EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plаintiff-Appellant, v. ITHACA INDUSTRIES, INC., Defendant-Appellee.
No. 87-2526.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 1, 1988. Decided June 8, 1988.
I suggest the majority does not heed the long recognized rules of construction set out in Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Justice Brandeis concurring).
(2) The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it.’ ... ‘It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’
(3) The Court will not ‘formulate a rule of constitutional law broаder than is required by the precise facts to which it is to be applied.’ ... (Citations omitted)
In sum, I would remand the case and permit the defendants to file a motion for summary judgment. The case should then go on from there. We have no call and, indeed, no warrant to proceed further.
Warren Robert Duplinsky (Charles A. Shanor, Gen. Counsel, Lorraine C. Davis, Associate Gen. Counsel (Acting), E.E.O.C., Washington, D.C., on brief), for plaintiff-appellant.
Robert Oliver King (Ogletree, Dеakins, Nash, Smoak and Stewart, Greenville, S.C., on brief), for defendant-appellee.
K.K. HALL, Circuit Judge:
Dannel Dean, the charging party in a civil action alleging religious discrimination in employment in violation of Title VII of the Civil Rights Act of 1964, appeals a decision of the district court granting judgment for his former employer, Ithaca Industries. By a majority vote, a panel of the Court affirmed the judgment of the district court. EEOC v. Ithaca Ind., Inc., 829 F.2d 519 (4th Cir.1987). Therеafter, a majority of the Court voted to reconsider the case en banc. A majority of the en banc Court has now voted to reverse the judgment of the district court for the reasons set forth below.
I.
Dean began working for Ithaca at Gastonia, North Carolina, on July 23, 1979, on the second shift as a turning operator. Ithaca produced cloth for J.C. Penney, Nike, and Ocean Pacific at its Gastonia plant. On April 11, 1983, Dean was transferred to the first shift as a Morrison Machine Operator. From July 18, 1983, to January 16, 1984, he was on extended leave of absence due to a serious brain tumor. Upon his return, he was assigned to work as a dryer helper on the first shift.
Dean has been a member of the Church of God since 1977 and believes that he cannot work on Sunday because it would violate his religious beliefs. Dean made this belief clear to his supervisors and other Ithaca officials at the time of his initial employment and was told that Sunday work was strictly voluntary. During the first four years of his employment, Sunday work was not required.
In January, 1984, the plant‘s production demands became abnormally high which forced the plant to operate on eight Sundays that year. When Sunday work was necessary, the plant operated on a reduced staffing basis in order to allow as many people as possible to have Sunday off. The normal daily cоmplement of workers on the first shift was approximately 25 people. On Sundays the shift was manned by a skeleton crew of 12 to 15 people.
Dean was asked by his supervisor, Andrew Cain, to work the first two operating Sundays in 1984, January 23 and February 19. He refused, but received no reprimand or criticism of any kind. On March 17, Cain ordered Dean to work the following day, which was a Sunday. Dean informed Cain that he could not work because of his religious beliefs. Deаn was not told that his absence would be considered unexcused.
On March 19, Cain gave Dean a written warning identifying his failure to work the preceding day as an unexcused absence and stating that “[a]nother unexcused absence will result in termination.” This was the first time Dean was made aware that Cain considered his inability to work on Sundays, because of his religious beliefs, an inappropriate reason for not working.
The next Sunday on which work was required was April 1. On Saturday, March 31, Cain approached Dean and instructed him to work the next day. Dean again informed Cain that he could not work because of his religious beliefs. Cain responded that, if Dean did not report for work, he should not return on Monday because he would be terminated. Dean did not report to work that Sunday; Cain worked in Dean‘s stead. Cain discharged Dean on April 2.
II.
On appeal, the EEOC contends that the district court erred in holding that Ithaca had no duty to attempt to accommodate Dean‘s religious belief that he could not work on his Sabbath. Ithaca argues that the district court properly assessed its duty but that in any event the religious accommodation provisions of Title VII violate the First Amendment by promoting and advancing religion; discriminate against employees who do not adhere to religious tenets which prohibit work on a particular day; and result in excessive governmеnt entanglement in religion. We disagree with the district court and find no merit in Ithaca‘s constitutional argument.
Section 703(a)(1) of the Civil Rights Act of 1964, Title VII,
The district court‘s conclusion that unless Dean was willing to compromise his religious belief by agreeing to work Sundays on some occasions, Ithaca had no duty to attempt to accommodate the belief turns the statute on its head. It improperly places the burden on the employee to be reasonable rather than on the employer to attempt accommodation. Section 701(j) clearly anticipates that some employees will absolutely refuse to work on their Sabbath and that this firmly held religious belief requires some offer of accommodation by employers.
The district court found, as a mаtter of fact, that Ithaca had made no specific effort to accommodate Dean. This absolute lack of effort at accommodation by the employer distinguishes this case from our previous case of Jordan v. North Carolina Nat‘l Bank, 565 F.2d 72 (4th Cir.1977), and the Supreme Court‘s decision in TWA v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977). Appellee‘s continued reliance on these decisions is therefore misplaced.
In Jordan, a prospective employee demanded that she be guaranteed that she would never have tо work on her Sabbath if she were to accept employment. There was evidence presented that the employer made some offers of accommodation to Jordan which she refused.2 This Court subse-
The Supreme Court in Hardison held that the employer, TWA, could not reasonably accommodate the employee‘s refusal to work on his Sabbath without undue hardship. TWA, however, made several efforts to accommodate the employee. Job swaps, change of days off, and shift transfers were all attempted before TWA concluded that any further accommodation would create an undue hardship.
It is true that in this case Ithaca did demonstrate an effort to accommodate all their employees when Sunday work was assigned.4 These accommodations, however, were clearly not for reasons of religion, nor were they specifically aimed at addressing Dean‘s beliefs. In addition, Ithaca made no effort to accommodate Dean by any of the methods suggested by the guidelines in the regulations.5
III.
Ithaca contends that the religious accommodation provisions of Title VII violate the First Amendment of the Constitution. The distriсt court declined to reach this issue since it decided the case on other grounds. Assuming that the question is before us, we find no merit in Ithaca‘s constitutional challenge. Ithaca concedes that its argument has been rejected by other courts but argues that if this issue reached the Supreme Court, it would find § 701(j) unconstitutional. We disagree. Every court of appeals that has addressed this issue has held that § 701(j) does not violate the First Amendment. E.g., Protos v. Volkswagen, 797 F.2d 129 (3rd Cir.1986), cert. denied, --- U.S. ---, 107 S.Ct. 474, 93 L.Ed.2d 418 (1986); McDaniel v. Essex International Inc., 696 F.2d 34 (6th Cir. 1982). We now jоin these circuits in holding that § 701(j) passes muster under the Supreme Court‘s three-prong test for constitutionality. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). We are convinced that: (1) § 701(j) clearly has a secular purpose—the elimination of discrimination in the workplace; (2) it has the primary secular effect of preserving the equal employment opportunities of those employees whose moral scruples conflict with work rules; and (3) there is no excessive government entanglement. For these reasons, we conclude that § 701(j) does not violate the First Amendment.
IV.
For the foregoing reasons, we reverse the judgment of the district court and remand for determination of appropriate relief.
REVERSED AND REMANDED.
I concur in Judge Hall‘s fine opinion. I agree, for reasons noted in his opinion, that the employer in this case could have done more to accommodate Dean‘s religious beliefs without undue hardship tо itself.
I write only to emphasize that the statutory terms “reasonably accommodate” and “undue hardship” are variable ones.
The Supreme Court emphasized in Hardison that employers are not required to abandon seniority systems or to incur substantial costs in order to satisfy the requirements of § 701(j). 432 U.S. at 83-84, 97 S.Ct. at 2276-77. Nor, in my judgment, does that statute require an employer to jeopardize safe and effective service to the public. As Judge Hall notes in footnotes 4 and 5 of his opinion, there were options avаilable to the employer here that did not involve such costs or risks, and for that reason I concur in his opinion.
WILKINS, Circuit Judge, dissenting:
The district court reached its decision relying on a 10-year-old precedent of this court, Jordan v. North Carolina Nat‘l Bank, 565 F.2d 72 (4th Cir.1977) (rehearing and rehearing en banc denied). The majority holds that “[t]o the narrow extent that Jordan can be read to say that an absolute refusal to work on the Sabbath is beyond accommodation, it is expressly overruled.” I would аffirm on the basis of Jordan, but, since the majority now effectively overrules Jordan, I would remand to the district court.
I.
In Jordan, a prospective employee explained to the company‘s personnel interviewer that she “would not work on Saturdays [her Sabbath],” 565 F.2d at 74, and she would not accept a job unless she received a “guarantee” that she would not be asked to work on Saturdays. Id. at 75. The employer responded that “we would certainly try to accommodate [her] ... but we couldn‘t give her a formal binding guarantee.” Id. The only effоrt by the employer to accommodate was an offer, summarily rejected by the employee, of work on a “trial basis, to ascertain if actually there was a problem of work on her Sabbath.” Id. at 76.
The court in Jordan concluded that “Jordan‘s prerequirement on its face was so unlimited and absolute in scope—never to work on Saturday—that it speaks its own unreasonableness and [is] thus beyond accommodation,” id., and further noted that acсeding to Jordan‘s demands would obligate the employer to do the same for all employees, constituting an “undue hardship” under Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 n. 15, 97 S.Ct. 2264, 2277 n. 15, 53 L.Ed.2d 113 (1977).
II.
As in Jordan, employee Dean “just couldn‘t compromise on the Sunday work question,” declaring “I just don‘t work on Sundays. It‘s against what I believe in.” As found by the district court, these views were purely personal to Dean at the time of his refusal to work, rather than a reflection of adherence to the specific teachings of his church.1 Although the majority concludes “Dean made [his] belief clear to his supervisors and other Ithaca officials at the time of his initial employment,” Dean‘s testimony does not support this.2
III.
The majority also states that the district court concluded that Ithaca “made no effort to accommodate Dean.” While the district court did state under its “Conclusions of Law” that Ithaca made no offer of accommodation,3 it did so in reliance on the precedent of Jordan which required nothing further after it was established that Dean absolutely refused to work on Sunday regardless of the circumstances.
A review of the record dеmonstrates that the employer attempted to accommodate not only Dean in the exercise of his religious beliefs, but other employees in the exercise of their beliefs as well. The very process by which Dean‘s supervisor, Andy Cain, approached employees about Sunday work reflected his concern for balancing Ithaca‘s economic needs against the workers’ religious practices and bеliefs, as well as their need for time off from the job. When work on Sunday was necessary to meet production requirements, he first sought volunteers and, if there were insufficient volunteers, he approached individuals and instructed them to work. Those selected were chosen on a rotating basis to
Under
I would remand to the trier of fact for consideration of the testimony and evidence in light of the majority‘s pronouncement overruling Jordan.
Judge WIDENER and Judge CHAPMAN have asked to be shown as joining in this separate opinion.
Robert M. LAUGHLIN; Miriam W. Laughlin; Red House Cove Association, Inc.; John Briar, III; Jean Kominars, Plaintiffs-Appellants, v. Richard C. MORAUER, Morauer & Hartzell, Inc., Defendants-Appellees. and Jean T. Morauer; Does 1-10, Defendants. RED HOUSE COVE ASSOCIATION, INC.; William Russell Seabaugh; Jane Woodward, Plaintiffs-Appellants, and Catherine Craybill; Chris Craybill, Plaintiffs, v. MORAUER & HARTZELL, INC.; Richard C. Morauer; Donald Hodel, Secretary of Interior, Defendants-Appellees, and Jean T. Morauer; John Does 1-10, Defendants.
Nos. 86-2185, 86-2189.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 2, 1987. Decided June 9, 1988.
Notes
and the department manager, Arnоld Longmire, of his beliefs regarding Sunday work. He stated that he told Mr. Cain in 1983:
Q. That‘s Andy Cain?
A. Yes.
Q. Do you remember when you told him about your religious beliefs?
A. It was soon after I came on first [shift].
Q. 1983?
A. Yes.
He stated that he told Mr. Hall in 1981:
Q. You ever tell Mr. James Hall?
A. Yes.
Q. About your religious beliefs?
A. Yes.
Q. And what did you tell him?
A. I told him, I said, “I just don‘t work on Sundays. It‘s against what I believe in.”
Q. When did you inform Mr. Hall of your beliefs?
A. It was somewhere around ‘81, soon after he arrived.
When asked if he told Mr. Longmire of his beliefs Dean stated, “I don‘t remember if I told him or not.”
In his testimony Dean named no other Ithaca officials to whom he told his beliefs about Sunday work when initially hired. There is a statement in his complaint to EEOC that he told the personnel manager, John Booth, оf his beliefs prior to employment. Neither Dean nor Booth testified regarding this alleged conversation.
(14) If Cain was unable to obtain a sufficient number of volunteers for the specific jobs which needed to be filled on a particular Sunday, he would instruct certain employees to work on Sunday. Before directing any employee to work on Sunday, Cain would consider whether the employee had worked on a previous Sunday, or Sundays, how many hours he had worked during the week, and whether the employee could do the particular job which was required. This was out of accommodation to all employees including Dean. (Emphasis added.)
The Court, therefore, finds that there was no way for the Defendant to accommodate Dean except to allow him every Sunday off and at the same time require all the other employees to work on Sunday at one time or another, when they were needed.
The language of the district court order upon which the majority concludes that “[t]he district court found, as a matter of fact, that Ithaca had made no specific effort to accommodate Dean,” is set forth as follows:
(5) If, as in most cases, the employer had offered an accommodation to Dean, the question for the Court would be whether the proposed accommodаtion was reasonable. The Defendant here had not offered an accommodation to Dean, because Dean absolutely refused to work on any Sunday or at any time on a Sunday.