There are two issues in this case. The first is whether there is an affirmative duty on an employer to attempt to accommodate the known religious beliefs of its employees or whether it may defeat a discrimination complaint brought pursuant to section 296 (subd 10, par [b]) of the Executive Law merely by showing justification for its actions at the time of the hearing. The second issue is whether petitioner has proven "undue economic hardship” excepting it from the statute’s requirement in this case. In my view, an employer has an affirmative duty to make reasonable attempts to accommodate its employees or prove that such efforts would be unavailing and there is substantial evidence in the record to support the commissioner’s determination that this petitioner failed to do so. Furthermore, there was not substantial evidence before the commissioner by which petitioner met its burden or proving that it was exempt from the provisions of section 296 (subd 10, par [c]) of the Executive Law because of undue economic hardship. I would therefore confirm the finding of discrimination but modify the order by directing in paragraph 1 that petitioner must offer complainant a job with comparable pay and working conditions which does not interfere with her Sabbath. She is not entitled to demand restoration of her original job in the nuclear medicine division.
The commissioner’s findings that the complainant was a Sabbath observer, that she observed the tenets of her religion in that respect, and that petitioner was aware of this fact before requiring regular Saturday work by the employees of the nuclear medicine division is amply supported by the record. Nevertheless, petitioner changed the job schedules and required complainant to work regularly on her Sabbath.
Section 296 (subd 10, par [b]) provides that, except under circumstances not applicable here, "no person shall be required to remain at his place of employment during any day * * * that, as a requirement of his religion, he' observes as his sabbath.” This court and the Court of Appeals have held that an employer must accommodate the Sabbath requirements of an employee’s religion if it can do so without undue economic hardship (State Div. of Human Rights v Carnation Co., 42 NY2d 873, 874, revg 53 AD2d 1053, 1054; Executive Law, § 296, subd [10], par [c]; see, also, Trans World Airlines v Hardison, 432 US 63, 74; Claybaugh v Pacific Northwest Bell Tel. Co., 355 F Supp 1, 5).
*702When complainant requested consideration because she was a Sabbath observer, the hospital’s administrator told her something could be worked out but after learning that she had previously worked Saturdays in emergencies, he told her, and wrongly so, that she had "compromised” her position. Complainant was left to solve the problem herself by attempting a voluntary schedule adjustment with her coemployees. Her superiors testified that "it was left to her to make the arrangements”, the change in schedules was "perfectly alright as long as she could arrange it with the other technologists and [as long as] everyone was happy about the situation.” She was not offered any alternative employment and none of petitioner’s supervisory staff ever spoke to the other employees of the nuclear medicine division concerning complainant’s request or tried to adjust the employees’ working schedules until after her complaint was filed in this proceeding. Indeed, such conversations as the supervisors and employees had at that time were initiated by the employees, not the employer. Petitioner now points out that complainant could have had other comparable jobs which did not require Saturday work and that at least nine such jobs were posted on the bulletin board. They made no such suggestions to her at the time, however.
By this attitude of indifference, petitioner placed the responsibility for avoiding discrimination upon the complainant, rather than accepting the duty imposed upon it by law. Manifestly, section 296 was designed to overcome just such inertia on the part of employers and coemployees when confronted with a request for reasonable consideration by a member of a minority religious group whose Sabbath observance conflicts with the employee’s hours of employment. The statute requires the employer to make reasonable efforts to accommodate such requests. It is not for us to speculate on what success inquiries or conferences between employer, complainant and other employees may have. Undoubtedly an employer’s inquiry provokes more serious consideration from coworkers than similar inquiries by a complainant. More importantly, however, the assumption of this responsibility by the employer places it on the side of the issue on which the statute says it belongs, against discrimination and attempting to eliminate it. One thing is near certain, the "democratic” solution attempted here by polling the employees fails more often than it succeeds, for if experience proved otherwise, *703there would be no need for the statute. Complainant should not have been forced to rely upon the good will of her coworkers or her powers of persuasion, else be relegated to choosing between her religious beliefs and her employment.
Of course, employers can always articulate obstacles to accommodation after the fact. Adjustments to meet a complainant’s needs necessarily have an impact upon the operation of the business and implementation of the antidiscrimination statutes inevitably creates tension between the employer, minority group employees and their coworkers. But the Legislature has determined that New York employers must reasonably attempt to reconcile these conflicting interests. The determination of whether the employer has done so is entirely factual and the commissioner was free to reject the evidence of petitioner in view of its prior attitude toward claimant’s request.
Next, petitioner contends, and the majority find, that even though the commissioner found that it failed to try and accommodate complainant, it has met its burden of establishing that it would cause it "undue economic hardship” to do so. The limited case law on the subject describes "undue economic hardship” as "a significant” or "a palpable increase in costs” (State Div. of Human Rights v Carnation Co., 42 NY2d 873, 875, supra). Petitioner contends, and the commissioner found, that the cost of accommodating complainant was $70 per month if another technician was paid overtime to work complainant’s Saturday assignments, or $85.90 per month if the supervisor’s schedule was adjusted to accommodate the shift. Accepting those figures, there is no rationale by which it may be found that the amounts represent a "significant increase” in costs in the operation of the Genesee Hospital or its nuclear medicine division. The statutory standard is not quantitative but relative and the test therefore becomes an evidentiary one to be determined in the first instance by the administrative agency. There was no evidence before the commissioner upon which he could determine whether these sums represent significant amounts to the Genesee Hospital or its nuclear medicine division and there is no basis in the evidence upon which the court may now determine that the cost to petitioner in adjusting work schedules confronted it with a "significant” or "palpable” increase in costs, or that the commissioner erred in finding a failure of proof on the issue.
The majority, relying upon the Supreme Court’s decision in *704Trans World Airlines v Hardison (432 US 63, supra) annul the commissioner’s finding holding that proof of de minimis economic hardship is sufficient to satisfy the statutory requirement. That case is factually distinguishable because the result was predetermined for all practical purposes by the seniority provisions of a union contract (see, also, Matter of Schweizer Aircraft Corp. v State Div. of Human Rights, 64 AD2d 804, 805). But more importantly, the Supreme Court was applying title VII of the Federal Civil Rights Law (US Code, tit 42, § 2000e-2, subd [a], par [1]) and the 'tie minimis” rule is not controlling in this case in view of the different language of New York’s statute and the Court of Appeals interpretation of it (see State Div. of Human Rights v Carnation Co., supra). What is significant about the Trans World Airlines case, however, and pertinent to this case, is the court’s finding (supra, pp 77-78) that TWA accepted the burden of making reasonable efforts to accommodate complainant by trying to adjust work schedules and offering complainant another job, things this petitioner failed to do.
The majority’s determination that the hospital "considered all feasible alternatives” and "that the only alternative, if it was to accommodate complainant, was to close the division on the Saturdays she was scheduled to work” is not supported by the evidence in the record. The findings of the commissioner rest upon substantial evidence and should be confirmed. The order should be modified, however, by striking the provision in paragraph 1 requiring re-employment in the nuclear medicine division and directing that petitioner offer a job at comparable pay and terms of employment, and, as so modified, the determination should be confirmed.
Hancock, Jr., Doerr and Wither, JJ., concur with Schnepp, J.; Simons, J. P., dissents and votes to modify and confirm the determination in an opinion.
Petition granted, without costs, determination and order reversed, and complaint dismissed.