(dissenting):
I dissent and vote to affirm on the unassailable facts found below, substantially for the reasons and authorities contained in District Judge Thomas F. Murphy’s persuasive opinion.
The issue in this case is whether the School Board should be forced to pay a teacher for not working. There is no indication that the School Board, the Union, or the collective bargaining agreement intended to discriminate against anyone, including plaintiff, on the basis of religion. The School Board and Union, and the membership of the latter, adopted a facially neutral policy giving each employee three days of paid religious leave and three days of paid secular personal leave, which were not to be interchangeable. If an employee wished to take additional religious leave, he was privileged to do so at his own cost without suffering any impact on his employment status.
The majority views the School Board’s policy as one that facially discriminates on the basis of religion because it “affords some teachers all the leave they need for religious reasons but does not extend that benefit to members of religious groups that have more than three holy days per year.” However, neither case law nor the legislative history of the statute support the majority’s expansive position that an employer “discriminates” within the meaning of Title VII if he refuses to give an employee more than three paid religious days when the employee desires more paid leave.
The legislative history makes it clear that Title VII was not concerned with the “no work-no pay” situation. Rather, as the Senate Floor managers explained, the statute was concerned with discriminatory practices, i.e., the situation where an employer
“refuse[d] to hire or to discharge any individual or otherwise to discriminate against him with respect to compensation or terms or conditions of employment because of such individual’s race, color, religion, sex, or national origin in such a way as to deprive them of employment opportunities or otherwise affect adversely their employment status.”
110 Cong.Rec. 7212 (1964) (April 8, 1964) (Interpretative Memorandum of Title VII submitted by Senators Case and Clark) (emphasis added).
Moreover, the nature of the discrimination that lies at the base of Title VII matters was starkly explained in language that admits of no confusion. The Senate sponsors stated that:
“To discriminate is to make distinctions or differences in the treatment of employees ...”
Id. at 7218.
Supreme Court opinions also emphasize that Congress enacted Title VII in order to “remov[e] artificial, arbitrary, and unnecessary barriers to employment____” Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). As the Court reiterated in Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982), “Title VII strives to achieve equality of opportunity by rooting out ‘artificial, arbitrary and unnecessary’ employer-created barriers to professional development.” Id. at 451, 102 S.Ct. at 2533 (emphasis added).
The leave policy at issue here does not make distinctions between employees or deny plaintiff the opportunity to pursue his employment and yet have time off to observe his religious holy days. This is not a case where plaintiff is denied employment because his religious beliefs preclude him from working on certain days. See, e.g., Reid v. Memphis Publishing Co., 468 F.2d 346 (6th Cir.1972). Nor is plaintiff subject to discharge because his religion forbids *489him to work on these days. See, e.g., Brown v. General Motors Corp., 601 F.2d 956 (8th Cir.1979). Likewise, the policy has no adverse impact on plaintiff's opportunities for advancement; plaintiff has not been denied a promotion because of his religious beliefs. See, e.g., Haring v. Blumenthal, 471 F.Supp. 1172 (S.D.N.Y.1979).
The School Board’s policy neither deprives the plaintiff of employment opportunities nor adversely affects his employment status. As Judge Murphy succinctly stated, “[P]laintiff could go without let or hindrance whenever and wherever he wished” (Op. at 13) — but at his own expense. Since the policy does not “discriminate” within Title VII’s use and meaning of that term, the statute may not be invoked against the School Board.
It is also clear that the Board has agreeably and reasonably accommodated the plaintiff. Recently, in Pinsker v. Joint District No. 28J, 735 F.2d 388 (10th Cir. 1984), the Tenth Circuit held that a school board made a reasonable accommodation by permitting a teacher to take unpaid leave for religious observance. In Pinsker, teachers had a pool of 12 days of paid leave, of which two could be used for “special leave” purposes including religious observance. Plaintiff argued that Title VII required the Board to adopt a leave policy that was less burdensome to religious practices. The court disagreed, stating that the statute does not require employers to “accommodate the employee’s practices in such a way that spares the employee any cost whatsoever.” Id. at 390-91.
In Pinsker, the court also held that “[defendant's policy and practices jeopardized neither [plaintiff’s] job nor his observation of religious holidays. Because teachers are likely to have not only different religions but also different degrees of devotion to their religions, a school district cannot be expected to negotiate leave policies broad enough to suit every employee’s religious needs perfectly.”
Id. at 391.
The neutral leave policy challenged here is embodied in a valid collective bargaining agreement. “Collective bargaining, aimed at effecting workable and enforceable agreements between management and labor, lies at the core of our national labor policy ...” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 79, 97 S.Ct. 2264, 2274, 53 L.Ed.2d 113 (1977). Where, as here, the agreement neither impairs employment status nor imposes any artificial, arbitrary, and unnecessary barriers to employment, then, as the Supreme Court stated in Hardison, “we do not believe that the duty to accommodate requires [the employer] to take steps inconsistent with the otherwise valid [collective bargaining agreement].” Id. Paid leave from employment is neither contractually nor Constitutionally mandated.
Since the School Board’s leave policy does not discriminate on the basis of religion, plaintiff failed — as early as the close of his case — to make out a prima facie case. Consequently, the judgment of dismissal should be affirmed.