American Motors Corp. v. Department of Industry, Labor & Human Relations

Petitioner-Appellant-Petitioner, Corporation, Motors American v .

Department Relations, Industry, Labor & Human

Respondent. Supreme Court Argued April 29, No. November 1981. 77-703. 1980. Decided

(Also reported 62.) in 305 N.W.2d P. petitioner by Herbert For the there were briefs Wiedemann, Shriner, Jr., Paulson Thomas L. Michael I. argument Foley Milwaukee, & Lwrdner oral by Michael I. Paulson. argued by respondent

For the David C. cause was attorney Rice, general, assistant on the brief with whom general. attorney Follette, Bronson C. La gen- by LeRoy Clark, Amicus curiae brief D. was filed counsel, Joseph general counsel, Eddins, eral T. associate attorneys, Prager, Rogers, Lutz Alexander W. Sherman Equal Employment Opportunity Commission Washington, C., Milwaukee, Mulligan, D. Kathleen counsel, Equal Op- local for United States portunity Commission.

HEFFERNAN, J. This is a a review of decision1 appeals of the court judgment of which of affirmed county sustaining the circuit court for Dane an order of Department Industry, of Labor and Human Rela- (hereinafter tions DILHR). DILHR’s order directed respondent, that the Corporation, American Motors cease discharging and desist employees from on the of basis religion. provided The order also that American Motors pay the complainant, Bartell, wages Thomas L. back for period unemployed following he discharge by his American validity Motors. portion The of the wages order concerned with back is not at issue on this review.2 Corp. American Dept., Motors v. ILHR 93 Wis.2d 286 N.W. (Ct. App. 1979).

2d 847 payment pay. ordered the DILHR of back The circuit court beyond authority. held order DILHR’s appeals The court of portion reversed that of judgment. the circuit court’s In view disposition case, our pay back is not an issue to be con sidered, parties sought nor have the further review on this issue. question

The basic on this whether review is 111.37, Act, Wisconsin Fair 111.31 to secs. requires Stats., an an em- to accommodate ployee’s work absences which are occasioned employee’s religious holidays days observance of religious obligation. DILHR, court, and the circuit appeals required. court of held that accommodation was Employ- court This concludes that Fair Wisconsin impose duty upon employer, ment Act not does and we therefore reverse. undisputed

The applied facts show that Bartell employment May with American Motors of 1972. Al- though employment he application stated on his that he degree had engineering, received bachelor’s his degree requirements fully completed were even at discharge the time his company. from the Neverthe- less, engineer management he was hired as an for a position required participate him to in a six- training commencing program July month 1972. training program rotating consisted aof schedule management assigned which each trainee was to vari- departments ous plant, within the American Motors so manufacturing oper- he could observe and understand the ations. Because this entailed some and dis- reallocation ruption operating departments the work in rigidly plant, planned American Motors the schedule was having any department to avoid more than trainee in one at the time. same meeting

At prior an orientation to the start management training program, per- American Motor’s manager explained sonnel program and distributed assignments the scheduled to each of the trainees. He explained including company’s policies, those con- cerning holidays, vacations, and leaves of absence. Al- though encouraged any questions, trainees were to ask not, time, point Bartell did at that out the conflict be- assigned training tween his schedule his acknowledged in- did not commitments. Bartell that he religious conflicts possible form American Motors thought not schedule, with his would work because he he if be hired he mentioned it. baptized

Bartell been had as a of the World- member January 8, wide Church of acknowl- God on 1972. He edged that, hired, at knew time he he required members of that faith from were abstain Saturday Friday secular from work sundown to sundown days, of each and on week certain which were determined on the basis biblical in accordance texts and were fixed holy day, with the Jewish calendar. In one such Day Atonement, Monday. September 18, fell on Another, oblig- Tabernacles, Feast consisted of atory eight-day religious lasting convocation from Fri- During day, September 22, Friday, September 29. Tabernacles, Feast of Church members of the Worldwide required of God were to abstain from work on secular days regional first and last church attend a for convocation the entire week. any days question

Bartell said he did not raise about off for at observances of the orienta- time tion briefing, when were vacations leaves of absence discussed, personal because he considered it a matter he did not presence want to discuss in the of other em- ployees. speak He testified that he intended to to the personnel manager private, opportunities but no for private August date, conversation until arose 7. On personnel manager he asked the whether he could be Day excused Atonement, Monday, from work on the September 18, days during and on the week the Feast personnel manager Tabernacles. The said that he necessary would with respect confer whomever was request, although to this did he think American give purpose. Motors could Bartell time off manager, original personnel At the with the conference explain observances Bartell did not that his appar- only date, mandatory; a later were and it was at manager ently August 10, personnel on told the he holy religion obligated on the that his him not to work conferring officials, days. company with After further August manager personnel on told Bartell request have his that he either was denied and would days requested to work to have off or on the he manager employment. personnel terminated from The suggested and make that Bartell think the matter over following August 18, day. Bartell his decision the On change personnel manager told the that he could not his request. He then that he was terminated informed employment from with American Motors on that date. Initially, August 24, 1972, complaint Bartell filed Equal Employment Opportunity with the Com- Federal discharge alleging (hereinafter EEOC), mission that his upon was based discrimination. federal complaint department of was referred to the Wisconsin industry, In letter of labor and human relations. regional department, referral direc- the Wisconsin tor EEOC stated: Eights 706(c) “Pursuant of the Act Section [Civil charge may Act of no be filed with Com- 1964] 706(b) expiration

mission under until Section of 60 days proceedings after have been commenced under the ,”3 employment practice your fair . . law State Although 1, 1973, requested Bartell on March DILHE complaint, to withdraw DILHE, pro- his nevertheless ceeding provisions 111.36, under the Stats., see. made procedure requirement. This followed the federal See 42 U.S.C. 2000e-5(e) (Supp. II, 1972); sec. 16.01.12(b)(1) 29 C.F.R. sec. (iii), Considerably (iv) (1972). later —on November 1974— the EEOC cause, made determination reasonable and invited This, however, only conciliation under federal law. evidence indicating proceedings of record further in this matter EEOC. finding probable of cause that discrimination had occurred, attempted conciliation, unsuc- which was hearing A complaint cessful. on the DILHR was held. January 13, 1977, issued its final decision and order on determining that American Motors had violated the Wis- discharging consin Fair inAct Bartell. American Motors was from ordered to cease and desist religious against pay employees discrimination its and to wages discharge back from the date of until Bartell employment. found other

American Motors commenced an action under ch. Stats., findings. to review cir- these administrative The cuit court undertook an extensive review DILHR’s of findings of fact and conclusions law. circuit The opinion court’s discussed American Motors’ contention the claimant Bartell was not terminated for his observing holy insistence on days, decep- but for his failing tion in to disclose the work conflict between the religious obligations schedule and his at earlier time. Judge Bardwell, judge, pointed the circuit out that the record indeed support contained evidence to Ameri- can Motors’ contention deception, that Bartell’s and not religious his practices, adherence to was the reason for firing. Nevertheless, there was also evidence —that submitted Bartell —that he was his terminated for observing insistence religious holy days. on his In sus- taining findings DILHR, Judge of fact of Bardwell pointed worthy out that belief, each contention was but the factual determination under those circumstances was for DILHR to make and would be disturbed the court. There is also evidence in the record that policy practice was the usual for American permit Motors sincere believers to abstain from work obligatory holy days. Accordingly, Judge Bardwell findings law, sustained the of fact and conclusions of judgment provide modified but that DILHR’s applicability only order limited in its the com- clearly plainant, in this case Thomas Bartell. The record Motors, would not warrant a conclusion that American disregarded policy, as a needs matter of employees. DILHR that American its The order of discharging employees Motors “cease and desist from religion” unsupported unjustified on the basis was the record. The circuit court also eliminated judgment circuit court pay. award of The back appealed circuit court appeals. court The was to the pay judgment affirmed, was but the order back reinstated. appeals that American Motors court concluded duty Employment Act Fair

had under the Wisconsin and that accommodate Bartell’s needs finding support that evidence sufficient DILHR’s accom- American Motors failed to afford a reasonable appeals con- The court of further modation to Bartell. duty under cluded of reasonable accommodation that Employment not violate Fair Act did Wisconsin Amendment establishment clause of the First I, United of the States Constitution or sec. Wis- Art. consin Constitution. petition'

On to this court to review the decision only appeals, questions the court of were raised: two duty, under the American Motors had a Whether Wis- statutes, and, so, if consin of reasonable accommodation duty, imposition extent of that and whether the duty provisions.4 constitutional Because violated 4 Contrary hy proposed to the formulation of the the dis issue large raising senting opinion, in measure this case views as question religions by of differential treatment em same ployer parties litigation throughout this —discrimination—the viewed, argued, involving question this and briefed case as duty accepted of the of reasonable accommodation. We this case important only question to decide whether Fair the Wisconsin Employment imposes duty and, so, Act if con such a whether thereby stitutional difficulties are would not have created. We duty we that there conclude exists no under the Wisconsin statutes practices to accommodate the of Thomas Bartell, we have no to reach occasion the constitutional question. finding basic appeals rationale court in duty

that there is a to accommodate is that the Wisconsin Fair prob- Act of 1945 addresses the same lems discrimination which are in the addressed Fed- Rights eral Civil Act of 1964 and its amendments. Supreme Because the United States has held that Court Rights Act, amended, Title VII of the Federal Civil requires employee’s prac- accommodation to an courts, interpreting tices and because some state their designed own pro- statutes or constitutions which are rights tect interpreted provisions civil have those state require accommodation, appeals the court concluded that it is reasonable to hold that Fair Em- the Wisconsin ployment interpreted Act should It also be the same. weight” placed also “considerable on the administrative interpretations of DILHR that is re- accommodation quired by the law. Wisconsin appreciate

To position, necessary the error it is legislative history to review the Fair Wisconsin Employment Act; emphasized and it should be at act, outset that the Wisconsin unlike the Federal Civil accepted question if the case review issue in the were a of re- ligious discrimination; question any does not raise matters importance justify of beyond sufficient review the court of appeals, prohibition statutory against because dis- issue, crimination is well established. Had that been the Bartell’s rights appropriately appeals were in of vindicated the court and the case posture would not have been taken review. entire The beyond of the litigants, case demonstrates doubt the active sought Motors, and DILHR American a definitive statement on duty acknowledges, As the accommodate. dissent Bartell longer really no “is in the interested case.” The discrimination per issue, se, purpose accepted irrelevant for we is review.

Rights Act, no amended contains requirement portions of the of accommodation. The in this case Fair Act relevant to the issue 111.32(5) 111.31(1), (2), (3) and are set forth in secs. (a), Stats. 1971.5 denying policy. practice (1) “111.31 Declaration of of employment discriminating against, opportunities to, and other and properly color, qualified by age, race, creed, persons of their reason likely handicap, origin ancestry, sex, to foment do national or adversely unrest, substantially mestic and affect strife and and general depriving by of the fullest welfare of a state by capacities production. utilization some of for The denial its op employment employers, licensing agencies of and labor unions portunities age, race, creed, persons solely to such because of their sex, origin ancestry, color, handicap, or and discrimina national against deprive employment, tion them in the victims tends to earnings necessary just and decent which are maintain a thereby committing grave injury living, standard of to them. “(2) pro- by many problem It is of believed students the to rights people gainful tection of all em- law obtain ployment, privileges and other free from because discrimination age, origin race, creed, color, sex, ancestry, handicap, national or recognized unrest,

would remove certain of strife and sources encourage productive and the full utilization of the resources state, family of the state to the benefit of the and to all the people of the state. “(3) interpretation application subchapter, In the of this otherwise, public policy it is declared to be the state encourage practicable to ployment and foster to the extent the em- fullest properly qualified persons regardless age, of all their race, creed, subchapter handicap, origin ancestry. color, sex, national or This liberally accomplishment shall be construed for the purpose. “111.32 subchapter: Definitions. When used in this “(5) (a) age, ‘Discrimination’ means discrimination because race, color, handicap, sex, origin creed, ancestry, national or licensing agency individually or or in concert with against any others, employe any applicant employment or for or licensing, regard hire, term, priv- to his tenure or condition or ilege employment licensing any organization labor against any applicant membership, member or and also in- today in the appears Employment Act, as Fair The employ- types statutes, of prohibits nine enumerated race, age, based on Discrimination ment discrimination: ancestry, origin, and sex, creed, color, handicap, national types of dis- record. These arrest record or conviction 111.32 111.31(1) and in secs. crimination are enumerated parts addition, 111.31(4) and other (5), In sec. Stats. “honesty” of subchapter permissible use limit the employees. given employees prospective tests creed, race, national categories, color, nine Of these five — creating prob- ancestry as origin, identified and —were original enactment of lems of discrimination of 490, 1945. None Laws of Fair Act. Ch. upon or categories have ever been elaborated these five legislature nu- of in the course further defined contrast, By four to the act. merous amendments sex, handicap, arrest remaining categories age, — ;6 following years all added over record —were clearly consti- fully what now defines the act problem areas. in each of these discrimination tutes alleged against Bartell be- It is the discrimination Al- “creed” which is relevant to this decision. cause of meaning though never defined the has Augustine “creed,” v. Anti- has this court concluded 215, B’rith, 207, League B’nai 75 Wis.2d Defamation “system (1977), “creed” refers to a 249 N.W.2d 547 any grounds in the of said fields eludes discrimination housing, recreation, education, welfare re- health and social employment.” privilege lated to a condition or 6 Age: 149, 1959; 687, Ch. Laws of 1959. Laws of ch. 234, 529, 1961; 628, 1961; Ch. ch. Laws of ch. Sex: Laws 2-4, 94, 59-61, 1975; 286, 1967; Laws of secs. Laws of ch. secs. ch. Laws 1977. Handicap: 1965; 230, 275, 18, Ch. Laws of sec. of 1975. ch. Laws Arrest or conviction record: Ch. Laws of 1977. honesty-testing provisions quite are also detailed —which —were added ch. Laws of 1979. religious Despite beliefs.” the fact that discrimina- original tion as to creed is areas of dis- one of the five legislature crimination has listed in the act of guidance necessary provide not found it further to respect obligation arguably employer’s there to an where religious employee’s practices is a conflict between an management employer’s personnel proce- and the any judicial interpretation dures. Nor has there been given beyond Augustine. that clear, acknowledged by parties It is and it is all of the review, to this is there that nowhere in the act itself express requirement required employer an that an be employee’s to to accommodate its business conduct legis- religious Insofar as observances. Wisconsin concerned, lature is there is no evidence whatsoever problems to the attention discrimination be- original passage tween the of the act in 1945 and 1981. subsequent there is so little evidence of Where attention, upon interest or there is little which a court legis- post-passage can determine intent the basis of original lative treatment of the statute. legislature explicitly has require never acted employee’s religious to accommodate an gleaned may

observances. little What evidence from legislative history contrary is to the and would lead to the conclusion that the has rebuffed efforts incorporate provisions accommodation of the Fed- Rights Civil eral Act into the Employ- Wisconsin Fair ment Act.

In 1975, Assembly Bill 485 was introduced as an amendment Employment the Fair part, Act. In would have amended the act: provide “To implementation within this state of employment

the fair policies embodied in the federal civil rights act of 1964.” At the time bill was introduced into Wisconsin Rights legislature, 1964 had Act of the Federal Civil ex- by congressional action in 1972 been amended em- pressly require employers their accommodate ployees’ practices. been Had this amendment Act, incorporated into Fair the Wisconsin incorporated ac- arguably have at least —would it— bill, how- policy federal act. This commodation do ever, passage in committee. We failed died logical believe, however, or reasonable it would be con- enacted to assert failure of this bill to be legislative duty rejection accommo- the to stitutes a of of frequently stature laws fail to attain the date. Bills merit, nothing their have to do with reasons that exigencies other and are related to the time but more legislature priorities is confronted. with which the gleaned legislative episode from this most that could be legislature, opportunity to it had the is that the when incorporate provision into an accommodation the Wis- act, consin did not do so.7 legislative then, intent, summary, expressed

In legislature the is that the has most can said duty part never stated that there on the of an is a em- ployer employee’s practices. to accommodate an 7 Similarly history Assembly inconclusive is the of Bill 1094 (1971). That hill inter alia would discrimination have redefined persons as “differential or of treatment between classes between persons” including religion, grounds, on the basis of enumerated unless related to merit. Because this definition is somewhat original existing passage one, broader than the of the bill might legislative impose have constituted evidence of a intent duty However, bill, of accommodation. the defeat of the which contrary committee, died in does not lead to the inference of legislative disapproval, the because bill numerous other contained provisions might equally explain non-passage. which its well such, fact, practices,

In unmentioned are 111.31, legislation. Nevertheless, (3) of the sec. sub. legislature Stats., the stated: public policy the state “. . . it is declared to be the practicable encourage fullest extent to the foster regard- employment qualified persons properly of all color, handicap, sex, na- race, creed, age, less of their tional origin ancestry. subchapter shall be or This liberally pur- accomplishment this for the construed pose.” appeals

The court direction recites this why, by point of liberal construction out but does liberally construing expressly provisions are which authority import act, set forth in a court has the legislature specific provisions into the act reasoning Apparently, ap the court of omitted. peals import appropriate is that into act all purpose with the mechanisms which are not inconsistent legislation. spirit believe anti-discrimination We goes beyond parameters of liberal construction. Research, This court has in Lukaszewicz Concrete said v. Inc., (1969) : Wis.2d N.W.2d cannot, change course, construction “We liberal wording something of a to mean statute language plain not intended used.” supra 215, quoting Augustine, have also said in

We at Rights, Super v. Shuchter Division Civil N.J. (1971): at 285 A.2d “ believe, however, do not that it ‘We is our function reviewing legislative expand as a court to a enactment because of new trends Whether in the definition of word. moral, discrimination on philosophi- the basis of cal, political social or values should be or condemned among permitted the question citizens of this state is a ” legislature.’ properly by most answerable the term, cannot that We conclude the use the undefined “creed,” permits supplant legis- supplement us to the or determining prerogative by lature’s what means dis- religion respect in crimination to creed should be suppressed legislative or eliminated. function. This is a

By liberal construction all that is meant is that the actually legislature given terms used the shall the be guidelines application proper fullest within definitional legislation. that spirit are consistent the with This Augustine, supra, precisely is gave what did. It a liberal word, to “creed,” only construction the but within the appropriate very definitions of the the word used legislature. give Liberal does construction not court right expand legislation. the the terms of the The term, “accommodation,” is, duty that of an reasonably adopt practices his business to the employee, needs of an not at hinted in the Wisconsin Employment any way Fair Act. We do not intimate appropriately, accommodation should not or could constitutionally, legislative not adopted by enactment. legislature All we conclude is that in the State of yet has not public Wisconsin seen fit to establish such policy appropriate it court, is not for this even though may religious beliefs, it favor accommodation of legislature usurp prerogatives create legislation where none exists.

Although expressly provided has Employment Act, may accommodation in the Fair opportunity have the do so the current session of legislature. The files of reference bureau 18, 1981, show the introduction on March sponsored by Senate Bill numerous members assembly. Among changes pro- senate posed in Fair Act Wisconsin 111.337(1). proposed bill is the creation of sec. provides: amendment “In prohibited addition 111.322 to the actions under s. bill], new proposed subsection it is added em- [a ployment discrimination because of creed refuse reasonably employe’s prospective accommodate or employe’s religious hardship practice observance or undue without part employer, em- unless the

ployer demonstrates that he she is unable to so accom- or modate.” sig- language introduction of this bill and its is nificant present case, the context of the it because contemplates that the failure to accommodate is an adcttr type employment tional discrimination not covered original Thus, legislative statute. insofar as intent concerned, is opinion the framers of this are of bill question duty being to accommodate is submitted to the consideration for first note, however, time. We the comments in the analysis Bill 204 Senate reference discussing bureau. generally, In the bill it states: places “It subchapter following into the concepts presently which are the law in this state either because supreme Wisconsin court decisions or federal laws: (( “(E) attempt An must to make certain rea- sonable accommodations the . . . observ- practices employes ances prospective employes.” analysis We believe this to be incorrect insofar applies duty to the of accommodation. No Wisconsin supreme court decision duty has found the to accommo- date under state law. appeals The court of so, has done only very but in the being case which is reviewed herein. Moreover, analysis’ the bill apparent reliance on federal establishing laws as the law of this state in this context inappropriate. it is While true that this court ordi- narily duty has the to enforce federal causes of action Terry (see Kolski, v. Wis.2d 254 N.W.2d 704 (1977)), respect that true in Civil not to the Federal Rights relationship Act. The between the Federal Civil Rights Employment Act shows and the state Fair Act jurisdiction pur- that the remedies under each are to be separately. procedural sued As the statement of the posture sought demonstrates, initially of this case Bartell remedy his in the office of the EEOC. The matter was by referred to DILHR proceedings “under EEOC for employment practice your (Em- the fair law State.” phasis supplied.) When, comity pursuant aas matter of law, aetion, federal EEOC to state it is defers action, federal law which is enforced state but law of ipso incorpora- the state itself. There is no faeto tion Rights Employ- the Federal Civil Act in Fair ment Act Accordingly, of the State of Wisconsin. Rights fact 1964, the Civil Act of as amended 1972, requires import accommodation does not those provisions 1945, into state law enacted absent some appropriate incorpo- action the State of Wisconsin provision rate that analysis of the federal law. If the reference bureau was mean intended to automatically federal laws are incorporated into the law, state it is incorrect.

Nevertheless, possible by it is a course of administra interpretation tive modify supplement statutory provisions adopted by legislature; the Wisconsin proper under circumstances, give weight this court will to such an administrative construction of a statute. This may though, be so even as stated, upon we have often review of actions of agencies, questions administrative of law such statutory construction are reviewable ab initio (see Jaeger Baking this court Co. v. Kretsch mann, 96 Wis.2d 292 (1980); N.W.2d 622 Boynton Dept., Cab v. ILHR Co. 396, 405, 96 Wis.2d 291 (1980)) properly 850 subject N.W.2d judicial sub- judgment (Dept. stitution of Revenue v. Milwaukee Refining Corp., 44, 48, N.W.2d Wis.2d position (1977)). The DILHR construction is that its of the Fair accommoda Act to include an requirement weight present tion to such in the is entitled finding any record, case. however, support does not DILHR has would enable us to conclude that any steps incorporate taken accommoda that would Rights provisions tion of the Federal Civil Act into Wis consin law. doing promulgation

One method of of so would part administrative rules. As a of the of enactment Employment Act, given authority Fair to DILHR was “make, necessary amend and are rescind such rules as carry to subchapter.” 111.33, out this This Sec. Stats. authority initially granted by ch. the Laws of 490 of rule-making function, 1945. The exercise such how- ever, subject 227, is to the strictures of ch. the Adminis- trative Procedures Act. has No rule ever administrative promulgated require duty been to a of accommodation.8 duty incorporated Had the to accommodate been in a 8 governing Employ The administrative Fair rules Wisconsin ment Code, pp. Act are to be found in 7 Adm. Ch. Ind. 29-33. although A promulgated, number of rules have been but the fed given gloss eral by statute was an administrative EEOC in respect by congressional and to accommodation and amendment no effort was made DILHR adminis scope keep trative rule to pace broaden the of the to statute or “discrimination,” they with federal law. While the rules define do so in the words of the statute and do refer accommoda tion. Specifically, moreover, 7 Adm. Code Ch. 88.01. Ind. no effort, legislative history, discernible in the or administrative re duty imposed by veals that DILHR legisla ever assumed the 111.36(6), Stats., ture in sec. to: legislature “Transmit to the from time to time recommendations any legislation may light which be deemed in the desirable department’s findings of the the existence, character and any causes discrimination.” legis- rule, would, subject course, it have been oversight rule-making power; agency’s lature’s of an promulgated and such a sus- had rule been and not been pended pursuant set aside on review 13.56, Stats., sec. the rule be some evidence would acquiesced interpreta- had in DILHR’s promulgated. tion of the statute. No rule was light In sweep policy of accommodation language 1971,9 227.01(3) (4), of sec. Stats. rule-making power we believe that exercise by DILHR appropriate would have been the most method requiring recog However, accommodation. this court nizes, proper case, in a the administrative construction agency which places upon its statute own deci- processes making.1 sional other than rule administrative DILHR uniformly interprets asserts that ad- require ministers the statute to accommodation. It as- interpretation serts that its has been accorded twice judicial approval. judicial approvals in- We find those precedent, appear sufficient to be both in circuit because opinions court subsequent case, complaint to the in this opinion Judge and one of them is the Bardwell subject very appeal. of this 9 “(3) regulation, standard, policy ‘Rule’ means statement of general (including repeal any or order the amendment or of of foregoing), general application having of the effect of law, by agency implement, interpret issued specific an or make legislation agency govern by enforced or administered such or organization procedure agency. or such of “(4) Every general every interpreta- policy statement of specifically tion adopted by agency govern of a statute an its legislation enforcement by or administration of shall be issued and filed as a . rule. . .” 1 0 Telephone See Dept., Wisconsin 345, v. Co. ILHR 68 Wis.2d 228 (1975), N.W.2d 649 of an discussion administrative agency’s authority general principles to announce in contested Helstad, also Making, cases. See New Law Administrative Rule Wisconsin 1956 Rev. 407. Law 356 upon of appeals

The several decisions court of relied uniform purport DILHR’s DILHR which to show that requires interpretation accom course the statute of of appeals are court of modation. These citations unconvincing, follows the date the earliest because complaint two present more than case years. interpretations The most these administrative that, adopted interpretation show DILHR after the 1972, present in the case DILHR has followed filed consistency. interpretations in its own with But these terpretations or followed administrative decisions which filing hardly complaint probative of Bartell’s are long-standing a uniform and of administrative course interpretation strongly influence would control the outcome of ex rel. B’nai B’rith this case. State Cf. 306, Fndn. County, 307, v. Walworth 208 59 Wis.2d (1973); City 113 N.W.2d ex rel. Bank & Trust Co. State 306-07, v. Ilsley Bank, Marshall & 99 8 Wis.2d (1959) ; Beghin Bd., 105 N.W.2d v. Personnel 28 Wis.2d 422, 430, (1965). 137 29 N.W.2d

American Motors in its brief states that this case the first in which DILHR re asserted that the statute quired disputed accommodation. DILHR has not Moreover, long-standing contention. even a and con may sistent interpretation administrative a statute probative have little effect and should not be followed plainly when legislative erroneous or inconsistent with (Milwaukee intent Teachers, Fed. Local No. 252 v. WERC, 588, 598, ; (1978) 83 Wis.2d 266 314 N.W.2d Karow v. County Comm., Milwaukee Civil Service 82 565, 570, Wis.2d (1978)) 263 N.W.2d or when dealing administrative construction is of a statute with agency’s (Big power Country Dept. own Foot v. Club Revenue, 871, 875, (1975)). Wis.2d N.W.2d question intent —did the require intend to to accommodate an em-

357 ployee’s for observances— demand time off question appeal. central on the this is given that, frequently to be noted in order It has been weight court, a an adminis or substantial deference agency’s interpretation or trative construction legislature’s enacting reason must be intent in statute Layton ably contemporaneous passage. School its with 340, Design 324, 262 N.W. WERC, v. 82 Art & Wis.2d County, 22 (1978); 2d v. Milwaukee 218 Wauwatosa In this 184, 189-90, (1963). 386 Wis.2d 125 N.W.2d legislature in 1945. case, passed the statute was twenty- It approximately not until 1972—almost years con DILHR seven after the acted —that legislature intended hold that strued the statute to “Johnny require This the statute to accommodation. hardly Lately” meets construction of the statute Come contempora requirement there be substantial Norwegian neity judicial accorded deference. See 294, Nitrogen States, Products 288 U.S. United Co. v. Comm., ; 189 (1933) v. Industrial Wis. 315 Guse dis (1926), 208 493 Crownhart N.W. N.W. senting. construc We have noted administrative above DILHR’s might tion two criteria entitle of the statute does not meet which “longstand judicial weight to some additional review —the ing “contemporaneous” factor, factor. and consistent” and additional, these, factors as considera- Davis identifies and two may prompt court, discretion, in its to accord tions weight are the The other two to administrative construction. expertise respect comparative agency and the courts with particular problem, re- whether been statute has outstanding. Davis, rule Administrative while the K. enacted Treatise, pp. (1958). 5.05-5.07, secs. Neither is satis- Law 314-38 regard comparative judicial fied here. With administrative Employ- expertise, question Pair here involved —whether duty contains a one ment Act to accommodate —is not within expertise capability DILHR; is a rather unusual straight-forward question public policy, not an es- law

358

Accordingly, that, we circumstances conclude under the here, appeals that the court of when concluded erred it en- interpretations were these of DILHR administrative weight. Rather, appears it titled to considerable DILHR, following amendment of 1972 to the Fed- the Rights Act, required eral Civil which accommodation given law, engraft impetus under the was the federal to pecially high- complex requiring familiarity with matter extensive ly specialized might agency knowledge, areas be of which the likely possess regard more re- than to the courts. And with to approbation legislative enactment as intent of ad- evidence of occurs, may which, be ministrative even when it construction — (see 331-38, Hurst, 5.07, pp. dubious at Statutes id. sec. and W. Court, (1970)) legislative during in at 162-64 n. record —the subsequent adoption the 1970’s to DlLHR’s an accommodation of requirement problem does not reveal sufficient attention to the approval at hand to warrant an inference of of such construction. We note that Professor Davis the above discusses four factors judicial agency’s “interpretative connection with review of an adopted by specific agency delegation rules” —rules an without a legislative power of subject scrutiny judicial therefore and to close judicial judgment, substitution of id. at 315—in contradis “legislative” tinction adopted rules. The latter are rules agency pursuant an express legislative grant authority; they as binding, such are valid and not to be re-evaluated long they granted courts as statutory power, are within pursuant proper procedure, issued Id. reasonable. at 298. Barry See also Laboratories, Pharmacy, Inc. v. State Bd. 505, (1965). However, Wis.2d 132 N.W.2d the same factors —contemporaneity, long-standing construction, and re-enactment— properly applied legislative are question rules, respect even to “with granted whether rules are within power.” supra Davis, 329, Davis, at 338-39. also See K. Adminis Text, pp. trative Law (3d 1972). ch. present ed. 123-38 In the case, given practical effect of DlLHR’s construction of Employment Fair operated Act—the construction as a rule even though promulgated may as one—these factors properly applied. satisfied, reinforcing None them is our con duty clusion that a legisla to accommodate does not reflect tive intent in Wisconsin’s Fair Act. States jurisdiction of the United of another the law —that circumstances, these Under —upon the law Wisconsin. lead to which would no defensible rationale there is DILHR interpretations post-1972 conclusion declaratory of the intent were any

or, subsequent, matter, at time. for that regulations history of the federal EEOC Rights passage Act of followed the of the Federal Civil any, place, 1964 also of if that the fed- is instructive interpretation application eral in of the law has Wisconsin Fair Act. The relevant section Rights of 703(a): the Civil Act of 1964 was sec.

“It employment practice shall an unlawful employer— “(1) discharge any to fail or in- refuse to hire or to dividual, against any or in- otherwise discriminate respect compensation, terms,

dividual to his with con- ditions, privileges or employment, of of because such race, color, religion, origin sex, individual’s or national Rights . . . .” 88-352, Civil Act of Pub. L. 2000e, 2(a)(1) (1976). Stat. U.S.C. e passage act,

At the tim of of this the chief proponents of concern its was racial discrimination. background passage for the of the act is discussed length Religious at in and Kaplan, Edwards Discrimi nation VII, and the Role Abritration under Title of Michigan Law 599. Rev. As the of article authors state: intent, surprising during that, “Given this it is hearings preceding passage

the Act, and debates the the of Congress primarily focused attention its on problem. race discrimination .. . bothering “. . . Congress, seriously without to con- problem, sider religious or to document the included dis- crimination employment as one of practices pro- scribed title VII.” P. 600. legislation guidelines specific In view lack of of the meaningful debate, precise or intent of congress religious implementation in terms free- vague employment practices dom control passage years Civil indeed. Almost two after the Rights guidelines Act, first of its the EEOC issued the imposed religion, on discrimination because obligation part employer “an on the accommo- religious employees date to the reasonable needs guideline by contemporaneously . ...” It diluted this stating explanation thereof: employer his on who closes business Christmas “[A]n Friday thereby obligated give or Good is not time off pay employees with Yom to Jewish for Rosh Hashanah or Kippur. employer may prescribe “The the normal work week requirements and, foreseeable overtime absent an part intent to discriminate on religious grounds, job applicant employee or who ac- cepted job knowing having reason to believe that requirements such would conflict with his obli- gations requirements any is not entitled to demand alteration such (Em- accommodate his needs.” phasis supplied.) Reg. (1966), 31 Fed. 8370 codified at (1967). 29 CFRsec. 1605.1 guidelines, according These initial to Edwards and Kaplan, supra, appropriately opinion reflect the ex pressed congressional by debates Humphrey, Senators Clark, only and religious Case that intentional discrimi by original nation Rights be barred the Civil Act. Memphis See also Reid v. Publishing Co., 512, 521 F.2d 519, reh. en banc (6th den. 525 F.2d 1975), 986 cert. Cir. den. (1976), 429 U.S. 964 reh. 433 den. (1977). U.S. 915 generally See Kaplan, Edwards Religious Discrimi nation the Role Arbitration VII, under Title 69 of Michigan (1971). Law Rev. 599

Sec. 1605.1 was amended a year little later, over July (32 Reg. on 1967 Fed. (1967), codified guideline and the (1968)), 1605.1 sec. at C.F.R. pres- in effect to the adopted then, remains and which (1980), provides: (29 1605.1 ent time sec. C.F.R. duty not to that the “(b) believes The Commission religious required section grounds, on

discriminate Rights an 703(a) (1) Act of includes of the Civil employer make reason- obligation part on the employees of to the needs able accommodations employees prospective where such accommodation hardship the without undue conduct can be made employer’s . . . business. proving employer “(c) . . . the has burden of hardship required that an undue accommo- renders employee needs unrea- to the dations sonable.” guidelines, Under the the reasonable accommoda- new stringent. provision tion far Under was made more Rights guideline Act, if the new of 1967 can be Civil accepted being declaratory law, an requirement can make ac- avoid the he reasonable only by carrying proving burden of commodation hardship. undue posture court,

In this im- of the case before guideline portant remember, however, that the requiring duty EEOC as a matter of federal law the years twenty-two passage accommodation after the came Clearly, Fair Act. Wisconsin pronouncement agency federal made administrative passage two after the decades of a Wisconsin act is probative legislature’s of Wisconsin intent in 1945. difficulty

Great was encountered the federal courts they given question when faced the of the effect to be guidelines construing the EEOC’s 1967 challenges intent of the 1964 act. One of the first to the guideline Dewey Reynolds Co., EEOC was in v. Metals per (6th 1970), F.2d 324 Cir. curiam aff’d equally (1971). divided court 402 U.S. 689 That court finding appeals, while a fact that there had been employer, accommodation raised reasonable authority question had the serious whether EEOC guidelines impose employers to under accommodation Rights majority The Civil Act of 1964. of the court appeals for the Circuit stated that: Sixth gravamen of an offense under the statute is “[T]he only authority adopt a discrimination. The of EEOC to regulation interfering with the internal of an affairs employer, may discrimination, absent well be doubted. 331 n. [P. 1] ii parties] “The fundamental error ... is that [the equate religious discrimination with to failure accom- concepts entirely modate. We submit these two are employer ought different. The not to forced ac- varying religious commodate each of the beliefs and practices employees.” of his P. 335. The Sixth Circuit in the same case stated: legislative history “Nowhere in the of the Act do we any Congressional find intent compel or coerce one person to accede accommodate the beliefs requirement another. of accommodation to re- ligious only beliefs is Regula- contained in the EEOC tions, judgment which in our are not consistent with the Act.” P. 334. Dewey equally affirmed Supreme divided Court. 402 (1971). U.S. 689 Memphis

Reid v. Publishing Co., 521 F.2d reh. en banc (6th den. 525 F.2d 986 Cir. 1975), cert. den. 429 (1976), U.S. 964 reh. den. 433 915 (1977), U.S. also guidelines concluded that the beyond EEOC’s 1967 went unsupported intent and by legisla were history and, although tive congressional amendment intervened, of 1972 had it was held that an amendment congressional then did not establish a intent in 1964 require respect accommodation original with to the hand, statute. On the other the Fifth Riley Circuit in v.

363 den. en banc Corp., reh. 1113, reh. Bendix 464 F.2d guidelines as the 1967 EEOC (5th 1972), validated Cir. congress. expressing intent of the try to unnecessarily opinion to It would belabor journey EEOC definitively the perilous trace say through it to guidelines courts. the federal Suffice concluding great difficulty in the federal courts had that guidelines interpreting federal that the 1967 EEOC legislative cognizable declaration of law constituted Rights Act of 1964. intent of the Civil Airlines, Trans World until the case of It not was Hardison, (1977), Inc. v. that United 432 63 U.S. construction Supreme held that the EEOC’s Court States guidelines legislation, imposing to 1964 in its 1967 requirement, “defen accommodation was a reasonable Hardison, deference.” See to sible” and “entitled some Hardison, analysis supra it is In the 76, 11. at n. recognize congress, af in that 1972 the to essential (j) legislation, 701 701 firmative added sec. sec. section, Rights 1964, Act the “Definitions” Civil provide that, purposes Title VII: “ religi- ‘religion’ aspects (j) all includes The term belief, practice, well an as unless ous observance and employer accommodate religious reasonably that he is unable to demonstrates prospective employee’s employee’s an or hardship practice without undue observance employer’s Equal Op- business.” conduct .the 92-261, portunity Act of Pub. Law 86 Stat. (1976). 24, 1972, 2000e(j) codified 42 March USC sec.

Hardison makes clear that a reasonable accommodation requirement there was evidence of did arise because act that intent the 1964 or because guidelines, requirement but rather such a could congress affirmatively found because had ratified now be administratively re- the EEOC’s created accommodation legislation. holding specific quirement duty upon de minimis of Hardison that there was even a upon accommodate founded not was legislation guidelines, or the EEOC but rather upon congressional specific subsequent action of 1972. therefore, clear,

It of the instant the context case, Hardison, applied when to the Wisconsin situation, vague pro- leads to conclusion respect visions 1945 discrimination in the duty impose Wisconsin did not a of accommoda- statute tion, injection guide- and also that EEOC’s lines or application their administrative the Wiscon- DILHR sin cannot have that effect either.

The Supreme factors which led the United States requirement Court find a of accommodation in Hardi- lacking wholly history legis- son are in the of Wisconsin’s practices lation or of the administrative of the Wis- legislation consin DILHR. No amendment to the has provided accommodation, and DILHR at- has not tempted provide for reasonable accommodation legislatively rule, authorized administrative as did EEOC. experience The federal leads to the conclusion that no action, legislative effective Wisconsin or admin- istrative, imposed duty upon has of accommodation employers. Wisconsin

The appeals court of also on relied decisions of other supreme state courts found an accommodation requirement statutory where the state or constitutional provisions prohibit employ- discrimination in ment but question duty were on silent ac- per- These commodate. cases from other states are not example, suasive. For in Wondzell v. Alaska Wood Products, Inc., P.2d (Alaska 1978), 583 860 rev’d grounds (Alaska other P.2d 1979), 601 584 the Alaska act, court adopted noted that its was “modeled” after the Rights and, accordingly, Federal Civil Act it concluded that it would adopt review the decision- therefore, concluded It, the federal statute. al law under law appropriate to follow federal it was duty into the accommodation of reasonable to read a specifically on relied The Alaska court Alaska statute. unlike statute, Hardison case. The Wisconsin twenty Alaska, preceded act almost the federal years. act It cannot be said that Wisconsin therefore, that, we federal act and modeled after into the incorporate law the federal decisional should interpretations of the statute. Wisconsin similarly may supreme approach

The Maine court’s distinguished. Rights v. Local Human Comm. Maine Paperworkers Union, AFL-CIO, Int’l 1361, United 1978). supreme (Maine The Maine court A.2d legislative history inescapably that the act’s stated state compelled: employment discrimina- “. . . but one conclusion: years provisions after in our five

tion statute [enacted Rights were intended to be the Federal Civil Act] complimenting and counterparts Act, state in of the Federal supplementing In such certain instances the federal. circumstances, interpreting decisions federal courts statutory equivalents pro- federal the Maine Act the of significant guidance vide in our the construction of statute.” P. 375. addition, pointed

In court out Maine charged agency supervision administrative with the of promulgated copy” act had a “virtual state carbon regulation establishing (at 376) of the re- EEOC’s quirement of reasonable accommodation. These similari- are not found in the nor in ties to be statute Wisconsin history administrative Wisconsin law. deciding policy in

California also followed federal required law accommodation. Rankins v. Comm. on state Rptr. Competence, 167, 24 Cal.3d 154 Cal. Professional 366 app. (1979), 593 P.2d dism’d 444 986 U.S.

(1979). placed primary The California court reliance provision being interpreted on the fact that con- was statutory. Moreover, stitutional and not its constitution- provision adopted al the federal 1974—after statutory policy was resolved the 1972 amendment to favor accommodation.

Additionally, inapposite the California case because question duty the conduct in involved action —the state aof California school district’s failure to accommodate religious preferences of a teacher. It therefore re- heavily upon analogy lied to First to Amendment Constitution, is, course, the United ap- States plicable only discriminatory to state action and not to practices private corporations. citizens or point contrary holding

More in is the of the recent Michigan case Department court appeals, Rights Civil ex Mary rel. Parks v. Corp, General Motors App. (1979), Mich. appeal 287 N.W.2d (1980). docketed 408 Mich. 929 The statute enacted Michigan legislature ques- was silent on the tion of merely provided: It accommodation.

“It employment shall practice: unfair “(a) any employer, religion because of the . .. any . .. individual, to refuse hire or otherwise against to terms, respect discriminate hire, tenure, him with privileges employment conditions or . .” . . P. 371. Michigan Department Rights, expressly of Civil relying guidelines on the of EEOC and the amendment Rights the Federal 1972, adopted interpre- Civil Law of guidelines construing tative Michigan statute im- pose duty Michigan to accommodate. The ap- court of peals held, agency and the acknowledged, that these guidelines legislative-type were not rules and did not in therefore, court, themselves have the of law. The force that the considered the statute itself and concluded stat- legislature duty passed ute the as created no on religious prac- part an to accommodate the duty employees. tices of It concluded that no such was in in- to be found or could be of the statute words legislative rely- history. pointed out, ferred from the It ing case, that on the rationale Hardison of the legis- express statute itself silent and there was no guidelines agency’s lative kind ratification of the Supreme that the in Hardison. United States Court found Michigan court had commented ways subsequent amended the statute in to the other agency’s interpretation act but had administrative of the incorporate declined to amend the statute to the adminis- duty imposed trative accommo- construction which date.

Basically, however, the central rationale of the Michi- gan nothing ease is that in the there was statute or history of its in- enactment which indicated a require legisla- tent to accommodation no and there was activity subsequent tardy noncontemporaneous tive to the administrative construction of the statute which evinced legislative approval agency’s interpretation. Ac- Michigan cordingly, posture case com- almost pletely tracks that found in the case now before Michigan placed emphasis this court. The court also guidelines interpretative adopted fact agency given weight legis- were not to be afforded to a lative-type Wisconsin, rule.12 As the administrative Michigan agency incorporate failed to its administra- guidelines interpretation rule, tive into a as it could legislatively under authority. have conferred The Mich- igan recognized, that, court do in opinion, we 12 See, Treatise, 1 Administrative Law Davis, pp. K. ch. 285- (1958). given interpretation a

while an administrative statute by agency charged an its is entitled to with enforcement weight some where it accords with circumstances we interpreta- opinion, have earlier in this described that binding tion not on the court the is unless reflects legislature. intention of the controlling legislative the must that

Because intent alleged occurred, pertained “which at the time the offense legislative the a rather than intent as of the date of p. 381), subsequent (General enactment” the Motors Michigan department attempt court refused rights by interpretation of civil to bolster its reference Rights to the 1972 amendment to the Federal Act Civil by postdated reference to federal decisions which Michigan legislative enactment more than a decade. supreme

Other state courts have also found that ad- regulations requiring ministrative accommodation were gloss impose upon insufficient a silent statute.13 However, persuasive we believe that the most Michigan state court decisions that of the court of appeals. That precisely case addresses the same issues with as those are we confronted and concerns attempt agency retrospec- administrative tively engraft upon an intent enactment long interpetation that came after the statute itself.

We, accordingly, conclude that Fair Wisconsin Employment Act, adopted by legislature impose duty upon private did employers not to accom- religious practices employees modate the of their engraft attempt that DILHR’s present federal legislation statutory upon law the state came far too late 13 Corey Avco-Lycoming Div., Corp., v. Avco 163 Conn. (1972), (1973); 307 A.2d 166 cert. den. 409 U.S. Olin v. Comm., Fair 466, 476, Practices 67 Ill.2d 367 N.E.2d (1977) (the precise Illinois court declined to rule question). legis- any to the relevance it had to conclude for us passage of the act. time of the intent at the lature’s law, changes despite in the federal Moreover, any re- not enacted to date has Wisconsin accommodation, and DILHR has quirement of It requirement. adopted rule, such have, it could change legislature, nor has not recommended such prac- any pattern past administrative of there been has persuasive in the resolution tice or construction is of this case. Employment Act Fair conclude that the Wisconsin

We imposes duty employer to upon private accommodate no discharge employee. practices an act, under the Bartell not an act of discrimination accordingly appeals is the court of and the decision of reversed.

By the reversed. Court. —Decision Day, J., part. took no ABRAHAMSON, (dissenting). The J.

SHIRLEY S. stating majority is whether in the issue errs Employment requires Act the American Fair Wisconsin Corporation employee’s an work accommodate Motors employee’s absences which are occasioned observ- religious holy days. Supra, pp. and 344.1 ance of 1 recognize I this case as that AMC and also treat DILHR advantage this their mutual to take accommodation case. It is to position. winning if it casts AMC has a better chance than as rather issue as discrimination failure to accommodate longer apparently no discrimination another means. Bartell is really pur real interest interested in the case and DILHR’s suing get on the issue a definitive court decision case is of accommodation. Employment Act, see For a discussion of Wisconsin Fair Procedures, Coverage, Comment, Act: Wisconsin Fair Remedies, and Substance 1975 Wis. L. Rev. 718-721. issue accommodation. case does not involve the

This majority explains, case is one an accommodation As the obliga employer’s “an in which the court to determine is arguably an em conflict between tion where there ais personnel ployee’s employer’s practices and the management Supra, p. procedures.” and 348.

In this case is Bartell’s re- there no conflict between ligious management practices personnel and and AMC’s procedures. days requested off so he could Bartell religion. holy days per- observe certain of his AMC’s management days procedure provide and sonnel was to principal holy days, off on as Christmas Christian such days provide Friday, Good and to off to Jews obligatory days. holy others on their Bartell’s Thus religion interest the free within the exercise his designed employment policies terms AMC’s established operation for the efficient of the business. When AMC provide refused to time off to Bartell AMC failed to management its personnel follow own established procedures.

By employee comparison, the in an accommodation case seeking is exception employer’s uniformly ap- to the plied personnel management procedures; and the em- ployee asking approval is request for aof not within policies the uniform employees to which other are sub- ject employee in order to enable the to a faithful be ad- employed. herent and remain Bartell made no such re- quest; only he asked treat AMC him treats employees religious of persuasions other jobs in similar Bartell apply AMC. asked policy AMC to its uniform to him.

The distinction between case and one in which accommodation apparent reading is an issue is from the accommodation majority.2 cases cited the The first 2 Supreme point The stating: Connecticut Court made this plaintiff the “Since basic of employment claim was that her against terminated because discrimination her because

371 gen- step in an accommodation case is to determine the personnel policy employer. step eral of the The second religion, people her evidence was offered as to the treatment of employees company. of other faiths who were employees Those Jewish of Avco who were members of the bar- gaining generally permitted unit were not to take time off to bargaining agreement Rosh observe Hashanah sets because only specific holidays. may employees forth Some these be given pay, the time off without but this is a decision within the departmental supervisors. Kippur discretion of individual Yom is holiday employees not a bargaining listed in the From unit. employees requested time time to of various time beliefs religious holidays off for to certain Avco acceded of such requests very occasion, requests irregular on but were day period not plaintiff for the same for a sixteen weeks [as requested]. XIII, agreement “Article sec. 3 of the between Avco provides Company union as follows: ‘Neither the nor Union against any employee race, creed, shall discriminate account origin.’ sex or national The board arbitration after a full hearing reached the conclusion there was no discrimina- against plaintiff tion religion. because of her The lan- guage significant. put of the arbitrators ‘To it another way, Company since the does not intend to accommodate itself schedules, individuals as indeed it could if it desires continue to operation, maintain an efficient industrial it cannot grievant’s request accede to being in this instance without itself in violation Bargaining Agreement proviso. .. . Collective grievant right has request Company no or entitlement Corey Div., so to Lycoming Corp., act.” v. Avco Avco 163 Conn. 309, 155, 158, (1972), A.2d (1973) 159 cert. den. U.S. 1116 (cited by majority p. 368, 13). at n. Memphis In Reid Publishing Co., v. 512, 513, (6th F.2d 1975), Cir. (6th 1972) (cited 468 F.2d 348-349 Cir. majority pp. 362), employer required employees at Saturdays employed copy- available for work on and “never understanding reader with the that he would be relieved from working particular day.” on a Day A Seventh Adventist was job agree Saturday. denied a because he refused to to work on There was no discrimination. The issue was whether the law required the to accommodate.

372 general personnel policy is to determine whether general applied question. employee was to the If the Dewey Reynolds 1970), Co., (6th In v. Cir Metals 429 324 F.2d per by court, equally (1971) curiam an divided 402 689 U.S. aff'd (cited by p. majority 361), Reynolds Com at Metals pany’s bargaining agreement required employees to collective perform straight required all time them and overtime Reynolds required Saturdays company; and on Metals work Sundays employees permitted assigned week but on the to work assignment by making arrangements ends to be from the relieved qualified replacement. Dewey, a for the Faith Re member of Sunday Church, formed range ar refused to refused to work and replacement. Reynolds for a The court Metals held Company provided distributing fair, equitable had method among employees the workload its which did not discriminate against any of them. The issue in was the case then whether required Reynolds the law Metals to accommodate. Riley Corp., 1113, In v. Bendix 464 F.2d reh. reh. en banc and (5th (cited by 1972) majority pp. 362, 363), den. Cir. at general company court policies, company found that rules company working and the provided conditions for fixed work religious practices schedules without further deviation and policies, working found that these rules were conditions applied uniformly fairly respect employees. with to all The required Corporation issue then whether the law Bendix accommodate. Corp. Employment Practices, 466, In Olin v. Fair 67 Ill.2d 367 (cited by p. 13) (1977) majority N.E.2d 1267 at n. Hardison, (cited by majority in TWA v. (1977) 432 U.S. 63 p. 363), at the burdens of weekend work were a matter for col bargaining complaint lective and there was no the rules bargaining agreement fairly set forth in the were uni formly applied. complainants The in both to be cases wanted exceptions generally treated as to the work established rules applicable employees. to all in the issue cases was did require corporations law to accommodate. Paperwork In Maine Human Rts. Comm. v. Local United Union, ers (Maine 1978) (cited majority Int’l A.2d p 365) Products, Inc., at and Wondzell v. Alaska Wood (Alaska (cited majority 1978) p P.2d 364), at it is permitted exceptions payment clear that the unions no to the monthly Day asking union dues and that a Seventh Adventist was

373 policy applied uniformly and thus without overt was discrimination, question of whether the the court reaches requires statutory against prohibition the discrimination general employer permit policy exception to to its particular employee, for this is whether statu- tory prohibition against requires the em- discrimination ployer practices to accommodate for employee. general give policy employees AMC's to religious holidays. apply time off on AMC refused policy general apply If to Bartell. the refusal policy employee to an overt discrimination there is is required. no reason to consider whether accommodation Accordingly, court must first whether this determine conduct constitutes overt discrimination of creed. because employer’s

An grant regard- employees refusal all less of creed employment the same terms or conditions of requirement employer is discrimination. The that an grant regardless employees all of creed the same terms employment requirement conditions equal is a treatment, not I accommodation. conclude that AMC’s dismissal requested of Bartell he because off for time religious holidays constituted because discrimination creed in 111.32(5) (a) 111.325, violation of secs. special dispensation for payment. to refrain from The issue in these required cases was whether the law to accom- unions modate. Implicit Comp. Ducor, in Rankins v. Comm’n on Prof. Rptr. 907, app. Cal.3d (1979), dism’d, 154 Cal. 593 P.2d 852 (cited (1979) majority p. Dept. U.S. 986 365) at and in Mary Civil Corp., Rts. ex rel. Parks v. General Motors 93 Mich. of App. app. (1979), docketed, 287 N.W.2d 408 Mich. 929 (cited (1980) majority p. 366), at is that person present during allowed no other reasons regular period scheduled work to the extent demanded employees. these The issue in these cases was whether law required the unions to accommodate. I

Stats. would therefore affirm 1979-80. the decision of appeals. the court of raising

I further conclude that if I viewed this case as whether refusal issue constitutes accommodate discrimination of in because creed violation of secs. 111.32(5) (a), 111.325, agree 1979-80, I Stats. would reasoning with the of the circuit court and the of court appeals, majority opinion. not the I therefore dissent.

I. Employment The Wisconsin Fair Act makes it unlaw- employer against ful for an employee to discriminate an regard hiring, term, because of creed “with tenure or privilege employment.” condition or of 111.32(5) Secs. (a) 111.325, Stats. 1979-80. determining

In employer’s whether an conduct con- proscribed discrimination, stitutes the threshold issue is statutory one of construction: what did the prohibited intend when it discrimination of because regard “hiring, “creed” with term, tenure or condition privilege employment” or ? specific statutory

Absent a definition, this court has defined in Employment terms the Wisconsin Fair Act in commonly their accepted dictionary Accordingly, sense. system religious “creed” “a system means A beliefs.” religious beliefs includes observances and practices, as Augustine well as articles of faith. v. Anti- League B’nai B’rith, 75 Wis.2d Defamation (1977).3 N.W.2d 547 “discriminate,” To in common usage, means, alia, inter “to make a difference in treat- ment categorical or on a favor class or in basis disre- gard of individual merit.” Webster's Third New Inter-

3 Creed is defined in Webster’s Third New International Dic tionary, p. 533, epitome as “a formulation or principles, rules, opinions, precepts formally expressed seriously adhered to and maintained.” Dictionary p. national definition is consistent 648. This appearing with in sec. of discrimination definition 1979-80, (lm) (b), 101.22 Stats. which is also enforced (lm) (b), prohibits DILHR. 101.22 Sec. dis- housing, in crimination as fol- defines discrimination lows: “ segre- ‘Discriminate’ and ‘discrimination’ mean to

gate, separate, any unequally person exclude or treat only sex, race, color, physical condition, because of de- velopmental disability religion, 51.01(5), as defined origin ancestry.” national

Applying accepted these definitions to the Wisconsin Fair Act, prohibi- I conclude that the Act’s against tion discrimination because creed means lawfully cannot differentiate its treat- employees ment of on the basis of the beliefs religious practices and employees. The issue for the court is therefore whether on the basis DILHR’s findings of undisputed fact and on the evidence in the record, appears it that when AMC dismissed Bartell differentiating was in employees its treatment on the religious employees’ basis practices. beliefs and Generally application legal of a standard to the legal question may facts is a viewed as which this court determine. have We often stated that is not the court agency’s bound question determination of a of law may properly judicial and judgment. Supra, substitute its p. 353; Dept., Nottelson v. ILHR 106, 94 Wis.2d 114- 117, (1980); Bucyrus-Erie 763 287 N.W.2d Co. v. ILHR Dept., 408, 417, (1979). Wis.2d N.W.2d discriminated,

To determine whether AMC I look first findings undisputed of fact and the evidence. employee, Bartell, The Thomas is a member religions Worldwide Church of God. Like other Worldwide Church days of God denominates certain religious holy days during which the adherent not does holy days religious

engage work. Two such secular (Mon- Day Atonement are involved in this case: the day, September 1972), 18, and Feast of Tabernacles through Friday, September (Friday, September 22 1972). days of Tab- the Feast and last On first during ernacles, are not to do secular work adherents required a to attend the feast week the adherents are regional regional religious re- In 1972 convention. ligious was held in convention which Bartell attended by 10,000. Bartell attended Wisconsin Dells religious required his his attendance testified that beliefs religious at In with his be- this convention. accordance Bartell, August requested practices liefs and 18, 22, September from work on he be excused 29,1972. request 25 to was denied. Bartell’s Bartell from work on AMC’s refusal excuse his days obligatory holy contrary pol- is to AMC’s give icy days purposes. employees off for According testimony of In- to the AMC’s Director of body plant: dustrial at the Milwaukee “When Relations personnel require Jewish time off to celebrate their holi- days, given they They may may are time off. or get paid depending plant for the time off their they’re area. We allow them the time off. Whether compensated for it or not is another matter. It company policy day person they allow off if in- religion requires day dicate that their them to take the majority recognizes off.” The policy that AMC has a allowing employees required to take time off if reli- gious purposes. majority states: “There is also evi- policy dence in the record that it was the the usual practice permit for American Motors to sincere be- days. obligatory holy lievers to from abstain work on clearly . . The record in . this case would not war- Motors, rant conclusion that American matter as a disregarded religious policy, of em- needs of its ployees. The order DILHR American that Motors discharging employees ‘cease desist from on the religion’ unjustified unsupported by basis Supra, p. the record.” 344. only may conclusion that from be drawn the record differently

is that AMC treated Bartell than treats employees religious persuasions. of other AMC would person released a have from Jewish faith work on Monday, September Kippur. Yom Yet AMC Bartell, refused to excuse a member Worldwide God, day, very Church of work from on the same Mon- day, September 18, 1972, Atonement, Day to cele- holy day according brate to his beliefs. The record reveals that Bartell does not differ from employees any respect AMC’s other other than his creed. attempted persuade

AMC DILHR that its refusal grant terms, privileges Bartell the same conditions employment grants employees as it other different religious persuasions was based not on Bartell’s creed deceptive but on Bartell’s conduct towards AMC. AMC attempted deceptive to show that Bartell was in not tell- ing days began AMC of his need off when he program. concluded, DILHR however, deception had proved. not been majority opinion As the correctly points out, the factual determination that Bartell was terminated for observing his insistence on his holy days and deception, not for “was for DILHR to make and would not be Supra, disturbed the court.” p. 343. attempted

AMC also grant to show that its refusal to Bartell terms, privileges same conditions or of em- ployment grants as it employees other of different religious persuasions was based not on Bartell’s creed training program special nature the

but on the participating.4 which Bartell was training had program, AMC, new at This then brand enrolees, Bartell, Abdin and Johnson. a total of three training charge program, supervisor in The AMC pro- testifying examination, on direct characterized gram’s employees as “iron- for these three schedule However, that clad.” he on cross examination stated neither the schedule as Abdin nor Johnson followed planned. explained He further that Abdin allowed was days assignment to tack on his missed on another while training to the end of He schedule. further testified “tacking” procedure for this could have been used Bartell.

DILHR found that it was uncontroverted on the record that AMC could have Bartell from his released work on obligatory holy days any hardship “without undue business.” The circuit court reached the [AMC’s] same conclusion, saying: supervisor] “While had that he would [the stated have to ‘re-do the entire schedule’ to accommodate claim- request merely off, ant’s for time he also admitted that he could segment

have his the with excused the claimant from one program re-assigned department him to that at procedure end of the schedule. This followed program one of the other two trainees company. convenience of The record fails to show any why complainant reason could not have been ac- testimony supervisor anof AMC can be read mean that although policy AMC’s was to allow time off for observance of obligatory religious holidays policy apply did not if it was job “critical” employee for the not be AMC released. The supervisor people seven-day operations. said: “Some work on If somebody we every had Saturday every who had be off Sunday, we’d depart terminate him. We could transfer him to a particular days ment per where off would not be critical. A spe son could be It transferred. would be if he difficult were a cialist.” Although the claimant in the same fashion. eommodated earlier, this problem it is clear could have raised the any delay in accommo- in itself did not create difficulties only ‘hardship’ dating request for time off. The appears taken to alter which it would have the time the claimant’s schedule.” grant

Thus the record shows that refusal AMC’s terms, privileges of em- Bartell conditions or same granted namely ployment employees, off as it other time religious obligatory holy days, predicated was not on for deception, special Bartell’s Bartell’s or on the nature of job, any or on other lawful The record shows reason. adhering to Bartell fired because of his insistence on his creed. justification

This record no AMC’s refusal shows general releasing apply policy to Bartell em its religious days. ployees obligatory holy re AMC’s fusal, any Bartell, justification, who without accord religious terms, particular persuasion, a the same was of privileges employment sub conditions or it accorded religious similarly stantially employees situated of other persuasions, under 111.- discrimination secs. constitutes Having adopted 32(5) (a) 111.325, Stats. 1979-80. releasing obligatory policy employees from work on religious holidays (when not substan this release does tially job performance), interfere with AMC cannot discriminatory apply policy in a manner vio this Employment recognized the Fair Act. This lates court principle Ray-O-Vac Depart., v. ILHR this 70 Wis.2d (1975) N.W.2d : agree parties private employer “The all that a is not compelled by provide law to in the case of benefits temporary disability, However, and so do we. if he so, plan chooses to do must be under a which does not any prohibited by employ- discriminate on basis the fair ment law.” justification, who, An AMC without like. grants privilege denies of one which it members creed a creeds, the denial arises members other whether error, from evil motive law. or bureaucratic violates the conduct in case AMC’s cannot be characterized as application policy neutral, fair a neutral-on-its-face practice. directly, openly any AMC and without busi- justification similarly employees ness treated situated religious persuasions differently. different purpose prohibit of the Fair Act is to employers compelling from an individual to choose be- tween faith and economic 111.31 Sec. survival. (1), accomplish Stats. 1979-80. To this result the state persons has mandated that of different faiths religious as well as those of no faith receive fair treat- employment ment in the market. The Act assures em- ployees employment that will not decisions be based on impermissible grounds such as The Act creed. is empty guaranty unless is invoked to halt discrimina- tion of kind involved here.

I conclude that AMC violated the Fair Wisconsin Em- Act, ployment and I would therefore affirm the decision appeals. majority of the court of contrary The reaches a wrong posed question. result because it has II. if

Even I were to conclude that the at case bar raises question whether refusal to accommodate constitutes discrimination, I conclude, would as did the circuit court appeals, and court of enacting that in 111.31, secs. 111.- 32(5) (a), 111.325, 1979-80, legislature Stats. in- tended to phrase include within the “discrimination be- employer’s cause of creed” an refusal, without business justification, to take steps amounting reasonable not an undue burden to employee’s accommodate an free religion. view, for reasons set forth I exercise of appeals, that the statute is constitutional the court of as so construed. history religious centrality freedom

The knowledge. general country Ameri- matter this is a of Amer- people. The United States are cans seeking worship by persons freedom to ica was founded they they pleased worship pleased. Amer- if or not to abiding continuing ican interest citizens have protection The from discrimination. Wiscon- legislature responded interest mandat- sin has to this any ing per- employment opportunities denied that not be (a), 111.325, 111.32(5) son because of creed. Stats. Secs. legisla- accomplish 1979-80. this end the Wisconsin To fair ture has to construe the em- instructed the courts “liberally” ployment practices accomplish de- act encourage public policy clared “to the state practicable employ- and foster to the fullest extent regardless properly qualified persons ment of all age, race, creed, handicap, sex, their color, national ori- gin ancestry.” 111.31(3), Sec. Stats. 1979-80. majority direction concludes that

of liberal construction a court “to does authorize legisla- import specific provisions into the act p. agree. Supra,, ture omitted.” I But I do not think 350. interpreting “discrimination because creed” duty importing include the accommodate is into specific provisions Act that the omitted. Tak- ing opposite majority view, apparently the concludes characterizing employer’s that refusal to accommo- falling meaning statutory date as within the of the phrase error, “discrimination because of creed” because import such a characterization would into the statute a specific provision, namely duty accommodate, to that legislature majority say omitted. The how does not spe- knows that Wisconsin omitted this meaning provision phrase

cific from the “discrim- creed,” legal ination because of a which standard is ca- pable bearing meanings several and which must be applied legisla- to a multitude of fact situations. The ture has not stated in the Act whether discrimination duty does or does not include the refusal to accom- majority admits, modate. As the the most that can be gleaned legislative legis- history from the is that any proposed incorpo- lature has not enacted bill rating provision an accommodation into the statute. And the majority correctly concludes that it does not believe logical “it would be or reasonable to assert failure legislative of this bill to be enacted constitutes a rejection duty Supra, p. to accommodate.” 349. support

To majority its conclusion the looks to ex- trinsic aids to determine the intent of the Wisconsin legislature. Thus, majority to, looks but refuses give weight to, long-standing (as DILHR’s of the date opinion) noncontemporaneous of this but construction majority Act. reviews several federal and state court decisions in which the court had to decide statutory provision whether a similar to Wisconsin’s prohibiting statute “discrimination because of creed” encompassed duty a to accommodate. Some courts statutory phrase concept concluded the included the oppo- accommodation and other courts reached the conclusion; depended site which factors result indicative of intent that court found most persuasive. cases, I particular conclude from these prior the TWA-Hardison case and the federal cases statutory amendment, to the 1972 federal rea- sonable courts can reach different conclusions as to particular legislative body whether intended “discrim- encompass duty ination because of creed” to accom- modate. language objective

I look to the of and the ac- complished by the Fair Act to determine legislature’s meaning intent as to the of “discrimina- un- legislature, tion of creed.” The because Wisconsin 383 Congress legislatures, has set forth like or other state given guid- objective court of the Act and has the meaning application of and of the ance to determine legislature that where has directed Act. Wisconsin way may to inter- more than one reasonable there Employment Act, this pret apply the Fair or Wisconsin way apply interpret the Act in the that court is to “encourage possible to the fullest extent will foster regard- qualified persons employment properly all 111.31(3), . . . .” of their . . . creed Sec. Stats. less Recognizing legislative policy, this statement of 1979-80. aid, purpose interpretive as an this court has intent give Employment prior the Fair Act cases declined to reading, saying: a “too constrictive” promul- Employment Fair Code was “The Wisconsin encourage gated practicable sons. To fullest extent so and foster employment properly qualified per- all goal, accomplish restricted the the code right against employer’s individ- to discriminate those though old, whatever, who, female, handicapped uals job. efficiently could If the individual can function on efficiently job, function on then the mere fact that average employee he is different from as to those statutorily proscribed for discrimination. To effectuate this may bases not be used as a basis purpose, the code liberally 111.31(3), is to be construed. Sec. & Stats.” Chicago, M., DILHR, P. RR. v. St. Co. 62 P. Wis.2d 392, 397, (1974). 215 443 N.W.2d Giving actually “the terms . . . used guide- application proper the fullest within definitional legisla- spirit lines that are consistent with the (Supra, p. 351), employer’s tion” I conclude refusal to make reasonable accommodation for member minority hardship of a faith when there is no undue language within the the statute falls barring discrimination. DILHR, court Tel. v.

This said Wisconsin Co. (1975), 345, 368, Wis.2d that “the N.W.2d broad purpose prac- Fair Act is to eliminate discriminatory impact prac- tices have a as well as on face amount to discrimi- tices which their invidious employer’s persuaded I am nation.” that an refusal to make a reasonable accommodation for a member of a minority hardship faith when there is no undue on the employer discriminatory impact employment has a on the minority opportunity substantially of members of faiths resulting to that from similar overt invidious discrimina- sign saying: per- the kind “No tion of illustrated a religion obeys minority son who the tenets of a need apply.” In both situations the forces the em- ployee job to choose between and creed when creed job performance. adversely prac- does not affect Both significant discriminatory impact. prac- tices have Both tices the Act. violate

Perhaps by anticipating point is better illustrated practical majority effect After read- decision. ing majority opinion, put myself I to into the tried attorney position requested of an whose client has her given job applicants explaining to draft notice to be company’s legalized per- “no now accommodation” policy. following sonnel I drafted the notice:

WE TO WANT EXPLAIN —WE DO NOT

ACCOMMODATE unbending give policy “It our is strict and not to em- ployees days religious holy day off for observances. Our employees need not work on the afternoon of December 24, day of December and the afternoon of Good Friday. We know these off times coincide with the re- ligious holy days religions majority in this coun- try. the give days customary We these off because it is so, United States for to do businesses not because it policy give is company days employees off religious holy day observances. very “It would not be difficult for us to allow an em- ployee religious who is a member non-majority of a faith up days year take off to 10 pay without to observe obligatory their holy days; we would have to adjustments make keeping in our systems, record but our neither business nor our employees other would be seriously explain these inconvenienced. You need it is facts to us. We are aware of them. Nevertheless give unbending employees policy our strict and not to days religious holy day off for observances. giving everyone policy time do not our “We view Friday off favoring policy non-majority religious December December 25 and Good as majority religions. the denying We do not view our pay employees time off without religi- obligatory faiths for their holy days disfavoring religions. minority ous our viewWe policy’ policy, ‘no accommodation aas neutral neither favoring disfavoring persons particular nor persuasions religious persuasion. or of no support your right your “We to the free exercise of religion. of the right guaranteed by Your Constitutions support United States and Wisconsin. We the you your constitutions. But if want time off to observe obligatory religious holy days you cannot work here. Don’t exception you. ask us make for Our answer hope you will be no. position. We understand our We do not accommodate.”

The of substance this notice would not violate ma- the jority’s interpretation legislative proscription of the state against discrimination because of creed. The substance of employer’s this notice is that the condition for em- ploying religion minority give they of a members is up though allowing their creed even them to observe their practices beliefs and would not cause employer undue burden on the and would not interfere with ability perform their job satisfactorily for employer; impose does the same employing majority religion. condition for members of a I do not believe that intended this interpret court to the Wisconsin Fair Act way in a permit employers that would adopt the kind employment practice my notice sets forth. I do not employment think practice leg kind of this is what the islature had in its collective mind it when said that “it is public policy declared to be the of the state to encour age and practicable foster to the fullest extent the em ployment properly qualified persons regardless of all creed, sex, age, color, handicap, race, national ori

their liberally gin ancestry. subchapter or This shall con accomplishment purpose.”5 strued for the of this position by I I taken dissent because think the majority the Act statement is inconsistent with and its Policy (sec. 111.31, 1979-80) is The full Declaration of Stats. as follows: denying policy. (1) practice “111.31 Declaration of em- ployment discriminating against, opportunities to, and other and properly qualified persons by age, race, creed, reason of their color, handicap, sex, origin, ancestry, or national arrest record record, likely unrest, conviction to foment domestic and strife substantially general adversely and of a and affect welfare capacities depriving state its of the fullest utilization of production. licensing agencies employers, The denial and some employment persons solely opportunities labor unions of to such age, race, creed, color, handicap, sex, because of their national origin, ancestry, record, arrest record or conviction and discrimina- against employment, deprive tion them in tends to the victims of earnings necessary just are decent maintain and living, thereby committing grave injury standard of to them. “(2) by many pro- problem It is believed students rights people gainful employ- tection law of all to obtain ment, privileges age, and other free from because of discrimination race, creed, color, handicap, origin ancestry, sex, national would recognized unrest, remove certain sources of strife encour- age productive the full utilization of the resources of the state to family state, people the benefit of the and to all the state. “(3) interpretation application In subchapter, otherwise, and public policy it is be the declared to of the state to encourage practicable and employ- foster to the fullest extent qualified properly persons regardless ment age, of all race, their creed, color, handicap, sex, origin ancestry. national or This sub- chapter liberally shall be accomplishment construed for the of this purpose. “(4) practice requiring employes prospective employes honesty to submit providing safeguards tests without for the subjects unfair, test improper testing and the use of and tests procedures injury employes prospective causes em- ployes.” long-standing public policy strong foster- this state’s pluralistic diversity ing equality in our Fortunately has the society. the Wisconsin straight. opportunity to set record Wisconsin, Plaintiff-Respondent, State

v. Kruse, Defendant-Appellant-Petitioner. Michael No. 79-552-CR.]

[Case Plaintiff-Respondent, Wisconsin, State

v.

Randy Purifoy, Defendant-Appellant-Petitioner. No.

[Case 79-1414-CR.] Supreme Court 79-552-CR, Argued Nos. March 1981. Decided 1414 - CR. 79- April 29, 1981. reported

(Also 85.) in 305 N.W.2d

Case Details

Case Name: American Motors Corp. v. Department of Industry, Labor & Human Relations

Court Name: Wisconsin Supreme Court

Date Published: Apr 29, 1981

Citation: 305 N.W.2d 62

Docket Number: 77-703

Court Abbreviation: Wis.