|Balint v. Carson
US Court of Appeals
D.C. No. CV-N-96-00141-HDM
UNITED STATES COURT OF APPEALS
November 17, 1998
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
BRIEF AMICUS CURIAE OF THE NATIONAL JEWISH COMMISSION ON LAW AND PUBLIC AFFAIRS ("COLPA"), AGUDATH ISRAEL OF AMERICA, and UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA, et al.
INTEREST OF THE AMICI
The National Jewish Commission on Law and Public Affairs ("COLPA") is a voluntary association of attorneys and social scientists organized to combat all forms of religious prejudice and discrimination and to represent the position of the Orthodox Jewish community on matters of public concern. COLPA is fully committed to the preservation of constitutional and statutory rights for all citizens in order that citizens of minority religious faiths, in common with all other citizens, may enjoy the blessings of liberty.
This brief is also joined by the Agudath Israel of America, Agudath Harabonim of the United States and Canada, National Council of Young Israel, Torah Umesorah National Society of Hebrew Day Schools, Rabbinical Council of America, The Rabbinical Alliance of America, and the Union of Orthodox Jewish Congregations of America.
Agudath Israel of America is a national grass-roots Orthodox Jewish organization. Among its other functions, it has advocated on behalf of the rights of religiously observant employees before administrative, legislative, and judicial bodies on the federal, state, and local levels. Agudath Harabonim of the United States and Canada is the oldest Orthodox rabbinical organization in the United States. Its membership includes leading scholars and sages, and it is involved with a wide range of educational, social, and legal issues. National Council of Young Israel is a coordinating body for more than 100 affiliated Orthodox Jewish synagogues throughout the United States. Torah Umesorah National Society of Hebrew Day Schools is the coordinating body for more than 600 Jewish Day Schools across the United States. The Rabbinical Council of America is the largest Orthodox Jewish rabbinical organization in the world. The Rabbinical Alliance of America is an Orthodox Jewish rabbinical organization with more than 400 members. It has for many years taken positions on a variety
of religious, social, and educational questions affecting Orthodox Jews. The Union of Orthodox Jewish Congregations of America is a central coordinating body for approximately 3000 Orthodox Jewish congregations in the United States. All of these organizations have a vital concern for the protection of religious liberty, particularly the right of the observant and devout to be gainfully employed and to earn an honest living.
The civil-rights law at issue in this case -- 42 U.S.C. § 2000e(j) -- opened doors which had previously been closed to adherents of minority faiths. For example, Orthodox Jews who are enjoined by Biblical command to "observe the Sabbath day and keep it holy" and "not [to] do any manner of work" on that day (Deuteronomy V, 2, 14) for years did not enjoy equal employment opportunities and were barred by various employment policies from positions open to other individuals in our society. They were turned away from job after job and suffered great economic hardship only because they steadfastly refused to violate the Biblical injunction against work on the Sabbath.
Over the years COLPA and the other amici have assisted thousands of individuals in securing their rights under the civil-rights laws and under similar state anti-discrimination laws. We can attest to the fact that thousands of individuals have become gainfully employed,
rather than become demoralized and a burden on society, thanks to these laws. Congress' determination to protect religious practice, cast in terms of moderation, reasonableness, and deference to actual proof of legitimate employer hardship, was a sound and sensible means of prohibiting thoughtless discrimination while acknowledging those instances where real hardship to employers exists.
We believe that the decision of the panel below, if sustained, would eviscerate the hard-won protection, enjoyed by all citizens, against religious discrimination in the workplace. The decision cannot be reconciled either with controlling case-law or with the text of the relevant statutes. We respectfully urge this Court to reverse the panel's decision.
STATEMENT OF THE FACTS
We agree with the American Jewish Congress, et al., who have also submitted an amicus curiae brief, that the relevant facts are sufficiently stated in the parties' briefs and in the decisions below. We will therefore not re-state them here.
AN EMPLOYER'S REFUSAL TO EVEN ATTEMPT A DE MINIMIS ACCOMMODATION OF A SABBATH-OBSERVER'S RELIGIOUS PRACTICES IS RANK AND ARBITRARY DISCRIMINATION UNDER THE CIVIL RIGHTS ACT
In Balint v. Carson City, Nevada, 144 F.3d 1225, 1229 (9th Cir. 1998), a panel of this Court held that an employer who uses an "existing, bona fide seniority-based shift-bidding system" is never required to accommodate an employee's religious needs, no matter how great the burden that system imposes on an employee's faith or how slight the burden an accommodation would impose on the employer. This ruling, if sustained, would insulate the basest and most blatant religious discrimination from the protections of Title VII of the Civil Rights Act. 42 U.S.C. § 2000e et. seq.
We are filing this amicus brief at the eleventh hour not to add to the excellent discussion of the controlling case-law provided in the amicus brief submitted by the American Jewish Congress, et al. We agree with and endorse the legal argument presented in that brief regarding employers' statutory duty to accommodate employees' religious obligations in situations where competitive
These amici first learned of the pendency of this case on November 16, 1998.
seniority systems are used to allocate work-shift assignments.
In reaching its conclusion, the panel in Balint relied on the Supreme Court's decision in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) ("TWA"). In that case, the Supreme Court explained the duty imposed by the Civil Rights Act on employers to accommodate the religious practices of their employees. The Court held that when work shifts are allocated on the basis of a seniority system, Title VII does not require an employer to accommodate religion if the accommodation would impose more than de minimis cost. See 432 U.S. at 84.
The principal author of this amicus brief argued the TWA case before the Supreme Court as an amicus curiae (see 432 U.S. at 65) and is well aware of its holding and its ramifications. The issue in this case, however, is whether the Balint panel erred in going well beyond the Court's holding in TWA by issuing a blanket rule authorizing employers who use a seniority system to refuse any religious accommodation, even those that impose de minimis burdens on the employer and on the effectiveness of the seniority system. TWA cannot support the panel's opinion and it did not excuse employers who use seniority systems from their statutory duty not to discriminate on the basis of religion. The Balint panel's ruling would undermine the fundamental
protections conferred by the landmark Civil Rights Act of 1964 and we are submitting this short brief to explain how totally repugnant such a legal principle would be to the premises and purposes of that historic federal legislation.
A. The Purpose of Title VII of the Civil Rights Act Was To Eradicate Arbitrary Racial and Religious Discrimination in Private Employment.
The TWA Court stated that the purpose of Title VII was "the elimination of discrimination in employment." 432 U.S. at 85; see also Griggs v. Duke Power Co., 401 U.S. 424, 429 (1971) (Title VII's purpose was to "achieve equality of employment opportunities"). Before the enactment of the Civil Rights Act, private employers could and did refuse employment, promotions, equal pay, and equal working conditions on the basis of skin color and religious belief. African Americans and Hispanics could be and were rejected for jobs solely because of their race. Jews and Catholics could be and were denied promotions and advancement opportunities solely because of their faiths. The Civil Rights Act outlawed such discrimination, which is unconstitutional if engaged in by government, in private employment as well.
Any court decision that purports to interpret and apply Title VII must be consistent with, and certainly must not undermine, the ideals and clear purpose of that law.
The Balint panel's decision, by authorizing naked religious discrimination by a particular class of employers -- those who use seniority-based work-shift-assignment systems -- fails this test.
B. The Supreme Court Divided Evenly on the Question Whether Discrimination on the Basis of Religious Observance Amounted to Discrimination on the Basis of Religion.
There was never any question whether employment discrimination on the basis of a job-applicants skin color or religious affiliation was illegal and entirely contrary to the principles of equal opportunity that prompted enactment of the Civil Rights Act. However, in the years following the passage of the Act, a not-so-obvious question was litigated in several Courts of Appeals: Does an employer discriminate on the basis of religion, and therefore violate federal law, if he refuses to hire an employee whose religious observance and practice disrupts the employers routine work-related policies? Specifically, may an employer simply refuse to accommodate its general workplace rules, schedules, etc. to the religious obligations of an employee or job applicant? This question arose not only with employees who observed Sabbaths and religious holidays, but also with employees whose clothing, appearance, and diets were subject to the rules and teachings of their religions.
In Dewey v. Reynolds Metals Co., 402 U.S. 689 (1971) (per curiam), the Supreme Court split evenly on this question. The Sixth Circuit had rejected the civil-rights claim of an employee who was fired because of his religious beliefs. Specifically, the employee observed strictly his Sabbath and had contended that the employer's "replacement system" was insufficient to accommodate his religious beliefs, because it required him to induce other workers to work on his Sabbath. Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th Cir. 1970). The Supreme Court affirmed the Sixth Circuit's decision by an "equally divided Court." 424 U.S. at 689.
Similarly, in Cummins v. Parker Seal Co., 516 F.2d 544 (6th Cir. 1975), aff'd by equally divided Court, 429 U.S. 65 (1976) (per curiam), the Court of Appeals held that the employer did not perform its duty under the Civil Rights Act of accommodating religion. The plaintiff -- a member, like Ms. Balint, of the Worldwide Church -- was not permitted by his religion to work on Saturday. After other workers complained that they had to substitute for the plaintiff on Saturdays, the plaintiff had been fired. The Sixth Circuit recognized that the employer was "inconvenienced" by the employee's religious beliefs, but insisted that "to call the inconvenience shown on this record undue hardship would be to venture into an Alice in
Wonderland world where words have no meaning." 516 F.2d at 550 (internal quotations and citations omitted). Again, an equally divided Supreme Court affirmed without opinion.
In these cases, the employer could argue -- and this argument was apparently persuasive to four Justices -- that the refusal to accommodate or hire an employee whose personal convictions would cause serious disruption to the employers business was not a manifestation of discrimination or bias of the type that the Civil Rights Act was meant to cure. On the other hand, such an argument, if carried too far, could allow employers to hide religious discrimination behind the façade of workplace necessity. Cf. Griggs, 401 U.S. at 436 (Civil Rights Act does not permit employers to use "tests" that have the effect of discriminating on the basis of race unless those tests are "demonstrably" a "reasonable measure of job performance"). The Supreme Court's inability to resolve this question clearly cried out for legislative action.
C. Congress Enacted the 1972 Amendments to the Civil Rights Act of 1964 To Distinguish Between Arbitrary Religious Discrimination and Reasonable Employer Prerogatives.
In 1972, Congress acted to address this confusion. The primary author of this amicus brief drafted the language that was given to Senator Jennings Randolph of West Virginia
to be added to proposed amendments to the Civil Rights Act of 1964. The purpose of these amendments was to distinguish between those situations in which employers were reasonably concerned about the effect of a religious employees ritual observance on the everyday operation of their businesses and those instances in which denial of a job or was truly discriminatory, and the refusal to accommodate merely a pretext for such discrimination. As Senator Randolph stated, the Act was amended "to assure that freedom from religious discrimination in the employment of workers is for all time guaranteed by law." TWA, 432 U.S. at 75 (citing 118 Cong. Rec. 705 (1972)). The 1972 amendments made clear "the employer's statutory obligation to make reasonable accommodations for the religious observances of its employees, short of incurring an undue hardship." Ibid.
The 1972 amendments enacted into law a "reasonable accommodation" requirement and "undue hardship" standard that the Equal Employment Opportunity Commission had earlier promulgated in its own regulations. The EEOC in 1967 stated that employers must "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." 432 U.S. at 72 (citing 29 CFR § 1605.1 (1968)). These two concepts -- reasonable accommodation and undue hardship -- were
designed to remedy the impasse in the Supreme Court and to help courts identify truly arbitrary discrimination and to smoke out those employers who had no valid reason for refusing a job to a devout religious believer but who were, in fact, using their supposed business needs as a screen for their personal bias against or dislike for religious persons against whom they discriminated.
D. By Including the Protection for Religious Observers in the Definitional Section of the Civil Rights Act, the 1972 Amendments Implemented the Act's Original Intent and Respected its Original Purposes.
It was no accident that the clear protection for religious observance provided by the 1972 amendments was included in Title VII's definitional provisions. "Religion" was and still is defined as including "all aspects of religious observance and practice." 42 U.S.C. § 2000e(j). The amendment codified the basic truth that one's "religion" is more than a label. It is also a way of life, a set of practices, and a source of duties. Today, under the Civil Rights Act, an employer who refuses to hire or promote an employee who observes the Sabbath, wears a yarmulke, maintains a strict religious diet, or wears a beard for religious reasons is engaging in arbitrary employment discrimination just as surely as an employer who refuses to hire a Jew solely because he is a Jew, or a black or Hispanic job applicant solely because of the applicants skin-color. Such a refusal is illegal discrimination unless the employer has a valid non-discriminatory reason not to hire the applicant.
If Carson City refused to hire Ms. Balint solely because of religious beliefs and affiliation with her church, without evaluating whether her religious practices
had any real practical impact on the routine of its Sheriffs Department's seniority system, such discrimination is as arbitrary, unjustified, and illegal as it would be if she was rejected because of the color of her skin. The 1972 amendments to the Civil Rights Act were enacted into law precisely to protect plaintiffs like Ms. Balint from such discrimination. "Religion" includes religious practice. Therefore, just as Carson City may not legally post a notice declaring that no Catholic or Jew will be accepted for employment in its Sheriffs Department, it also may not exclude members of the Worldwide Church by enforcing rigidly and absolutely a shift-allocation rule that that so seriously burdens an employees "religious observance and practice." 42 U.S.C. § 2000e(j).
E. The Mere Existence of a Seniority System Does Not Preclude a Finding of Illegal Job Discrimination.
In light of the history and text of the 1972 amendment to the Civil Rights Act, it is clear that whether or not an employer has engaged in arbitrary discrimination against religious observers depends on whether there is excessive disruption to his business in the particular circumstances of each case. Contrary to the decision of the Balint panel, it cannot be the law that if there is "an existing, bona fide seniority-based shift-bidding system," no accommodation for religion need ever be made.
The Balint panel held that "[b]ecause the Department had in place a nondiscriminatory seniority-based system for assigning shifts, it had no duty to accommodate Balint, even if such accommodation would have no more than a de minimis impact." 144 F.3d at 1228. But the question of "accommodation" is built into the very definition of "religion" in Title VII. 42 U.S.C. § 2000e(j). The 1972 amendments to the Act require accommodation for religious practice so long as the practice can be accommodated without "undue hardship" to the employer. See TWA, 432 U.S. at 74. The question under Title VII, therefore, is not whether an employer has in place some facially neutral system or practice -- this will often be true in discrimination cases -- but whether a religious employee's obligations can be accommodated within that system without imposing "undue hardship."
This basic rule is highlighted by comparison with a situation that could often arise in the context of racial discrimination. What if an employer had an "existing bona fide" hiring system under which employees were all selected from the families of current employees? Could such an "existing bona fide" system be invoked as a defense for discriminating against black or Hispanic applicants whose family members were not already employees? Clearly not. In fact, such a ploy and others like it have been rejected
repeatedly by the courts. See, e.g., Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 427 (8th Cir. 1970); Domingo v. New England Fish Co., 727 F.2d 1429, 1436 (9th Cir. 1982); Local 53 v. Vogler, et al., 407 F.2d 1047, 1054-1055 (5th Cir. 1969). Such "systems" have been recognized for what they often are -- efforts to continue biased employment policies that excluded minorities.
By the same token, an employment rule that says to employees who have religious convictions, and who strive to live and work according to those convictions, that they cannot be employed simply because the employer maintains a seniority system is in fact a means of discriminating arbitrarily against the religious believer. If the employee's or applicant's religious convictions can be accommodated without undue hardship to the employer, notwithstanding the seniority system -- e.g., by a voluntary exchange of shifts or some other mechanism acceptable to other employees -- it is illegal discrimination to deny the job to the religious observer.
For the foregoing reasons and those stated in the amicus curiae brief of The American Jewish Congress et al., the opinion of the panel below should be vacated and the judgment of the District Court reversed.
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