Equal Employment Opportunity Commission v. Ithaca Industries, Inc.

WILKINS, Circuit Judge,

dissenting:

The district court reached its decision relying on a 10-year-old precedent of this court, Jordan v. North Carolina Nat’l Bank, 565 F.2d 72 (4th Cir.1977) (rehearing and rehearing en banc denied). The majority holds that “[t]o the narrow extent that Jordan can be read to say that an absolute refusal to work on the Sabbath is beyond accommodation, it is expressly overruled.” I would affirm on the basis of Jordan, but, since the majority now effectively overrules Jordan, I would remand to the district court.

I.

In Jordan, a prospective employee explained to the company’s personnel interviewer that she “would not work on Saturdays [her Sabbath],” 565 F.2d at 74, and she would not accept a job unless she received a “guarantee” that she would not be asked to work on Saturdays. Id. at 75. The employer responded that “we would certainly try to accommodate [her] ... but we couldn’t give her a formal binding guarantee.” Id. The only effort by the employer to accommodate was an offer, summarily rejected by the employee, of work on a “trial basis, to ascertain if actually there was a problem of work on her Sabbath.” Id. at 76.

The court in Jordan concluded that “Jordan’s prerequirement on its face was so unlimited and absolute in scope — never to work on Saturday — that it speaks its own unreasonableness and [is] thus beyond accommodation,” id., and further noted that acceding to Jordan’s demands would obligate the employer to do the same for all employees, constituting an “undue hardship” under Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 n. 15, 97 S.Ct. 2264, 2277 n. 15, 53 L.Ed.2d 113 (1977).

II.

As in Jordan, employee Dean “just couldn’t compromise on the Sunday work question,” declaring “I just don’t work on Sundays. It’s against what I believe in.” As found by the district court, these views were purely personal to Dean at the time of his refusal to work, rather than a reflection of adherence to the specific teachings of his church.1 Although the majority concludes “Dean made [his] belief clear to his supervisors and other Ithaca officials at the time of his initial employment,” Dean’s testimony does not support this.2

*121It is undisputed that during the course of most of Dean’s tenure with his employer, Sunday labor was not requested. However, in 1984 increased production demand required operation of the plant on some Sundays. When work on Sunday was necessary, the supervisors initially asked for volunteers. If there were not enough volunteers, employees were directed to work on Sunday. Dean was requested to work on Sunday on four occasions between January 22 and April 1. He refused on each occasion, telling his supervisor on the first occasion that he “had out of town guests coming in,” and on the second occasion that he “had other plans.” On all four occasions a fellow employee or his supervisor worked in his place.

III.

The majority also states that the district court concluded that Ithaca “made no effort to accommodate Dean.” While the district court did state under its “Conclusions of Law” that Ithaca made no offer of accommodation,3 it did so in reliance on the precedent of Jordan which required nothing further after it was established that Dean absolutely refused to work on Sunday regardless of the circumstances.

A review of the record demonstrates that the employer attempted to accommodate not only Dean in the exercise of his religious beliefs, but other employees in the exercise of their beliefs as well. The very process by which Dean’s supervisor, Andy Cain, approached employees about Sunday work reflected his concern for balancing Ithaca’s economic needs against the workers’ religious practices and beliefs, as well as their need for time off from the job. When work on Sunday was necessary to meet production requirements, he first sought volunteers and, if there were insufficient volunteers, he approached individuals and instructed them to work. Those selected were chosen on a rotating basis to *122avoid repeated Sunday work by the same employees. Other considerations included the number of hours worked by an employee during the preceding week and particular job skills. All employees on Dean's shift worked on Sunday on at least one occasion in 1984, except Dean.4

Under 42 U.S.C.A. § 2000e(j) (West 1981), an employer is only required to reasonably accommodate an employee’s, or prospective employee’s, religious practices to the extent it does not work an undue hardship on the conduct of the employer’s business.

I would remand to the trier of fact for consideration of the testimony and evidence in light of the majority’s pronouncement overruling Jordan.

Judge WIDENER and Judge CHAPMAN have asked to be shown as joining in this separate opinion.

. At his deposition Dean testified that, as far as he knew, his church did not "take a position one way or the other on Sunday work." When asked if his beliefs “[were] strictly personal," he answered that they were.

. It is uncontested that Dean began working at Ithaca in 1979 and that he was never asked to work on Sunday by Ithaca prior to 1984. At trial Dean was asked when he told his supervisor, Andy Cain; the plant manager, James Hall; *121and the department manager, Arnold Longmire, of his beliefs regarding Sunday work.

He stated that he told Mr. Cain in 1983:

Q. That’s Andy Cain?
A. Yes.
Q. Do you remember when you told him about your religious beliefs?
A. It was soon after I came on first [shift].
Q. 1983?
A. Yes.

He stated that he told Mr. Hall in 1981:

Q. You ever tell Mr. James Hall?
A. Yes.
Q. About your religious beliefs?
A. Yes.
Q. And what did you tell him?
A. I told him, I said, "I just don’t work on Sundays. It’s against what I believe in.”
Q. When did you inform Mr. Hall of your beliefs?
A. It was somewhere around '81, soon after he arrived.

When asked if he told Mr. Longmire of his beliefs Dean stated, "I don’t remember if I told him or not."

In his testimony Dean named no other Ithaca officials to whom he told his beliefs about Sunday work when initially hired. There is a statement in his complaint to EEOC that he told the personnel manager, John Booth, of his beliefs prior to employment. Neither Dean nor Booth testified regarding this alleged conversation.

. In its order the district court made the following findings of fact as to the issue of accommodation by the employer:

(14) If Cain was unable to obtain a sufficient number of volunteers for the specific jobs which needed to be filled on a particular Sunday, he would instruct certain employees to work on Sunday. Before directing any employee to work on Sunday, Cain would consider whether the employee had worked on a previous Sunday, or Sundays, how many hours he had worked during the week, and whether the employee could do the particular job which was required. This was out of accommodation to all employees including Dean. (Emphasis added.)
The Court, therefore, finds that there was no way for the Defendant to accommodate Dean except to allow him every Sunday off and at the same time require all the other employees to work on Sunday at one time or another, when they were needed.

The language of the district court order upon which the majority concludes that ”[t]he district court found, as a matter of fact, that Ithaca had made no specific effort to accommodate Dean," is set forth as follows:

(5) If, as in most cases, the employer had offered an accommodation to Dean, the question for the Court would be whether the proposed accommodation was reasonable. The Defendant here had not offered an accommodation to Dean, because Dean absolutely refused to work on any Sunday or at any time on a Sunday.

. Cain's testimony detailed the selection process and also established that Dean’s absence worked economic hardship on Ithaca. Finally, Cain provided for other employees who offered some middle ground for accommodation to attend religious services.