Respondent Philbrook (hereafter respondent), a teacher employed
by petitioner school board (Board), is a member of a church whose
tenets require members to refrain from secular employment during
designated holy days, a practice that has caused respondent to miss
approximately six schooldays each year. Under pertinent collective
bargaining agreements between the Board and the teachers' union,
teachers were granted three days' annual leave for observance of
religious holidays, but could not use for religious observance any
accumulated sick leave, three days of which were otherwise
available for "necessary personal business." Pursuant to the
collective bargaining agreements, respondent used the three days
granted for religious holidays each year, and then either took
unauthorized unpaid leave, scheduled required hospital visits on
church holy days, or worked on those days. Respondent repeatedly
asked the Board either to adopt the policy of allowing use of the
three days of personal business leave for religious observance or,
in the alternative, to allow him to pay the cost of a substitute
and receive full pay for additional days off for religious
observances. The Board consistently rejected both proposals, and
respondent ultimately filed suit in Federal District Court,
alleging that the Board had violated the prohibition against
religious discrimination under Title VII of the Civil Rights Act of
1964, particularly the Board's obligation under § 701(j) of the Act
to
"reasonably accommodate to an employee's . . . religious
observance or practice without undue hardship on the conduct of the
employer's business.
Page 479 U. S. 61
After trial, the District Court concluded that respondent had
failed to prove a case of religious discrimination because he had
not been placed by the Board in a position of violating his
religion or losing his job. The Court of Appeals reversed and
remanded, holding that respondent had established a
prima
facie case of discrimination. The court then assumed that the
Board's leave policy constituted a reasonable accommodation to
respondent's belief, but held that where the employer and the
employee each propose a reasonable accommodation, Title VII
requires the employer to accept the employee's proposal unless that
accommodation causes undue hardship on the conduct of the
employer's business. The case was remanded for consideration of the
hardship that would result from respondent's suggestions."
Held:
1. This case presents no issue that requires, for purposes of
Title VII religious accommodation claims, the establishing of a
proof-scheme delineating a plaintiff's
prima facie case
and the shifting production burdens. The ultimate Title VII
question of discrimination
vel non was directly before the
District Court, because the Board failed to persuade the court to
dismiss the action for want of a
prima facie case, and the
case was fully tried on the merits. Thus, the issue whether
respondent made out a
prima facie case was no longer
relevant.
Cf. United States Postal Service Board of Governors
v. Aikens, 460 U. S. 711.
479 U. S.
67-68.
2. Neither the terms nor the legislative history of § 701(j)
supports the Court of Appeals' conclusion that an employer's
accommodation obligation includes a duty to accept the employee's
proposal unless that accommodation causes undue hardship on the
conduct of the employer's business. An employer has met its
obligation under § 701(j) when it demonstrates that it has offered
a reasonable accommodation to the employee. The employer need not
further show that each of the employee's alternative accommodations
would result in undue hardship. The extent of undue hardship on the
employer's business is at issue only where the employer claims that
it is unable to offer any reasonable accommodation without such
hardship. Pp.
479 U. S.
68-69.
3. Because both of the courts below applied an erroneous view of
the law, neither explicitly considered the question whether the
Board's leave policy constituted a reasonable accommodation of
respondent's religious beliefs. There are insufficient factual
findings as to the manner in which the collective bargaining
agreements have been interpreted in order for this Court to make
that judgment initially. On remand, the District Court should make
the necessary findings as to past and existing practice in the
administration of the collective bargaining agreements. Pp.
479 U. S.
70-71.
757 F.2d 476, affirmed and remanded.
REHNQUIST, C. J., delivered the opinion of the Court, in which
BRENNAN, WHITE, BLACKMUN, POWELL, O'CONNOR, and SCALIA, JJ.,
joined. MARSHALL, J.,
post, p.
479 U. S. 71,
and STEVENS, J.,
post, p.
479 U. S. 75,
filed opinions concurring in part and dissenting in part.
Page 479 U. S. 62
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Ansonia Board of Education has employed respondent
Ronald Philbrook since 1962 to teach high school business and
typing classes in Ansonia, Connecticut. In 1968, Philbrook was
baptized into the Worldwide Church of God. The tenets of the church
require members to refrain from secular employment during
designated holy days, a
Page 479 U. S. 63
practice that has caused respondent to miss approximately six
schooldays each year. We are asked to determine whether the
employer's efforts to adjust respondent's work schedule in light of
his belief fulfill its obligation under § 701(j) of the Civil
Rights Act of 1964, 86 Stat. 103, 42 U.S.C. § 2000e(j), to
"reasonably accommodate to an employee's . . . religious observance
or practice without undue hardship on the conduct of the employer's
business." [
Footnote 1]
Since the 1967-1968 school year, the school board's collective
bargaining agreements with the Ansonia Federation of Teachers have
granted to each teacher 18 days of leave per year for illness,
cumulative to 150 and later to 180 days. Accumulated leave may be
used for purposes other than illness as specified in the agreement.
A teacher may accordingly use five days' leave for a death in the
immediate family, one day for attendance at a wedding, three days
per year for attendance as an official delegate to a national
veterans organization, and the like.
See, e.g., App.
98-99. With the exception of the agreement covering the 1967-1968
school year, each contract has specifically provided three
Page 479 U. S. 64
days' annual leave for observance of mandatory religious
holidays, as defined in the contract. Unlike other categories for
which leave is permitted, absences for religious holidays are not
charged against the teacher's annual or accumulated leave.
The school board has also agreed that teachers may use up to
three days of accumulated leave each school year for "necessary
personal business." Recent contracts limited permissible personal
leave to those uses not otherwise specified in the contract. This
limitation dictated, for example, that an employee who wanted more
than three leave days to attend the convention of a national
veterans organization could not use personal leave to gain extra
days for that purpose. Likewise, an employee already absent three
days for mandatory religious observances could not later use
personal leave for "[a]ny religious activity,"
id. at 80,
83, 86, 89, 92, or "[a]ny religious observance."
Id. at
96, 100. Since the 1978-1979 school year, teachers have been
allowed to take one of the three personal days without prior
approval; use of the remaining two days requires advance approval
by the school principal.
The limitations on the use of personal business leave spawned
this litigation. Until the 1976-1977 year, Philbrook observed
mandatory holy days by using the three days granted in the contract
and then taking unauthorized leave. His pay was reduced
accordingly. [
Footnote 2] In
1976, however, respondent stopped taking unauthorized leave for
religious reasons, and began scheduling required hospital visits on
church holy days. He also worked on several holy days. Dissatisfied
with this arrangement, Philbrook repeatedly asked the school board
to adopt one of two alternatives. His preferred alternative would
allow use of personal business leave for religious observance,
effectively giving him three additional
Page 479 U. S. 65
days of paid leave for that purpose. Short of this arrangement,
respondent suggested that he pay the cost of a substitute and
receive full pay for additional days off for religious observances.
[
Footnote 3] Petitioner has
consistently rejected both proposals.
In 1973, Philbrook filed a complaint with the Connecticut
Commission on Human Rights and Opportunities and the Equal
Employment Opportunity Commission against the school board and the
Ansonia Federation of Teachers. After exhausting the available
administrative avenues, he filed a complaint in the United States
District Court for the District of Connecticut, alleging that the
prohibition on the use of "necessary personal business" leave for
religious observance violated §§ 703(a)(1), (2) of Title VII, 42
U.S.C. §§ 2000e-2(a)(1), (2), and seeking both damages and
injunctive relief. [
Footnote
4]
After a 2-day trial, the District Court concluded that Philbrook
had failed to prove a case of religious discrimination because he
had not been placed by the school board in a position of violating
his religion or losing his job.
The Court of Appeals for the Second Circuit reversed and
remanded for further proceedings. It held that a
prima
facie case of discrimination is established when an employee
shows that
"'(1) he or she has a bona fide religious belief that conflicts
with an employment requirement; (2) he or she informed the employer
of this belief; (3) he or she was disciplined for failure to comply
with the conflicting employment
Page 479 U. S. 66
requirement.'"
757 F.2d 476, 481 (1985), quoting
Turpen v.
Missouri-Kansas-Texas R. Co., 736 F.2d 1022, 1026 (CA5 1984).
Philbrook established his case, the court held, by showing that he
had a sincere religious belief that conflicted with the employer's
attendance requirements, that the employer was aware of the belief,
and that he suffered a detriment -- namely, a loss of pay -- from
the conflict. [
Footnote 5] The
court then assumed that the employer's leave policy constituted a
reasonable accommodation to Philbrook's belief. It held, however,
that
"[w]here the employer and the employee each propose a reasonable
accommodation, Title VII requires the employer to accept the
proposal the employee prefers unless that accommodation causes
undue hardship on the employer's conduct of his business."
757 F.2d at 484. The Court of Appeals remanded for consideration
of the hardship that would result from Philbrook's suggestions.
We granted certiorari to consider the important questions of
federal law presented by the decision of the Court of Appeals. 474
U.S. 1080 (1986). Specifically, we are asked to address whether the
Court of Appeals erred in finding that Philbrook established a
prima facie case of religious discrimination and in
opining that an employer must accept the employee's preferred
accommodation absent proof of undue hardship. We find little
support in the statute for the approach adopted by the Court of
Appeals, but we agree that the ultimate issue of reasonable
accommodation cannot be resolved without further factual inquiry.
We accordingly affirm the judgment of the Court of Appeals
remanding the case to the District Court for additional
findings.
Page 479 U. S. 67
As we noted in our only previous consideration of § 701(j), its
language was added to the 1972 amendments on the floor of the
Senate with little discussion.
Trans World Airlines, Inc. v.
Hardison, 432 U. S. 63,
432 U. S. 74, n.
9 (1977).
See 118 Cong.Rec. 705-706 (1972). In
Hardison, supra, at
432 U. S. 84, we
determined that an accommodation causes "undue hardship" whenever
that accommodation results in "more than a
de minimis
cost" to the employer. Hardison had been discharged because his
religious beliefs would not allow him to work on Saturdays, and
claimed that this action violated the employer's duty to effect a
reasonable accommodation of his beliefs. Because we concluded that
each of the suggested accommodations would impose on the employer
an undue hardship, we had no occasion to consider the bounds of a
prima facie case in the religious accommodation context or
whether an employer is required to choose from available
accommodations the alternative preferred by the employee. The
employer in
Hardison simply argued that all conceivable
accommodations would result in undue hardship, and we agreed.
Petitioner asks us to establish for religious accommodation
claims a proof scheme analogous to that developed in other Title
VII contexts, delineating the plaintiff's
prima facie case
and shifting production burdens.
See Texas Dept. of Community
Affairs v. Burdine, 450 U. S. 248
(1981);
McDonnell Douglas Corp. v. Green, 411 U.
S. 792 (1973). But the present case raises no such
issue. As in
United States Postal Service Board of Governors v.
Aikens, 460 U. S. 711
(1983), the defendant here failed to persuade the District Court to
dismiss the action for want of a
prima facie case, and the
case was fully tried on the merits. We held in
Aikens that
these circumstances place the ultimate Title VII question of
discrimination
vel non directly before the court.
"Where the defendant has done everything that would be required
of him if the plaintiff had properly made out a
prima
facie case, whether the plaintiff really did so is no longer
relevant. "
Page 479 U. S. 68
Id. at
460 U. S. 715.
We may therefore proceed to the question whether the employer's
proposed accommodation of respondent's religious practices comports
with the statutory mandate of § 701(j).
In addressing this question, the Court of Appeals assumed that
the employer had offered a reasonable accommodation of Philbrook's
religious beliefs. This alone, however, was insufficient in that
court's view to allow resolution of the dispute. The court observed
that the duty to accommodate "cannot be defined without reference
to undue hardship." 757 F.2d at 484. It accordingly determined that
the accommodation obligation includes a duty to accept "the
proposal the employee prefers unless that accommodation causes
undue hardship on the employer's conduct of his business."
Ibid. Cf. American Postal Workers Union v. Postmaster
General, 781 F.2d 772, 776 (CA9 1986) (Title VII does not
dictate that "an employer must accept any accommodation, short of
undue hardship,' proposed by an employee. . . ."). Because the
District Court had not considered whether Philbrook's proposals
would impose undue hardship, the Court of Appeals remanded for
further consideration of those proposals.
We find no basis in either the statute or its legislative
history for requiring an employer to choose any particular
reasonable accommodation. By its very terms, the statute directs
that any reasonable accommodation by the employer is sufficient to
meet its accommodation obligation. The employer violates the
statute unless it
"demonstrates that [it] is unable to reasonably accommodate . .
. an employee's . . . religious observance or practice without
undue hardship on the conduct of the employer's business."
42 U.S.C. § 2000e(j). Thus, where the employer has already
reasonably accommodated the employee's religious needs, the
statutory inquiry is at an end. The employer need not further show
that each of the employee's alternative accommodations would result
in undue hardship. As
Hardison illustrates, the extent
of
Page 479 U. S. 69
undue hardship on the employer's business is at issue only where
the employer claims that it is unable to offer any reasonable
accommodation without such hardship. Once the Court of Appeals
assumed that the school board had offered to Philbrook a reasonable
alternative, it erred by requiring the Board to nonetheless
demonstrate the hardship of Philbrook's alternatives.
The legislative history of § 701(j), as we noted in
Hardison, supra, at
432 U. S. 74-75
and n. 9, is of little help in defining the employer's
accommodation obligation. To the extent it provides any indication
of congressional intent, however, we think that the history
supports our conclusion. Senator Randolph, the sponsor of the
amendment that became § 701(j), expressed his hope that
accommodation would be made with "flexibility" and "a desire to
achieve an adjustment." 118 Cong. Rec. 706 (1972). Consistent with
these goals, courts have noted that
"bilateral cooperation is appropriate in the search for an
acceptable reconciliation of the needs of the employee's religion
and the exigencies of the employer's business."
Brener v. Diagnostic Center Hospital, 671 F.2d 141,
145-146 (CA5 1982).
See also American Postal Workers,
supra, at 777. Under the approach articulated by the Court of
Appeals, however, the employee is given every incentive to hold out
for the most beneficial accommodation, despite the fact that an
employer offers a reasonable resolution of the conflict. This
approach, we think, conflicts with both the language of the statute
and the views that led to its enactment. We accordingly hold that
an employer has met its obligation under § 701(j) when it
demonstrates that it has offered a reasonable accommodation to the
employee. [
Footnote 6]
Page 479 U. S. 70
The remaining issue in the case is whether the school board's
leave policy constitutes a reasonable accommodation of Philbrook's
religious beliefs. Because both the District Court and the Court of
Appeals applied what we hold to be an erroneous view of the law,
neither explicitly considered this question. We think that there
are insufficient factual findings as to the manner in which the
collective bargaining agreements have been interpreted in order for
us to make that judgment initially. We think that the school board
policy in this case, requiring respondent to take unpaid leave for
holy day observance that exceeded the amount allowed by the
collective bargaining agreement, would generally be a reasonable
one. In enacting § 701(j), Congress was understandably motivated by
a desire to assure the individual additional opportunity to observe
religious practices, but it did not impose a duty on the employer
to accommodate at all costs.
Trans World Airlines, Inc. v.
Hardison, 432 U. S. 63
(1977). The provision of unpaid leave eliminates the conflict
between employment requirements and religious practices by allowing
the individual to observe fully religious holy days, and requires
him only to give up compensation for a day that he did not in fact
work. Generally speaking,
"[t]he direct effect of [unpaid leave] is merely a loss of
income for the period
Page 479 U. S. 71
the employee is not at work; such an exclusion has no direct
effect upon either employment opportunities or job status."
Nashville Gas Co. v. Satty, 434 U.
S. 136,
434 U. S. 145
(1977).
But unpaid leave is not a reasonable accommodation when paid
leave is provided for all purposes except religious ones. A
provision for paid leave
"that is part and parcel of the employment relationship may not
be doled out in a discriminatory fashion, even if the employer
would be free . . . not to provide the benefit at all."
Hishon v. King & Spalding, 467 U. S.
69,
467 U. S. 75
(1984). Such an arrangement would display a discrimination against
religious practices that is the antithesis of reasonableness.
Whether the policy here violates this teaching turns on factual
inquiry into past and present administration of the personal
business leave provisions of the collective bargaining agreement.
The school board contends that the necessary personal business
category in the agreement, like other leave provisions, defines a
limited purpose leave. Philbrook, on the other hand, asserts that
the necessary personal leave category is not so limited, operating
as an open-ended leave provision that may be used for a wide range
of secular purposes in addition to those specifically provided for
in the contract, but not for similar religious purposes. We do not
think that the record is sufficiently clear on this point for us to
make the necessary factual findings, and we therefore affirm the
judgment of the Court of Appeals remanding the case to the District
Court. The latter court, on remand, should make the necessary
findings as to past and existing practice in the administration of
the collective bargaining agreements.
It is so ordered.
[
Footnote 1]
The reasonable accommodation duty was incorporated into the
statute, somewhat awkwardly, in the definition of religion. Title
VII's central provisions make it an unlawful employment practice
for an employer
"to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment,
because of such individual's . . . religion . . . ,"
§ 703(a)(1), 42 U.S.C. § 2000e-2(a)(1), or
"to limit, segregate, or classify his employees . . . in any way
which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee, because of such individual's . . . religion . . . ."
§ 703(a)(2), 42 U.S.C. § 2000e-2(a)(2). Section 701(j), 42
U.S.C. § 2000e(j), was added in 1972 to illuminate the meaning of
religious discrimination under the statute. It provides that
"[t]he term 'religion' includes all aspects of religious
observance and practice, as well as belief, unless an employer
demonstrates that he is unable 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."
[
Footnote 2]
Absence for reasons not contemplated by the contract resulted in
a proportionate deduction from pay; since 1971, 1/180 of annual
salary had been deducted for each day of unexcused absence. App.
84, 90, 93, 97, 101.
[
Footnote 3]
The suggested accommodation would reduce the financial costs to
Philbrook of unauthorized absences. In 1984, for example, a
substitute cost $30 per day, and respondent's loss in pay from an
unauthorized absence was over $130.
[
Footnote 4]
Philbrook's complaint also alleged that petitioner Board's
policies and practices violated his free exercise rights under the
First Amendment. Because the Court of Appeals remanded the Title
VII claim for further proceedings, it did not address Philbrook's
First Amendment claims, and we have no occasion to consider them
here.
[
Footnote 5]
Judge Pollack, Senior District Judge of the Southern District of
New York sitting by designation, dissented. He agreed with the
District Court that "[t]he School Board's policy neither deprives
the plaintiff of employment opportunities nor adversely affects his
employment status." 757 F.2d at 489. Accordingly, he found that the
policy did not "
discriminate' within Title VII's use and
meaning of that term. . . ." Ibid.
[
Footnote 6]
The Court of Appeals found support for its decision in the
EEOC's guidelines on religious discrimination. 757 F.2d at 485, and
n. 7. Specifically, the guidelines provide that
"when there is more than one means of accommodation which would
not cause undue hardship, the employer . . . must offer the
alternative which least disadvantages the individual with respect
to his or her employment opportunities."
29 CFR § 1605.2(c)(2)(ii) (1986). Though superficially
consistent with the burden imposed by the Court of Appeals, this
guideline, by requiring the employer to choose the option that
least disadvantages an individual's employment opportunities,
contains a significant limitation not found in the court's
standard. To the extent that the guideline, like the approach of
the Court of Appeals, requires the employer to accept any
alternative favored by the employee short of undue hardship, we
find the guideline simply inconsistent with the plain meaning of
the statute. We have, of course, noted that EEOC guidelines are
properly accorded less weight than administrative regulations
declared by Congress to have the force of law.
General Electric
Co. v. Gilbert, 429 U. S. 125,
429 U. S. 141
(1976);
Skidmore v. Swift & Co., 323 U.
S. 134,
323 U. S.
139-140 (1944).
See also Trans World Airlines, Inc.
v. Hardison, 432 U. S. 63,
432 U. S. 76, n.
11. (1977).
JUSTICE MARSHALL, concurring in part and dissenting in part.
I agree with the Court's conclusion that, if the school board
provides paid leave "for all purposes
except religious
ones,"
ante this page, its accommodation of Philbrook's
religious needs would be unreasonable, and thus violate Title
VII.
Page 479 U. S. 72
But I do not find the specificity of the personal business
leave, or the possibility that it may be used for activities
similar to the religious activities Philbrook seeks leave to
pursue, necessarily dispositive of whether the Board has satisfied
its affirmative duty under § 701(j), 42 U.S.C. § 2000e(j), to
reasonably accommodate Philbrook's religious needs. Even if the
District Court should find that the personal leave is restricted to
specific secular uses having no similarity with Philbrook's
religious activities, Philbrook would still encounter a conflict
between his religious needs and work requirements. In my view, the
question would remain whether, without imposing an undue hardship
on the conduct of its educational program, the school board could
further reasonably accommodate Philbrook's need for additional
religious leave.
If, for example, the personal business leave were so limited
that it allowed teachers paid leave for the sole purpose of meeting
with their accountants to prepare their income tax returns (a
purely secular activity), a proposal from Philbrook that he be
allowed to prepare his tax return on his own time and use this paid
leave for religious observance might be found imminently reasonable
and lacking in undue hardship. The Board's prior determination that
the conduct of its educational program can withstand the paid
absence of its teachers for up to six days each year for religious
and personal reasons tends to indicate that granting Philbrook's
similar request in this case for a total of six days paid religious
leave and no personal leave is reasonable, would cause the Board no
undue hardship, and hence falls within the scope of the Board's
affirmative obligation under Title VII.
The Court suggests that requiring an employer to consider an
employee's proposals would enable the employee to hold his employer
hostage in exchange for a particular accommodation.
Ante
at
479 U. S. 69. If
the employer has offered a reasonable accommodation that
fully resolves the conflict between the employee's work
and religious requirements, I agree that
Page 479 U. S. 73
no further consideration of the employee's proposals would
normally be warranted. But if the accommodation offered by the
employer does not completely resolve the employee's conflict, I
would hold that the employer remains under an obligation to
consider whatever reasonable proposals the employee may submit.
I do not accept the Court's conclusion that the statute, "[b]y
its very terms," relieves the Board from this continuing duty to
accommodate the special religious practices of its employees where
doing so is reasonable and causes no undue hardship.
Ante
at
479 U. S. 68.
The statute simply creates an affirmative duty to accommodate; it
does not specify who must respond to whom. Nor am I persuaded that
the legislative history cited by the Court disposes of this issue.
The statement of Senator Randolph, who sponsored the amendment,
that he hoped the "accommodation would be made with
flexibility' and `a desire to achieve an adjustment,'" lends at
least as much support to the concept of the employer's continuing
duty as it does to the Court's reading of the statute.
Ante at 479 U. S. 69
(quoting 118 Cong. Rec. 706 (1972)).
The EEOC's guidelines on religious discrimination support an
interpretation of the statute placing this continuing duty to
accommodate on the employer.
* Just last Term,
in
Page 479 U. S. 74
Meritor Savings Bank v. Vinson, 477 U. S.
57,
477 U. S. 65
(1986), we expressly relied on an EEOC guideline in holding that
sexual harassment charges could provide the basis for a Title VII
claim. The Court's reluctance to accord similar weight to the
EEOC's interpretation here rests on nothing more than a selective
reading of the express provisions of Title VII and the guidelines.
Ante at
479 U. S. 69-70,
n. 6. Title VII prohibits discrimination not only with respect to
employment opportunities, § 703(a)(2), 42 U.S.C. §
2000e-2(a)(2), but also with respect to "
compensation,
terms, conditions, or privileges of employment." § 703(a)(1), 42
U.S.C. § 2000e-2(a)(1) (emphasis added). The EEOC guidelines
consider compensation encompassed within the concept of "employment
opportunities." 29 CFR § 1605.2(c) (1986). A forced reduction in
compensation based on an employee's religious beliefs can be as
much a violation of Title VII as a refusal to hire or grant a
promotion.
In this case, contrary to the Court's conclusion,
ante
at
479 U. S. 70-71,
the school board's accommodation of Philbrook's religious needs by
merely allowing unpaid leave does not eliminate the conflict.
Rather, the offer forces Philbrook to choose between following his
religious precepts with a partial forfeiture of salary and
violating these precepts for work with full pay. It is precisely
this loss of compensation that entitles Philbrook to further
accommodation, if reasonably possible without undue hardship to the
school board's educational program. It may be that unpaid leave
will generally amount to a reasonable accommodation, but this does
not mean that unpaid leave will always be the reasonable
accommodation which best resolves the conflict between the needs of
the employer and employee. In my view, then, an offer of unpaid
leave does not end the inquiry: If an employee, in turn, offers
another reasonable proposal that results in a more effective
resolution without causing undue hardship, the employer should be
required to implement it.
Page 479 U. S. 75
The Court's analysis in
Trans World Airlines, Inc. v.
Hardison, 432 U. S. 63
(1977), is difficult to reconcile with its holding today. In
Hardison, the Court held that the employer's chosen work
schedule was a reasonable accommodation, but nonetheless went on to
consider and reject each of the alternative suggested
accommodations. The course followed in
Hardison should
have been adopted here as well.
"Once it is determined that the duty to accommodate sometimes
requires that an employee be exempted from an otherwise valid work
requirement, the only remaining question is . . . : did [the
employer] prove that
it exhausted all reasonable
accommodations, and that the
only remaining alternatives
would have caused undue hardship on [the employer's]
business?"
Id. at
432 U. S. 91
(MARSHALL, J., dissenting) (emphasis added).
Accordingly, I would remand this case for factual findings on
both the intended scope of the school board's leave provision
and the reasonableness and expected hardship of
Philbrook's proposals.
* EEOC Guideline § 1605.2(c) states:
"(2) When there is more than one method of accommodation
available which would not cause undue hardship, the Commission will
determine whether the accommodation offered is reasonable by
examining:"
"(i) The alternatives for accommodation considered by the
employer or labor organization; and"
"(ii) The alternatives for accommodation, if any, actually
offered to the individual requiring accommodation. Some
alternatives for accommodating religious practices might
disadvantage the individual with respect to his or her employment
opportunities, such as compensation, terms, conditions, or
privileges of employment. Therefore, when there is more than one
means of accommodation which would not cause undue hardship, the
employer or labor organization must offer the alternative which
least disadvantages the individual with respect to his or her
employment opportunities."
29 CFR § 1605.2(c) (1986).
JUSTICE STEVENS, concurring in part and dissenting in part.
While I agree with the Court's rejection of the rationale of the
Court of Appeals' opinion, I would simply reverse its judgment.
Remanding for further proceedings in the District Court is both
unnecessary and confusing. Whether respondent Philbrook's complaint
is analyzed as an outright claim that he is entitled to six paid
days of leave for religious observance or as an argument that
petitioner's employment policies, while facially neutral, fail to
accommodate his religious beliefs, the record before us plainly
discloses that he cannot prevail.
I
The school board has a clear duty not to discriminate against
Philbrook because of his religious faith. Section 703(a) of the
Civil Rights Act of 1964 flatly prohibits an employer
Page 479 U. S. 76
from discriminating against any individual by basing employment
and workplace decisions on the employee's or prospective employee's
religion. This stricture against disparate treatment based on
religion is simultaneously extended and qualified by § 701, which
defines religion for purposes of the Act. Congress defines religion
to include
"all aspects of religious observance and practice, as well as
belief, unless an employer demonstrates that he is unable 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."
§ 701(j). The statute therefore imposes a duty on the employer
to make reasonable accommodations, short of undue hardship, for the
religious practices of his employees.
Trans World Airlines,
Inc. v. Hardison, 432 U. S. 63,
432 U. S. 74
(1977). The effect of § 703(a) is to impose a special duty upon the
employer when -- and only when -- a conflict arises between an
individual's religious observance or practice and the employer's
policy.
The statute does not allow a plaintiff raising a claim under §
701(j) to charge immediately onto the field of undue hardship.
Folded within § 701(j) are certain preliminary inquiries. First,
the court must ask whether the employee's job obligations are in
conflict with his religious obligations.
"The accommodation issue by definition arises only when a
neutral rule of general applicability conflicts with the religious
practices of a particular employee."
Hardison, supra, at
432 U. S. 87
(MARSHALL, J., dissenting). Absent a conflict, it makes no sense to
speak of a duty to accommodate; there is no competing claim on the
employee for which the employer must make adjustments. If the duty
does arise, the statute requires the employer to resolve the
conflict if it can do so without undue hardship. As the Court
correctly holds, the employer has no statutory duty to resolve the
conflict in the way the employee requests as long as the solution
that is adopted is reasonable. I find it equally clear that the
employer
Page 479 U. S. 77
has no statutory duty to do anything more than strictly
necessary to resolve the conflict.
Because the existence and scope of the duty to accommodate
depend solely on the nature of the conflict between the terms of
the job and the requirements of the religion, it is essential to
identify the alleged conflict as precisely as possible. In this
case, Philbrook's faith prevents him from working on certain
schooldays. The school board does not require him to work on any of
those days; on three of those days each year, it pays him even
though he does not work, and on the other days, it declines to pay
him for the time that he spends discharging his religious
obligations. The existence of a conflict is thus not immediately
apparent.
Philbrook argues, however, that the contractual arrangement
occasions two conflicts between his religious requirements and his
employer's job requirements. First, he argues that the employer's
practice of excluding religious observance as a permissible use of
the three days of paid annual leave for "necessary personal
business" is directly in conflict with his religious practice,
because he needs to take those days as days of religious
obligation. Second, during his unpaid absence from work on days of
religious obligation, he is unable to do work and must later -- or
earlier -- perform this work without separate compensation. In
essence, he argues that the employer's practice of requiring him to
complete this work, which is an integral part of his job duties as
a salaried employee, conflicts with his religious obligation to be
absent on the days when he would otherwise have performed this work
and been paid for it. An examination of these claims discloses that
neither has merit.
II
Philbrook has contended that the school board has discriminated
on the basis of religion in the allocation of its paid annual
leave, or more specifically, in the limitation it has placed on the
use of three days of paid annual leave for necessary
Page 479 U. S. 78
personal business. Properly viewed, the conflict Philbrook
alleges is one which is not cognizable under § 703, and therefore
entitles him to no relief. He points to the conflict, by no means
specific to the practice of religion, between the Board's leave
policy and the needs of an employee who wishes to use the three
days of necessary personal business leave for any purpose not
allowed by the contract. The Board allows all of its teachers three
days of paid annual leave for "necessary personal business," but
prohibits them from using any of those days for "[a]ny religious
activity." On its face, this prohibition might appear to
discriminate against employees who need to take a day off to attend
church in favor of those who need a day off for secular reasons.
The argument fails, however, because it does not fully describe
either the scope of the separate provision for paid leave for
religious purposes or the restricted scope of the provision for
leave for necessary personal business.
The collective bargaining agreement between the school board and
the teachers' union contains generous provisions for paid leave for
various specific purposes. After stating that 18 days of annual
leave shall be granted "for personal illness and/or illness in the
immediate family," the contract specifies 11 additional categories
of personal leave, including 5 days for a death in the immediate
family, 1 day each for attendance at funerals, weddings,
graduations, and immediate family religious services, and 3 days
each for "[m]andated religious observances" and "[n]ecessary
personal business." The teacher is not required to identify the
specific character of his personal business, but the contract
limits the teacher's discretion by stating:
"Necessary personal business shall not include (without
limitations):"
"1. Marriage attendance or participation;"
"2. Day following marriage or wedding trip;"
"3. Attendance or participation in a sporting or recreational
event; "
Page 479 U. S. 79
"4. Any religious observance;"
"5. Travel associated with any provision of annual leave;"
"6. Purposes set forth under annual leave or another leave
provision of this contract."
App. 100.
Philbrook does not contend that the leave policy is
discriminatory because he is eligible for, or has actually
received, fewer days of paid leave than members of other religious
faiths, or than teachers who have no religious obligations on
schooldays. The basis of his principal discrimination argument is
that the total of six days for mandated religious observances and
necessary personal business is not adequate to enable him to take
care of "the personal business that is most important and pressing
to him: religious activity and observance," [
Footnote 2/1] whereas this combination of six days of
paid leave is adequate for some teachers who have different
religious and ethical commitments. Quite clearly, however, this
argument rests on the premise that Philbrook's special, that is,
religious, needs entitle him to extraordinary treatment. His
"discrimination" argument states a grievance against equal
treatment, rather than a claim that he has been the recipient of
unequal treatment. [
Footnote
2/2]
Page 479 U. S. 80
This point comes into sharp focus when the contractual
prohibition against using the three days of personal leave for "any
religious observance" is seen for what it is, merely a part of the
broader prohibition against using personal business leave for any
of the purposes specifically authorized in the contract. The
existing leave policy denies paid days to any teacher who proposes
to take more paid days of personal business leave per year to
fulfill his or her commitments than the contract allows.
Philbrook's wish to use his secular leave for religious purposes is
thwarted by the same policy that denies an avid official delegate
to a national veterans' organization use of secular leave days for
that activity in excess of the days specifically allotted for it
under the contract. In fact, since three days are expressly
authorized for mandated religious observances -- events that recur
each year -- whereas most other categories of paid leave cover
relatively infrequent contingencies such as a death in the family
or attendance at a family wedding, it is highly probable that the
leave policy as a whole tends to favor, rather than to disfavor,
persons who must observe religious days during the school year. For
example, an atheist who attends a wedding, a funeral, and a
graduation on schooldays receives a total of three days of paid
personal leave, but a religious person who attends the same three
events on paid days also receives pay for three religious days.
III
Philbrook's second claim is that the board has a duty of
reasonable accommodation
"to mitigate the burden of the Board's requirement that [he]
work without pay in connection with his absence for religious
observance."
Brief for
Page 479 U. S. 81
Respondent Philbrook 24. [
Footnote
2/3] This claim founders because it discloses no conflict
between Philbrook's religion and his employment. If he had been
disciplined, or discharged, for taking too many days off for
religious services, the result would be different, but the only
inconvenience to which he is subjected is the necessity of doing
work on paid days that he was unable to do during his days of
religious observance. This inconvenience arises not because of any
discrimination against religion, but because the employee's missed
day of work is unpaid. Every employee who takes a day off from work
for an unauthorized purpose suffers the same inconvenience as
Philbrook; each loses a day of pay and must make up the work
associated with that day. The obligation to perform the work
carries over, not because the employee has exercised his religion
in the one case or satisfied a secular business need in another,
but for the generic and shared reason that the employee was not
paid for a day on which he was hired to do work. Since no statutory
conflict between Philbrook's religion and his work duties occurred,
the duty to accommodate his religious practices never arose.
IV
The present state of the record enables me to conclude that
Philbrook states no claim of religious discrimination under §
703(a). In remanding the case, the Court apparently overlooks the
plain fact that its rejection of the Court of Appeals' view of the
duty of reasonable accommodation eliminates the necessity for
further factual findings. Under the Court of
Page 479 U. S. 82
Appeals' theory that the employer has a duty to accept any
reasonable accommodation proposal made by the employee as long as
it does not result in "undue hardship," a remand to the District
Court was appropriate to resolve the "undue hardship" issue. I do
not understand why a remand is appropriate now. The Court of
Appeals has already concluded that, if no analysis of undue
hardship is required, the Board's policy of granting three days of
paid leave and additional days of unpaid leave for religious
observances complies with the statute. [
Footnote 2/4] Neither that court nor the District Court
saw any reason to make a special analysis of the "past and present
administration of the personal business leave provisions of the
collective bargaining agreement."
Ante at
479 U. S.
71.
In view of the record, the factual analysis the Court calls for
may satisfy the demands of the Court's curious holding in
Icicle Seafoods, Inc. v. Worthington, 475 U.
S. 709,
475 U. S. 714
(1986), but it cannot affect the outcome of this case. Whether the
Board has administered the provisions for paid leave for secular
purposes strictly or permissively has no bearing on Philbrook's
legally insufficient complaint that he
Page 479 U. S. 83
has some, but not enough, leave for religious purposes.
[
Footnote 2/5] The employer has no
duty to provide Philbrook with additional days of paid leave. Nor
can the uses for which the board has historically allowed personal
leave days possibly create a duty to pay Philbrook to perform the
work he missed on days of religious obligation.
Accordingly, I respectfully dissent from the part of the Court's
judgment that remands the case for further proceedings.
[
Footnote 2/1]
"On the other hand, after Philbrook uses up his three days for
religious leave, Ansonia's personal leave policy does not allow him
to use the remaining three days of personal leave for the personal
business that is most important and pressing to him: religious
activity and observance. Unlike the Jewish teacher, Philbrook is a
member of a faith that requires more than three days away from work
for religious observance. His important and necessary personal
business, involving fulfilling his need to gain understanding of
the world around him, to serve the highest interests of his
community, and to provide guidance and stability for his family,
are all served by performing his religious obligation and attending
his church. Solely because these needs are fulfilled for him
through religious observance rather than secular activity, he is
prohibited from using his personal leave to meet them."
Brief for Respondent Philbrook 16.
[
Footnote 2/2]
Denying the use of personal business days for religious purposes
is no more discriminatory against religion than if the personal
business leave category were entirely absent from the contract.
Neither a decision to refuse personal business leave days
altogether nor a decision to provide these days for specific
purposes not otherwise provided for in the contract represents a
discrimination against religion.
[
Footnote 2/3]
As he explains:
"His job has at least three parts: For every class, he must
first prepare the lesson plan; then teach the class; and finally
review his students' classwork. On the days he is absent for
religious holy days, he prepares the lesson plans for his classes
and reviews them with his substitute. He then receives and corrects
the assignments his students have completed in his absence. [App.
68-70.] Although his pay is docked, he is still required to perform
a substantial fraction of the duties for which his pay was intended
to compensate him."
Id. at 24-25.
[
Footnote 2/4]
"The school board argues that we should find that its
long-standing accommodation of three days of paid leave and
additional days of unpaid leave for religious observance
constitutes a reasonable accommodation and thus satisfies its duty
to accommodate, citing the Tenth Circuit's decision in
Pinsker
v. Joint District No. 28J, 735 F.2d 388, 391 (10th Cir. 1984).
The
Pinsker court held that a policy allowing two days of
paid leave for religious reasons and additional days of unpaid
leave satisfied the duty to accommodate. We presume that Ansonia's
leave policy is 'reasonable.'
And if Title VII's duty to
accommodate were to be defined without reference to undue hardship,
we would hold that the school board has satisfied its burden.
The duty to accommodate, however, cannot be defined without
reference to undue hardship. In many circumstances, more than one
accommodation could be called 'reasonable.' Where the employer and
the employee each propose a reasonable accommodation, Title VII
requires the employer to accept the proposal the employee prefers
unless that accommodation causes undue hardship on the employer's
conduct of his business."
757 F.2d 476, 484 (CA2 1986) (emphasis added).
[
Footnote 2/5]
Though it is not necessary to my conclusion, the teachers'
modest use of personal business days indicates that they are not
treated as general leave days. In the 1982-1983 school year, for
example, only 2 of the 131 teachers in the school system used all
three days; 80 used none. Plaintiff's Exhibit 18.
In addition, the Board has strictly administered the use of
necessary personal business days, limiting their use to the
purposes not enumerated in the contract. The School Superintendent
testified that the use of these three days' leave is closely
monitored. Teachers may take one of these days in their discretion,
without giving a reason for their absence, but must notify the
principal or their superior of their absence 48 hours in advance.
The Superintendent testified that he insures that teachers do not
use that one discretionary day with pay for any of the reasons
specifically enumerated in the contract:
"Q: If, in fact, you find that a teacher has utilized that one
day for one of the reasons specifically listed in the contract for
which days are separately allotted, what action, if any, would you
take?"
"A: If I found out, they would be deducted a day's salary for
that one day."
App. 65.
The other two days of necessary personal leave must be approved
by the Superintendent with 48 hours' notice. The Superintendent
reviews the request for leave, denying it if he does not consider
it to be a necessary personal day. If the employee takes the day
nonetheless, he or she is docked a day's pay.
Id. at
54.