GOLDBERG, Circuit Judge:
Congress, through Title VII,
At the time Mrs. Young accepted employment as a teller at Southwestern's Bellaire, Texas, branch in February, 1971, she knew that all of Southwestern's employees were required to attend a monthly staff meeting at the down-town
This theological appetizer, nondenominational though it might be, was somewhat uncongenial to plaintiff, who is an atheist.
Mrs. Young was, by all accounts, an excellent employee and enjoyed a good relationship with peers and superiors alike. For several months, her absence at the staff meetings went undetected. Then, at the September 15, 1971 meeting, someone noticed that neither plaintiff nor the other Bellaire teller was at the meeting, and this fact was reported to Michael O. Bostain, the Bellaire branch manager. When Bostain returned later that morning to Bellaire, he asked plaintiff and her co-worker to explain their absence. The other lady confessed that she had forgotten about the meeting and the matter ended as to her. Mrs. Young was forced to reveal her objections to the religious content of the meetings, however, and she informed Bostain that she could not attend the affairs. Bostain, somewhat surprised at this revelation, reminded Mrs. Young that the primary purpose of the meetings was the discussion of business matters. He added that plaintiff had an obligation to attend the entire meeting, and advised her that if she objected to the devotionals, she could simply "close [her] ears" during that time. Mrs. Young restated her complaint and her resolution not to attend the meetings, whereupon Bostain concluded the conversation by saying that the meetings were mandatory, and that he would leave the decision to her.
At closing time on September 15, Mrs. Young advised Bostain that she was checking out her cash drawer, turning in her keys and leaving Southwestern. Bostain asked the reason for this action, and plaintiff answered that she could not attend the "prayer meetings." Bostain then asked Mrs. Young for a letter of resignation, but she refused, saying, "No, I am being fired." Bostain assured her that she was not being fired, but plaintiff left without further discussion.
The district court found that the facts related above compelled the conclusion that Mrs. Young had voluntarily resigned her position, so that she had failed to demonstrate any act of discrimination against her arising out of the monthly staff meetings. For this reason, the court entered judgment for Southwestern. Although we cannot say that the district court's findings of fact are clearly erroneous, or that the court erred in any particular in its statement of the law pertaining to religious discrimination in general, we believe that the district court incorrectly applied the law to the peculiar facts of this difficult case. We find that Mrs. Young was constructively discharged in circumstances which amounted to religious discrimination against her by Southwestern.
Title VII forbids an employer: "to . . . discharge any individual . . . because of such individual's . . . religion . . ." 42 U.S.C. § 2000e-2(a)(1).
Although there is no question that this dispute is solely the product of Mrs. Young's objections to the religious content of Southwestern's staff meetings, the trial court found that "no atmosphere of religious intimidation existed at Southwestern which could cause Mrs. Young's resignation to be interpreted as constructive discharge," and that plaintiff had voluntarily resigned. It is true that there is no evidence of proselytization by Southwestern here and that the course of events leading to Mrs. Young's departure was rather too swift and spontaneous to admit any inference of an "atmosphere of religious intimidation." However that may be, we believe that the district court required too high a standard for a constructive
In this case, Mrs. Young enjoyed her work and Southwestern valued her services. The only possible reason for her resignation on September 15, 1971, was her resolution not to attend religious services which were repugnant to her conscience, coupled with the certain knowledge from Bostain, her supervisor, that attendance at the staff meetings—in their entirety—was mandatory and the reasonable inference that if she would not perform this condition of her employment, she would be discharged. In these circumstances, when she could hope no longer that her absence at the meetings would not be noticed, she could reasonably infer that in one week, one month or two months, she would be discharged because of the conflict between her religious beliefs and company policy. Surely it would be too nice a distinction to say that Mrs. Young should have borne the considerable emotional discomfort of waiting to be fired instead of immediately terminating her association with Southwestern. This is precisely the situation in which the doctrine of constructive discharge applies, a case in which an employee involuntarily resigns in order to escape intolerable and illegal employment requirements.
Since we have concluded that Mrs. Young made out a prima facie case of religious discrimination under the Civil Rights Act of 1964, we must now determine whether Southwestern presented evidence sufficient to rebut plaintiff's showing of unlawful employment practices. At the time of plaintiff's termination, Southwestern had an obligation to accommodate her religious beliefs and observances unless it could show that "an undue hardship" to its business rendered the accommodation of Mrs. Young's objections unreasonable. 29 C.F.R. § 1605.1; see fn. 5, supra. Although it is certainly true that an employer sometimes cannot reasonably accommodate the religious needs and observances of all of its employees, see Johnson v. United States Postal Service, 5 Cir. 1974, 497 F.2d 128; Hardison v. Trans World Airlines, W.D.Mo.1974, 375 F.Supp. 877, Southwestern makes no such contention here. Instead, Southwestern argues that the manner of Mrs. Young's leaving was so precipitous as to give Southwestern no opportunity to accommodate her beliefs. In support of this position, Southwestern points to a company policy, in force at the time of Mrs. Young's termination but known only to a few high-ranking officers, and admittedly unknown either to Bostain or to Mrs. Young, that employees who objected to the devotionals would be permitted to miss that portion of the staff meetings. Southwestern urges that if only plaintiff had contacted a high-ranking
We do not see how Mrs. Young's obligations were in any way altered by the existence of this secret policy. On the date of her departure, plaintiff knew only that attendance at the staff meetings was mandatory. Her supervisor had just assured her, in language that admitted no possibility of accommodation (for as far as Bostain knew, no accommodation was possible), that Southwestern employees had a duty to attend the staff meetings in their entirety. Bostain did not propose a ceasefire or a standstill agreement; he demanded unconditional surrender to the company policy of compulsory attendance at religious services. We can only conclude that Mrs. Young acted reasonably and in a manner which preserved the full measure of her statutory rights.
In her complaint, Mrs. Young requested reinstatement in her former job, back pay, attorney's fees and an injunction against Southwestern forbidding it to include the religious exercises in its monthly staff meetings. On remand, the district court must determine if plaintiff still desires to return to Southwestern and if so, whether an injunction such as she asks would be proper. That court must also determine the propriety and the amount of awards of back pay and attorney's fees to Mrs. Young.
Title VII was designed to restrain discrimination in employment because of religion. The subtle and unrealistic distinction drawn by Southwestern here between resignation and discharge does not deter us from enforcing the statutory mandate. Accommodation as a defense must be unsubtle, direct, undelayed and communicated without equivocation. The statutory defense of accommodation is not met by some post hoc hypothesis.
Reversed and remanded.
THORNBERRY, Circuit Judge (dissenting):
I would not hesitate for a moment to join my brothers in finding an employer liable for imposing or attempting to impose "forced religious conformity." This is not such a case. Title VII forbids, inter alia, employment discrimination based on religion. In this context discrimination implies that some employment-related penalty or disadvantage has been imposed on an employee or a job applicant. Because Southwestern claimed, and the district judge found, that appellant was not fired, to prove discrimination here Mrs. Young needed to show that her employer required or tolerated practices so inconsistent with her religious beliefs that she could not continue working and remain true to those beliefs. That is, she had to show that she was "constructively" discharged.
As I understand it, the majority bases its constructive discharge finding on (1) the company's admitted practice of holding monthly business meetings at which the first several minutes are devoted to
For several reasons I think that the better course is to deny the applicability of the constructive discharge doctrine when, as here, the employee can prove only mistaken (although understandable) reliance on an erroneous statement of company policy by a less than authoritative company source. Employment discrimination based on religion is a serious charge, and I believe that basic fairness alone demands that a constructive discharge resulting from this alleged discrimination should rest on a foundation more secure than a breakdown in bureaucratic communication. In addition, allowing an employee to claim constructive discharge only after requesting an authoritative ruling from the company management would encourage private settlement of employment disputes. Such private settlements are not just desirable from the standpoint of judicial caseloads, cf. Penn v. Schlesinger, 5 Cir. 1973, 490 F.2d 700, 713 n. 5 (Godbold, J., dissenting), dissent adopted 5 Cir. 1974, 497 F.2d 970 (en banc), but they also seem in harmony with Congress's intent in enacting Title VII—for example, before the E.E.O.C. may take formal enforcement action it must investigate and attempt to settle the dispute by "informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5(b) (1974). Moreover, requiring an inquiry concerning company policy as a condition of claiming constructive discharge would serve the highly desirable purpose of either putting the employer on notice of the need to accommodate its employee's religious beliefs or at least of establishing the company's determination to persist in the challenged practice.
This case typifies the anomalous results produced by the contrary rule. At the time appellant left Southwestern there remained approximately one month before the next business meeting. Had Mrs. Young used this time to inquire whether her branch manager had correctly stated company policy, the record gives no reason to doubt that she would have learned that attendance was not required, and this problem would never have reached the courts. Although the company is by no means blameless in the matter, appellant's precipitous departure also made accommodation impossible. Admittedly, Mrs. Young had no particular reason to suspect that Bostain did not know company policy. I would simply hold that in cases like this one any "emotional discomfort . . . [from] waiting to be fired" is insufficient grounds to overweigh the substantial benefits of requiring as a precondition to constructive discharge the painless process of confirming the existence of the offensive company rule.
Although vicarious liability and other principal-agent rules have their proper place in our legal system, as indicated I see little to gain and much to lose by applying them mechanically in the context of Title VII.