Danny R. Smith v. Pyro Mining Company

ENGEL, Before JONES and KRUPANSKY, Judges. Circuit JONES, Judge. NATHANIEL R. Circuit employment The defendant dis- appeals crimination case from a awarding damages plaintiff days for dis- consecutive off. Each religion in required crimination on the basis of viola- approximately twenty-six VII, 42 2000e- Sundays per year. tion of Title U.S.C. § 2(a)(l)(1982). Because we find no error in implementing Prior to schedule, the new case, disposition the district court’s of this Pyro publicized through presenta- a video we affirm. policy allowing tion Smith, plaintiff, Danny R. was hired objected Sundays to trade 19,1981, Mining Company by Pyro on June scheduled shifts qualified with another em- underground as a mechanic coal mine. ployee who was not scheduled to work the 1,000 persons Pyro employs over who work Pyro same shift.1 representa- also had a underground and another 150 surface em- questions tive on hand to following answer ployees. During employ- the time of his presentations. Pyro’s policy Under of Pyro, ment at Smith was a member attempting to accommodate those unable to Baptist Independent General Church locat- Sundays religious reasons, work on due to Hill, Kentucky. ed Ceder Smith also required was first to held the church offices of Treasurer and swap to a shift quali- with another subsequently Trustee at the time. He be- employee. fied If the employee was unsuc- Sunday The offi- came a School teacher. effort, cessful in that required he was then precluded doctrine of the church cial all opportunities to exhaust afforded officers and teachers in the church from Pyro’s “Open Policy” Door to resolve the Sundays, although on individuals problem. “Open Policy” Door was de- Sunday could work on remain church signed to allow an who had a teachings, members. Based on the of his grievance problem work-related or other to church, morally Smith believed that it was personally present the matter first to his wrong Sundays to work on in the absence supervisor up and then the chain of com- threatening of a life situation. president mand to the Pyro, if neces- sary, problem. All During interview, employ- resolve employment his initial given setting ees were Coleman, handbook forth Varney Smith informed Mine Su- policy prior implementation perintendent Pyro, for that he had eight-day work week. against working convictions Sundays. on Despite convictions, his Smith worked for a Smith was scheduled to work first shift, Pyro’s required time on third Sunday that the new schedule went into report him to p.m. for work at 11:00 on All employees required effect. werе Sundays. occasions, Aside from these report July on Sunday, work required Smith was not work Sun- company 1982. The entire had been on a days during year first of his prior two-week vacation and to the vaca- ment. tion, Smith had informed his immediate su- Dunbar, pervisor, July David he would

On altered its work reporting Sunday, July 11, for be work implemented eight-day schedule and due to work his convictions. week stationed at the Sunday Smith called the office on eight-day mine where Smith worked. The and left improve reporting work week was instituted to min- word that he would not be ing schedule, efficiency. going Under the work since he was to church. He new assigned subsequently given were to work four con- was an unexcused ab- days missing secutive ten-hour and then have four day. sence work that presenta- 1. The quick district court discribed the video tion consisted of references toward the following tion in persons portray- manner. "Prior to the end of the video between two week, implementation eight-day ing exchange work miners. The crux of the comes Pyro, through language discussing eight- crude and a format that when the miners are the new intelligence day had to be an insult to the week and work. One it, asked, great majority publi- preachers?' of those who viewed ‘What about The other one ‘Hell, policy allowing employees replies, they swap go cized its ob- who if let us off to fish- ” jected ing, they’ll preachers swap to Sabbath work to trade shifts other with I reckon let the off.’ qualified employees. publica- App. The sum of this at 189. again subsequently scheduled work on Coleman turned the matter August 15, Sunday, again 1982. Once he Manager over to the Assistant Employee supervisor informed his that he would Relations, Paul Hill. Hill conducted a cur- due to con- absent from work his sory examination of the matter and con- given He second unex- victions. cluded that Smith had properly termi- unex- cused absence. After his second nated. absence, cused Smith talked with David Following discharge, Smith filed a Dunbar, super- turn talked mine complaint against Pyro in federal district Ramsey, intendent Don who said that the alleging court had violated the unexcused absences would stand. Dunbar provisions discrimination of Title promised Smith that would ask his son byVII discharging him because reli- Smith, swap days with but this gious Pyro’s beliefs. answer denied swap place. never took Smith also asked allegations and claimed that Smith they swap two other mechanics cooperate Pyro’s refused to with effort him both declined. Smith then accommodate his wrong needs. Fol- personal- decided it for him that was lowing trial, one swap day bench ly ask someone to with him since the district was, effect, asking person to Smith, sin. court entered finding for Smith, however, willing to work in a that Pyro had made no effort to reasonably arranged swap company. accommodate his beliefs. The court further Pyro found that had not absence, After Smith’s second unexcused any hardship shown justify undue Manager, Danny Griffin, the Mine its talked failure with him and to accommodate appeal about absences was told Smith. On Smith that he Pyro challenges did believe following findings of Sundays. try on Griffin told Smith to and (1) the district court: that Smith’s swap and come back if noth- held; sincerely (2) beliefs were Pyro ing be could worked out. Griffin was failed to accommodate Smith’s aware that Smith considered to be moral- religious beliefs; (3) failed to wrong ly ask someone to work him for pose establish that accommodation would Sunday. on a hardship. an undue again Smith was scheduled to on work August Sunday, 22, again 1982. He noti- I. supervisor fied his that he would not be part Title VII provides that “[i]t reporting given to work. He was a third employment practice shall be unlawful missing unexcused absence for work. (1) employer discharge ... company policy had a automatiсally of ... individual because of such individual’s terminating any employee accumulat- religion____” ... 42 U.S.C. 2000e- ed three unexcused absences within a six- 2(a)(l)(1982). Congress When Ti- amended period. month poli- accordance with this tle following VII in it added the defi- cy, discharged Smith was Monday, Au- religion: nition of gust 23, 1982, he reported when “religion” The term aspects includes all after his Sunday third unexcused absence. practice, observance as day discharge, On of his ap- belief, well unless an demon- pealed his termination to Coleman. At this strates that ishe unable to reasonably proposed

time Smith that the company al- an employees’ accommodate to ... reli- him work days low additional in excess gious practice observance or without un- regular pay shift without overtime hardship due conduct of the em- to make up for Sunday absences. He ployer’s business. proposed also that he be transferred to a 42 2000e(j)(1982). U.S.C. “The intent and job surface require did not effect of this was make it ... requests work. an unlaw- Both were refused Pyro. employment ful practice At discharge, the time of the ... Cole- man told Smith that he er not accommodations, would look into the to make reasonable matter to see if anything could be done. hardship, short of undue for the

practices prospective employer. commodation to his Where an employees.” TWA v. 432 U.S. employee refuses to attempt to accommo- 2264, 2271, 63, 74, 97 S.Ct. 53 L.Ed.2d 113 date cooperate his own beliefs or to (1977). to accommodate in employer’s attempt to reach a reason- cludes efforts accommodate those em accommodation, able he may render an ployees particular who refuse to work on impossible. accommodation days of the week because of their Chrysler Mann, Corp. v. 561 F.2d See, e.g., Edge v. Murphy beliefs. Memo (8th Cir.1977), denied, cert. (M.D.Ala. Hospital, F.Supp. rial (1978). 1982). “[A]ny reasonable accommodation See also Brener Diagnostic v. Center Hos is sufficient to meet its pital, 671 (5th F.2d Cir.1982) obligation.” accommodation Ansonia Bd. (“bilateral cooperation is appropriate in the — Philbrook, U.S.-, Educ. acceptable search for an reconciliation of employee’s needs of the religion and already has reason “[W]here exigencies of the employer’s busi ably employee’s accommodated the reli ness”). needs, gious statutory inquiry anat [3,4} The reasonableness of an employ- end. The need not further show er’s at accommodation cannot be employee’s that each alternative ac determined in Instead, a vacuum. it must commodations would result in undue hard case-by-case basis; determined on a ship.” Id. what be a reasonable accommodation analysis any religious accommoda for one may not be reasonable begins case question tion with the for another. In Redmond v. GAF Corp., employee whether the has established 897, (7th Cir.1978), 574 F.2d prima religious facie case of discrimination. Seventh Circuit noted that: Such a case is employ established when an The term “reasonable accommodation” is (1) ee shows that: he holds a sincere reli a relative term given and cannot be gious belief that conflicts employ with an meaning. hard and fast Each case in- requirement; (2) ment he has informed the volving such a determination necessarily employer conflicts; (3) about the he depends upon its own facts and circum- discharged was disciplined failing for stances, and comes down to a requirement. determina- comply conflicting employment with the tion of “reasonableness” under pen v. Missouri-Kansas- Tur unique circumstances of the individual Co., 1022, (5th Tеxas R.R. 736 F.2d 1026 employer-employee relationship. The tri- Cir.1984). Once the has estab position weigh er of fact is in the best prima case, lished a facie the burden shifts these considerations. employer prove that it cannot accommodate the Albuquerque, Accord United States v. 545 incurring See, without hardship. undue 110, (10th Cir.1976). F.2d 114 If the em- id.; e.g., Dynamics Anderson v. General ployer’s efforts fail to eliminate the em- Aerospace Division, 397, Convair 589 F.2d conflict, ployee’s religious the burden re- (9th Cir.1978), denied, 401 cert. 442 U.S. mains on the to establish that it 921, 2848, (1979). 99 S.Ct. 61 L.Ed.2d 290 is to reasonably unable accommodate the employee’s beliefs without incur- Although the burden is on the em ring hardship. undue American Postal ployer employee’s to accommodate the reli General, Union Workers v. Postmaster gious needs, must make some 772, (9th Cir.1986); 781 F.2d McDaniel cooperate effort to with an at Intern., Inc., v. Essex 571 F.2d tempt at accommodation. (6th Cir.1978). This court has noted that: An employee cannot shirk his duties to try employer does not sustain his bur- cooper- accommodate himself or to [A]n proof merely by showing den of reaching ate with his in that an accommodation accommodation a mere recalcitrant would be bothersome to citation of рrecepts. disruptive Nor can administer or of the operating thereby he responsibility addition, shift all for ac- routine. we are somewhat hardships reviewing record, after skeptical hypothetical appel- of that entire might employer thinks caused late court is left with the definite firm has been an accommodation never conviction that a has mistake been made. on practice. The is put City, into Anderson Bessemer attempted when he has stronger ground when, of accommodation and methods Additionally, here,

various as was case hardships actually re- point “findings can are based on determinations re- ‍​​‌​​‌​​‌‌​‌​​​‌​‌​​‌‌​​​​‌‌​​​​‌​‌‌​‌‌‌‌​‌​‌​​‌‍sulted. garding credibility witnesses, Rule greater 52 demands even deference to the Foundry Pipe & v. United States Draper findings; trial court’s the trial (6th Cir.1975). 515, 520 An Co., F.2d judge can be aware of the variations establish undue may nonetheless demeanor and tone of voice that so bear actually putting an ac- without hardship heavily understanding listener’s An effect. Id. into commodation however, and belief what is said.” Id. 105 at still, present evidence er must hardship; rely merely cannot on undue speculation. See, e.g., Brown v. General standard, easily Under this con- we (8th Corp., F.2d

Motors Cir. findings vinced that the district court’s mind, 1979). legal With framework not clearly were erroneous. Smith testified Pyro’s analysis we turn claims great length about his commitment to error. religion. He also testified that the rea- son he went on last hour of II. Sundays p.m. some was because 11:00 The first we address is wheth issue Sunday night, on all church services prima er Smith established a facie case of and, been concluded all intents and necessary discrimination. The elements purposes, the Sabbath over. There (1) prima facie case are that: little doubt heavily but Smith was had a sincere belief Sun church; with his he served both involved day beliefs; contrary to his an officer and a School teacher. (2) he informed about his Finally, no evidence was introduced they beliefs and the conflict created with engaged show that Smith was (3) job; discharged he was because anything other than activities Sundays. his refusal to work on After Sundays he was from work. absent evidence, reviewing the the district court Accordingly, reject challenge Pyro’s we to concluded that Smith had pri established a prima facie determination. ma facie case. III. appeal Pyro’s challenge On focuses on prima first element of Smith’s facie Having found that Smith estab case; dispute there no about оther prima discrimination, lished facie case of Pyro argues elements. that since Smith analysis question our shifts now to point had at one p.m. worked from 11:00 to Pyro reasonably whether accommodated on Sunday 12:00 a.m. while he was on the required by 42 Smith’s beliefs as shift, third morally his belief that it was (1982). Pyro 2000e(j) argued U.S.C. be § wrong work Sundays to on not sincere- fore the district court that its consent to ly held. The district court considered this swapping, supplemented “Open by shift its opinion fact in its and concluded that it did satisfy Policy,” Door was sufficient to its not sincerity. detract Smith’s reasonably to accommodate Smith’s reject The fact, A beliefs. district court “[fjindings district court’s held, effect, ed this assertion and whether based on oral or documentary evi- dence, Pyro had an shall not set to make affirmative effort clearly be aside unless erroneous, arrang regard reasonably by accommodate given due be shall the opportunity ing swap appeal judge Pyro of the trial for him. On ar court the credibility gues that the trial court’s conclusion witness.” Fed.R. 52(a). Civ.P. findings replacements Factual VII required will Title it to solicit clearly if, deemed erroneous on review con- only Smith is error. reversible subsection, that since it its enactment this allowed tends Title VII it its obli- thereby requirement satisfied self no shifts it contained employ trade view, Pyro’s VII, Title In attempt. under VII. ers make such an gations Title as personally solicit a re- prohibited refusal to enacted religious dis part on his constituted a failure placement employment, crimination but went no to accommo- cooperate with its efforts question necessity further. The him. date accommodation was left to the Em Equal ployment Opportunity In Commission. Co., 429 Dewey Reynolds In Metal original regulations the EEOC stated that (6th Cir.1970), by equally an F.2d aff'd employer an had an to accommo Court, 91 S.Ct. U.S. divided religious practices employ date the of its (1971),2 this court held that ees such unless an accommodation would did not Title VII an violate create “a serious inconvenience to the con discharging an who refused to duct of the business.” 29 C.F.R. 1605.- on and also refused to ar 1(a)(2)(1967). However, regulations range swap grounds a shift that to also allowed to adopt so The do would have been a sin. court work week schedule generally applicable to Dewey’s that to accede to de concluded employees, regard all without to or accom that he to work required mands neither be employee’s religious modation of an needs. Sundays on nor find a would 1605.1(a)(3),(b)(3). Id. sub EEOC §§ require impermissibly dis sequently revised regulations these against employees.3 criminate other stated that Title VII included “an obli facts of instant Dewey and the case gation part make similar, quite glance and at first reasonable accommodations to the that, appear suggests, Dew- needs of ... where such an ac should ey disposition control the of this can commodation be made without undue However, appeal. we that there is believe hardship conduct of the good Dewey reason for us not to follow (c) 1605.1(b), 29 C.F.R. business.” §§ this instance. was decided this (1968).4 in 1970 court and affirmed a divided courts, including one, Some were following year. Court the 1972, Congress VII, whether the inter- doubtful about EEOC’s amended Title and add- Title (j), pretation requirements subsection VII’s with provides ed that em- ployers regard must attempt comported accom- to accommodation However, employ- Congress’ modate needs of their intent.5 Con- when ees, absent undue Prior hardship. gress Title VII in amended it added equally An affirmance divided court is vamen of offense under the statute is precedential weight. Big- entitled authority Neil v. discrimination. of EEOC to 188, 192, gers, 409 U.S. regulation interfering adopt a with the inter- employer, of an nal affairs absent discrimina- tion, may well be doubted. Judge strong Combs 3. filed a in which dissent original). (emphasis F.2d at 331 n. 1 in Dewey’s replace- he noted that refusal seek a to grounded himself ment "was in belief that petition denying rehearing 5. In a banc in en working Sunday inherently wrong on is and Dewey, panel the wrote that: it that would be a sin for him to induce another legislative history in the Act Nowhere of the place. replacement system work in his to any Congressional do we find intent to coerce Dewey's problem.” was therefore no solution to compel person one to accede to or accom- 429 F.2d at 333. religious modate the beliefs of another. The Although 4. Dewey panel the religious did consider this requirement of accommodation to regulation opinion, strongly in its it indicated its Regula- beliefs is contained tions, in the EEOC regulation by belief that the was unauthorized in our are not consist- Congress: the Act. ent with regulation It should be observed is that it 1605.1(b) (§ 2000e-2(a)) authorizing adop- and not the statute To construe the Act as the requires Regulations that an to reasonable make tion of which would coerce or religious compel accommodation to the employees. neеds of its an to accede to or accom- out, pointed gra- religious As we have modate the beliefs of all his case, require swap for himself. accommodation shift the instant reasonable however, ment, thereby adopting clearly believes it explicitly that to ask VII.6 Fol would be a sin someone to work for interpretation of Title EEOC’s Therefore, Sunday. him amendment, question the 1972 courts could lowing us is whether now before an rea- dispute that Title VII mandated longer no Hardison, sonably employee accommodates an al- accommodation. See reasonable Therefore, lowing employee arrange shift a at 97 S.Ct. at 2271. 432 U.S. employee trade when the significant change in the himself considers given law it sin such Dewey, swap. consider a a decision in we since our us anew.7 the issue now before it clear We think that Smith had Undoubtedly, one means of accommodat- religious qualms asking no about others employee is work on ing unable to Sundays work the was scheduled day due to convictions particular work, a Pyro’s proposed then accommodation work to trade However, is to allow would have reasonable. employee. qualified shifts another with sincerely where an that believes an em- have held that when Other circuits Sunday wrong morally is and trade, such a it has reason- ployer allows try that it is sin to a induce another See, e.g., employee. ably accommodated its stead, in then an at Brener, 146; Albuquerque, F.2d at tempt requires at accommodation that us to follow Bren- Pyro urges F.2d at 114. to seek his own Albuquerque er and poli- its hold that agree not reasonable. We therefore with cy allowing employees its to trade shifts Pyro district court has not met its was a reasonable accommodation Title ac under VII.8 Since the religious beliefs. to do Smith’s We decline proposed originally by commodation readily reasonable, so the instant case is distin- because obligated was not was Albuquerque. from Brener guishable attempts accommodating make further at Smith, employees Neither in those cases attempts pose such unless would arranging objection hardship.9 a undue We now turn to the grave questions binding precedent ignore ees raise would constitutional overrule nor circuit binding of violation of the Dewey Establishment Clause tradition. The effect of un- was First Amendment. Congress, panel. dermined As Clearly, panel at 429 F.2d was of the interpret we are bound cоurt of law require view that to to accommo- apply the that exists when we a case. law decide date the needs of its intervening changes When in the have law contrary However, to the law. reasonable incorrect, precedent proved prior to be subse- precisely accommodation is now requires. what the law following quent panel is not bound to continue writing As Justice White noted in disapproved precedent. allegi- Such blind majority "[c]learly, any sugges- in ence is both unwise and unwarranted. Dewey employer may tion in that an not be Congress spoken, doing has and in so has required to make reasonable accommodation signalled our decision seventeen for the disapproved needs of years longer good ago is no law. We bound 701(j)____” 75 n. Congress. dictates of to follow the We do not original). (emphasis 97 S.Ct. at 2272 n. 9 binding precedent doing overrule stead, In- so. expressed 6. Some courts have the view merely revisit we the issue considered in defining religion 1972 amendment added as Dewey and resolve it in accordance current response a direct to this court’s decision law. Dewey. Cooper See Dynamics, v. General (5th Cir.1976); Riley F.2d v. Bendix parenthetically Pyro obviously 8. We note (5th Cir.1972) Corp., 464 F.2d did not a reasonable accommodation (discussing legislative history amend- beliefs on the first ment). legislative history supports The relevant its new schedule because all were Cong.Rec., this conclusion. See §§ required fore, report day. to There- to work on that swap a would have been or shift difficult impossible arrange. to opinion majority 7. The dissent contends that the "summarily precedent overrules the of Dewe/’ dissent, Contrary ignores the reported 9. to assertion in the the circuit’s tradition that opinions panel majority binding upon subsequent opinion impose does not the entire panels. disagree We employer. with character- burden A these of accommodation the majority opinion. izations of the cursory majority We opinion neither examination attempts App. appeal Pyro at On alternate at asserts question of that whether accommodating Smith have consti- would the court’s district conclusion that it failed Pyro.10 hardship for tuted undue hardship clearly to establish undue is erro- disagree. neous. We We find it difficult IY. why soliciting replacements to see for court, Pyro argued Smith have In the district would been an undue hardship accommodating at any Pyro. that further for The record prior that indicates allowing arrange him to a beyond Smith switching eight-day to to the new work present hardship. would swap shift undue week, Pyro policy had of communicating rejected this claim and found The court advertising or the an employee fact that arranging a shift for Smith swap that shifts, needed to trade and the company hardship undue would not have constituted contacting took an role in active that: Pyro. for court concluded participate Pyro in shift trades. had the testimony trial that there It was the at place soliciting replace- mechanism in twenty men could were that have namely monthly newspaper ments— and the plaintiff. compa- with swapped Pyro boards. bulletin could have ny monthly newspaper that was had a reasonably accommodated simply Smith to the men. Bulletin boards distributed placing in newspaper a notice or on a were the bathhouses and available bulletin board that a was need- offices and the hand- the mine Pyro ed for him. failed to meet its burden the men to read and book admonished establishing that such an accommodation important daily boards scan these of Smith’s convictions would be personnel company had a noticеs. hardship.11 an undue Surely would department. there have hardship company been no undue V. simply posted had it a notice bulle- opinion, For the reasons set forth in this paper company tin boards or that court is district AF- looking company for someone FIRMED. plaintiff. willing swap shifts with apparent It this Court KRUPANSKY, Judge, dissenting. Circuit testimony and demeanor of the de- July This circuit decided this case on Pyro fendant’s witnesses at trial that had style Dewey Reynolds 1970 under the no real desire accommodate Smith’s Cir.1970). Co., (6th 429 F.2d 324 It out Metals beliefs and flat refused to any significant rehearing August en lend him assistance. denied banc on clearly entirely in indicates that it is tune with a reasonable accommodation. Conse- hardship requires employee quently, properly current of undue law the issue joined. bear some the burden of accommodation. suggest we Nowhere do that the entire burden by attempting 11. Because we conclude that placed of accommodation on the em- Indeed, ployer. agree swap Pyro we with the dissent’s a shift for Smith would have reasonably statement that “it is well needs established accommodated incurring hardship, right is not invested an absolute without undue we need with accommodation, to demand an оn his decide other means accommodation own whether transferring job, terms.” All that the law allows an such as running Smith to surface Sunday demand is a reasonable accommodation. shifts he was scheduled to shorthanded, allowing him to work days 10. The dissent claims regular that our consideration of additional excess of his shift up pay this issue is misconceived. This contention without overtime to make absences, only pose hardship. attempted would be accurate undue We do however, note, reasonably Supreme that the Court in accommodate Smith’s be- Phil- explicitly any liefs. The noted brook states Court has that "the reasonable ac- hardship employer's employer’s obligation. of undue satisfies an extent commodation Thus, faced business is issue where the 107 S.Ct. at 372. it is claims that unable to offer more than one means accommo- reasonable hardship." ‍​​‌​​‌​​‌‌​‌​​​‌​‌​​‌‌​​​​‌‌​​​​‌​‌‌​‌‌‌‌​‌​‌​​‌‍amongst dating is free choose accommodation without such brook, Phil- poses supports 107 S.Ct. at 372. these and select the one that The record means finding hardship. district court’s did least not offer Supreme majority 1970 and the Court affirmed the cause the rationalizes its defini- equally during divided court religious decision tion of belief purely within a sub- year.1 Dewey its October term the same environment, jective and because the ma- Co., Reynolds Metals jority erroneously imposes upon the em- 2186, 29 L.Ed.2d 267 The law ployer the entire reasonably burden of is, Dewey accordingly, in of the case exist- accommodating every religious preference ing precedent in this circuit. employees of its in prescribed a manner acceptable or employee, I court, must re- court, Dewey like the instant spectfully dissent. religious was confronted with a discrimina- charge arising tion as Dewey’s a result of continuing viability of Dewey as le- Sabbath, coupled refusal to work on his gal precedent within this circuit is memori- with his refusal to for an autho- explicit reasoning alized its and uncom- perceived rized because he his plicated conclusions. A Dewey review of effort to induce another to work in his charged discloses that religious dis- court, Dewey stead as a sin. The in consid- September crimination occurred on 11 of ering plaintiff’s refusal to work on his time, imposed which Title VII no Sabbath, replace- and refusal to seek a duty upon ac- ment because it constituted a sin concluded religious commodate the needs of its em- language clear concise that the em- ployees absent undue hardship. At the cided therein become the law of the circuit upon subsequent panels and all issues de- lowing reasons: rules the ployer accommodation to the Because it is the tradition of this circuit 2. Prior to the enactment of subsection 1. replacement system, reported panel ployer to needs due imposed 701(j), 1087. ably needs employers U.S.C. 2000e(j), 1972, and Civil Congress majority Sabbath.” Dewey, 429 F.2d at 331. had satisfied its 2000 et. not precedent hardship; Rights when of their be overruled Title accommodate the no disposition summarily over- gressional mandate had accommodate the added subsection amended Title VII of the seq. must requirement employees. VII, it ofAct employees, of Dewey for the fol- permitted opinions (Title religious as enacted in duty to observe VII or another of “reasonable provides See at 1086- upon an em- needs of its Dewey, by absent un- to reason- 42 U.S.C. 701(j), binding Act) panel, provided time of mission thority. terms, made it discriminate time of the § observe certain serve ly arise in a regular work whose discharge discrimination al bath and have raised the The EEOC 703(a)(1) religion. Section 1605.1 Observance of Sab- Equal Employment complaints involve take time off ^[******] year. (EEOC) through Saturdays Dewey’s variety pertinent or to refuse to hire a against Implementation of the con- events guidelines unlawful for filed with the Commission on account of week. These Act, observances special as the question charged discrimination during holidays. employees on the basis contexts, parts as follows: in broad and reported who its Opportunity Com- in effect at the Sabbath holidays during rulemaking whether it is — regularly employers delegated require (a)(1)Sever- but complaints religion in Dewey, typical- general person ob- au- (2) because the resolution of The Commission believes majority di- rectly prior conflicts existing with the Sixth to discriminate on precedent Circuit in Dewey, grounds enunciated be- includes an Although nevertheless, equally significant precedent entered within this divided Court in is not "entitled circuit. precedential circuits, is, weight" in other part employer the accommodate the line. The thrust of both the 1966 and 1967 religious employees reasonable needs of guidelines was and continues to be the and, cases, prospective employ- some employer of the to accommodate ees where such accommodation can be religious employees needs of its where made without serious inconvenience to such accommodations could or can be ac- the conduct of the business. complished without undue hardship on the

conduct of the employer’s business. (3)(b)(3) employer may prescribe The In June of court, 1969 the trial the normal workweek and foreseeable having ignored guidelines the 1966 EEOC requirements, overtime and absent in- September 11, 1966, in effect on the date of part employer tent on the of the to dis- Dewey’s discharge, judgment entered in his religious grounds, criminate on job ap- a favor retroactively applying after the 1967 plicant accepted job or who amendment. knowing having reason to believe that Upon appellate review, panel of this requirements such would conflict with circuit reversed the trial court and entered religious obligations is not entitled to employer. for the Its decision any require- demand alterations in such noted that the 1966 Regulation EEOC ments accommodate 1605.1(a)(3) (b)(3) and had limited § ob- needs. ligation imposed upon to ac- 1605.1(a)(1), (2), (3)(b)(3) (effec- 29 C.F.R. § commodate the reasonable needs 15, 1966). tive June Dewey, 429 F.2d at 329- employees. of its July guide- Effective the EEOC panel 30. The initially that, оbserved in its lines eliminating were amended subsec- opinion, “it would have been appropri- more (3)(b)(3) entirety by revising tion in its ate for the District Court to applied have (2) subsection to read: Regulation the EEOC 1605.1 which was § (b) The Commission believes that Dewey’s force at the time of discharge, duty not to discriminate on 15, 1966,” and which became effective June grounds, required by 703(a)(1) section id. 329, since the had Rights the Civil Act of includes an fair, provided a equitable uniform and obligation on part of the employer to distributing method of the heavy workload make reasonable accommodations to the among employees without discrimina- pro- needs of them, ting against any of it had not inten- spective employees where such accommo- tionally engaged in any unlawful dations can be made without undue hard- practice ment in violation of Title VII ship conduct of the guidelines. Act panel or the EEOC hardship, business. Such undue for ex- thereupon proceeded Dewey’s to consider ample, may employee’s exist where the right to invoke require- the accommodation needed performed by work cannot be an- ments of both the 1966 and 1967 EEOC substantially other similar guidelines. qualifications during period of ab- sence оf the Sabbath observer. panel observed that the 1967 EEOC 1605.1(b) (1967).2 guideline 1605.1(b)(3), 29 C.F.R. omitted in its en- § § tirety, which provided: apparent It is that the substance of sub- (3) (b) prescribe section of 29 C.F.R. 1605.1 as amend- § (2) ed in 1967 was identical to subsection normal workweek and foreseeable over- original 29 C.F.R. guide- 1602.2 of the requirements, time and absent an intent 2. There is some confusion in the citations to the on June 1966 has been cited as 29 C.F.R. guidelines respective EEOC (1967); and their effective § 1605.1 the amended version of that Airlines, dates. In Trans World Inc. v. regulation has been cited as 29 C.F.R. 1605.1 432 U.S. (1977), (1968) although July its effective date was majority opinion, original and in the purposes regula- 1967. For of the dissent each addressing EEOC enactment employer by referring tion has been cited to its actual to accommodate the convic- effective date. tions of its which became effective part to discrimi- But even if the regulations applied, religious grounds, Reynolds we think that job appli- complied nate on 1605.1(b) with Section making thereof accepted job cant or a reasonable accommodation to reli- having knowing or reason to believe gious needs of its employees when it requirements that such would conflict permitted Dewey, by replacement the obligations is not en- religious with his system, to observe as his Sab- any alterations titled to demand bath. stubbornly He refused to exercise requirements to accommodate his such privilege. finding The of the Dis- religious needs. Reynolds trict Court that did not make 1605.1(b)(3)(emphasis added). 29 C.F.R. § reasonable accommodations to the reli- undisput- panel The reasoned that it was gious of Dewey needs supported is not parties Dewey had entered ed the by substantial evidence clearly and is Reynolds acquired before he employ of the erroneous. and before his his beliefs Dewey, (footnote omitted). 429 F.2d at 331 bargaining entered into its collective er had To disposition, summarize the Dewey required all agreement which panel concluded that: Accordingly, overtime. the Dewey 1. The trial court should applied have instance, that, panel, in the first decreed guidelines the 1966 EEOC that were pursuant guideline to the 1966 EEOC Dewey effect when was dis- Dewey’s discharge, force at the time of his charged; was under no to ac- 2. There duty imposed upon was no commodate his convictions be- employer by guide- the 1966 EEOC Dewey cause knew or had reason to believe reasonably lines to accommodate assignments that the work approved by the Dewey’s religious convictions be- bargaining agreement collective would con- cause he knew or had reason to be- subsequently flict with his acquired reli- requirements lieve that of the gious needs. existing bargaining agree- collective ment would panel decide, conflict with his went subse- on to in the ‍​​‌​​‌​​‌‌​‌​​​‌​‌​​‌‌​​​​‌‌​​​​‌​‌‌​‌‌‌‌​‌​‌​​‌‍alter- quently acquired religious beliefs; native, Dewey’s the event that after acquired religious 3. Even if Dewey’s acquired after convictions were reli- entitled gious beliefs were entitled to to be be rea- reasonably accommodated under sub- sonably accommodated (a)(2) subsection section 1605.1of the 1966 EEOC § (a)(2) of Section 1605.1 of the 1966 guidelines: guidelines, EEOC his re- did endeavor to make ac- placement program constituted rea- commodation to the beliefs of sonable accommodation of his reli- its employees by interpreting agree- gious beliefs since the permit ment so as to any employee as- program satisfied the mandate of the signed to overtime to be relieved from regulation; assignment simply by arranging for Dewey’s charges Even were con- qualified another replace pursuant 1605.1(b) sidered to Section him. We hold that this was a reasonable amendment, of the 1967 accommodation. needs had reasonably accommo- Dewey, 429 F.2d at 335. dated, as noted above. Subsequent having considered and dis- Dewey panel’s precedential declara- posed pursuant of the controversy to the tions that had satisfied its guidelines, 1966 EEOC Dewey panel reasonably accommodate the reli- proceeded to consider presented the issues gious Dewey by needs of standards by applying 1605.1(b)of the 1967 EEOC original either or amended versions of guidelines amendment to its that had been guidelines EEOC where it had authorized a the anchor of the trial court’s resolution. voluntary replacement program as an alter- panel opinion, in a unequivocal direct procedure nate Sabbath, passage, stated: even under circumstances where the em- privilege panel, reaffirming

ployee original refused to exercise be after reason- ing, suggested cause he believed that do so would be a construction of Title sin, approving adoption constituted VII regulations the law case. The pioneered panel’s compelled observations the defini which to accede to tion terms “reasonable accommoda or accommodate hardship,” tion” “undue terms beliefs of all of his could not been in either the defined 1966 or offensive Establishment Clause guidelines 1967 EEOC or Title ofVII the First Amendment. The comment had Rights 1964 Civil Act or its 1972 con bearing impact no upon whatsoever gressional amendment. Reyn panel’s enunciated law of the case. The (6th Co., Metals F.2d olds did, however, comment stimulate debate Cir.1970), equally divided among legal commentators and judi- the aff'd court, 689, 2186, 402 91 U.S. S.Ct. 29 circuits, ciary of other interpreted and was (1971). L.Ed.2d 267 by Congress implicating as of abuse rulemaking administrative authority that apparent It the Dewey is decision enlarged scope the of Title beyond VII the panel’s primary the concern with the congressional of intent the 1964 Act. To 1967 amendment of 29 C.F.R. 1605.1was § allay any the scope authority doubt as to of (3)(b)(3) the elimination of subsection which delegated to the EEOC to guide- formulate significantly employer’s duty limited the imposing duty upon lines employers reasonably the accommodate con- reasonably accommodate the con- employees judge’s and the trial victions employees, Congress victions of its promul- application retroactive the amendment. gated 701(j) the 1972 amendment tо the equally apparent panel that the § It Act, essentially incorporated which the with, accepted, not concerned but rather very language of the “reasonable accom- addressing the administrative mandate the provisions modation” appeared employer’s duty both accommo- the Regulations. 1966 and 1967 the EEOC Al- date needs though congressional had the 1972 incorporated been into both amendment the of the Act regulation enlarge- 1966 and 1967 of the be construed as an versions VII, panel since the ment of Title the considered and decided the substance of the by parallel, independent, change merely legislative case applica- imputed recogni- but tions of both and the 1966 1967 models of tion of administrative EEOC mandates that implemented the rule. The of the effectively substance decision courts precedential impact 15, its 1966, and has from early legisla- withstood as June the passage enlargement by the of time the 701(j) critical scruti- tive the amend- § legal ny overruling commentators remains in- ment did not warrant the casé tact, having the received affirmative en- law enunciated the Dewey panel for dorsement of the Supreme recognized by Court in reasons the Supreme Trans Court Airlines, Hardison, Hardison, World Inc. v. Trans World Airlines v. 432 63, 2264, 63, 2264, 97 S.Ct. L.Ed.2d U.S. 97 53 (1977), reviewing legal scholars. It is true that the decision attract- widespread legal ed notoriety subsequent singular purpose 701(j) of the § publication. was, The attention Act justify how- amendment to the was to ever, prompted by panel’s casual obser- EEOC formulation reasonable ac- vations as to an issue it did requirement not decide. commodation that had been an post decision, In a hearing integral to its addendum element of both the 1966 and 1967 subsequent guidelines.3 issued vote of to a the entire Riley Corp. v. Bendix denying reconsideration, (5th Cir.1972). court en banc the F.2d Randolph sponsored employment 3. Remarks of protects Senator as the Constitution Congres- Federal, amendment as memorialized in the governments. State or local Unfortu- clearly sional congressional Record reflect the have, sense, nately, the courts in a come down intent: Supreme on both the issue. sides of Rights I think in the States, Civil Act we thus involving Court of the United in a case protect rights intended private same Court, upon In revisit- arbitrator was held to have conclusively ing interpreted 701(j) Dewey, amend- resolved the § discrimination congressional imprima- ment of Act as quеstion in favor employer. Final- rulemaking authority tur of the EEOC’s ly, in Dewey was not ex- impose upon employer duty of reason- duty accommodate; cused from a able accommodation. The Court’s review Appeals simply Court held that comports favorably analysis with the employer had any obligation satisfied reflecting upon this dissent. After the evo- might that it have had under the stat- lution of both 1966 and 1967 EEOC ute. guidelines, the Court observed: 432 U.S. at 73 n. 97 S.Ct. at suggest did not EEOC what sort of (emphasis added) (citation 2271 n. 8 omit- accommodations are “reasonable” or ted). hardship when to an becomes sum, any suggestion that the EEOC “undue.” lacked authority impose upon employers question This extent of the re- —the to reasonably accommodate the quired accommodation—remained unset- needs of its put Court, tled when this in Dewey Reyn- rest 701(j) amendment to the Co., olds Metals U.S. However, Act. Congress neither nor the (1971), affirmed suggested EEOC have that “reasonable ac- equally divided Court the Sixth Cir- requires commodation” to do (1970). cuit’s decision in 429 F.2d 324 more than was done Dewey, apparently discharge of an who for having preferred to leave that open issue religious reasons had refused to work on by for Hardison, resolution the courts. Sundays by was there held the Court of 432 U.S. at 74 n. 97 S.Ct. at 2272 n. 9. Appeals not to be аn employ- unlawful Thus, obligation sole practice ment because the manner in make reasonable

which accommodations for the allocated religious observations assignments employees, work of its was discriminatory in effect; incurring neither short of purpose hardship, pres- its nor undue and con- is clear, sistent guidelines, ently with the 1967 EEOC but the reach of that the employer had made spelled a reasonable has never out either Con- accommodation the employee’s be- gress or the EEOC. This Circuit’s decision by giving him opportunity in Dewey was a first effort to fill the void liefs replacement secure a his Sunday by declaring that an had dis- for work. charged duty its to reasonably accommo- Airlines, Trans date Dewey World needs of Inc. v. 63, 73, U.S. standards of guidelines the 1967 EEOC (1977) (emphasis added) (foot- where it had voluntary authorized a re- omitted). to ar- action, to this at all times material range quali- was of for a another a member and a school Independent Baptist teacher at the In employee. Church fied the event that the em- Hill, Although Kentucky. Cedar his ployee arranging was unsuccessful in against gainful church had no tenets Sun- replacement, employee his was re- day employment, Smith asserted that he quired to exhaust his remedies afforded perceived religious obligations pro- his Pyro’s open-door policy. Sabbath, hibiting from him on on Smith was scheduled to both work i.e., Sunday between hours of 12:00 11, Sunday, July Sunday, August 1982 and Saturday midnight a.m. to 12:00 a.m. Sun- 15, 1982. He did not a day. Rather, day. shift trade for either Smith 11, 1982, Pyro eight On June initiated an telephoned Pyro on both scheduled Sun- (8) day production personnel work week for days reported that he would be absent employed in the mine where Smith was attending from work because was schedule, assigned. employees Under church. Smith was assessed unexcused ab- (4) assigned were to work for four consecu- days. sences for both (10) days eight (8)— tive ten hour out Sunday, Smith was scheduled work (4) days (4) four days then four off. Of 15, August 1982. an effort resolve week, eight-day work were conflict, (Dunbar), David Dunbar some, all, work scheduled to but not Sun- supervisor, attempted Smith’s immediate days during year. instituting Prior son, employed by have who was also week, eight-day operated work a mechanic, replace as a Smith on his daily three-shift schedule. Most mechanics assigned August 1982 work schedule. five-day worked a either work week [Mon- Dunbar’s son was not available as a re- day through Friday], six-day or a work August 22, [Monday placement Sunday, for Smith on through Saturday], A week few dаys August mechanics worked seven a week. 1982 and Au- Between 22, 1982, gust inquiry Accordingly, Smith made I respect long- qualified twenty two of who standing tradition of this court and follow replace shifts other than his to him worked prior this court’s Dewey. decision in so that he could observe his Sabbath. Both As in Dewey, the Fifth and Tenth Cir Thereafter, attempts were unsuccessful. recognized cuits have implementa that the request any employee refused to Smith of a scheduling system tion flexible exchange shifts with him because he had permits employees arrange replacements improper that it was for him to concluded qualified with other co-workers satisfies replacement. seek a employer’s duty of reasonable accom 22,1982, August again On notified modation. Diagnostic Brener v. Center report Pyro that he would not for work (5th Cir.1982); Hosp., 671 F.2d 141 United attending he was church services. because City Albuquerque, States v. 545 F.2d Smith was assessed third unexcused ab- (10th Cir.1976), denied, cert. 433 U.S. August 22, missing work on sence 97 S.Ct. and, accordingly, Sep- was terminated on majority pronounce seeks to avoid the having tember 1982 for three unex- legal precedents ments of those by factual period. cused absences in a six-month ly distinguishing those decisions from the in Dewey, Pyro As maintained neutral litigatiоn. instant employment policies practices Consistent with Albuquer- Brener and applied. uniformly rotating were Under its que, majority acknowledged has week, underground every work miner was implementation of a neutral shift trade essentially scheduled to work equal policy constitutes a reasonable accommoda- Saturdays Sundays. number and some tion of religious convictions. See required No to bear more Nonetheless, at 1088. the majority reasons than his or fair her share of weekend work that, case, Pyro’s the instant policy was required and no to work not a reasonable accommodation because every Sunday or other Sabbath. The uni- Smith had a sincere belief which equitable form and days allocation of off prevented seeking him person from another resulting Pyro’s rotating assign- shift to work in his stead. “represented significant ments accommo- needs, dation to both and sec- Thus, issue, primary properly more ular, [Pyro’s] of all of employees.” Trans framed, confronted this court is not one Airlines, World Inc. v. sincerity, but rather a definition of a 63, 78, 53 L.Ed.2d 113 religious Unfortunately, neither belief. (1977). Accordingly, Pyro’s eight-day ‍​​‌​​‌​​‌‌​‌​​​‌​‌​​‌‌​​​​‌‌​​​​‌​‌‌​‌‌‌‌​‌​‌​​‌‍ guide- Court nor the EEOC week satisfied non-discriminatory man- defining lines have afforded direction in the dаte of Title VII. phrase employed as it is within the context in Dewey, Pyro As replace- authorized a congressional of Title VII agency pro- or program permitted ment that Smith the addressing nouncements the term. opportunity to accommodate his purely subjective adopted by test convictions if he elected to do so. As in hiatus, majority congressional to fill the Dewey, Smith privi- refused to exercise the investing carte blanche discretion in the leges of reasonable accommodation autho- bring virtually to any personal by Pyro claiming rized that to do so would protection belief within the of 42 U.S.C. inducing be party Moreover, a third to sin. 2000e(j) by merely characterizing it as a pursue Smith refused to and exhaust the religious belief, fraught rang- is with wide provided by Pyro’s remedies open poli- door ing hazardous economic and commercial cy which had been inaugurated to resolve consequences. differences such posed by as that Smith’s suggest I appropriate would that a more pursuant beliefs. Accordingly, to against pronouncements standard which the term religious of Dewey, er, Pyro, judged objective should be is the satisfied its test duty reasonable to belief applied by accommоdate Smith’s in beliefs and Court Wisconsin was justified therefore discharging Yoder, in him. v. 406 92 U.S. 32

1097 (1972), particular somebody a if I identify something 15 to asked to do I L.Ed.2d do; or as one to afforded I practice just belief couldn’t didn’t ask nobody protection under Free constitutional else that.” after He further attested that Amendment. Exercise Clause of First personal" religious perceptions his would Yoder, Supreme Court observed In company not have been offended ‘religious’ that, qualify in order “a belief to however, arranged replacement; for his he protec to constitutional practice entitled or was apparent unable reconcile this con- tion,” alleged must not be “mere belief flict with his assertion that it improper was personal preference, but one ly a matter of for him seek a replacement he because conviction, deep religious shared asking replacement, would be his whom- intimately organized group, and related to be, because, ever it according would sin 215-16, living.” 406 U.S. at daily perceptions, Smith’s was a sin personal preferences Mere or in at 1533. anyone his, Smith’s, work on Sabbath. “religious” not terpretations do constitute In light foregoing concessions, “very concept because the of or beliefs testimony Smith’s belies the conclusion allowing every liberty precludes per dered participate compa- his refusal to in the make standards matters son to his own ny’s replacement program authorized a society in as whole has of conduct which predicated upon a “of deep belief appear It important interests.” Id. conviction, organized shared group, of religious that Yoder’s definition beliefs intimately daily living.” related to Yo- in equally applicable the Title VII con der, 92 S.Ct. at 1533. The Rapides McCrory Regional text. Medi v. fact that Smith’s miraculous did Center, (W.D.La.), revelation F.Supp. cal 635 979 appear rejected not until mem., (5th Cir.1986); he had been twice 801 F.2d 396 aff'd Serv., in seeking v. States Postal reflected that his McGinnis United F.Supp. 517, (N.D.Cal.1980); 520 n. convenient revelation not have Pena, F.Supp. product Brown 1384-85 totally deeply of a held reli- (S.D.Fla.1977), mem., 589 F.2d 1113 gious Moreover, conviction. the record is aff'd Cir.1979); (5th Cong.Rec. also 118 see 705- devoid of evidence that Smith’s refusal (1972) (“I Rights in think the Civil Act implement company policy predicat- protect we thus intended to the same upon ed which was shared other belief rights private employment as Con members of his sect. prоtects Federal, stitution State local Accordingly Smith’s could belief (statement governments.”) of Sen. Ran not ask other work in his added). dolph) (emphasis appear stead come does within pretextual If construed more than a “religious” protected definition of a belief post justification hoc for his failure to im- by Although Pyro 2000e(j). U.S.C. § plement policy, company alleged had a to accommodate Smith’s Sabba- belief he could not seek another to practices, tarian it was under no must stead be considered a subjective satisfy purely person- Smith's personal preference mere not entitled to preference company arranged al for a shift statutory protection set forth light foregoing, I trade. find the Having 2000e(j). U.S.C. conceded that majority’s distinguish effort to Brener and religion tenets did not forbid him unpersuasive Albuquerque ap- and would on his Sabbath and that he ply reasoning and conclusions of those attempted had not to arrange replace- for cases instant case. prior ment to his unexcused absences on reaching I am the far also concerned 15, 1982, July August 11 and Smith testi- implications majority’s disposition. that, only fied after he twice that, suggests by labeling any majority rejected by preferred individuals who also purely subjective personal preference as a 22, Sunday, 1982, not work on August “religious” practice, employee belief or an asking “it came me that I was some- me, may effectively of body else to I shift the entire burden would be ask- me; ing right employer. them to sin for and it wasn’t accommodation onto the able, However, employee imple- established that an must it is well accommodation, with an absolute employee regardless is not invested ment of on his right an accommodation to demand prefer whether he would some other course require Title VII “does own terms. of action. employers to accommodate Finally, cursory analysis even the most exactly way practices of an Supreme precedent of relevant dis- Court accommodat would like to be majority’s attempt join closes that the require employers ed. Nor does Title VII hardship the issue of undue in the instant employee’s to accommodate an controversy is misconceived. As the Su- practices way spares Ansonia, preme Court declared in “the ex- any cost whatsoever.” Pinsker v. Joint hardship employer’s tent undue 28J, 388, 735 F.2d 390- School District No. еmploy- business is at issue where the (10th Cir.1984) Brener, (citing 671 F.2d any er claims that it is unable to offer 145-46); Mann, 561 Chrysler Corp. v. reasonable accommodation without such 1282, 1285(8th Cir.1977), denied, F.2d cert. — Ansonia, at-, hardship.” U.S. 434 U.S. 98 S.Ct. 54 L.Ed.2d 788 case, present at 372. In the S.Ct. has Moreover, (1978). employer is not re demonstrated that had satisfied its quired to bear more than a de minimis by imple- of reasonable accommodation employ in order to accommodate his cost menting policy permitting a neutral em- ees’ beliefs. Trans World Air ployees their own shift trades. lines, 63, 84, Inc. v. Thus, Pyro required prove was not suggested the alternative accommodations Philbrook, In Ansonia Bd. Educ. v. by Smith would have resulted in undue — U.S.-,-, — Ansonia, at-, hardship. U.S. (1986), Court S.Ct. at 372. clearly employer stated that an is not re- quired employee-preferred pro- to select an above, For I the reasons stated employee’s cedure to accommodate his reli- reverse the of the district court needs, gious may satisfy but rather entry judg- and remand matter for statutory duty of by imple- accommodation Pyro. ment favor of menting any many one of reasonable alter- employee: natives available to the

findWe no basis in either the statute legislative

or its history requiring

employer any particular to choose rea- By sonable accommodation. its very WIGGLY, WILLIAMSON PIGGLY

terms the directs statute rea- Petitioner, Cross-Respondent, sonable accommodation is sufficient to meet its accommodation obligation. violates the NATIONAL LABOR RELATIONS statute unless it “demonstrates that [it] BOARD, Respondent, reasonably unable to accommodate ... Cross-Petitioner. employee’s ... observance 86-5800; Nos. 86-5890. practice hardship without undue conduct of the business.” United States Court Appeals,

Thus, already where the has Sixth Circuit. accommodated the Argued June religious needs, ee’s 1987. statutory in- quiry is at an end. The need Sept. 1, Decided ‍​​‌​​‌​​‌‌​‌​​​‌​‌​​‌‌​​​​‌‌​​​​‌​‌‌​‌‌‌‌​‌​‌​​‌‍not further show that each the em- Rehearing Rehearing En Banc ployee’s alternative accommodations 16, 1987. Denied Oct. would result in hardship. undue Thus, employer presents

ee with accommodation that is reason- notes placement program proce- as an alternate working Sabbath, dure for Moreover, on his even un- footnote 8 of the Hardison der opinion, circumstances wliere the explained the Court re- that: fused to privilege exercise the because he alleged conduct to be an unlawful sincerely believed that to do so would be a employment practice Dewey oc- [in ] pronouncement, sin. That prior curred identified promulgation of the guidelines, but one course of action which an Ap- the Court of em- peals expressed ployer satisfy duty view could its those to accommo- guidelines given date, should not be unquestioned retroac- has remained and intact Also, tive effect. ruling an earlier by an to this date adopted and has been by a the crimination, job observance of the Sabbath and authority dis- have not resolved [the of the EEOC evenly question. divided on this promulgate imposing upon the rules intended, This good pur- amendment accommo- pose, by legislation to resolve way in a I —and date]. originally think was intended the Civil Cong.Rec. Rights Act—that apparently which the courts occasionally that have Smith p.m. consensus of the circuits ad- worked the 11:00 falls dressed the issue. instant case Sunday night shift. four corners of the deci- within the implementing eight-day Prior to work sion. week, advertised, through a pre- video (Smith), plaintiff Danny R. sentation, policy authorizing employ- its herein, Mining employed by Pyro Com- was objected ees who a Sabbath defendant, as a mechanic pany (Pyro), swap to trade or scheduled shifts with an- equipment in responsible repairing qualified employee other who was not also mine June underground cоal from scheduled to the same shift. Smith presence August acknowledged responsibility that it was his necessary to ensure the safe- crew was replacement to find a he did not desire to ty, efficiency and effectiveness his unit. any Sunday. work on Smith, per- All mechanics such as who to the voluntary addition work, required formed electrical to be were program implemented by Pyro, it had an permit- certified electricians. “open-door policy” whereby ted, regulations, operate by federal a professed grievance a work-related mine unit without a mechanic. Conse- could, other problem present in sequence, quently, a mechanic absent when matter, first to his supervisor up then qualified job assignment, another em- through including pres- channels to and contemporaneous ployee duties was company ident of the for the consideration and required to be substituted absent employee thereby compromising pro- resolution. Smith had been furnished with safety mining duction unit’s explaining Pyro’s open-door handbook operation. Pyro uniformly maintained a policy implemented eight-day before terminating any policy enforced Thus, work week. it was common knowl- having ee three unexcused absences edge job assign- that when scheduled shift period. six month ments conflicted with observanc- es, required initially were Smith,

Case Details

Case Name: Danny R. Smith v. Pyro Mining Company

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 18, 1987

Citation: 827 F.2d 1081

Docket Number: 85-6063

Court Abbreviation: 6th Cir.