TOWNLEY MANUFACTURING CO., INC., PETITIONER V. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION

   No. 88-988

   In The Supreme Court of the United States

   October Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit

   Brief For The Equal Employment Opportunity Commission In Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-4a) is reported
at 859 F.2d 610.  The opinion of the district court (Pet. App.
43a-49a) is reported at 675 F. Supp. 566.

                             JURISDICTION

   The judgment of the court of appeals was entered on October 20,
1988.  The petition for a writ of certiorari was filed on December 13,
1988.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether petitioner, which is a for-profit corporation that makes
mining equipment, is a "religious corporation" within the meaning of
Section 702 of the Civil Rights Act of 1964.

   2. Whether petitioner failed to comply with its Title VII duty to
accommodate an employee's religious beliefs when it required that
employee to attend religious services.

   3. Whether petitioner's right to the free exercise of religion is
violated by Title VII's requirement of reasonable accommodation.

                               STATEMENT

   1. Petitioner Townley Manufacturing Co., a closely held corporation
organized under the laws of Florida, manufactures mining equipment.
Jake and Helen Townley, the principal shareholders of petitioner,
founded the company in 1963 when they opened the first plant in
Florida.  Petitioner has since opened other plants, including one in
Eloy, Arizona.  Pet. App. 2a.

   The Townleys are Christians who promised God that their business
"would be a Christian, faith-operated business" (Pet. App. 2a).  But
petitioner's articles of incorporation do not refer to a religious
purpose (Pet. App. 18a), nor has petitioner ever sought or received
tax-exempt status as a religious entity under Section 501(c)(3) of the
Internal Revenue Code.  Petitioner manifests its owners' Christian
beliefs through various practices.  It encloses Gospel tracts in its
mail, prints Bible verses on its commercial documents, and makes
financial contributions to churches, missionaries, Christian radio
broadcasts, and a prison ministry.  Petitioner also conducts mandatory
weekly Christian devotional services during work hours for all its
employees.  Pet. App. 2a-3a.  Petitioner's Florida plant has held
weekly devotional services since the plant was built in 1973.
Petitioner did not start the services at its Eloy plant, however,
until April 1984, eleven years after opening that plant.  Pet. App.
51a.

   Louis Pelvas began working at the Eloy plant in November 1979 as a
machinist.  In December 1982, Pelvas was given a new employee handbook
stating that all employees were required to attend weekly devotional
services.  Pelvas later signed a statement agreeing to abide by all
requirements in the handbook as a condition of his employment.  Pet.
App. 3a.

   Pelvas attended the religious services for two months, but then
asked to be excused because he is an atheist.  His supervisor told him
that attendance was mandatory but that he could sleep, read, or listen
to a radio during the services.  In October 1984, Pelvas filed a
charge of religious discrimination with the Equal Employment
Opportunity Commission (EEOC).  In December 1984, Pelvas left the
company.  The company claimed he refused an offer to relocate to the
Florida plant.  Pelvas claimed he was constructively discharged.  Pet.
App. 3a-4a.

   2. In July 1986, the EEOC filed this action against petitioner.
The EEOC claimed that petitioner violated Section 703(a) of Title VII
of the Civil Rights Act of 1964 by (1) requiring attendance at weekly
devotional services, (2) failing to accommodate Pelvas's objection to
attending the services, and (3) constructively discharging Pelvas.  In
May 1987, the district court granted the EEOC's motion for summary
judgment on the first two issues and issued a permanent injunction
prohibiting Townley from continuing the mandatory devotional services
at the Eloy plant.  The district court left the constructive-discharge
issue for trial.  Pet. App. 4a.  /1/

   3. The court of appeals substantially affirmed the trial court's
decision.  The court ruled that petitioner's practice of requiring
employees to attend religious services over their objection violates
Title VII's prohibition against religious discrimination in
employment.  /2/ The court noted that Congress added Section 701(j) to
Title VII in 1972 to create a duty on the part of employers to
accommodate an employee's religious practices unless such an
accommodation would cause undue hardship.  The court of appeals ruled
that petitioner failed to establish undue hardship here because it did
not show that its business would suffer if Pelvas were excused from
attending the worship service.  Pet. App. 5a-13a.

   The court of appeals also rejected petitioner's claim that it is
exempt from the requirements of Title VII because it is a "religious
corporation" within the meaning of Section 702.  The court examined
the various religious and secular characteristics of the company and
agreed with the district court that petitioner's primary purpose is
secular.  Pet. App. 17a-19a.

   Finally, the court of appeals ruled that Title VII does not violate
the First Amendment rights of the Townleys to practice their religion.
 Applying the analysis employed by this Court in United States v. Lee,
455 U.S. 252 (1982), the court considered:  (1) the effect of Title
VII on the exercise of the Townleys' religious belief;  (2) the
existence of a compelling governmental interest justifying such an
effect, and (3) whether an exemption from the statute would impede
objectives sought to be advanced by Title VII (Pet. App. 20a-23a).

   The court determined that the statute's impact on Townley's
religious practices is neither unreasonable nor extreme since the
Townleys are still able to share their religious convictions with
their employees;  the Townleys simply may not force employees to
attend devotional services over their objection (Pet. App. 21a).  The
court next ruled that the government has a clear and compelling
interest in eliminating religious discrimination in the workplace
(ibid.).  The court then held that the goals of Title VII would be
undermined if an exception were made in this case (ibid.).

   The court of appeals, however, ruled that the district court's
injunction prohibiting all mandatory services was overbroad since
Title VII's goal is accomplished "by protecting only those who have
religious objections to the services" (Pet. App. 23a (emphasis
added)).  Accordingly, the court remanded the case to the district
court to modify its injunction.

                               ARGUMENT

   The decision of the court of appeals is correct and it does not
conflict with the decision of any other court.  Thus, no further
review is warranted.

   1. Petitioner renews its claim that it is exempt from Title VII's
prohibition against religious discrimination because it is a
"religious corporation within the meaning of Section 702.  Section 702
does not further define the term "religious corporation." The sparse
legislative history of that provision, however, shows that Congress
understood that the term "religious corporation" does not cover every
organization with some tie to a relgion.  That is clear from
Congress's perceived need to add an amendment to Title VII (Section
703(e)) to permit educational institutions to discriminate on the
basis of religion if the institution is wholly or partly supported "by
a particular religion or by a particular religious corporation,
association, or society" (42 U.S.C. 2000e(2)).  Accordingly, the most
that can be said is that Congress probably thought that the term
"religious corporation" would include "(c)hurches, and entities
similar to churches" (Pet. App. 15a).

   There has been very little litigation over the meaning of
"religious corporation" in Section 702.  Most litigation under Section
702 has involved concededly religious organizations.  See, e.g.,
Corporation of the Presiding Bishop v. Amos, No. 86-179 (June 24,
1987) (corporations were organized to perform activities on behalf of
the Mormon Church and were tax-exempt, nonprofit religious entities
under Section 501(c)(3) of the Internal Revenue Code);  EEOC v.
Pacific Press Publishing Ass'n, 676 F.2d 1272, 1274 (9th Cir. 1982)
(nonprofit corporation affiliated with the Seventh Day Adventist
Church organized to publish religious material);  EEOC v. Mississippi
College, 626 F.2d 477 (5th Cir. 1980) (college owned and operated by
convention of Southern Baptist churches), cert. denied, 453 U.S. 912
(1981).  Indeed, we are aware of only two cases addressing whether a
Title VII defendant was an exempt religious organization under Section
702.

   In McClure v. Salvation Army, 323 F. Supp. 1100 (N.D. Ga. 1971),
aff'd, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896 (1972), the
court determined that the Salvation Army is a religious corporation.
The court observed that the Salvation Army was incorporated under the
laws of Georgia for the "purpose of promoting the cause of Christian
religion, charity and education" (323 F. Supp. at 1104).  The court
concluded that the non-profit organization was truly a "'church on
wheels'" (ibid. (citation omitted)).  By contrast, the court in Fike
v. United Methodist Children's Home, 547 F. Supp. 286 (E.D. Va. 1982),
aff'd, 709 F.2d 284 (4th Cir. 1983), held that the United Methodist
Children's Home was not a religious corporation.  The court examined
the day-to-day activities of the home and concluded:  "While the
purpose of caring for and providing guidance for troubled youths is no
doubt an admirable and a charitable one, it is not necessarily a
religious one" (547 F. Supp. at 290).  The court stated that "(f)or an
organization to be considered 'religious' requires something more than
a board of trustees who are members of a church" (ibid.).

   Under the approach employed in McClure and Fike -- one that looks
to the objective characteristics of the organization -- there is no
doubt that petitioner is not a "religious corporation" within the
meaning of Section 702.  Petitioner produces an admittedly secular
product -- mining equipment.  Petitioner is a money-making enterprise.
 Petitioner is not affiliated with or supported by any church, and
petitioner's articles of incorporation express no religious purpose.
Petitioner is clearly a typical commercial enterprise whose owners
happen to be Christians.  And contrary to petitioner's contention,
there is no evidence that Congress intended to provide an exemption
for commercial businesses that are owned by religious persons.

   Petitioner argues that its owners -- Mr. and Mrs. Townley -- "are
not able to separate God from their daily lives" (Pet. 12).  In
drafting Title VII, however, Congress did make such a distinction:
between for-profit commercial enterprises and religious organizations.
 That distinction would be meaningless if a person could exempt his
secular business from Title VII simply by stating that he always works
for God.  Thus, although there may be close cases, this is not one.
Petitioner is not a "religious corporation," as that phrase is
commonly understood.  See generally Corporation of the Presiding
Bishop v. Amos, No. 86-179 (June 24, 1987), slip. op. 5 (Brennan, J.,
concurring) ("The fact that an operation is not organized as a
profit-making commercial enterprise makes colorable a claim that it is
not purely secular in orientation.").

   2. Petitioner next contends that, even if it is subject to Title
VII, it had no duty to accommodate Pelvas's religious beliefs.  /3/
Petitioner first argues that Pelvas waived his Title VII rights when
he signed a standard form by which he agreed to abide by petitioner's
rules, including the requirement of attendance at the religious
service.  That claim is foreclosed by this Court's ruling in Alexander
v. Gardner-Denver Co., 415 U.S. 36, 51 (1974), that "there can be no
prospective waiver of an employee's rights under Title VII." As the
Court observed in Alexander (ibid.), the notion of an employee's
waiver of Title VII rights is inconsistent with Congress's scheme.
Accord J.I. Case Co. v. NLRB, 332 U.S. 337 (1944);  Spirides v.
Reinhardt, 613 F.2d 826, 832 (D.C. Cir. 1979) (employment contracts
may not be used to waive protections granted to an individual under an
Act of Congress).  /4/

   Petitioner also argues (Pet. 17-18) that it would be an "undue
hardship" to accommodate Pelvas's beliefs by excusing him from
devotional services.  Petitioner asserts that the Townleys would
violate "the Biblical command to allow God's Holy Spirit to operate in
all aspects of their lives" if they were to excuse Pelvas from the
religious service (id. at 17).  That assertion, however, is not a
defense under Title VII.

   Section 701(j) provides that an employer need not accommodate an
employee's religious beliefs if it would cause an "undue hardship on
the conduct of the employer's business" (42 U.S.C. 2000e(j)).  Thus,
the plain language of Section 701(j) focuses on the business costs of
accommodation, not on whether an accommodation interferes with an
employer's religious preferences.  See, e.g., Ansonia Board of Educ.
v. Philbrock, 479 U.S. 60, 69 (1986) (approving remand to determine
cost of permitting leave time to be used for religious purposes);
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977)
(evaluating the financial cost of giving an additional Saturday off to
certain employees);  EEOC v. Ithaca Industries, Inc., 849 F.2d 116
(4th Cir. 1988).

   Here, there was no showing that petitioner's excusing Pelvas from
devotional services would cause any hardship on the conduct of its
business of making mining equipment.  To be sure, petitioner may
prefer that all of its employees engage in Christian practices.  But
Section 701(j), which is designed to permit religious pluralism in the
workplace whenever reasonable, does not allow petitioner to force
Pelvas to attend religious services that do nothing to contribute to
the efficiency or profitability of petitioner's business.

   3. Finally, petitioner asserts that Section 701(j), as applied in
this case, violates the Free Exercise Clause of the First Amendment by
forbidding the Townleys from requiring their employees to attend
religious services.  That claim is unpersuasive.

   Initially, it is unclear that Section 701(j) "actually burdens the
(Townelys') freedom to exercise religious rights." Tony and Susan
Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 303 (1985).
Petitioner is free to hold religious services for its employees.
Petitioner is free to invite all of its employees to attend those
services.  Petitioner simply cannot compel the attendance of those
employees who have religious objections to attending the services.
But petitioner states that "(n)o employee has ever been disciplined or
discharged for failing to attend company sponsored devotional
services" (Pet. 23).  And petitioner did not begin holding religious
services at its Eloy plant until 11 years after that plant opened.
Accordingly, it appears that the application of Title VII to
petitioner will have no (or at most a de minimis) effect on the
Townleys' religious beliefs and practices.

   In any event, any minor burden on the Townleys' religious practices
is justified in this case.  This Court has made it clear that "not all
burdens on religion are unconstitutional." United States v. Lee, 455
U.S. 252, 257 (1982).  Rather, the government may "justify a
limitation on religious liberty by showing that it is essential to
accomplish an overriding governmental interest" (id. at 257-258).  See
also Thomas v. Review Board of Indiana Employment Security Division,
450 U.S. 707 (1981).  Here, Congress added Section 701(j) to Title VII
"'to assure that freedom from religious discrimination in the
employment of workers is for all time guaranteed by law.'" Trans World
Airlines, Inc. v. Hardison, 432 U.S. at 75 (citation omitted).
Congress determined that "religious freedom in a society with many
different religions" (Pet. App. 23a) requires employers to accommodate
different employees' religious practices if they can do so without any
undue burden on their businesses.  Thus, the important interest
advanced by Section 701(j) -- tolerance of different religious beliefs
-- clearly outweighs any de minimis burden on the Townleys' particular
religious practices.  See generally United States v. Lee, 455 U.S. at
259 ("To maintain an organized society that guarantees religious
freedom to a great variety of faiths requires that some religious
practices yield to the common good.").

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   CHARLES A. SHANOR

      General Counsel Equal Employment Opportunity Commission

   FEBRUARY 1989

   /1/ After trial, the district court ruled that petitioner had not
constructively discharged Pelvas.  It also found petitioner in
contempt of its earlier injunction prohibiting mandatory attendance at
devotional services.  This latter decision is currently on appeal to
the Ninth Circuit.  Pet. App. 4a.

   /2/ Petitioner has not contended that Pelvas's atheism is not a
protected belief covered by Title VII's prohibition against religious
discrimination.

   /3/ Petitioner also argues that it had made sufficient efforts to
accommodate Pelvas's religious objections by permitting him to sleep,
read, or listen to a radio during the mandatory services (Pet. 14).
In the court of appeals, however, petitioner "admit(ted) that it ha(d)
made no effort to accommodate Pelvas' objections to the services"
(Pet. App. 8a).  In any event, Pelvas objected to attending the
religious service, not merely to hearing the message from the pulpit.

   /4/ Petitioner's claim that Pelvas entered into a settlement
agreement regarding a Title VII dispute is frivolous.  Petitioner was
not even conducting religious services at its Eloy plant when Pelvas
signed the standard employee form.