Complainant Mary Myers has been a practicing Seventh Day Adventist for 17 years and is the head Deaconess of the Linden congregation of Seventh Day Adventists. The tenets of her religion forbid engaging in any form of work on the Sabbath, which runs from sundown on Friday to sundown on Saturday. The penalty imposed by the church for failure to observe the Sabbath is disfellowship.
Petitioner Transit Authority services the mass transit needs of the City of New York and operates on a seven-day-a-week, 24-hour-a-day schedule. Petitioner Transport Workers Union is the collective bargaining agent for the 33,000 transportation workers employed by the New York City Transit Authority, and at all relevant times herein the rights and duties of those workers were governed by a collective bargaining agreement. The agreement contains a system, based strictly on seniority, *225giving each employee the right to select (or "pick”) work assignments, vacation periods, and hours and days off. The right to picks is central to the agreement, and the order of seniority is maintained at a particular Transit Authority facility by a "list man”. To be eligible for Friday night and Saturday as scheduled time off, an employee would need as much as five years’ seniority.
In this matter, the Transit Authority was advised by an entry on her application that Mary Myers is a Sabbath observer. While completing her training, she was not scheduled to work on weekends. Petitioners were able to accommodate Ms. Myers by scheduling her to be off work during the first weekend of her regular employment, but she was thereafter scheduled to work weekends. When she failed to report for work on Saturdays, her employment was terminated.
In the administrative determination under review, the Commissioner of Human Rights found that Ms. Myers "is deeply religious and takes great pride in her Seventh Day Adventist religion.” Thus, the sincerity of her convictions was never a matter of serious dispute, having been found by the Commissioner to be "uncontroverted” in view of the entire record. The transcript of the hearing on which the Commissioner’s determination is based contains testimony by the general superintendent of the bus depot to which Ms. Myers was assigned. He stated: "We canvassed all five depots in the Brooklyn division to see if we had any work that would accommodate her. There was no work available in any depot that would accommodate. That’s the entire division.” The determination also cites testimony from a Transit Authority labor relations manager that "the TA has a policy of trying to accommodate religious observers.” The same witness stated, "The union’s position has been that they are not willing to waive any operator’s seniority rights in order to accommodate a Sabbath observer.” Indeed, the Commissioner’s determination notes that a union representative "stated that the Union made no efforts to accommodate Complainant”.
It is difficult to believe that, in an organization of over 33,000 people, the accommodation of the occasional Sabbath observer will require another employee to forego the comfort of home and the company of offspring, as the majority seems to suggest. It is clear from the record that the Transport Workers Union insisted on rigid adherence to the terms of its collective bargaining agreement and ultimately frustrated any attempt by the employer to permit its employee to take *226Saturdays off. Accommodation of the employee’s religious beliefs by the Transit Authority was clearly precluded by the seniority system imposed "by nondiscriminatory provisions of its collective bargaining agreement” and, accordingly, this case falls squarely within the exemption stated in Matter of Schweizer Aircraft Corp. v State Div. of Human Rights (48 NY2d 294, 299). While this Court is constrained by the holding of that case to reverse the administrative determination, collective bargaining agreements should not be utilized to impose de facto discrimination.
My objection to the more or less automatic exemption of union seniority systems from civil rights statutes (Civil Rights Act of 1964 § 703, 42 USC § 2000e-2 [h]; Executive Law § 296 [10]) is that current State and Federal standards impose no obligation on the employer and union to accommodate an employee’s religious beliefs, even where, as here, the employer is a quasi-public agency that derives a substantial portion of its operating revenue from public funding. It is not suggested that, by subjecting such employers and their employee unions to the same standard as all other employers, allowances must be made for every religious belief held by each individual employee; simply that the employer and union should be required to demonstrate that reasonable efforts were undertaken to accommodate the particular belief. Such accommodation is not equivalent to the promotion of one religious group’s interest over that of another, and the majority cannot seriously contend that either of the civil rights statutes implicated in this matter offends the Establishment Clause.
By requiring no effort at accommodation on the part of the employee union, the law invites intolerable discriminatory consequences through rigid adherence to contractual provisions. As Justice Brennan stated in Sherbert v Verner (374 US 398, 404), the current state of the law requires the employee to choose whether to follow the precepts of her religion or to accept work: "Government imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against [the employee] for her Saturday worship.” The burden imposed on the employee abrogates basic First Amendment tenets. "Fundamental to the conception of religious liberty protected by the Religion Clauses is * * * that each sect is entitled to 'flourish according to the zeal of its adherents and the appeal of its dogma’ ” (McDaniel v Paty, 435 US 618, 640 [Brennan, J., concurring], quoting Zorach v Clauson, 343 US 306, 313). Freedom to practice one’s *227chosen creed "has classically been one of the highest values of our society” (Braunfeld v Brown, 366 US 599, 612). Such cherished First Amendment freedoms should not be so readily abandoned.
Asch and Nardelli, JJ., concur with Wallach, J. P.; Rubin and Tom, JJ., concur in a separate opinion by Rubin, J.
Determination of respondent State Division of Human Rights, dated March 31, 1993 (transferred to this Court by order of the Supreme Court, New York County, entered April 21, 1994), annulled, without costs.