintiff to
the first shift out of seniority clearly violated the seniority
provisions of the local agreement. Excusing plaintiff every
Friday night clearly violated the Uniform Attendance Pro-
cedure and the chronic absenteeism policy.
In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63
(1977), the Supreme Court held that Title VII did not
require an employer to undertake any activity to accom-
modate an employee which would violate a bona fide sen-
iority system. Title VII’s reasonable accommodation
2la
requires only that an employer make a good faith effort
to accommodate the employee’s religious beliefs. “It does
not require that in doing so an employer override an es-
tablished seniority system, nor does it require that an em-
ployer take steps that go beyond those a reasonable person
would take.” Krushinski v. Roadway Exp., Inc., 626
F.Supp. 472, 473-474 (M.D. Pa. 1985). Title VII’s mandate
to employers to try to reasonably accommodate religious
needs ‘‘does not supercede the contractual rights of other
employees.”’ Huston v. Local No. 93, International UAW,
559 F.2d. 477, 480 (8th Cir. 1977). This same limitation
is equally applicable to the unions. A union may be able
to grant a variance if it met with approval of the-mem-
bership, but “‘it certainly could not vary the seniority pro-
visions of the collective bargaining agreement in disregard
of the contractual rights of employees who wished to be
afforded the benefits of their seniority.’”’ Huston, at 480.
There were only two options available to accommodate
Cook without incurring undue hardship. Granting Cook a
preference in the seniority structure would violate the local
agreement; notwithstanding the fact it would create very
hard feelings among Cook’s fellow employees, especially
those with more seniority who qualified but could not
transfer due to lack of openings. Additionally, Chrysler
officials testified that since no openings existed (during
the time in question) on the first shift, someone would
have to be bumped to make room for Cook. The Court
can only imagine the degree of animosity and hostility such
a move would create. Excusing Cook every Friday night
would circumvent the ‘‘book procedure’”’ specifically set up
to afford everyone equal opportunity to arrange absences.
Constant Friday night absences would also conflict with
the chronic absenteeism policy. Circumventing the book
procedure and the chronic absenteeism policy would violate
the local agreement and supercede the contractual rights
of Cook’s fellow workers.
22a
The other options that plaintiff feels should have been
considered are equally violative of the collective bargaining
agreements or would cause undue hardship to Chrysler.
An employer is not obligated to take accommodation steps
which would require it to incur additional costs, such as
overtime pay for replacements, if such costs were more
than de minimis. TWA v. Hardison, at 84-85; Wren v.
T.I.M.E.-D.C., Inc., 595 F.2d. 441, 445 (8th Cir. 1979)
[citing in affirmance, Wren v. T.I.M.E.-D.C., Inc., 453
F.Supp. 582 (E.D. Mo. 1978)}.
Cook’s absence on the assembly line every Friday night
would involve additional costs to Chrysler, both in the form
of lost efficiency and increased employee wages. Thomas
Kallaos testified that there were no shifts or departments
that plaintiff could transfer into (in line with his seniority)
that would not require Friday or Saturday work. He tes-
tified that the local agreement did not provide for swap-
ping shifts or trading seniority and neither Chrysler nor
the Union could force employees to do so. Substituting
Sunday work for plaintiff's Sabbath absences was not pos-
sible because no production was normally scheduled on
Sunday. If production was scheduled on Sunday, the local
agreement mandated double-time wages. He further tes-
tified that the collective bargaining agreements did not
provide for a flexible work schedule within the shifts. Fur-
thermore, since plaintiff's Sabbath absences would change
seasonly (even perhaps weekly or monthly as times for
sunset and sunrise change), it would be very difficult to
schedule other employees to cover plaintiff's absences. Fi-
nally, the collective bargaining agreements did not provide
for “temporary” assignments.
Using TPTs or floaters would create additional expense
to Chrysler. Not only would Cook continue to receive his
full benefits despite working a four-day week, but Chrysler
would have to pay the TPT or floater wages and benefits.
In order to keep the replacement pool number adequate
(to cover other workers’ absences) Chrysler would have to
23a
hire (and pay) someone to replace the person replacing
Cook every Friday night. Lost efficiency was another price
Chrysler would have to pay for Cook’s absences. Jarvis
and Ron Czar (Chrysler Quality Manager) testified to in-
creased number of repairs during Cook’s absences. Ab-
senteeism directly affected the quality of workmanship.
Absenteeism also directly affected morale among the work-
ers on the line. Brinkly and Jarvis testified to increased
number of complaints (when plaintiff was absent) regard-
ing the number of repairs that had to be done on the job
plaintiff normally performed and the slow performance of
the replacement workers.
The testimony of Chrysler and the Union witnesses re-
mained largely undisputed by plaintiff. Instead his main
contention is that the defendants did not do enough to
figure out a way to accomodate his religious needs. While
it is true that defendants cannot excuse their failure to
accomodate him by simply sitting on their laurels’ or
pointing to the deficiencies in plaintiff's suggested alter-
natives, plaintiff cannot maintain a posture of uncooper-
ativeness. Hudson v. Western Airlines, Inc., 851 F.2d. 261,
266-67 (9th Cir. 1988); Anderson v. General Dynamic, 589
F.2d 397, 401 (9th Cir. 1978); Krushinski, at 474-75; Wren,
453 F.Supp. at 584. The trial record is very quiet as to
steps taken by the plaintiff to eliminate the conflict be-
tween his religious beliefs and employment demands.
Plaintiff used the book procedure a couple of times, but
for the most part simply did not show up for work on
Friday nights and arrived late for work on Saturday nights.
He chose not to use the means available within the system,
such as the book procedure, vacations, leaves, etc. to avoid
discipline. Although the employer has an accommodation
duty, the employee has a correlative duty to make a good
faith attempt to satisfy (her) needs through means offered
by the employer. Hudson, at 266-67; Krushinski, at 474;
Wren, 453 F.Supp. at 584. ‘‘An employee cannot shirk his
duties to try to accommodate himself or to cooperate with
24a
his employer in reaching an accommodation by a mere
recalcitrant citation of religious precepts. Nor can he
thereby shift all responsibility for accommodation to his
employer.” Chrysler Corp. v. Mann, 561 F.2d. 1282, 1285
(8th Cir. 1977). Plaintiff did little to fulfill his mutual ob-
ligation to cooperate. “‘A failure of cooperation by either
party will clearly lessen the chances of achieving a rea-
sonable accommodation.”’ Chrysler Corp. v. Mann, at 1285.
The defendants, on the other hand, did all they were
required to do under Title VII. Chrysler management did
not overly exert itself in assisting plaintiff. However, it
did make efforts within the seniority system to accom-
modate plaintiff. See, Wren, 453 at 584. Kallaos looked
into plaintiff's seniority status. He conferred with repre-
sentatives of the Church. He sought advice from Chrysler’s
EEO Supervisor and attempted to get permission from
the Union to transfer plaintiff to Shift 1 out of seniority.
He sought a way to assist Cook within the seniority system
but couldn’t find a way. The collective bargaining agree-
ments were a maze of restrictions. Everywhere he turned
he ran into a “‘violation” wall. Other options would require
Chrysler to bear more than a de minimis cost in order to
give plaintiff the Sabbath off.
The Union officials were equally stymied by the collec-
tive bargaining agreements. The Union had no duty to
waive or modify the seniority provisions of the local agree-
ment to the detriment of its members. Its refusal to do
so neither constituted unlawful discrimination against
plaintiff or caused such discrimination by Chrysler. See,
Huston, at 481. The Union’s only duty to plaintiff was to
protect and defend his statutory and contractual employ-
ment rights. It carried out this duty in good faith by filing
a grievance on behalf of plaintiff at every discipline step.
It took his discharge grievance to the Appeals Board. After
that it conceded that plaintiff was properly discharged pur-
suant to Step 6 of the Uniform Attendance Procedure.
John Guinan (the UAW representative to the Appeals
25a
Board) testified that arbitration was pointless because the
discharge was in conformity with the collective bargaining
agreements and the Uniform Attendance Procedure. The
Union had the right to determine the viability of plaintiff's
grievance and cannot be faulted for concluding that his
grievance was not a good candidate for arbitration. Failure
to secure for plaintiff the relief he wanted does not evi-
dence a breach of the Union’s good faith duty to represent
plaintiff’s interests.
The defendants explored every avenue for the purpose
of accommodating plaintiff but simply were unable to do
so due to Cook’s seniority (or lack thereof) and the col-
lective bargaining agreements. Title VII did not compel
them to trample upon everyone else’s non-discriminatory
contractual rights in order to accommodate plaintiff’s re-
ligious beliefs. The defendants provided a seniority system,
which in itself, represented a significant accommodation
to the needs, religious and secular, of all employees. Har-
dison, at 77-78. Title VII does not require an employer or
union to discriminate against some employees in order to
allow others to observe their Sabbath. Hardison, at 85.
Title VII also does not require differential treatment which
would confer a privilege, the cost of which was more than
de minimis, solely on the basis of religious needs. Har-
dison, at 81-85; see also, Brown, at 962.
The collective bargaining agreements provided a senior-
ity system designed to protect all employees’ rights by
insuring fair and equal treatment. It wasn’t a perfect sys-
tem and in plaintiff's case proved to be more of a hin-
drance than a help. However, given the particular
circumstances of this case, the Court concludes that
defendants Chrysler and the Union satisfied their ‘‘rea-
sonable accommodation” obligation as required by Title
VII.
For the foregoing reasons, the Court enters judgment
in favor of the defendants Chrysler and the Union and
against plaintiff Cook on the merits of plaintiffs complaint.
26a
Dated this 3lst day of December, 1991.
/s/ Stephen N. Limbaugh
UNITED STATES DISTRICT JUDGE
27a
APPENDIX E
PART 1605—GUIDELINES ON DISCRIMINATION BECAUSE
OF RELIGION
Sec.
1605.1 “Religious” nature of a practice or belief.
1605.2 Reasonable accommodation without undue hardship
as required by Section 701(i) of Title VII of the Civil
Rights Act of 1964.
1605.3 Selection practices.
Appendix A to §§ 1605.2 and 1065.3 Background infor-
mation.
Authority: Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. 2000e et seq.
§ 1605.1 ‘‘Religious” nature of a practice or belief.
In most cases whether or not a practice or belief is
religious is not at issue. However, in those cases in which
the issue does exist, the Commission will define religious
practices to include moral or ethical beliefs as to what is
right and wrong which are sincerely held with the strength
of traditional religious views. This standard was developed
in United States v. Seeger, 380 U.S. 163 (1965) and Welch
v. United States, 398 U.S. 333 (1970). The Commission has
consistently applied this standard in its decisions.! The fact
that no religious group espouses such beliefs or the fact
that the religious group to which the individual professes
to belong may not accept such belief will not determine
whether the belief is a religious belief of the employee or
prospective employee. The phrase ‘“‘religious practice”’ as
used in these Guidelines includes both religious observ-
ances and practices, as stated in Section 701(j). 42 U.S.C.
2000e(j).
1 See CD76-104 (1976), CCH P 6500; CD 71-2620 (1971), CCH P 6283;
CD 71-779 (1970), CCH P 6180.
28a
§ 1605.2 Reasonable accommodation without undue hard-
ship as required by Section 701(j) of Title VII of the Civil
Rights Act of 1964.
(a) Purpose of this section.
This section clarifies the obligation imposed by Title VII
of the Civil Rights Act of 1964, as amended, (sections
701(G), 703 and 717) to accommodate the religious practices
of employees and prospective employees. This section does
not address other obligations under Title VII not to dis-
criminate on grounds of religion, nor other provisions of
Title VII. This section is not intended to limit any addi-
tional obligations to accommodate religious practices which
may exist pursuant to constitutional, or other statutory
provisions; neither is it intended to provide guidance for
statutes which require accommodation on bases other than
religion such as § 503 of the Rehabilitation Act of 1973.
The legal principles which have been developed with re-
spect to discrimination prohibited by Title VII on the bases
of race, color, sex, and national origin also apply to re-
ligious discrimination in all circumstances other than where
an accommodation is required.
(b) Duty to accommodate.
(1) Section 701() makes it an unlawful employment
practice under § 703(aX1) for an employer to fail to rea-
sonably accommodate the religious practices of an em-
ployee or prospective employee, unless the employer
demonstrates that accommodation would result in undue
hardship on the conduct of its business.?
(2) Section 701(j) in conjunction with § 703(c), imposes
an obligation on a labor organization to reasonably accom-
modate the religious practices of an employee or prospec-
tive employee, unless the labor organization demonstrates
that accommodation would result in undue hardship.
See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977).
29a
(3) Section 1605.2 is primarily directed to obligations of
employers or labor organizations, which are the entities
covered by Title VII that will most often be required to
make an accommodation. However, the principles of Sec-
tion 1605.2 also apply when an accommodation can be
required of other entities covered by Title VII, such as
employment agencies (§ 703(b)) or joint labor-management
committees controlling apprenticeship or other training or
retraining (§ 703(d)). (See, for example, § 1605.3(a) ‘“‘Sched-
uling of Tests or Other Selection Procedures.’’)
(c) Reasonable Accommodation.
(1) After an employee or prospective employee notifies
the employer or labor organization of his or her need for
a religious accommodation, the employer or labor orga-
nization has an obligation to reasonably accommodate the
individual’s religious practices. A refusal to accommodate
is justified only when an employer or labor organization
can demonstrate that an undue hardship would in fact
result from each available alternative method of accom-
modation. A mere assumption that many more people, with
the same religious practices as the person being accom-
modated, may also need accommodation is not evidence of
undue hardship.
(2) When there is more than one method of accommo-
dation available which would not cause undue hardship,
the Commission will determine whether the accommoda-
tion offered is reasonable by examining:
(i) The alternatives for accommodation considered by the
employer or labor organization; and
(ii) The alternatives for accommodation, if any, actually
offered to the individual requiring accommodation. Some
alternatives for accommodating religious practices might
disadvantage the individual with respect to his or her em-
ployment opportunities such as compensation, terms, con-
ditions, or privileges of employment. Therefore, when there
30a
is more than one means of accommodation which would
not cause undue hardship, the employer or labor organi-
zation must offer the alternative which least disadvantages
the individual with respect to his or her employment op-
portunities.
(d) Alternatives for Accommodating Religious Practices.
(1) Employees and prospective employees most fre-
quently request an accommodation because their religious
practices conflict with their work schedules. The following
subsections are some means of accommodating the conflict
between work schedules and religious practices which the
Commission believes that employers and labor organiza-
tions should consider as part of the obligation to accom-
modate and which the Commission will consider in
investigating a charge. These are not intended to be all-
inclusive. There are often other alternatives which would
reasonably accommodate an individual’s religious practices
when they conflict with a work schedule. There are also
employment practices besides work scheduling which may
conflict with religious practices and cause an individual to
request an accommodation. See, for example, the Com-
mission’s finding number (3) from its Hearings on Religious
Discrimination, in Appendix A to §§ 1605.2 and 1605.3.
The principles expressed in these Guidelines apply as well
to such requests for accommodation.
(i) Voluntary Substitutes and ‘Swaps’.
Reasonable accommodation without undue hardship is
generally possible where a voluntary substitute with sub-
stantially similar qualifications is available. One means of
substitution is the voluntary swap. In a number of cases,
the securing of a substitute has been left entirely up to
the individual seeking the accommodation. The Commission
believes that the obligation to accommodate requires that
employers and labor organizations facilitate the securing
of a voluntary substitute with substantially similar quali-
fications. Some means of doing this which employers and
sla
labor organizations should consider are: to publicize policies
regarding accommodation and voluntary substitution; to
promote an atmosphere in which such substitutions are
favorably regarded; to provide a central file, bulletin board
or other means for matching voluntary substitutes with
positions for which substitutes are needed.
(ii) Flexible Scheduling.
One means of providing reasonable accommodation for
the religious practices of employees or prospective em-
ployees which employers and labor organizations should
consider is the creation of a flexible work schedule for
individuals requesting accommodation.
The following list is an example of areas in which flex-
ibility might be introduced: flexible arrival and departure
times; floating or optional holidays; flexible work breaks;
use of lunch time in exchange for early departure; stag-
gered work hours; and permitting an employee to make
up time lost due to the observance of religious practices.*
(ili) Lateral Transfer and Change of Job Assignments.
When an employee cannot be accommodated either as
to his or her entire job or an assignment within the job,
employers and labor organizations should consider whether
or not it is possible to change the job assignment or give
the employee a lateral transfer.
(2) Payment of Dues to a Labor Organization.
Some collective bargaining agreements include a pro-
vision that each employee must join the labor organization
or pay the labor organization a sum equivalent to dues.
When an employee’s religious practices do not permit com-
*On September 29, 1978, Congress enacted such a provision for the
accommodation of Federal employees’ religious practices. See Pub. I.
95-390. 5 U.S.C. 5530, ‘Compensatory Time Off for Religious Observ-
ances.”
32a
pliance with such a provision, the labor organization should
accommodate the employee by not requiring the employee
to join the organization and by permitting him or her to
donate a sum equivalent to dues to a charitable organi-
zation.
(e) Undue Hardship.
(1) Cost.
An employer may assert undue hardship to justify a
refusal to accommodate an employee’s need to be absent
from his or her scheduled duty hours if the employer can
demonstrate that the accommodation would require ‘“‘more
than a de minimis cost’’.* The Commission will determine
what constitutes ‘‘more than a de minimis cost’”’ with due
regard given to the identifiable cost in relation to the size
and operating cost of the employer, and the number of
individuals who will in fact need a particular accommo-
dation. In general, the Commission interprets this phrase
as it was used in the Hardison decision to mean that costs
similar to the regular payment of premium wages of sub-
stitutes, which was at issue in Hardison, would constitute
undue hardship. However, the Commission will presume
that the infrequent payment of premium wages for a sub-
stitute or the payment of premium wages while a more
permanent accommodation is being sought are costs which
an employer can be required to bear as a means of pro-
viding a reasonable accommodation. Further, the Commis-
sion will presume that generally, the payment of
administrative costs necessary for providing the accom-
modation will not constitute more than a de minimis cost.
Administrative costs, for example, include those costs in-
volved in rearranging schedules and recording substitu-
tions for payroli purposes.
(2) Seniority Rights. Undue hardship would also be shown
where a variance from a bona fide seniority system is
‘ Hardison, supra, 432 U.S. at 84.
33a
necessary in order to accommodate an employee’s religious
practices when doing so would deny another employee his
or her job or shift preference guaranteed by that system.
Hardison, supra, 432 U.S. at 80. Arrangements for vol-
untary substitutes and swaps (see paragraph (dX1\i) of this
section) do not constitute an undue hardship to the extent
the arrangements do not violate a bona fide seniority sys-
tem. Nothing in the Statute or these Guidelines precludes
an employer and a union from including arrangements for
voluntary substitutes and swaps as part of a collective
bargaining agreement.
§ 1605.3 Selection practices.
(a) Scheduling of Tests or Other Selection Procedures.
When a test or other selection procedure is scheduled at
a time when an employee or prospective employee cannot
attend because of his or her religious practices, the user
of the test should be aware that the principles enunciated
in these guidelines apply and that it has an obligation to
accommodate such employee or prospective employee un-
less undue hardship would result.
(b) Inquiries Which Determine An Applicant’s Availa-
bility to Work During An Employer’s Scheduled Working
Hours.
(1) The duty to accommodate pertains to prospective
employees as well as current employees. Consequently, an
employer may not permit an applicant’s need for a reli-
gious accommodation to affect in any way its decision
whether to hire the applicant unless it can demonstrate
that it cannot reasonably accommodate the applicant’s re-
ligious practices without undue hardship.
(2) As a result of the oral and written testimony sub-
mitted at the Commission’s Hearings on Religious Dis-
crimination, discussions with representatives of
organizations interested in the issue of religious discrim-
ination, and the comments received from the public on
34a
these Guidelines as proposed, the Commission has con-
cluded that the use of pre-selection inquiries which deter-
mine an applicant’s availability has an exclusionary effect
on the employment opportunities of persons with certain
religious practices. The use of such inquiries will, there-
fore, be considered to violate Title VII unless the employer
can show that it:
(i) Did not have an exclusionary effect on its employees
or prospective employees needing an accommodation for
the same religious practices; or
(ii) Was otherwise justified by business necessity.
Employers who believe they have a legitimate interest in
knowing the availability of their applicants prior to selec-
tion must consider procedures which would serve this in-
terest and which would have a lesser exclusionary effect
on persons whose religious practices need accommodation.
An example of such a procedure is for the employer to
state the normal work hours for the job and, after making
it clear to the applicant that he or she is not required to
indicate the need for any absences for religious practices
during the scheduled work hours, ask the applicant whether
he or she is otherwise available to work those hours. Then,
after a position is offered, but before the applicant is hired,
the employer can inquire into the need for a religious
accommodation and determine, according to the principles
of these Guidelines, whether an accommodation is possible.
This type of inquiry would provide an employer with in-
formation concerning the availability of most of its appli-
cants, while deferring until after a position is offered the
identification of the usually small number of applicants who
require an accommodation.
(3) The Commission will infer that the need for an ac-
commodation discriminatorily influenced a decision to re-
ject an applicant when: (i) prior to an offer of employment
the employer makes an inquiry into an applicant’s avail-
ability without having a business necessity justification;
35a
and (ii) after the employer has determined the applicant’s
need for an accommodation, the employer rejects a qual-
ified applicant. The burden is then on the employer to
demonstrate that factors other than the need for an ac-
commodation were the reason for rejecting the qualified
applicant, or that a reasonable accommodation without un-
due hardship was not possible.
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.