BROWN v. GENERAL MOTORS CORP.

Rehearing and Rehearing En Banc Denied August 20, 1979.

LAY, Circuit Judge.

Lehman Brown appeals from the judgment entered in an action brought against his former employer, General Motors, under Title VII of the Civil Rights Act of 1964 for religious discrimination in violation of Section 703(a)(1), 42 U.S.C. § 2000e-2(a)(1). Brown asserts that his discharge violated the Act's requirement that employers reasonably accommodate employee religious beliefs.1 The trial court, the Honorable Russell G. Clark, found that accommodation of Brown's religious belief would result in more than de minimus cost to his employer under the principles stated by the Supreme Court in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977). Accordingly, the court entered judgment for defendant General Motors. On the basis of the record presented we respectfully disagree and reverse and remand the case to the district court for further proceedings.

Brown began work on General Motors' assembly line in Kansas City on March 26, 1964. His job entailed selecting the proper roof to be placed on a car body and assisting in its installation. In September 1966 Brown transferred to the daytime shift. Shortly after going on the first shift Brown joined the Worldwide Church of God. One of the tenets of this religion is that its members not engage in employment during the Sabbath, which is defined as the period from sunset on Friday until sunset on Saturday. While Brown was on the day shift his religious observance of the Sabbath did not interfere with his employment with General Motors. In March 1970 there was a workforce reduction on the assembly line due to economic conditions. Brown's seniority was such that he could no longer maintain his position on the first shift and in May 1970 he was transferred back to the second shift. This required him to work daily from approximately 4:00 P.M. until 12:30 A.M. From May 25 until August 19, when he was terminated for refusing to work scheduled plant hours, Brown failed to work after sunset on each Friday. He thereafter brought suit claiming his discharge by General Motors violated § 703(a)(1), 42 U.S.C. § 2000e-2(a)(1).

Section 703(a)(1), as recently interpreted by the Supreme Court in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977), requires an employer to accommodate the religious observances of its employees unless such accommodation would contravene the provisions of a valid collective bargaining agreement or would cause the employer undue hardship. The only act of accommodation suggested by the parties is that Brown be allowed to leave work every Friday at sunset.2 Since neither party contends that such an arrangement would contravene the collective bargaining agreement, the only remaining inquiry is whether the cost of the proposed accommodation would be more than de minimus. See Trans World Airlines, Inc. v. Hardison, 432 U.S. at 84, 97 S.Ct. 2264. In addressing this issue, the district court examined the effects of Brown's absence on Friday evening and made several findings of fact which are not disputed on appeal. Brown did not receive any pay for the time missed. A replacement worker filled in for him on the shift during the hours he missed. The district court found that General Motors employed "extra board men" who were at all times available to replace unscheduled absences of regular employees. The district court also found that "there were additional personnel in excess of the authorized work force in the body shop." Thus, the court found

Nonetheless the district court denied relief. First the court noted that "[t]here was testimony to the effect that . . . to guarantee that someone would be available with regularity would entail the hiring of an additional worker, the cost of which would be more than de minimus."3 The court further concluded that

(Emphasis added.)

Finally the district court concluded that General Motors was not required to give Brown Friday evenings off because such an accommodation would actually result in preferential discrimination based on one individual's religious practices.

We disagree with the court's reasoning and hold that the undisputed proof and finding of the trial court established that General Motors incurred no actual cost in accommodation of Brown's request before his actual discharge.

In order to establish a prima facie case of religious discrimination under §§ 2000e-2(a)(1) & (j), a plaintiff must plead and prove that (1) he has a bona fide belief that compliance with an employment requirement is contrary to his religious faith; (2) he informed his employer about the conflict;4 and (3) he was discharged because of his refusal to comply with the employment requirement. See Anderson v. General Dynamics Convair Aerospace Division, 589 F.2d 397, 401 (9th Cir. 1978); Burns v. Southern Pacific Transportation Co., 589 F.2d 403, 405 (9th Cir. 1978); Redond v. GAF Corp., 574 F.2d 897, 901 (7th Cir. 1978). The facts found by the district court, which are not disputed by the parties, clearly establish a prima facie case of religious discrimination. The fundamental question as posed by Hardison, therefore, is whether the proposed accommodation requires General Motors to bear an undue hardship in that more than de minimus costs would result therefrom. 432 U.S. at 74-75, 84, 97 S.Ct. 2264.

General Motors seeks to buttress the district court's conclusion that accommodating Brown would "theoretically" require General Motors to hire an additional full-time employee by citing evidence that there had previously been increased absenteeism on the second shift during 1970 on Fridays. General Motors argues that before Brown's situation arose absenteeism had been so high on Fridays that production had been halted in several departments on several different Fridays in order to provide employees with their 23 minute break periods; that during this time General Motors was forced to utilize every available employee.

This testimony fails to rebut the undisputed finding that Brown's absenteeism on the second shift at no time caused General Motors hardship. The general cumulative effect of prior plant problems, which evidently were solved before May 1970, or the projected "theoretical" future effects cannot outweigh the undisputed fact that no monetary costs and de minimus efficiency problems were actually incurred during the three month period in which Brown was accommodated.

As stated by the Sixth Circuit in Draper v. United States Pipe & Foundry Co., 527 F.2d 515, 520 (6th Cir. 1975):

Accord, Burns v. Southern Pacific Transportation Co., 589 F.2d 403, 406-07 (9th Cir. 1978).

If an employer stands on weak ground when advancing hypothetical hardships in a factual vacuum, then surely his footing is even more precarious when the proposed accommodation has been tried and the postulated hardship did not arise.5

The second basis asserted by the district court in rejecting Brown's claim rests on the alleged cumulative effect that will arise when large numbers of employees want Friday nights off "for various religious and personal reasons."

Initially we note that § 2000e-2(a)(1) does not require an employer to reasonably accommodate the purely personal preferences of its employees. Accordingly, the costs which GM would bear resulting from accommodating Brown do not include excusing vast numbers of employees who wish to have Friday night off for secular reasons.

With regard to the possibility that numerous individuals sharing Brown's religious beliefs would desire to be excused and therefore place some actual burden constituting an undue hardship on GM,6 the record reflects that only four other Sabbatarians were working on the second shift out of a total work force of 1200-1600. GM made no attempt to show whether accommodation of these employees would give rise to any costs or what the actual aggregated impact of accommodating these employees would be. Instead, GM seems content to speculate on the future impact of accommodating Brown. In its brief GM states:

(Emphasis added.)

Such speculation is clearly not sufficient to discharge GM's burden of proving undue hardship. See Burns v. Southern Pacific Transportation Co., 589 F.2d 403, 407 (9th Cir. 1978); text accompanying note 5 supra; see also The Supreme Court, 1976 Term, 91 Harv.L.Rev. 70, 273 (1977).

We endorse the succinct phraseology authored by Judge Green in Haring v. Blumenthal, 471 F.Supp. 1172, No. 78-0085 (D.D.C. April 10, 1979) which reads:

The district court's final concern was that accommodating Brown would in effect discriminate against all employees who did not adhere to Brown's religion. We cannot agree with this interpretation of Hardison. Such an application of Hardison would provide a per se proscription against any and all forms of differential treatment based on religion. The trial court relied on the following language contained in Hardison:

432 U.S. at 71-72, 97 S.Ct. at 2270.

Carried to its logical conclusion the court's application of the quoted language would preclude all forms of accommodation and defeat the very purpose behind § 2000e(j). Hardison itself recognizes that the Act affirmatively requires an employer "to make reasonable accommodation for the religious observances of its employees, short of incurring undue hardship. . . ." 432 U.S. at 75, 97 S.Ct. at 2272. Accordingly, finding that a proposed accommodation would entail some form of discrimination does not end the inquiry. The Court in Hardison held that differential treatment resulting from accommodation runs afoul of § 2000e-2(a)(1) if it: (1) would compromise other employees' contractual seniority rights as secured by a collective bargaining agreement; or (2) would confer a privilege, the cost of which was more than de minimus, solely on the basis of the recipient's religious beliefs. 432 U.S. at 81-85, 97 S.Ct. 2264. Neither of these situations is present in this case.

For the foregoing reasons, the judgment of the district court is reversed.