dissenting.
One of the most intractable problems arising under Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., has been whether an employer is guilty of religious discrimination when he discharges an employee (or refuses to hire a job applicant) because of the employee’s religious practices. Particularly troublesome has been the plight of adherents to minority faiths who do not observe the holy days on which most businesses are closed — Sundays, Christmas, and Easter— but who need time off for their own days of religious observance. The Equal Employment Opportunity Commission has grappled with this problem in two sets of regulations, and in a long line of decisions. Initially the Commission concluded that an employer was “free under Title VII to establish a normal workweek . . . generally applicable to all employees,” and that an employee could not “demand any alteration in [his work schedule] to accommodate his religious needs.” 29 CFR §§ 1605.1 (a)(3), (b)(3) (1967). Eventually, however, the Commission changed its view and decided that employers must reasonably accommodate such requested schedule changes except where “undue hardship” would result — for example, “where the employee’s needed work cannot be per*86formed by another employee of substantially similar qualifications during the period of absence.” 29 CFR § 1605.1 (b) (1976).1 In amending'Title VII in 1972 Congress confronted the same problem, and adopted the second position of the EEOC. Pub. L. 92-261, §2(7), 86 Stat. 103, codified at 42 U. S. C. § 2000e (j) (1970 ed., Supp. Y). Both before and after the 1972 amendment the lower courts have considered at length the circumstances in which employers must accommodate the religious practices of employees, reaching what the Court correctly describes as conflicting results, ante, at 75 n. 10. And on two occasions this Court has attempted to provide guidance to the lower courts, only to find ourselves evenly divided. Parker Seal Co. v. Cummins, 429 U. S. 65 (1976); Dewey v. Reynolds Metals Co., 402 U. S. 689 (1971).
Today's decision deals a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices. The Court holds, in essence, that although the EEOC regulations and the Act state that an employer must make reasonable adjustments in his work demands to take account of religious observances, the regulation and Act do not *87really mean what they say. An employer, the Court concludes, need not grant even the most minor special privilege to religious observers to enable them to follow their faith. As a question of social policy, this result is deeply troubling, for a society that truly values religious pluralism cannot compel adherents of minority religions to make the cruel choice of surrendering their religion or their job. And as a matter of law today’s result is intolerable, for the Court adopts the very position that Congress expressly rejected in 1972, as if we were free to disregard congressional choices that a majority of this Court thinks unwise. I therefore dissent.
I
With respect to each of the proposed accommodations to respondent Hardison’s religious observances that the Court discusses, it ultimately notes that the accommodation would have required “unequal treatment,” ante, at 81, 84-85, in favor of the religious observer. That is quite true. But if an accommodation can be rejected simply because it involves preferential treatment, then the regulation and the statute, while brimming with “sound and fury,” ultimately “signif[y] nothing.”
The accommodation issue by definition arises only when a neutral rule of general applicability conflicts with the religious practices of a particular employee. In some of the reported cases, the rule in question has governed work attire; in other cases it has required attendance at some religious function; in still other instances, it has compelled membership in a union; and in the largest class of cases, it has concerned work schedules.2 What all these cases have in common is an employee who could comply with the rule only by violating what the employee views as a religious commandment. In each *88instance, the question is whether the employee is to be exempt from the rule's demands. To do so will always result in a privilege being “allocated according to religious beliefs,” ante, at 85, unless the employer gratuitously decides to repeal the rule in toto. What the statute says, in plain words, is that such allocations are required unless “undue hardship” would result.
The point is perhaps best made by considering a not altogether hypothetical example. See CCH EEOC Decisions (1973) ¶ 6180. Assume that an employer requires all employees to wear a particular type of hat at work in order to make the employees readily identifiable to customers. Such a rule obviously does not, on its face, violate Title VII, and an employee who altered the uniform for reasons of taste could be discharged. But a very different question would be posed by the discharge of an employee who, for religious reasons, insisted on wearing over her hair a tightly fitted scarf which was visible through the hat. In such a case the employer could accommodate this religious practice without undue hardship — or any hardship at all. Yet as I understand the Court’s analysis — and nothing in the Court’s response, ante, at 83 n. 14, 84 n. 15, is to the contrary — the accommodation would not be required because it would afford the privilege of wearing scarfs to a select few based on their religious beliefs. The employee thus would have to give up either the religious practice or the job. This, I submit, makes a mockery of the statute.
In reaching this result, the Court seems almost oblivious of the legislative history of the 1972 amendments to Title VII which is briefly recounted in the Court’s opinion, ante, at 73-75. That history is far more instructive than the Court allows. After the EEOC promulgated its second set of guidelines requiring reasonable accommodations unless undue hardship would result, at least two courts issued decisions questioning, whether the guidelines were consistent with Title VII. Dewey v. Reynolds Metals Co., 429 F. 2d 324 (CA6 1970), *89aff’d by equally divided Court, 402 U. S. 689 (1971); Riley v. Bendix Corp., 330 F. Supp. 583 (MD Fla. 1971), rev’d, 464 F. 2d 1113 (CA5 1972). These courts reasoned, in language strikingly similar to today’s decision, that to excuse religious observers from neutral work rules would “discriminate against . . . other employees” and “constitute unequal administration of the collective-bargaining agreement.” Dewey v. Reynolds Metals Co., supra, at 330. They therefore refused to equate “religious discrimination with failure to accommodate.” 429 F. 2d, at 335. When Congress was reviewing Title VII in 1972, Senator Jennings Randolph informed the Congress of these decisions which, he said, had “clouded” the meaning of religious discrimination. 118 Cong. Rec. 706 (1972). He introduced an amendment, tracking the language of the EEOC regulation, to make clear that Title VII requires religious accommodation, even though unequal treatment would result. The primary purpose of the amendment, he explained, was to protect Saturday Sabbatarians like himself from employers who refuse “to hire or to continue in employment employees whose religious practices rigidly require them to abstain from work in the nature of hire on particular days.” Id., at 705. His amendment was unanimously approved by the Senate on a roll-call vote, id'., at 731, and was accepted by the Conference Committee, H. R. Rep. No. 92-899, p. 15 (1972); S. Rep. No. 92-681, p. 15 (1972), whose report was approved by both Houses, 118 Cong. Rec. 7169, 7573 (1972). Yet the Court today, in rejecting any accommodation that involves preferential treatment, follows the Dewey decision in direct contravention of congressional intent.
The Court’s interpretation of the statute, by effectively nullifying it, has the singular advantage of making consideration of petitioners’ constitutional challenge unnecessary. The Court does not even rationalize its construction on this ground, however, nor could it, since “resort to an alternative construction to avoid deciding a constitutional question is appro*90priate only when such a course is 'fairly possible’ or when the statute provides a ‘fair alternative’ construction.” Swain v. Pressley, 430 U. S. 372, 378 n. 11 (1977). Moreover, while important constitutional questions would be posed by interpreting the law to compel employers (or fellow employees) to incur substantial costs to aid the religious observer,3 not all accommodations are costly, and the constitutionality of the statute is not placed in serious doubt simply because it sometimes requires an exemption from a work rule. Indeed, this Court has repeatedly found no Establishment Clause problems in exempting religious observers from state-imposed duties, e. g., Wisconsin v. Yoder, 406 U. S. 205, 234—235, n. 22 (1972); Sherbert v. Verner, 374 U. S. 398, 409 (1963); Zorach v. Clauson, 343 U. S. 306 (1952), even when the exemption was in no way compelled by the Free Exercise Clause, e. g., Gillette v. United States, 401 U. S. 437 (1971); Welsh v. United States, 398 U. S. 333, 371-372 (1970) (White, J., dissenting); Sherbert v. Verner, supra, at 422 (Harlan, J., dissenting); Braunfeld v. Brown, 366 U. S. 599, 608 (1961) (dictum); McGowan v. Maryland, 366 U. S. 420, 520 (1961) (opinion of Frankfurter, J.).4 If the State does not establish *91religion over nonreligion by excusing religious practitioners from obligations owed the State, I do not see how the State can be said to establish religion by requiring employers to do the same with respect to obligations owed the employer. Thus, I think it beyond dispute that the Act does — and, consistently with the First Amendment, can — require employers to grant privileges to religious observers as part of the accommodation process.
II
Once it is determined that the duty to accommodate sometimes requires that an employee be exempted from an otherwise valid work requirement, the only remaining question is whether this is such a case: Did TWA prove that it exhausted all reasonable accommodations, and that the only remaining alternatives would have caused undue hardship on TWA’s business? To pose the question is to answer it, for all that the District Court found TWA had done to accommodate respondent’s Sabbath observance was that it “held several meetings with [respondent] . . . [and] authorized the union steward to search for someone who would swap shifts.” 375 F. Supp. 877, 890-891 (WD Mo. 1974). To conclude that TWA, one of the largest air carriers in the Nation, would have suffered undue hardship had it done anything more defies both reason and common sense.
The Court implicitly assumes that the only means of accommodation open to TWA were to compel an unwilling employee to replace Hardison; to pay premium wages to a voluntary substitute; or to employ one less person during *92respondent's Sabbath shift.5 Based on this assumption, the Court seemingly finds that each alternative would have involved undue hardship not only because Hardison would have been given a special privilege, but also because either another employee would have been deprived of rights under the collective-bargaining agreement, ante, at 80-81, or because “more than a de minimis cost,” ante, at 84, would have been imposed on TWA. But the Court’s myopic view of the available options is not supported by either the District Court’s findings or the evidence adduced at trial. Thus, the Court’s conclusion cannot withstand analysis, even assuming that its rejection of the alternatives it does discuss is justifiable.6
*93To begin with, the record simply does not support the Court’s assertion, made without accompanying citations, that “[t]here were no volunteers to relieve Hardison on Saturdays,” ante, at 81. Everett Kussman, the manager of the department in which respondent worked, testified that he had made no effort to find volunteers, App. 136,7 and the union stipulated that its steward had not done so either, id., at 158.8 Thus, contrary to the Court’s assumption, there may have been one or more employees who, for reasons of either sympathy or personal convenience, willingly would have substi*94tuted for respondent on Saturdays until respondent could either regain the non-Saturday shift he had held for the three preceding months9 or transfer back to his old department where he had sufficient seniority to avoid Saturday work. Alternatively, there may have been an employee who preferred respondent's Thursday-Monday daytime shift to his own; in fact, respondent testified that he had informed Kussman and the union steward that the clerk on the Sunday-Thursday night shift (the “graveyard” shift) was dissatisfied with his hours. Id., at 70. Thus, respondent’s religious observance might have been accommodated by a simple trade of days or shifts without necessarily depriving any employee of his or her contractual rights10 and without *95imposing significant costs on TWA. Of course, it is also possible that no trade — or none consistent with the seniority system — could have been arranged. But the burden under the EEOC regulation is on TWA to establish that a reasonable accommodation was not possible. 29 CFR § 1605.1 (c) (1976). Because it failed either to explore the possibility of a voluntary trade or to assure that its delegate, the union steward, did so, TWA was unable to meet its burden.
Nor was a voluntary trade the only option open to TWA that the Court ignores; to the contrary, at least two other options are apparent from the record. First, TWA could have paid overtime to a voluntary replacement for respondent — assuming that someone would have been willing to work Saturdays for premium pay — and passed on the cost to respondent. In fact, one accommodation Hardison suggested would have done just that by requiring Hardison to work overtime when needed at regular pay. Under this plan, the total overtime cost to the employer — and the total number of overtime hours available for other employees — would not have reflected Hardison’s Sabbath absences. Alternatively, TWA could have transferred respondent back to his previous department where he had accumulated substantial seniority, as respondent also suggested.11 Admittedly, both options would have violated the collective-bargaining agreement; the former because the agreement required that employees working over 40 hours per week receive premium pay, and the latter because the agreement prohibited employees from trans*96ferring departments more than once every six months. But neither accommodation would have deprived any other employee of rights under the contract or violated the seniority system in any way.12 Plainly an employer cannot avoid his duty to accommodate by signing a contract that precludes all reasonable accommodations; even the Court appears to concede as much, ante, at 79. Thus I do not believe it can be even seriously argued that TWA would have suffered “undue hardship” to its business had it required respondent to pay the extra costs of his replacement, or had it transferred respondent to his former department.13
What makes today’s decision most tragic, however, is not that respondent Hardison has been needlessly deprived of his livelihood simply because he chose to follow the dictates of his conscience. Nor is the tragedy exhausted by the impact it will have on thousands of Americans like Hardison who could be forced to live on welfare as the price they must pay for *97worshiping their God.14 The ultimate tragedy is that despite Congress’ best efforts, one of this Nation’s pillars of strength— our hospitality to religious diversity — has been seriously eroded. All Americans will be a little poorer until today’s decision is erased.
I respectfully dissent.
The Court’s statement that in promulgating the second guidelines “[t]he EEOC . . . did not purport to change the view expressed in its .1966 guidelines that work schedules generally applicable to all employees may not be unreasonable,” ante, at 72 n. 7, is incomprehensible. The preface to the later guidelines, 32 Fed. Reg. 10298 (1967), states that the “Commission hereby amends § 1605.1, Guidelines on Discrimination Because of Religion. . . . Section 1605.1 as amended shall read as follows . . . .” Thus the later guidelines expressly repealed the earlier guidelines. Moreover, the example of “undue hardship” given in the new guidelines and quoted in text makes clear that the Commission believed, contrary to its earlier view, that in certain instances employers would be required to excuse employees from work for religious observances.
In its decisions subsequent to the formulation of the guidelines, the Commission has consistently held that employers must accommodate Sabbath observances where substitute employees are available. Compare CCH EEOC Decisions (1973) ¶¶6060, 6154, with, e. g., ¶¶6120, 6310, 6367.
Many of the cases are collected in Annot., 22 ALR Fed. 580 (1975). For a perceptive discussion of the issues posed by the cases see Note, Accommodation of an Employee’s Religious Practices Under Title VII, 1976 U. IH. L. Forum 867.
Because of the view I take of the facts, see Part II, infra, I find it unnecessary to decide how much cost an employer must bear before he incurs "undue hardship.” I also leave for another day the merits of any constitutional objections that could be raised if the law were construed to require employers (or employees) to assume significant costs in accommodating.
The exemption here, like those we have upheld, can be claimed by any religious practitioner, a term that the EEOC has sensibly defined to include atheists, e. g, CCH EEOC Decisions (1973) ¶ 6316, see also Young v. Southwestern Savings & Loan Assn., 509 F. 2d 140 (CA5 1975), and persons not belonging to any organized sect but who hold “ ‘ [a] sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption,’ ” CCH Employment Practices ¶ 6500, quoting United States v. Seeger, 380 U. S. 163, 176 (1965). The purpose and primary effect of requiring such exemptions is the wholly secular one of securing *91equal economic opportunity to members of minority religions. Cf., e. g., Lemon v. Kurtzman, 403 U. S. 602 (1971). And the mere fact that the law sometimes requires special treatment of religious practitioners does not present the dangers of “sponsorship, financial support, and active involvement of the sovereign in religious activity,” against which the Establishment Clause is principally aimed, Walz v. Tax Comm’n, 397 U. S. 664, 668 (1970).
It is true that these are the only options the Court of Appeals discussed. But that court found that TWA could have adopted these options without undue hardship; once that conclusion is rejected it is incumbent on this Court to decide whether any other alternatives were available that would not have involved such hardship.
I entertain grave doubts on both factual and legal grounds about the validity of the Court’s rejection of the options it considers. As a matter of fact, I do not believe the record supports the Court’s suggestion that the costs to TWA of either paying overtime 'or not replacing respondent would have been more than de minimis. While the District Court did state, as the Court notes, ante, at 84 n. 15, that both alternatives “would, have created an undue burden on the conduct of TWA’s business,” 375 F. Supp., at 891, the court did not explain its understanding of the phrase “undue burden,” and may have believed that such a burden exists whenever any cost is incurred by the employer, .no matter how slight. Thus the District Court’s assertion falls far short of a factual “finding” that the costs of these accommodations would be more than de minimis. Moreover, the record is devoid of any evidence documenting the extent of the “efficiency loss” TWA would have incurred had it used a supervisor or an already scheduled employee to do respondent’s work, and while the stipulations make clear what overtime would have cost, the price is far from staggering: $150 for three months, at which time respondent would have been eligible to transfer back to his previous department. The Court’s suggestion that the cost of accommodation must be evaluated in light of the “likelihood that . . . TWA may have many employees whose religious observances . . . prohibit them from working on Satur*93days or Sundays,” ante at 84 n. 15, is not only contrary to the record, which indicates that only one other case involving a conflict between work schedules and Sabbath observance had arisen at TWA since 1945, Tr. 312-314, but also irrelevant, since the real question is not whether such employees exist but whether they could be accommodated without significant expense. Indeed, to the extent that TWA employed Sunday as well as Saturday Sabbatarians, the likelihood of accommodation being costly would diminish, since trades would be more feasible.
As a matter of law, I seriously question whether simple English usage permits "undue hardship” to be interpreted to mean “more than de minimis cost,” especially when the examples the guidelines give of possible undue hardship is the absence of a qualified substitute, supra, at 85-86. I therefore believe that in the appropriate case we would be compelled to confront the constitutionality of requiring employers to bear more than de minimis costs. The issue need not be faced here, however, since an almost cost-free accommodation was possible.
Wilbur Stone, Director of Industrial Relations, Technical Service, at TWA confirmed Russman’s testimony. App. 157-158. In its Response to Plaintiff’s Suggested Findings of Fact, TWA conceded that it “did not attempt to find a replacement for plaintiff.” App. in No. 74-1424 (CA6), P- 191, ¶3 (1).
The Court relies, ante, at 78, on the District Court’s conclusory assertion that “[a]ny shift or change was impossible within the seniority framework.” 375 F. Supp., at 889. But the District Court also found that “TWA did not take part in the search for employees willing to swap shifts . . . and it was admitted at trial that the Union made no real effort.” Id., at 888. Thus, the District Court’s statement concerning the impact of “the seniority framework” lends no support to the Court’s assertion that there were no volunteers. See also n. 10, infra.
Respondent lost the non-Sabbath shift, when an employee junior to him went on vacation. The vacation was to last only two weeks, however, and the record does not explain why respondent did not regain his shift at the end of that time.
If, as appears likely, no one senior to the substitute employee desired respondent’s Sabbath assignment or his Thursday-Monday shift, then the substitute could have transferred to respondent’s position without depriving anyone of his or her seniority expectations. Similarly, if, as also appears probable, no one senior to respondent desired the substitute’s spot, respondent could have assumed it. Such a trade would not have deprived any employee of seniority expectations. The trade apparently still would have violated the collective-bargaining agreement, however, since the agreement authorized transfers only to vacant jobs. This is undoubtedly what the District Court meant when it found that “the seniority framework” precluded shift changes. See n. 8, supra. Indeed, the first time in the District Court’s opinion that such a finding appears, it is preceded by the finding that “there were no jobs open for bid.” 375 F. Supp., at 884.
Even if a trade could not have been arranged without disrupting seniority expectations TWA could have requested the Union Relief Committee to approve an exemption. The record reveals that the Committee’s function was to ameliorate the rigidity of the system, App. 130, and that on at least one occasion it had approved a permanent transfer apparently outside the seniority system, id., at 144.
The Court states, ante, at 83 n. 14, that because of TWA’s departmental seniority system, such a transfer “would not have solved Hardison’s problems.” But respondent testified without contradiction that had he returned to his previous department he would have regained his seniority in that department, and thereby could have avoided work on his Sabbath. App. 70-71. According to respondent, the only objection that was raised to this solution was that it violated the rule prohibiting transfers twice within six months. Ibid.
The accommodations would have disadvantaged respondent to some extent, but since he suggested both options I do not consider whether an employer would satisfy his duty to accommodate by offering these choices to an unwilling employee, Cf. Draper v. United States Pipe & Foundry Co., 527 F. 2d 515 (CA6 1975) (employer does not discharge his duty to accommodate by offering to transfer an electrician to an unskilled position).
Of course, the accommodations discussed in the text would have imposed some administrative inconvenience on TWA. Petitioners do'not seriously argue, however, that this consequence of accommodation makes the statute violative of the Establishment Clause. Were such an argument to be made, our prior decision upholding exemptions from state-created duties, see supra, at 90, would provide a complete answer, since the exemptions we have sustained have placed not inconsiderable burdens on private parties. For example, the effect of excusing conscientious objectors from military conscription is to require a nonobjector to serve instead, yet we have repeatedly upheld this exemption. E. g., Selective Draft Law Cases, 245 U. S. 366, 389-390 (1918). See also Gallagher v. Crown Kosher Market, 366 U. S. 617, 627 (1961) (upholding law prohibiting private citizens from engaging in specified activities within a fixed distance from places of public worship).
Ironically, the fiscal costs to society of today’s decision may exceed the 'costs that would accrue if employers were required to make all accommodations without regard to hardship, since it is clear that persons on welfare cannot be denied benefits because they refuse to take jobs that would prevent them from observing religious holy days, see Sherbert v. Verner, 374 U. S. 398 (1963).