Warren E. Burger: We will hear argument next in number 478, Parker Seal Company against Cummins. Mr. Becker, I think you may proceed when you are ready.
Leonard H. Becker: Thank you Mr. Chief Justice and May it please the Court. This case arises on a writ of certiorari to the Court of Appeals for the 6th Circuit. At issue are the interpretation and validity of two parallel provisions of Federal Law. The first is a guideline of the equal Employment Opportunities Commission, which was promulgated in 1967. Second is a 1972 amendment to Title VII of the Civil Rights Act of 1964, which adds to that statute a definition of the term religion. These provisions require the employer to accommodate all aspects of the religious observance and practice of his employees, unless the employer can demonstrate that to do so would work an undue hardship to the conduct of his business. Facts of the case maybe briefly summarized. The respondent, Paul Cummins, worked for a period of approximately 12 years at the Berea, Kentucky Plant with the petitioner Parker Seal Company. He rose to the level of Departmental Supervisor. In 1970, he joined the World Wide Church of God, which observes Sabbath from Friday sundown to Saturday sundown. He there upon advised his immediate superior that he would no longer be available for work on Saturdays. He was not discharged. Contrary, he was granted Saturdays off for over a year. During that period of time, management directed fellow supervisors to substitute on Cummins behalf on each and every Saturday that his department was scheduled to operate. In or about August of 1971, when an increasing work load at the plant had given rise to difficulties with this arrangement, Cummins was requested by his superior, to undertake voluntarily, to approach his fellow supervisors and on his own initiative to offer to relieve them during their respective overtime shifts during the middle of the week. Cummins did not do this. He was then requested to reconsider his position with respect to Saturday work. He declined to do so and he was discharged. Cummins instituted two proceedings, the first, under Kentucky law, before the Commission on Human Rights. That commission applied a state civil right statute which followed the federal law in all pertinent respects, including the accommodation provision which is at issue here. After a full dress evidentiary hearing, the state commission determined that the employer, Parker Seal had made a reasonable attempt to accommodate Cummins and dismissed Cummins’ complaint. Cummins also instituted a federal proceeding. First by filing a complaint with the EEOC and then upon receipt of his statutory right to sue letter, a federal complaint was filed in the District Court for the Eastern District of Kentucky. Cummins agreed that that Court could decide his claim on the basis of evidentiary record that had been compiled before the State Commission. On that basis, the District Court again held in favor of Parker Seal. The Court of Appeals of the Sixth Circuit reversed that judgment. It did so largely on the basis of its conclusion. That Parker Seal had failed to demonstrate why the accommodation which was supposedly reasonable for over a year had suddenly become unreasonable. We submit that this judgment was erroneous for three reasons. The first reason is that the decision of the Court below in affect penalizes the company for having attempted for over a year to work out an accommodation of Cummins. Indeed the Court below has flung that effort of accommodation in the face of the company as an admission against the company’s interest.
Harry A. Blackmun: Mr. Becker, I take it that there is no question as to the employees’ sincerity of his belief. You are not questioning this in anyway.
Leonard H. Becker: That is correct Mr. Justice Blackmun; no issue as such is presented on this record. A second reason that the judgment below was erroneous, we submit, is that it is flatly inconsistent with other decisions. Both of the Sixth Circuit and of other Courts of Appeals which indicate that the employer stands on firmer ground, when he shows he has made some attempt to accommodation and then can point to that effort in support of his position that the effort is unsuccessful. We believe that that line of decisions better comports with the statutory objective here, which most be, one of voluntarism of efforts on the part of both employer and employee to arrive at some mutually acceptable arrangement given the employee’s views.
William H. Rehnquist: When you say voluntarism Mr. Becker, there is really nothing voluntary about what the employer is doing. He is being required to do it by an Act of Congress.
Leonard H. Becker: I quite agree and I would say that Mr. Justice Rehnquist that that is a point of great force for us on both statutory and constitutional points of this case. Recognizing that though and addressing myself at this juncture exclusively to the statutory argument, I would say that if the thrust of Congress is to achieve an accommodation by the employer of the employee’s religious needs, then that overall objective, putting the establishment cost to one side, that overall objective is better satisfied if the employer can make an attempt at accommodation without subjecting himself to the risk of what happened in this case which was to that attempt was then used against him when he got to Court.
Harry A. Blackmun: In that connection, who has the burden of proof to come up with alternative solutions?
Leonard H. Becker: Under the regulation and under the statute both, the Courts have held that the burden rests with the employer to show the prima facie issue of the reasonableness of the accommodation or the “undo-ness” of the hardship. We think we met that burden here and we think we did so by demonstrating the unrealistic nature of the various alternatives which were proposed. I might note in passing in response to your question, Mr. Justice Blackmun that none of the alternatives proposed were advanced before the Kentucky Commission or indeed before the District Court. They seemed to have risen at the appellant level. It is suggested, for instance, below that an alternative arrangement might have been for Mr. Cummins to work on Sundays. We submit this was unrealistic. The plant rarely has ever operated on Sundays. There was no point we submit, in having Mr. Cummins come in to supervise a department where his men were not working. Another suggestion which was advanced by the Court of Appeals and which to our surprise has been adopted by the United States as Amicus is that Cummins’ pay might have been cut. Now, Cummins was not an hourly employee. He was paid in annual salary. He was required to work whenever circumstances required. The plant operated on what was known as a 5 plus day schedule. That is, it ran Mondays to Fridays on a regular basis, and then worked over on Saturdays when the work load required. We fail to understand, how cutting Mr. Cummins’ pay in response to his request to be relieved on Saturdays would on the respondent’s theory of this case any more pass statutory muster than the discharge which actually resulted. Now, the third point I wish to make with respect to the judgment of the District Court and why we submitted that judgment was erroneous is this. We think that the overall approach of the Court of Appeals was erroneous. It assumed that the initial arrangement was satisfactory. On the record that was not so. It is clear that other supervisors were forced to work overtime on account of Cummins’ religion. They received no extra compensations for their efforts. Moreover, to the extent that supervisory personnel were forced to split their time on Saturday mornings as between the department from which Cummins was absent and the department which his fellow supervisors were required to operate, there was a necessary doubling up. The plant manager testified at the hearing that that was absolutely not a satisfactory operating procedure.
William H. Rehnquist: Do you not think this Court would be apt to take the judgment of the Court of Appeals on of a kind of ad hoc factual basis in an individual case where the test is reasonably accommodate rather than to second guess the Court of Appeals on the facts of the case?
Leonard H. Becker: Well, I would assume, Mr. Justice Rehnquist that this Court would not wish to be put in the position of second guessing facts. The difficulty we have here is the Court of Appeals itself has put itself on the posture of second guessing facts and we have a question on the ongoing administration of the Act as to the manner in which the Court of Appeals should subject to review a judgment of the District Court. We agree that the test under the statute is one of reasonableness. In essence, the question whether the employer has acted reasonably under all of the circumstances and so far as the statute is concerned, putting aside the constitutional question, that is a factual issue which we agree must be decided on a case by case basis. The problem here is two fold. First, the Court of Appeals has injected an undue improper consideration into the case. It has escalated one element to the case to a dispositive level and that element is the fact that this employer made an attempt to accommodate and decided after a year that it did not work. Now, that we think presents a question of law which is appropriately submitted to this Court for its review. The second problem we have with the manner of which the Court of Appeals disposed of this case is that the Court of Appeals itself put itself in the position of revealing the record de novo. Despite the protestations of the majority opinion we submit that the Courts below essentially retried the case and we think that is an improper way for Courts of Appeals to proceed in cases of this sort.
William H. Rehnquist: It was submitted on a written record though to the District Court, was it not?
Leonard H. Becker: That is correct. The District Court had before it, the evidentiary record that was compiled before the Kentucky Commission and the District Court also had before it Cummins’ agreement that the case could be disposed off on that record.
William H. Rehnquist: But you do not have in this case than any question of the tried, the Federal District judge’s evaluation of credibility of oral testimony?
Leonard H. Becker: I agree Mr. Justice Rehnquist. The District Court did not have the demeanor with the witnesses before. It did have the record that was compiled before the Kentucky Commission which consisted of a panel of several members who did have the benefit of such demeanor and who did observe the witnesses as they appeared before that commission. Now, in explaining why we think the decision below is incorrect, I wish to revert one last time to the point that we have think that the Court of Appeals has improperly elevated one factor, which is the effort of this employer to accommodate. We think the Court of Appeals erroneously concluded that that effort at accommodation was reasonable at the outset. We think it was an extension of activity in the part of the employer that went far beyond a satisfactory arrangement so far as that employer was concerned. Moreover, the Court of Appeals we think erred when it concluded that Parker Seals failed to show why that arrangement suddenly became unreasonable. We think the reason it became unreasonable is perfectly clear on this record. As I indicated at the outset, the problem was that Cummins was failing on his own initiative to volunteer to assist his fellow supervisors. The fact is that at the outset of this arrangement in July of 1970, Cummins expressed great willingness to be cooperative and to assist wherever assistance was asked for. But his attitude changed and by the time he was discharged, it is clear from the testimony of his fellow supervisors and of his plant managers that he had not fulfilled his share of the bargain. We think it merits emphasis on this case that this is not a case of discrimination. Indeed, there was never any suggestion at any level of these procedures that this company had intentionally discriminated against Cummins because of his religion. The facts of the case belie any such suggestion. The accommodation that was extended Cummins for over a year shows that this company bent over backwards to avoid discriminating against him because of his religion. The question here is very different. It is on the statutory level, whether a company has satisfactorily performed a very different obligation which is to accommodate an employee on account of his religious needs. Now, in underscoring the difference, I wish to point out that it is virtually conceded here by parties that if this case did arise under the basic Anti-discrimination provision of Title VII, Parker Seal would be home free. I think it is abundantly clear, for example that this company complied with the requirements which were laid down in the Griggs decision. If I may quote just a moment from that opinion, the Court there said that discriminatory preference for any group, minority or majority is precisely and only what Congress has prescribed. Now, the impact of this particular statutory provision is to require a preference which I submit, worked a discriminatory effect, not against Cummins, who benefited from the arrangement for over a year, but against the fellow supervisors who were required to come in, substitute for Cummins on each and every Saturday that his department was operating.
William H. Rehnquist: Now, is this a statutory argument you are making or constitutional?
Leonard H. Becker: This is part of my statutory argument Mr. Justice Rehnquist and I am stressing the difference between the basic Anti-discrimination provision of Title VII, with which this Court has previously dealt and the very different accommodation provision which the definitional section added in 1972 and the EEOC guideline required.
William H. Rehnquist: But just because they are different, does that not suggest that there is going to be an element of discrimination against the people who observe the Sabbath on the Sunday and that type of people who practice the religion of the majority?
Leonard H. Becker: That is a point which I will address and develop on my constitutional argument. You are of course absolutely right, Mr. Justice Rehnquist.
William H. Rehnquist: Well then, it does not seem to me to help your statutory argument very much?
Leonard H. Becker: I am merely explaining. All I intend to do by this argument at this level is to explain the difference which we see between a discrimination case and a case arising out of this statute. I am pointing to the fact that had this case arisen on to the basic provision of Title VII, this employer would surely have been free of liability and I am merely explaining the added burden which this statute proposes on the employer, the burden, which I hasten to add that I think we met and we met it by relieving this fellow with his obligations for over a year. Now in that regard, we have developed in our main brief, a list of the factors which we think will be pertinent on the statutory level in assessing the reasonableness of an employer’s effort to accommodate on case by case basis. We think this case is an appropriate vehicle for the Court to consider some of those factors and perhaps to advise the lower Courts whose opinions are in some disarray on the subject, what factors may and may not properly considered. One factor as I previously indicated which we think should not be accorded to dispositive significance is the suggestion that because the employer has made an effort at accommodating the employee, he is somehow subject to a heightened obligation to explain why the accommodation is no longer possible. Let me turn now if I may, to the constitutional side of our case. In the event that the statutory question is resolved adversely to us, we challenge the Federal Constitutionality of both the guideline and the statutory amendment. We say that those provisions in tandem violate the establishment cause of the First Amendment. Now, the Court is fully familiar with the three-part test or guideline which is developed in the context of the various school paid cases which have been before it over the years. Those principles are discussed in full in our briefs and I shall not labor them here. I wish to make on following few points. First, this statute undoubtedly, indisputably aids religion. That is its whole point and purpose. Senator Randolph said so, when he introduced it on the floor of the senate. The language of the statute and the guideline itself makes it clear that that is all that the statute and guideline are concerned with.
Warren E. Burger: It is fully concerned with aiding the pre-exercise or privilege?
Leonard H. Becker: It is an attempt by Congress to force the employer to make accommodations or to permit the employee to engage in one kind of activity, which is religious activity. I do not, in any sense, Mr. Chief Justice denigrate the motives of congress in passing the statute. It is clear that its instinct was highest purity. The objective was to assist in the ability of certain employees to enjoy their religious activities. Now, I note that immediately the question is presented onto the establishment clause because of the narrow focus of the statute. It is devoted solely to the assistance of religionists. Moreover, we submit that the statute is devoted solely to the assistance of certain religionists, namely, those who wish to observe their Sabbath on a Saturday. That was the precise purpose to which Senator Randolph said when he was introducing this legislation.
William H. Rehnquist: But the statutory language is certainly broader. I mean, supposing you get somebody who does not want to eat meat on Friday, you will have some sort of an argument that maybe a fish ought to be served in a cafeteria on Friday, would it?
Leonard H. Becker: That is correct under the statute. That is quite right. The statute reaches all aspects of observance and practice of religion, but I know that the guideline which antedated the statute is called, quote “observance of Sabbath and other religious holidays.” The introductory section of that guideline says that several complaints filed with the commission have raised a question concerning employees who regularly observe Friday evening and Saturday or some other day of the week, as the Sabbath. The guideline was directed to the problem of the Saturday observing religionist and that means it was directed to one particular subgroup of religious practitioners. We submit that that further points to the constitutional impropriety of this legislation. Now, I want to stress the difference between this case and the Sherbert v. Verner decision of this Court. That was the case in which the Court dealt with the Seventh Day Adventist who was deprived of unemployment compensation benefits under a South Carolina statutory scheme which denied benefits to those who are unavailable for work. Now, the argument that has been developed on the other side of this case is that as part of a statutory scheme that deals with discrimination, Title VII, the Congress could pick up the notion of discrimination that was developed in Sherbert and simply apply that pari pasu to private people. We think that argument is wrong. The first point is that Sherbert was not a case of discrimination. The appellant in that case presented in a claim of denial of equal protection, which was not passed upon. What was presented there was the problem arising from the state’s even handed application of officially neutral unemployment compensation scheme which resulted in governmental pressure on the appellant because of her religion and that introduced an improper infringement on her free exercise. That I submit is very different itself from a discrimination case. Now, there is another point on which Sherbert precedent is different. In that case the Court noted that a separate state statute expressly saved out the Sunday worshipper. State laws then linked together, clearly separated the Saturday from the Sunday observing worshipper. That is not true here. Parker Seal on rare occasions operated its Plant as on Sunday and one of the witnesses at the hearing, Web, testified that as a supervisor, he was on occasion required to come in on Sundays even though to do so violated his religion. It is clear then that this company did not discriminate between Saturday and Sunday observers as did the South Carolina statutory scheme considered as a whole, in Sherbert. Now, both the Sherbert precedent and the other precedents which were relied upon by the respondent go to the notion that where the government infringes or is about to infringe upon the free exercise rights of citizens then relief may and in some cases, must be in order, even though the result might abstractly be deemed to give rise to some establishment question. To rephrase the proposition, an establishment clause objection will be overridden where in order to satisfy it, the government will be required to infringe upon a free exercise rights of the affected persons. This Court’s decision in the Yoder case, the Amish School Children case, is a conspicuous illustration of that proposition. This is not that case. This is a case in which the government is saying to one private person, “You have got to change the way you do business in order that another private person may enjoy his religious rights.” Now, once again the purpose maybe thoroughly understandable, but the problem is that it amounts to something which goes to the core of the establishment clause. It is governmental pressure coercion being leveled against one person on account on another person’s religion.
William H. Rehnquist: What do you do with cases like McGowan against Maryland and that group that holds Sunday closing lawns?
Leonard H. Becker: Well those cases present their own difficulties. Candidly, I am not sure that they can be easily reconciled with the Yoder decision, but they certainly rested themselves on the proposition that in overriding non-sectarian secular purpose had motivated the state legislatures. The interest in gendering a uniform day of rest and the Court said although those statutes may once have had their origins in religious notions, those religious notions had eviscerated and there was now a secular purpose which overrode the objection of the Orthodox Jew who was forced to choose between his religion and his livelihood. That is not this case. There is no nonsectarian purpose to this statute. The statute on its face is directed to the protection and enhancement of certain religious groups and indeed the language of Senator Randolph makes it clear that he was sponsoring it because Saturday observing groups, of which he was a member, were having difficulty in keeping up their congregations because some of the members had to work on Saturdays.
William H. Rehnquist: But Senator Randolph’s comment, I do not think can be attributed to all the other 99 senators and however many members of Congress that is who voted on that day?
Leonard H. Becker: It certainly is cannot be imputed to the law, Mr. Justice Rehnquist. However, it makes up virtually all of the legislative history on this statute. Now, the Court has indicated that one branch of the three-part test under the establishment clause will be to consider the purpose of the legislature in enacting the challenged statute. It seems to me that it is appropriate, assuming that the purpose branch is different from the primary affect branch to look at what the legislature said when enacting the statute.
William H. Rehnquist: But what the legislature said is contained in the law that it passed sometimes in the committee report. It certainly is not contained in the comments of one member of the legislature?
Leonard H. Becker: I agree with that completely of course, but if we look to the words of both the guideline and the statute, there again the problem is presented. The primary effect of this statutory scheme is to enhance religious activity. That is its whole point and purpose and if we divined the purpose of legislature from the necessary effect of the statutory words we reach the same result. I reserve the balance.
Warren E. Burger: Very well Mr. Becker. Mr. Hogan.
Thomas L. Hogan: Mr. Chief Justice and May it please the Court. I would like to begin by clarifying one factual error I think that has been made and this is a question of whether or not the company did in fact accommodate Mr. Cummins for a year? On page 173 of the record and the question was directed to Mr. Hedick who was the plant manager and he was asked, “When did you become aware of Paul’s religion’ and his answer was, “Not until the summer of 1971 when we were having our vacation period.” Later on, on page 178, the answer to a question was, “I asked him I think it was two weeks before he had left,” I asked him if there was any, “I knew he had adopted this religion a year-and-a-half and I asked him if there was any possibility of his being able to change his ideas or anything like that and he told me that he was firmly fixed with his religion.” “Is that when you decided to fire him?” “It was after that.” So the company did not accommodate Mr. Cummins for a year. The fact of the matter is, Mr. Hedick the plant manager was there for a year before he was even aware of the fact that Mr. Cummins was not coming in to work. Mr. Cummins of course had been told by previous supervisors, that as long as it did not pose any problems, he did not have to come in and work on the shift on Saturday. This was based on the past practice of the company that the particular department that Mr. Cummins worked in, the Bunberry Department, historically, operated second shifts then they never did have a supervisor. I think the record amply shows that most of Mr. Cummins work involved scheduling production and physical presence was not always necessary because the company had determined that due to the financial situation, they never did have a supervisor on the second shift and over the years the fact that when they did have one because production was low and any problems, any deficiencies in production started back in 1968 and actually reached their peak in 1970 and were totally unrelated to any problems or any difficulties that came about because of Mr. Cummins adoption of his religion. I think secondly, more importantly is the question of what Congress intended by the enactment of this amendment and that was to put a burden on the company to attempt to reasonably accommodate the religious needs of the employer. I do not accept the Counsel’s argument that without this amendment, that Mr. Cummins would not have been protected. I think the argument can be made that under the Griggs doctrine as applied to religion cases, that this is a policy, a Saturday work policy that is applied to everyone uniformly. It does have a disparate affect on Sabbatarians. Since historically this company, as does most of our society, schedule any additional work on the Saturdays rather than Sundays, and in this particular instance in fact it is even reflected in the contract, since it has to pay time-and-a-half for Saturday work and double time on Sunday. So obviously, Sunday work is only achieved as a last resort.
Warren E. Burger: That is not uniformly true everywhere, these rates of one-and-a-half and the double?
Thomas L. Hogan: No but, in this particular factual situation, I say it is uniformly that most businesses operate on Saturday versus Sunday, if they got the choice between the two.
Warren E. Burger: Well, this is a society in which that has been the overwhelming tradition for more than 300 years, is it not?
Thomas L. Hogan: Well, yes Mr. Chief Justice and I think that is why Congress passed this statute was to protect the minority Sabbatarians of this country because of the fact that without this amendment or without the application of Griggs to the original Title VII prescription, there really is no benefit to Sabbatarians or to people who practice a religion that is not of the majority.
Warren E. Burger: Must the employer accommodate every religion, every religionist, including those who have Monday, Tuesday, Wednesday or Thursday?
Thomas L. Hogan: Well, I think the important thing is in the amendment of course, it is not applied just to Sabbath worship. It applies to other instances also of particular needs of religions. I think that is what Congress is created is a balancing factor. In fact, I think they have in effect weakened the Griggs doctrine of a business necessity doctrine of saying now there is a lesser standard that all an employer has to show, if it causes an undue hardship, it is directly related the fact that they are trying to accommodate reasonably the religious needs of their employee. I think it boils down to basically that each case has to be looked at in its own particular fact situation. I do not think that this Court could write a broad general policy that a particular thing for a company to do will always be sufficient. It would depend on what the total work force is. It would depend on what type of industry it is. It would depend on each factual situation. I think this case is where allowing someone off on their Sabbath under Saturday is reasonable. In the Albuquerque case, it would involve the fireman, it was impossible to do so. A case where an employee maybe able to be demoted or transferred to another plant is reasonable in one instance, if there is not another plant, then he can not be transferred and it is a small operation, but I think these are the issues that are going to have to be determined by the EEOC or by District Courts. The main thing that the Court of Appeals did in this instance and the important thing I think is that the Commission on Human Rights, who is the actual trier of facts, misapplied the law because they reasoned that as long as this policy was applied uniformly, that is was there for legal and that the company was able to do that. The only problems and the undue hardship is reflected in the record and that was testified to, is the fact that there was consternation among the other employees which I think is probably going to be true in most instances, particularly here where the company did nothing to try to eliminate that problem. The fact is that other employees were working more hours than Mr. Cummins. Mr. Cummins was making as much money as the other supervisors and in some instances more money than some of the supervisors. However, the company seems to say that Mr. Cummins did not volunteer to do anything. Well, the obvious answer is the other employees did not volunteer to work 72 hours. The company ordered them to work 72 hours. Mr. Cummins went to the company at the very beginning and said “I will do whatever is necessary.” “Tell me what to do.” They asked him to volunteer. So he did on instances that he volunteered. Now, the question is all the company…
Warren E. Burger: Was it not in the testimony that he did not live up to his promise?
Thomas L. Hogan: Well, the question was he volunteered on numerous instances. The question that has arisen now and I think it is mainly arisen in the briefs of the petitioner is that at one point he stopped volunteering and I do not think the record does reflect that. Counsel stated that Mr. Cummins volunteered in 1970, but he did not volunteer in 1971 and on page 153 of the record, the question was, “Did Paul ever volunteer to work for you at any other day besides Saturday?” The answer from Mr. Fame, “Well now, when we were in vacation schedule, he came over and said I will help you out when you need me.” Well vacation schedule was the summer of 1971. The obvious problem Mr. Cummins had, is where he had three other supervisors and the company gave him no direction. They expected him to prepare his own work schedule. They singled him out because of his beliefs. They did not require the other supervisors to prepare their work schedules.
Speaker: Then they also singled out to others because of that belief and tell them they had to work overtime?
Thomas L. Hogan: Well yes sir, and of course albeit they separated Paul from the group of the other three, the obvious solution…
Speaker: Who separated them?
Thomas L. Hogan: The company did.
Speaker: I thought he did?
Thomas L. Hogan: No, but—
Speaker: The Company did not join the church he joined the church?
Thomas L. Hogan: No, what I am saying, when it came to scheduling hours, they scheduled them for 72 and the plant manager even testified, “Yes we could have scheduled Paul to work 4 hours in the afternoon, to work 12 hour shifts during the week to take away from the other supervisors.” But he did not schedule him to do that because the plant manager felt that the way to solve the problem was for Paul to be a volunteer, for him to go over an offer and the other supervisors were in the same position and they testified that they did not think that it was their position to have to go over to another supervisor. They were all looking to the company for some direction. The company simply had to sit down all four supervisors and say “Mr. Cummins will not work on his Sabbath, because we are obligated under the law to accommodate him, therefore, let us prepare a schedule to equalize as much as possible.”
Speaker: Well, I thought the Court of Appeals said that he did try and as a matter of fact he did for a year, the employer, to accommodate?
Thomas L. Hogan: Well, this is the argument on what the employer did if the supervisors—
Speaker: No, no, no. Did not the Court of Appeals say that?
Thomas L. Hogan: That he was allowed off on Saturday, yes.
Speaker: Did it not the Court of Appeals say that the company tried to accommodate themselves to this problem for a year?
Thomas L. Hogan: Yes sir, he was allowed off.
Speaker: Well you are saying that they did not?
Thomas L. Hogan: Well, what I am saying is—
Speaker: You do not want to disagree with Court of Appeals, do you?
Thomas L. Hogan: No, certainly not. But what I am saying is far as now that the company is saying that this accommodation caused problems. It is difficult to believe that it would have caused problems if the supervisor who was running the plant, was not even aware of the accommodation. So there is a testimony in the record…
Speaker: I think you want us to say that they never accommodated, the company, never did.
Thomas L. Hogan: Well, what I am saying is, any accommodation, the fact that Mr. Cummins was not there on Saturday, had absolutely no affect on the business operation on this company. Did it cause no undue hardship? The only undue hardship in the record at all is the fact that it has caused dissention among some of the employees and I think that under statute, that the obligation on the company is to deal with the dissention and not as they did here ask Mr. Cummins to change his religion.
Speaker: Is dissention on the moral problem with other employees from the accommodation process?
Thomas L. Hogan: Well, one of the problems you had with moral, was one of the supervisors had formerly been an hourly employee, he was them promoted to supervision and then told to work 72 hours a week and his objections was not to the fact to what was Mr. Cummins was doing. His objection was that he was no longer being paid overtime. We had a situation here and I think this is very important too, there was a temporary situation. There was a strike at the other plant which caused increased production. Obviously, the company testified they only worked Saturday when they have to. You had a vacation situation which required the other employees to work additional hours. I think it is only natural that if one employee is working 72 hours and the other one is 40 and making the same amount of money, that the one who is working 72 is going to have a little bit of dissention in him.
Speaker: But what you are saying suggests that this gentleman expected the whole establishment to revolve around him to accommodate him. That other employees would have to be imposed upon one way or another in order to grant him a total freedom of Saturday work and you say that an employer must continue to tolerate that?
Thomas L. Hogan: Well, that is why I say it is a balancing factor. If an employee said that “My religion says, I have to have a three hour lunch period.” Then an employer can say “Well we can not do that.” Here, Mr. Cummins just said he could not work from his Friday sundown until Saturday sundown, but he would do whatever was necessary to make up the additional hours to equalize it and then the company who could have come forth and would have said, “Alright this is the reasonable accommodation we are offering you.” And of course then, if he rejected that, then perhaps they would have had a legitimate reason for firing. What they did, they went back to him and they told him, “You work something out,” I do not think that was what Congress intended. The accommodation is on the employer, it is not on the employee. That is where the burden is been put. The company keeps trying to say that this is an equal type of partnership. It only is once the company comes forth then the burden shifts back to the employee to either accept or reject whatever the accommodation is and then of course, it all has to be viewed in like of the reasonableness and the fact of what undue hardship it will have on the company.
Warren E. Burger: Is that what will bring you up to the constitutional problem?
Thomas L. Hogan: Yes Mr. Chief Justice. Since I have yielded ten minutes of my time to the United States, I would just like to touch very briefly on the constitutional issue and let him devote the majority of his time and the one and important point that I would like to make, is it would seem to me that the company is arguing both sides that I do not think you can argue that the accommodation statute is unconstitutional and at the same time say that the basic prohibition of discrimination against religion is constitutional. And I base that on the argument that I think that a proper interpretation of Griggs and the disparity affect cases compels a finding that a reasonable accommodation would have had to have been made. If a person is in a particular position, because of their religion, then I think under Griggs and assuming that position has no basis to their qualifications to perform jobs or to the job requirements, then Griggs would dictate that their religion would have to be accommodated to some extent and with that, I will yield to the United States, thank you.
Warren E. Burger: Very well Mr. Hogan. Mr. Wallace.
Lawrence G. Wallace: Mr. Chief Justice and May it please the Court. The United States does not agree with the petitioner that the duty to reasonably accommodate an employee’s religious practices, so long as it does not cause an undue hardship on the operation of the business, is really totally separate duty from the basic obligation under Title VII of the Civil Rights Law, to avoid discrimination of the basis of religion. Indeed, the reasonable accommodation requirement was first adapted by the Equal Employment Opportunity Commission in 1967 as an interpretation of the basic obligation five years before the Congress amended the statute to indicate its agreement with the Equal Employment Opportunity Commission on this subject. Under this Court’s decision in Griggs, the basic prohibition is directed not merely to the motivation of employment discrimination, but to the consequences of practices on persons because of their race, religion etcetera, regardless of how well motivated and evenhandedly applied the particular employment practices might be.
William H. Rehnquist: Of course Griggs was dealing with employment tests, was not it?
Lawrence G. Wallace: It was dealing with employment tests that had a disparate impact in that case on the basis of race and the question was whether the tests were sufficiently related to the business needs of the employer to be a fair measure of employment opportunities or whether the disparate consequences were a violation of basic prohibition. Similarly, a facially neutral across-the-board rule, that when called upon to do so, every employee must work on Saturday has a grossly disparate impact on certain employees because of their religion and similar approach should be taken under the Griggs test itself, whether there are sufficient reasons related to the business needs of the employer to require an employee to be put into the position of having to choose between the dictates of his religion or possibly forfeiting his livelihood in that situation.
William H. Rehnquist: Well, your case would be more difficult, would it not Mr. Wallace, if you did not have the 1972 amendment? Are you not better off to argue on the statute from the 1972 amendment, rather than trying to argue something that does not help you…
Lawrence G. Wallace: Well, our point is that the 1972 amendment really represents a reasonable legislative solution to the question of how do you determine when a practice has the forbidden consequence of an employment practice that discriminates on the basis of religion. It is not simply a motivational question and Congress recognized that in adapting the 1972 amendment in light of EEOC’s experience in trying to make that determination in these cases where persons complained that they were being forced to the choice between the dictates of their conscience and the employers’ demands, that they observe a facially neutral requirement. So it is an outgrowth and a reasonable legislative drawing of the line to determine when an employment practice is justified in terms of the needs of the business or where it has the forbidden consequence because of its disparate impact.
Speaker: Mr. Wallace, another point what is your idea of whose burden on this accommodating business is? I should think the employer, the man had been working for years on Saturday then he comes in and says “I am sorry, I joined church and I cannot work on Saturday any more.” Now, does he have some job, some responsibility of suggesting on how this can be done?
Lawrence G. Wallace: Well, he is not managing the plant to make the accommodation.
Speaker: But he joined the church.
Lawrence G. Wallace: That is correct.
Speaker: He brought the issue up.
Lawrence G. Wallace: The statute says that the employer is to make a reasonable accommodation to the religious practice of the employee, that is what the statute says, and quite properly so because it is the management that makes the decision as to how working hours can be arranged so is to reasonably accommodate the needs of these employees or how they cannot be and that is the approach that both…
Speaker: Done if he did not get paid, but when a man is on annual salary, it is a little different problem.
Lawrence G. Wallace: In this case as I read the record in this case I think the…
Speaker: I mean, if suppose a man who is being paid so much money to work 6 days a week during the whole year and then he joins church and he gets 52 days off with pay, just like that?
Lawrence G. Wallace: Well, that…
Speaker: Is that right?
Lawrence G. Wallace: That is not what the statute requires the employee to do. It could be the result that the employer could accept in the particular case, but the statute does not…
Speaker: What else could the employer do?
Lawrence G. Wallace: Well in this case…
Speaker: In my case what else can the employer do?
Lawrence G. Wallace: If there was no possibility of substituting additional longer working hours because of the nature of the business on other days then the only other possibility would be to negotiate an appropriate reduction in salary based on the reduced work hours of the particular employee. But the circumstances of a case will dictate what can be a reasonable accommodation and there can be several possibilities for a reasonable accommodation. As I read the record in this case, I think the company did to the extent it was aware of the problem, make a reasonable accommodation for the initial period in which the respondent here started to observe Saturday as his Sabbath and it was only during the summer of 1971, when the increased work load came along due to a strike in a Lexington plant and to vacation schedules in the plant, that the company really did not fulfill its obligation by making further adjustments to utilize the respondent and have him carry his full share of the extra work load along with the other supervisors. As Mr. Hogan said, the other supervisors were assigned the duties that they had and were told when they would have to work on Saturday to cover for Mr. Cummins etcetera. Yet the company refused to assign Mr. Cummins to extra work during the week to cover for the other employees where it could very well have equalized the assignments out by giving Mr. Cummins extra hours during the week and if those extra hours were on the second shift, then have the second shift supervisor sometimes relieve the first shift supervisor, so that all of them could have had some relief.
Warren E. Burger: Your argument that it is to adjust the functioning of the plant and the work on the floor with numerous employees. Is it not all that easy the way you describe it?
Lawrence G. Wallace: There could have been difficulties existing there, but if there were it was up to the company to bring them to the attention of the Finders of Fact in the case and it did not do so. What appears on the record is that it was common practice in that company for the Bunberry department of which was Mr. Cummins was a supervisor to operate without a supervisor of its own and to have that job covered by others and that it was common practice for supervisors to substitute for each other on occasion.
Speaker: What did the District Court find in this case?
Lawrence G. Wallace: Well the District Court made no findings of fact. The case was submitted to the District Court on the record that had been developed before the State Commission. And the District Court wrote a very short opinion which merely says that, on that record it found that the company had made a reasonable accommodation and no more should be required of it. And so the Court of Appeals quite properly had to look to the underlying facts to determine whether applying proper legal standards to those undisputed facts, that result was correct or not and reached the conclusion that the District Court erred in that regard and the only findings that we have are reflected in the Court of Appeals’ opinion. But nothing was brought out into the hearing as to any reasons why the company could not have made assignments of that sort. In the limited time remaining, I would like to say a few words about the constitutionality of the 1972 amendment to Title VII. There is no general principle under this Court’s decisions that it is necessarily a violation of the establishment clause for one person to be required to adjust his conduct in some way, because of the religious practices or observances of another. In fact, this Court’s decisions hold precisely the opposite that it is appropriate. It is exercise of legislative power in particular circumstances to require individuals to adjust their conduct in a way that will further in a neutral way the free exercise of religion and avoid unnecessary clashes with religious conscience. One example of that or rather simple one is Gallagher against Crown Couture Markets. One of the Sunday-closing law cases in which 8 Justices upheld against an establishment clause attack the constitutionality of provisions of that particular Sunday-closing law which forbad the carrying on of certain activities within a prescribed distance of a place of worship on Sundays. This affected where people could parade. It affected where people could conduct athletic events. All in deference to furthering the free exercise of religious observances at the churches that were being protected and this Court held that this does not force anyone else to attend those services to adapt any kind of religious belief or practice and that it was a permissible exercise of state power to reach other persons in this way in order to protect the free exercise of religion. Another example of that which we developed in our brief at some length is Zorac against Clausen in which those school children who did not choose to attend the religious instruction given outside the school room, were kept in school at the regular attendance, even though the state forbad continued instruction during that period which would cause educational problems and cause those who stayed behind to forge ahead of their classmates and in dissent Mr. Justice Jackson went so far as to say the school is being used as a jail for those students who chose not to go to church in those circumstances. Nonetheless, that was upheld and probably the most extreme example is the Court’s upholding of the constitutionality of the conscientious objectives provisions of the selective service laws, even though they necessarily mean that some people will be conscripted into military service in place of those who are the conscientious objectors or will be sent into combat in place of those who object to that kind of military service based on their religious scruples. This kind of accommodation has been called in opinions of this Court among our finest traditions and is not really different in kind from the adjustments that were made by the clerk in the argument schedule of the Court last week and this week because of religious holidays in re-arranging some of the oral arguments of the Court.
Warren E. Burger: But doing that once in 4 or 5 or perhaps more years is quite different from having to adjust work schedules day by day and week by week, is it not?
Lawrence G. Wallace: These are all matters of degree Mr. Justice and I do want to say that the Courts of Appeals have upheld the undue hardship in the operation of the business defense in a number of instances in the context of this kind of claim. I do not think the facts this case come close to the difficulties that were shown there. There was no extra expense to the employer here caused as a factor that has taken into account, the availability of substitute employees, the effect on other employees, the possibility of having to be on call for emergency service, factors of that sort have been reviewed in the opinions.
Lewis F. Powell, Jr.: Mr. Wallace in this case however, we are dealing with a statute providing for equal employment and the cases we usually have of course involve alleged discrimination with respect to pay or promotions. Now, the petitioner here has not discriminated against Mr. Cummins. What the petitioner wants is not equal treatment? He wants preferred treatment and it is a little curious to find provision of the statute that 701, that uses term discrimination in a context that results in the argument being made here that because the employer -- the equal treatment to Mr. Cummins. The company, that employer, is charged with discriminatory practice. The question I lead up to ask is whether or not in connection with your constitutional argument, the employer is really not being compelled by law to accord a privilege, a benefit to an employee because of his religious choice or beliefs.
Lawrence G. Wallace: Well, the treatment that has have been accorded is facially equal treatment, just as Mrs. Sherbert was afforded facially equal treatment by South Carolina in refusing her unemployment compensation benefits along with anyone else who refused to take a job that required work on Saturday. Some people might have preferred to be at home with their school aged children, etcetera. There may have been substantial reasons why they refused to take such employment, but if the dictates of one’s conscience, one’s religion forbid working on that day and leave the person with no conscientious choice, you are into a situation where the facially equal treatment has grossly disparate affects on individuals and causes a great hardship of having to choose between the dictates of one’s most deeply held beliefs and ones livelihood. And there is an area where the legislature, I think quite properly can go behind facially equal treatment to see if there are ways of accommodating people so that they can carry their full share of the work responsibility and still not have their beliefs compromised in this way in comparison with others who might be observing their Sabbath on a day when the company ordinarily does not require them to work. They may not be faced with the same problem at all. It is an area that has required difficulties and adjustment before the 1964 law was enacted. Those difficulties were faced by employers in making ad hoc decisions and they were faced in the collective bargaining process and as part of the 1964 concern with the equality of employment opportunities, Congress has stepped into this field in exercising its commerce power.
Warren E. Burger: I think you have completed your answer to Justice Powell, Mr. Wallace and your time is up, thank you. Mr. Becker, do you have anything further?
Leonard H. Becker: If it pleases the Court, unless there are questions by the Court, I have nothing to add to my prior statement.
William H. Rehnquist: What if the Civil Service Commission had adapted precisely this sort of a regulation to be applicable to the government agencies? Would you say that violated the establishment clause?
Leonard H. Becker: There I think once again Mr. Justice Rehnquist we would be in the posture that the government in order to avoid an infringement upon free exercise, would have to make allowances, but that is because it is the government, which is the employer in that case and I believe the Civil Service has adapted…
William H. Rehnquist: Your client has certainly has no establishment clause or free exercise clause. It is a corporation. All it can do is raise the free exercise claims of the other employees and I would think the other government employees would have just the same claim as the other employees of Parker Seal do, if the Civil Service Commission made that regulation?
Leonard H. Becker: Well, there are several points to be made in response. First is that the company does have a right to challenge the statute under the establishment clause. Of course, the company does not have an independent free exercise claim nor are we here today asserting on behalf of some third person any free exercise claim, but the company is coerced by government to undertake activity with respect to and in favoritism of a private person’s religious activities and that gives raise to an establishment clause objection here. The second point is that the government is a much larger employer than the Berea Kentucky Plant of Parker Seal and to the extent that we deal on a statutory plain at least each of these cases must turn on the number of fundable employees who may possibly be substituted for one another. That is not a possibility here where we dealt with a limited number of supervisory personnel. On the constitutional plain, I adhere to my answer that the government must make allowances as it did in the conscientious objector cases where a failure to make such allowance would give rise to a substantial problem under the free exercise clause. This was the point with Mr. Justice White made in his dissent in the Welsh case. It is the essence of the Yoder decision of this Court. There is difference when the government is the employer.
Lewis F. Powell, Jr.: Mr. Becker, have any of the cases in this area involve situations where the accommodation required a violation of a collective bargaining agreement?
Leonard H. Becker: Yes Mr. Justice Powell there are cases which I believe are now pending in this Court on certiorari which involve questions arising in such circumstances.
Lewis F. Powell, Jr.: Or in the Circuit which raise the question, but I do not think it is involved in the case directly. Has there been a spare holding anywhere?
Leonard H. Becker: TWA case does, the question is reserved, I hesitate for this reason Mr. Justice Powell, the question is specifically reserved by the Court of Appeals in TWA, although you have before the Court a petition from the Union, which says that the question cannot possibly be reserved because in order to carry out the mandate of the Court of Appeals it would be necessary to alter the seniority agreement which the company has with the Union. In TWA, if a fellow transfers from a night shift to a day shift, he looses seniority as a result, is forced to take on Saturday work and objects and question presented there is whether the Union can be required to modify the collective bargaining agreement in order to accommodate this employee.
Lewis F. Powell, Jr.: That I think that in the Yacht against the North American Rockwell Company.
Leonard H. Becker: Well in Yacht, I believe the case is returned to the District Court, if I recall it correctly to consider whether it is possible that an employee who declines his Union dues can nonetheless somehow or rather be accommodated. The Court of Appeals said that it did not have any idea on how this fellow might be accommodated, but sent the case back to the District Court to see if they could figure out a way.
Speaker: There was a Union shop there?
Leonard H. Becker: I am sorry?
Speaker: There was a Union shop in that case.
Leonard H. Becker: Yes, that is correct. There is a similar, a recent decision by the Fifth Circuit in Cooper against General Dynamics, where a similar problem is presented.
Speaker: Mr. Becker, if this law is bad, why would not a law be bad which simply said that the employer could not discriminate on the grounds of (Inaudible)?
Leonard H. Becker: There I think Congress can justifiably purge the channels of interstate commerce of an obstruction. Same reasoning that applied on Griggs would seem to me to carry forward there.
Speaker: I know, but let us talk about on the establishment clause grounds.
Leonard H. Becker: Well I think—
Speaker: I would suppose you would argue that the statute requires an employer to avoid firing a person or refusing to hire him on the grounds of his religion and that the aim of it, the purpose of it surely his religion.
Leonard H. Becker: No, I would not say it was. I would say is for a different purpose. There is an overriding secular purpose in a statute which seeks to purge the channels of interstate commerce of irrational acts of employment which tend to cut out of the job market certain people on the basis of irrational and irrelevant considerations. That is at the heart of the Griggs decision.
Speaker: And you do not think that would reach this case? I just want to clear interstate commerce of religious discrimination which can be reasonably avoided.
Leonard H. Becker: There is not a scintilla of evidence in the record here or before Congress that Congress had that purpose in mind. Now, if Congress came back with the statute which said, “We have conducted hearings and we have found that there is pervasive…”
Speaker: Well I have another example just like the scintilla of evidence as what purpose was you would strike it down just like you would this one?
Leonard H. Becker: No, I do not believe I would. I would say that a statute which seeks to purge channels of interstate commerce of discriminatory commerce…
Speaker: I heard you, I heard you the first time, but I do not know why that does not reach you in this case too?
Leonard H. Becker: Because there is no—
Speaker: Because there is no evidence you say?
Leonard H. Becker: No, and also because the language of the statute itself makes it clear that Congress was not concerned about discrimination here. It was not concerned that it needed tighten up or toughen up the basic antidiscrimination provision of Title VII, because it had uncovered a weakness in the original statute. The purpose of this statute is to help certain people out precisely and solely because of their particular religious circumstances.
William H. Rehnquist: Well, how do you explain the EEOC guideline of 1967, which was promulgated under the basic statute and then Congress although adapted, that sounds like evolution rather than a brand new thought coming into Congress’s mind?
Leonard H. Becker: Well, there is no question Mr. Justice Rehnquist, but that Congress was inspired by the 1967 guideline. Problem was that the guideline itself had been challenged repeatedly in the Courts as not properly promulgated under the original statute.
Warren E. Burger: Thank you gentlemen. The case is submitted.