Howard COOPER et al., Plaintiffs, Rita Kimbell and Howard T. Hopkins, Plaintiffs-Appellants, v. GENERAL DYNAMICS, CONVAIR AEROSPACE DIVISION, FORT WORTH OPERATION, et al., Defendants-Appellees, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, et al., Defendants-Appellees-Appellants.
No. 74-3151.
United States Court of Appeals, Fifth Circuit.
June 9, 1976.
533 F.2d 163 | 12 Fair Empl.Prac.Cas. 1549 | 12 Empl. Prac. Dec. P 11,002 | 78 Lab.Cas. P 11,462
Before BROWN, Chief Judge, RIVES and GEE, Circuit Judges.
David Watkins, Dallas, Tex., for plaintiffs-appellants. Richard S. Cohen, EEOC, Charles L. Reischel, Washington, D. C., for E.E.O.C. Louis A. Jacobs, Sp. Counsel to Atty. Gen., Columbus, Ohio, for Ohio Civil Rights Commission. J. Olcott Phillips, Fort Worth, Tex., for Gen. Dynamics. Otto B. Mullinax, L. N. D. Wells, Jr., Dallas, Tex., for Intl. Assoc. etc. Sam Houston Clinton, Jr., Austin, Tex., for Dist. Lodge 776, and others. Appeals from the United States District Court for the Northern District of Texas.
Appellants work for appellee General Dynamics (Employer) on a federal enclave in the Fort Worth area, where union security agreements are permitted,1 and once belonged to defendant union and its defendant local (hereafter, collectively, the Union).
Upon learning that financial support of the Union would be required of him by this new provision, each appellant protested to Employer and Union without success, commenced setting aside in trust the amount of such dues for contribution to some nonreligious charity if that were found acceptable, and went to court. After various vicissitudes, unnecessary to detail, the matter came to trial before our district court, where Employer and Union prevailed.3
At trial the legal issues were three: the effect, if any, of the “religious accommodation” provisions of the amended Civil Rights Act on the application of the agency shop provision to appellants; Employer‘s right to recover from Union indemnity for attorney‘s fees incurred in resisting appellants’ suit; and the effect of the Texas Right-to-Work law on the controversy. The last of these is not before us because appellants have not challenged on appeal the district court determination that state law lacked force on the federal enclave. As to the others, the court refused relief to appellants on the reasoning that their beliefs about supporting the Union financially, while both religious and sincerely held, were illogical thus retermitting the issue of whether the beliefs could be accommodated without undue hardship and required Union to indemnify Employer for its attorneys’ fees. We reverse these holdings and remand for decision of the accommodation issue.
The Civil Rights Act and the National Labor Relations Act: Relevant Legislative, Judicial and Administrative Background
These pit the Union‘s entirely understandable desire that employees who receive the benefit of collectively-bargained wages and other benefits should bear a fair share of the cost of obtaining them against appellants’ belief that supporting a union in any way is a Godless act which they should not be made to do to keep their jobs. Mercifully, in deciding this distressing issue, we are asked to write on small portions only of an already-crowded slate.
On the Union‘s side, there can be no doubt that the agency shop provision here in question is valid under the National Labor Relations Act,
The matter thus comes down to statutory construction: what has Congress said should be done about such painful collisions?
(a) It shall be an unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s . . . religion . . .
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual‘s . . . religion . . . .
(c) It shall be an unlawful employment practice for a labor organization
(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his . . . religion . . .
(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual‘s . . . religion . . .
(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.
Initial EEOC guidelines promulgated on the subject, while recognizing a general obligation to accommodate employees’ religious needs where this could be done without serious inconvenience, permitted an employer to adopt any “normal work week” and holiday schedule generally applicable to all employees, without regard to or accommodation of employees’ religious observances, absent intent to discriminate on religious grounds. A subsequent and replacing regulation, however, adopted in 1967, took a firmer line: employers were required to make reasonable accommodation, short of undue hardship, to the religious practices of employees:
(b) The Commission believes that the duty not to discriminate on religious grounds, required by section 703(a)(1) of the Civil Rights Act of 1964, includes an obligation on the part of the employer to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer‘s business. Such undue hardship, for example, may exist where the employee‘s needed work cannot be performed by another employee of substantially similar qualifications during the period of absence of the Sabbath observer.
(c) Because of the particularly sensitive nature of discharging or refusing to hire an employee or applicant on account of his religious beliefs, the employer has the burden of proving that an undue hardship renders the required accommodations to the religious needs of the employee unreasonable.
Initial decisions by the courts tended toward a narrow interpretation of the statute and guidelines. In Dewey v. Reynolds Metals Co., 429 F.2d 324 (1970), a divided Sixth Circuit held it a sufficient accommodation of Sabbath observance to permit the affected employee to arrange his own replacement, despite his protest that Sunday work was so inherently sacrilegious that his inducing another to do it in his place would be sinful. That decision was affirmed by an equally divided Supreme Court.5 Central to the reasoning of the circuit court and of several contemporaneous district court decisions6 was a distinction between discrimination and a mere refusal to accommodate normal work rules of general application to the complainant‘s special religious claims. In the face of an ambiguous statute, of changing EEOC regulations, and of the notion intimidating at first blush that a broad construction might cripple employers in a cross fire of religious demands, the courts7 by 1971 appeared to be settling into a view that the statute concerned itself primarily, if not solely, with Sabbath observance8 and that general rules, applied without discriminatory intent, were acceptable even though their effect in practice might not always be impartial. In 1972, however, with unusual promptness and unanimity, Congress responded to this modest trend by making clear that this was not what it meant.
Acting in what can only be viewed as a direct response to the Sixth Circuit‘s expressed doubts in Dewey about the EEOC‘s power to adopt such regulations as its revised guidelines explicit reference to the decision and its affirmance by equal division is made in the legislative history, as is shown in our next footnote Congress added to the Civil Rights Act of 1964 a definition of religion. This “definition,” set out below in the margin, exhibits the curious feature of defining as religious every aspect of observance, practice, and belief of that nature except whatever the affected employer can show he cannot accommodate without undue hardship to his business activities. Nevertheless, though it may make the stylist blanch, the definition possesses that most precious of statutory qualities: it cannot be misunderstood. If the employee‘s conduct is religiously motivated, his employer must tolerate it unless doing so would cause undue hardship to the conduct of his business. And if the text left room for doubt, as it does not, the legislative history removes it.9
We are unable to reconcile with section 701(j)‘s sweeping terms (“all aspects of religious observance and practice, as well as belief . . . .“) the Union‘s suggestion that Congress intended by it to protect Sabbath observance only. When the legislator speaks plainly, he is entitled to be taken at face value. The language chosen is broad broader can hardly be imagined and entirely extravagant to a mere concern for Sabbatarianism or any other particular doctrine or observance. Instead, the definition is what may be termed an operative one: all forms and aspects of religion, however eccentric, are protected except those that cannot be, in practice and with honest effort, reconciled with a businesslike operation. The Civil Rights Act extends to the religious doctrine implicated here.10
Three other contentions by the Union require treatment. The first, an assertion that section 701(j) applies only to employers, relates to a point on which the court has divided and which is treated below in the section of this opinion entitled “Accommodation and Hardship: By Whom and to Whom?”
Next, in two related arguments, the Union maintains that section 701(j) and the other provisions of Title VII may not be appropriately viewed as exemptions from the application of agency shop provisions sanctioned by section 8(a)(3), pointing to that section‘s “supremacy clause”11 and to the fact that when Congress wished to provide a “religious conviction” exemption from union security agreements for employees of health care institutions, it did so by a severely limited and narrow amendment to the National Labor Relations Act itself.12 From these considerations, it is said to follow that Congress would not likely have intended to enact a broad and general exemption to 8(a)(3) for religious scruples by passing and later amending Title VII.13
We conclude, however, that the language of 8(a)(3) to which the Union refers, commencing with “nothing in this subchapter,” does not bear the sense that the Union seeks to place upon it. The passages of 8(a)(3) that authorize union security agreements are exceptions to the main body of that section, both structurally (as contained in a proviso) and conceptually (as reservations from the thrust of the section‘s major idea). Language in other portions of the section, and doubtless elsewhere in statutes of the United States, can be read as conflicting with this union-security proviso of 8(a)(3). It is, therefore, not surprising that the section incorporated language making plain that, despite these seeming conflicts, union security agreements are authorized, anything in the statutory system as then constituted notwithstanding. So far, so good. But to go on, as would the Union, to a conclusion that the quoted language is a true supremacy clause, which for all time lifts section 8(a)(3) above the general level of the United States Code to a position comparable to the Constitution, would be a startling measure indeed. For various reasons, it seems unlikely that this was Congress’ intent.
In the first place, a hierarchy of statutory dignities is foreign to our governmental scheme. We have constitutions that take permanent precedence over statutes; we are not accustomed to statutes that do so, and congressional intent to enact such a thing would be novel, a thing we would not lightly discern from language susceptible of other meanings. Second, the provision has an entirely rational and necessary function in the union security proviso of section 8(a)(3) that discussed in the next preceding paragraph so that we need not seek its raison d‘etre in such an unusual purpose as that advanced by the Union. Finally, Congress’ recent passing of the health-care-institution exemption itself, codified at
And indeed we think Congress rather plainly correct in this perception, for neither the passage of the health-care exemption nor the passage and amendment of Title VII precludes or trenches in any direct way upon any employer‘s making a union security agreement. He and his union can make any they like and enforce it in the general run of cases in all except the unusual one where compliance would run counter to a particular employee‘s religious conviction, sincerely held, that can be accommodated without undue hardship.
The Indemnification Claim
In closing the majority portion of this opinion, we dispose of one last claim the Union‘s contention that the trial court improperly required indemnification of Employer for attorneys’ fees and expenses incurred in defending this cause of action. We agree with the Union. The district court based its award on an indemnity provision of the collective bargaining agreement, which provided that the local union would
defend, save, hold harmless and indemnify (Employer) from any and all claims, demands, suits or any other forms of liability that . . . arise out of the execution, placing in effect or carrying out of the terms of (the Article concerning payment of union dues).
But the local, which stood ready to defend Employer, was never requested to provide representation. Employer wanted its own counsel, fearing that loss of this case might adversely affect its interests in other litigation.14 Thus, Employer chose to retain its own attorney for its own reasons and purposes; and under these circumstances, the indemnity provision does not apply.
Accommodation and Hardship: By Whom and to Whom?
Chief Judge Brown and the writer concur in holding that consideration of all reasonable accommodations of appellants’ religious beliefs, including one which permits their nonpayment of union dues or the equivalent while continuing regular work assignments with their employer, is mandated by the sweep of section 701(j). For the reasons stated in his separate opinion, Judge Rives does not agree that such an accommodation should be considered, though he agrees that accommodations short of this should be. Judges Brown and Rives concur that, whatever range of accommodations is to be contemplated, hardship to the union, as well as hardship to the Employer, must be considered in evaluating them. Because of what the statute says, I am unable to agree.
Section 703 of the Civil Rights Act forbids, inter alia, an employer to discharge an employee for his religion and forbids a union to make or try to make an employer do so. Section 701(j) of the same Act defines “religion” as including every religious belief, observance or practice “unless an employer demonstrates that he is unable to reasonably accommodate to (it) without undue hardship on the conduct of the employer‘s business.” (emphasis added). This is all. My Brothers add to the definition the factor of “undue hardship to the union.” As I read Judge Brown‘s opinion, their reasons for doing so are that the union has a serious interest in the matter, that the statute would be more symmetrical this way (if one is to have an escape hatch, the other should have it, too), that a weakened union may produce hardship to the employer, and that such a statute would be more in line with “the overriding and evident policies of Congress.” With deference, none of these reasons persuades me, or even approaches persuading me, that when Congress has said A, in words which admit of neither construction nor misunderstanding, we should say A and B.
As for the reasons themselves, I answer: Indeed, the union does have a serious interest in this matter, one which should be presented to Congress for its consideration rather than to us. As for symmetry, neither the Labor Relations Act nor the Civil Rights Act is notable for it; each prohibits things to some people but not to others, and the thrust of each is toward equalizing unequal situations rather than an abstract symmetry. The next notion, that a weakened union may be seen as a hardship to the employer is conceivable but seems foreign to the perceptions both of Congress (which specifically permitted right-to-work laws and decreed employee elections that often result in no union at all) and of most employers who appear before us. Finally, the overriding congressional policies which my Brothers find evident are not so clear to me. I prefer to seek these in the words of the statute, what the Congress has solemnly said on this particular subject.
Conclusion
The judgment of indemnity is REVERSED, and the judgment is here RENDERED for IAM and Lodge 776. The judgment in favor of General Dynamics is REVERSED and REMANDED for further proceedings not inconsistent with the consensus majority opinion, that is, for consideration and decision by the court whether appellants’ religious doctrine here involved can be reasonably accommodated by the Employer and the Union without undue hardship to the conduct of the Employer‘s business or to the Union.
Howard COOPER et al., Plaintiffs, Rita Kimbell and Howard T. Hopkins, Plaintiffs-Appellants, v. GENERAL DYNAMICS, CONVAIR AEROSPACE DIVISION, FORT WORTH OPERATION, et al., Defendants-Appellees, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, et al., Defendants-Appellees-Appellants.
No. 74-3151.
United States Court of Appeals, Fifth Circuit.
June 9, 1976.
JOHN R. BROWN, Chief Judge (specially concurring):
I.
I concur fully in the result and the Court‘s opinion so far as it goes. My difference is that it does not go far enough. And lest its silence be misinterpreted as an implied rejection I would hold that the inquiry on hardship should not be confined to the employer alone. The inquiry must also include hardship to the Union.
II.
A majority is in agreement apart from the question urged so well by Judge Rives’ dissent on the immunity of Union dues from the reach of Section 701(j) that the substantive restraints of Section 701(j) forbidding religious discrimination applies to employer and Union alike and each has a duty of accommodation.1
But the remand ordered confines the question of hardship to hardship to the employer alone with not a single mention of hardship to the Union. I am of the firm opinion that where the asserted religious discrimination grows out of a collective bargaining contract, as it assuredly does here, the Union as a very real party in interest, has the right to demonstrate that accommodation would cause undue hardship to it and its interest. Thus I am in full agreement with part IV A of Judge Rives’ opinion. The result is that we thereby construct a majority on this issue. On remand the Court must have appropriate hearings on hardship to both the employer and Union.
III.
Of course there can be no running from the express language of Congress. The hardship is, by words, confined to “undue hardship on the conduct of the employer‘s business” (emphasis supplied). But reason argues overwhelmingly that in the structure of this statute Congress could not have thought that for two parties under the same stringent substantive prohibition one has an escape hatch of undue hardship denied to the other growing out of the common industrial setting.
Of course one way to get to this destination is to reason that the Union‘s legitimate self-interest is an inevitable part of the inquiry into hardship to the employer. We must remember that the aim of all federal employment relationship legislation is the idyllic goal of industrial peace. The quest, of course, is not for some unrealistic hope for tranquility. The very relationship of management-labor poses contention in the very best use of that term. What is sought is a means by which these natural irrepressible continuous contentions can find resolution through civilized means not the brute strength of an employer‘s goon squad or violence on the picket line.
Our national commitment is to negotiation, dialogue, compromise and adjustment. But there cannot be this sort of negotiation without negotiators. There is scarcely a situation proving so much the old saw that it “takes two to tango“. Management, historically, has the resources to mount its vigorous negotiation. Workers, on the other hand, so our history proves are disadvantaged unless and the unless is a big one there is organization and the resources that comes from collective purpose and commitment. It is, therefore, to management‘s self-interest in the goal of peaceful settlement of the inevitable economic clashes that its adversary have, not necessarily equal, but at least formidable strength. This can come about only by resources. Resources include not only reasonable solidarity in employee support, but in the means by which to lend effective, not just zealous, support.
That means that in the process or art by whatever name it is described of negotiation the Union as the ordained collective bargaining representative must have strength. Strength comes not alone from money, but money is indispensable as these combatants enter the lists.
V.
But to me it would be a mistake and a disservice to the overriding and evident policies of Congress in its aim to blot out this blight on a meaningful democracy to have to go to this indirection to find a legitimate interest in the maintenance of a strong vigorous advocate in this process of bargaining.
The Union should therefore have the right equally with the employer to demonstrate if it can that the practice condemned cannot be avoided without undue hardship to its legislatively ordained role.
VI.
It is therefore clear to me that in assaying this Section 701(j) undue hardship factor, hardship to the Union as well as hardship to the employer should be considered.
Howard COOPER et al., Plaintiffs, Rita Kimbell and Howard T. Hopkins, Plaintiffs-Appellants, v. GENERAL DYNAMICS, CONVAIR AEROSPACE DIVISION, FORT WORTH OPERATION, et al., Defendants-Appellees, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, et al., Defendants-Appellees-Appellants.
No. 74-3151.
United States Court of Appeals, Fifth Circuit.
June 9, 1976.
RIVES, Circuit Judge (concurring in part and dissenting in part):
I.
I concur with the majority‘s disposition of the indemnity claim. Clearly, the district court erred in requiring the Union to indemnify the employer for his litigation costs.
II.
I specially concur with part of the majority‘s decision concerning the employees’ Title VII claim. With regard to this claim, the parties on appeal have presented us with the question of whether Congress, by enacting and later amending Title VII of the Civil Rights Act,
III. Duty to Accommodate
In 1964 Congress passed Title VII of the Civil Rights Act, a statute making it an unlawful employment practice for an employer to discriminate against his employees on the basis of race, color, religion, sex, or national origin.
The Randolph Amendment to the Equal Employment Opportunity Act of 1972 was a direct response to the Dewey decision. This amendment, sponsored by Senator Randolph of West Virginia, defined “religion” as follows:
“(j) The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee‘s or prospective employee‘s religious observance or practice without undue hardship on the conduct of the employer‘s business.”
42 U.S.C. § 2000e(j) .
The Union contends that, despite the broad language used in this definition, the Randolph Amendment was intended to have a fairly limited purpose. Reference is made to the legislative history where Senator Randolph, a member of a small sect known as Seventh-Day Baptists,3 told his fellow Senators of his concern over “the inability of employers on some occasions to adjust work schedules to fit the requirements of the faith of some of their workers.” 118 Cong.Rec. 705 (1972). Seizing on this language, the Union contends that there is a duty to accommodate only those religious beliefs concerning observance of the Sabbath and related problems. Indeed, the regulation issued by the EEOC interpreting Title VII‘s proscription against religious discrimination is titled “Observation of the Sabbath and Other Religious Holidays.” 29 C.F.R. § 1605.1 (1975). The official position of the Commission, however, is that Title VII does require employers and unions to accommodate an individual‘s religious belief against financially contributing to a labor organization. The language of the statute (“All aspects of religious observance and practice, as well as belief“) does indeed extend beyond Sabbatarianism to include any belief that can be termed “religious.” Authority for the proposition that this duty to accommodate attaches to religious objections against labor unions can be found in the Ninth Circuit case of Yott v. North American Rockwell Corporation, 9 Cir. 1974, 501 F.2d 398. Although the issue was uncontested, Title VII has been applied in this Circuit to a situation where an atheist was forced to resign her job as a result of having to attend business meetings where devotionals were given. Young v. Southwestern Savings and Loan Association, 5 Cir. 1975, 509 F.2d 140. In light of the above, I think that Title VII does place a duty of accommodation on the employer and also on the Union.
A. Hardship
Under the provisions of the statute, the duty to accommodate is limited by an exception for hardship.
“. . . unless an employer demonstrates that he is unable to reasonably accommodate to an employee‘s or prospective employee‘s religious observance or practice without undue hardship on the conduct of the employer‘s business.”
Although, for the reasons stated herein at length, I am of the view that the duty to accommodate does not include an exemption to paying union dues under an agency shop agreement, since the Court holds otherwise, I concur in Chief Judge Brown‘s concurrence on hardship to the Union.
While § 2000e(j) refers only to the hardship of the employer, to my way of thinking, the hardship provision was intended to modify the duty to accommodate and would include the hardship of any party subjected to the requirement of accommodation.
B. A Union Dues Exemption for Religious Belief.
Nowhere in the legislative history of the Equal Employment Act of 1972 is there any indication that Congress intended to amend the provision which now permits an agency shop agreement, and thereby exempt employees who have religious objections to labor organizations from joining or paying a dues equivalence to their representative union. As observed by the Ninth Circuit in Yott v. North American Rockwell Corporation, supra, Congress has repeatedly rejected efforts to provide exceptions to the union security provision of the NLRA for employees who have religious convictions against union membership. 501 F.2d at 400 n. 4. If there had been any understanding by the members of Congress that section 701(j) of the 1972 Act could be used as authority for the EEOC to formulate a guideline which would weaken the union security provision of the NLRA, the Act would most probably have been defeated. Certainly it would not have received such a unanimous approval by both Houses as could be expected only for a noncontroversial provision. Given this history of congressional opposition to amending the union security provision of the NLRA and the unanimous approval of section 701(j), I am unable to conclude that Congress intended to adopt such a provision when it accepted the Randolph Amendment to the Equal Employment Opportunity Act of 1972.4
Additional evidence that an exception to the union security provision of the NLRA is not to be implied from passage of other statutes can be found in the language of the NLRA,
In Yott v. North American Rockwell Corporation, supra, the Ninth Circuit was confronted with a case involving a situation similar to the present one. There, the court reversed the dismissal of plaintiff‘s complaint and remanded to the district court for a determination of whether a reasonable accommodation without undue hardship could be reached. In a footnote, the court described this remand:
“Since we hold that if a reasonable accommodation can be reached between the parties it must be offered appellant Yott and such determination is for the District Court on remand (infra ), we leave analysis of whether the ‘business necessity’ test would be met for the District Court‘s determination. We are certain that the court will keep in mind that the purpose of a union security clause is to insure that all who receive the benefits of the collective bargaining agreement pay their fair share. ‘Free riders’ are discouraged. In effect stability is promoted by reducing potential labor strife, thus increasing the efficient operation of the business.” 501 F.2d at 402 n. 6.
Curiously, the court described the “undue hardship” analysis as a “business necessity” test and went on to suggest to the district court that a union security agreement does meet such a test.7 I am in basic agreement with this, but conceptualize the issue somewhat differently. To my way of thinking, the “undue hardship” analysis has no application at all to the union security agreement. Briefly stated, I would remand to the district court for the limited purpose of determining whether accommodations such as a transfer of these employees to an open shop can be made without undue hardship; and would direct that in no event should the district court extend the scope of accommodation to provide an exemption from the payment of dues under an agency shop agreement.
Notes
In an amendment to the Civil Rights Act of 1964, approved by the Senate of the United States on March 6, 1972, and by the House of Representatives on March 8, 1972, the following provision was added to Section 701:
“(7) After subsection (i) insert the following subsection (j):
(j) The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee‘s or prospective employee‘s religious observance or practice without undue hardship on the conduct of the employer‘s business.”
The total legislative history of this amendment appears at 118 Congressional Record, §§ 227-253. There it appears that Senator Randolph, of West Virginia, who sponsored the amendment, explained that it was designed to resolve the issue left open by the equal division of the Supreme Court of the United States in Dewey v. Reynolds Metals Company, 402 U.S. 689 (1971). At 118 Congressional Record, § 228, Senator Randolph said:
“I think in the Civil Rights Act we thus intended to protect the same rights in private employment as the Constitution protects in Federal, State or local governments. Unfortunately, the courts have, in a sense, come down on both sides of the issue. The Supreme Court of the United States, in a case involving the observance of the Sabbath and job discrimination, divided evenly on this question.
This amendment is intended, in good purpose, to resolve by legislation and in a way I think was originally intended by the Civil Rights Act that which the courts apparently have not resolved. I think it is needed not only because court decisions have clouded the matter with some uncertainty; I think this is an appropriate time for the Senate, and hopefully the Congress of the United States, to go back, as it were, to what the Founding Fathers intended. The complexity of our industrial life, the transition of our whole area of employment, of course are matters that were not always understood by those who led our Nation in earlier days.”
It is significant that this measure was passed by a unanimous vote in the Senate.
The legislative history shows similar approval by the House of Representatives after the Chairman of the House Committee made the following explanation:
“Section 701(j) This subsection, which is new, defines ‘religion’ to include all aspects of religious observance, practice and belief, so as to require employers to make reasonable accommodations for employees whose ‘religion’ may include observances, practices, and beliefs such as sabbath observance, which differ from the employer‘s or potential employer‘s requirements regarding standards, schedules, or other business-related employment conditions.
Failure to make such accommodation would be unlawful unless an employer can demonstrate that he cannot reasonably accommodate such beliefs, practices, or observances without undue hardship on the conduct of his business.
The purpose of this subsection is to provide the statutory basis for EEOC to formulate guidelines on discrimination because of religion such as those challenged in Dewey v. Reynolds Metals Company, 429 F.2d 324 (6th Cir. 1970). Affirmed by an equally divided court, 402 U.S. 689 (1971).” 118 Congressional Record, pp. 1861-1862.
Riley v. Bendix Corp., 464 F.2d 1113, 1116-17 (5th Cir. 1972).A. Well, we have been talking about the federal enclave here, and it has been made an issue in this litigation; and
There is more at stake to General Dynamics as a matter of the federal enclave than there is to the local or district lodge of the International Union. We felt that we have a litigation in process in Austin, Texas, in Travis County, in connection with the franchise tax; and
We had one litigation in the early sixties with reference to the ad valorem tax situation upon our property on the enclave, or the property on the enclave; and
We felt, as a matter of good business judgment, it prudent, in protection of our own interests, and in connection with the enclave and our problems with the enclave, that we could best do this by retaining our own counsel.
Q. Do you feel there might possibly be some conflict of interest if the union attorney was solely representing your interests in this case?
A. We felt that.