OAKES, Circuit Judge:
Ronald Philbrook, a high school teacher in Ansonia, Connecticut, appeals from a judgment of the United States District Court for the District of Connecticut, Thomas F. Murphy, Judge, after a bench trial, finding that he failed to prove his claim of religious discrimination in employment against the Ansonia Board of Education (the "school board") and the Ansonia Federation of Teachers, Local 1012 (the
Appellant has taught typing and business at Ansonia High School since 1962. Some time later he began studying and observing the teachings of the Worldwide Church of God. In February, 1968, he was baptized into the church, of which he remains a member. The tenets of the church require members to refrain from secular employment on certain designated holy days each year. These holy days are determined with reference to the Hebrew calendar. Thus they often fall on different days in different years. Several of these holy days usually fall during a school week. Appellant estimated that if he is to observe the required holy days he will have to miss approximately six school days each year.
The school board's leave policies, as outlined in collective bargaining agreements with the union, have changed over time:
While none of these early agreements expressly stated that personal business leave could not be used for religious observance, it appears that the school board interpreted these categories as exclusive. Later contracts makes the exclusivity explicit. The 1969-1970 contract again allowed three days for personal business and three days for religious holidays, but the latter were no longer part of annual leave. Moreover, it stated that "[n]o annual leave, including accumulated days, shall be used for absence due to Religious Holidays in excess of 3 days per year." The 1970-1971 contract added a provision stating that personal business leave days could not be used for any of a number of enumerated activities, including "[a]ny religious activity."
The next modification of the restrictions on personal business leave is evinced by the agreement for 1978 through 1982. The contract still provided for three days, but only one was at the teacher's discretion. The other two would be authorized only after the teacher gave the reason for his or her absence. The current agreement, in
From 1967 through 1976, appellant took unauthorized absences for religious holidays in excess of three days per year, for which the school board docked appellant's salary. Although some of the contracts during this period appear to leave the reason for personal business absences to the teacher's discretion, appellant claims to have taken no personal business leave on church holy days. In 1976, however, appellant stopped taking unauthorized leaves for religious reasons, claiming that his family could not sustain the financial strain of the docked salary. He began to schedule required
Appellant claims to have sought relief from both school authorities and the union. The school board has always allowed appellant to take unpaid leave for religious holy days, but appellant has repeatedly suggested two other arrangements. On the one hand, appellant has asked that the school board allow personal business leave to be used for religious observance. On the other hand, appellant has offered to pay the full cost of a substitute instead of being docked the larger pro rata salary deduction for observing religious holy days in excess of the three allotted by contract.
Appellant's legal battle seeking accommodation of his religious practices began in 1973 when he filed a complaint against the school board and the union with the Connecticut Commission on Human Rights and Opportunities ("CHRO") and the Equal Employment Opportunity Commission ("EEOC"). The CHRO found probable cause to believe that the school board's refusal to allow personal business leave to be used for religious observance constituted religious discrimination, and attempted conciliation. The CHRO's conciliation agreement proposed that the school board and the union agree to "amend [the leave provisions] ... so not to deny employees the use of their accumulated personal business days for observance of Religious Holidays." The agreement also provided appellant with back pay compensation. The school board rejected the proposed conciliation.
Soon thereafter the EEOC assumed jurisdiction and also found probable cause. The EEOC attempted conciliation between appellant and the union, but these efforts failed.
Appellant filed his complaint in federal court on December 16, 1977, alleging that the school board's prohibition from using personal business leave for religious observance violated Title VII and the First Amendment. In addition to charging the school board and the union, appellant added the individual members of the school board and various present and former union officers as defendants. All parties moved for summary judgment, but on April 8, 1983, the district court denied the motions, finding that material facts were in dispute.
After a two-day trial, the district court held that appellant had failed to prove religious discrimination. The court's opinion first outlines the facts that were not in dispute. After reviewing appellant's testimony concerning his religious practices, the court declined to find appellant insincere in his religious beliefs, though it had "some doubts of his sincerity." The court made no finding, stating that "we draw no inference of insincerity without more facts. Neither do we find he was sincere." After reviewing what it deemed relevant Supreme Court case law, the court concluded that appellant failed to prove religious discrimination, because he had "not been placed by the School Board or any of its members or by the Union or any defendant officers thereof, in a position of violating his religion or losing his job." In addition, the court stated that it had no jurisdiction over the individual school board members
Appellant's Prima Facie Case
In this case of first impression, we begin by examining Title VII's prohibition against religious discrimination. Under Title VII, an employer cannot discriminate against any employee on the basis of the employee's religious beliefs unless the employer shows that he cannot "reasonably accommodate" the employee's religious needs without "undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j).
We first adopt the approach to plaintiff's prima facie case taken by several courts of appeal:
Turpen, 736 F.2d at 1026; accord Brown v. General Motors Corp., 601 F.2d 956, 959 (8th Cir.1979); Anderson, 589 F.2d at 401; Redmond v. GAF Corp., 574 F.2d 897, 901 (7th Cir.1978). Moreover, we agree that a finding of probable cause by an administrative agency, such as the EEOC, though not determinative, is admissible to help establish this prima facie case. See, e.g., Smith v. Universal Services, Inc., 454 F.2d 154, 157-58 (5th Cir.1972). On the record before us plaintiff has almost certainly satisfied this prima facie standard.
We reject the school board's invitation to hold that appellant has failed to establish the sincerity of his religious beliefs. The district court expressly declined to make any such finding. In fact, on the record below, we would be inclined to reverse a finding of insincerity as clearly erroneous.
We acknowledge that it is entirely appropriate, indeed necessary, for a court to engage in analysis of the sincerity — as opposed, of course, to the verity — of someone's religious beliefs in both the free exercise context, see, e.g., United States v. Ballard, 322 U.S. 78, 86, 64 S.Ct. 882, 886, 88 L.Ed. 1148 (1944); Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir.1984); L. Tribe, American Constitutional Law § 14-11, at 859-61 (1979), and the Title VII context. We see no reason for not regarding the standard for sincerity under Title VII as
The school board argues that appellant's failure to take unpaid leave on holy days during the past several years shows that appellant has acted in a manner inconsistent with his "beliefs," and therefore that those beliefs were not sincerely held. We cannot agree. From 1968 through 1976 appellant accepted the docking of his pay to take off the holy days for which religious leave was not provided. After 1976 he worked on certain holy days because he could no longer afford the docking of his salary. We find it distinctly unpalatable for the school board to argue that a lack of sincerity was evidenced because after many years of paying for his extra holy days the appellant stopped paying and obeyed the school board's rules that forbade him from engaging in religious activity on extra days away from school. The school board's leave policy forced appellant to act in a way inconsistent with his religious belief. Appellant's claim that he was reacting to financial pressure rebuts the inference of fraud from his actions. Cf. Note, Religious Exemptions Under the Free Exercise Clause: A Model of Competing Authorities, 90 Yale L.J. 350, 371 (1980) (arguing that for purposes of disallowing religious tax exemptions there should be "affirmative proof of fraud"); see also Ballard, 322 U.S. at 92-95, 64 S.Ct. at 889-890 (Jackson, J., dissenting).
In addition, we note that, while the district court had "some doubts of his sincerity because of his vagueness and claimed poor memory of when and where he attended religious services," it wisely declined to make a finding of insincerity without "a full exposition of facts," Patrick, 745 F.2d at 157. Moreover, it correctly noted that even if appellant was not a regular churchgoer, it "would have trouble" in making a finding of insincerity. Appellant's financial compromise and failure to attend services regularly would not, by themselves, mean that he does not believe that he should not work on holy days. Cf. Thomas v. Review Board, 450 U.S. 707, 715, 101 S.Ct. 1425, 1430, 67 L.Ed.2d 624 (1981) (courts are incompetent to arbitrate intrafaith differences where a church member's insincerity is at issue).
Turning to the remaining requirements of plaintiff's prima facie showing, appellant gave unrebutted testimony that he informed the school board and the union of his need to be absent on religious holy days, although it is not clear when the union became aware of appellant's needs. On remand, such a finding might be necessary to determine the amount of back pay appellant is entitled to receive, assuming that issue is reached. In addition, it seems clear that appellant suffered a detriment from the conflict between his religious practices and the employment requirements. The district court placed much reliance on the fact that appellant was not forced into a choice between his job and his religious beliefs, but we hold that such a choice cannot be distinguished from the
Finally, appellees claim that General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), bars appellant from making out a prima facie case of discrimination by simply claiming that appellee's leave policy is "less than all inclusive." In Gilbert, the Supreme Court held that an employer's failure to include pregnancy benefits in its health care plan was not, by itself, sex discrimination. The Court at one point stated that "pregnancy-related disabilities constitute an additional risk, unique to women, and the failure to compensate them for this risk does not destroy the presumed parity of the benefits, accruing to men and women alike." Id. at 139, 97 S.Ct. at 410 (emphasis in original). According to appellees, appellant's need for more than three days' leave for religious holy days is an "additional risk" unique to his faith.
Appellees' reliance on Gilbert is misplaced. Gilbert addresses whether a classification based on pregnancy was discriminatory on its face and whether the employees had shown that the health care plan had a discriminatory effect on the basis of sex in terms of benefits received. The language appellees rely on its simply part of an explanation why the employees had failed to show that the General Electric Plan had a discriminatory effect. Here, however, appellant has offered evidence that the Ansonia leave policy facially discriminates on the basis of religion; the collective bargaining agreements in effect since 1969 have explicitly stated that personal business leave days may not be used for "[a]ny religious activity" and thus have afforded some teachers all the leave they need for religious reasons while not extending that benefit to members of religious groups that have more than three holy days per year. Yet even if appellant's claims are analyzed as solely alleging discriminatory effect in this respect, appellees' argument proves too much. Any religious belief can be characterized as an "additional risk." Title VII, at least as applied to religious discrimination, expressly assigns employers a duty to accommodate those beliefs. Moreover, the Supreme Court has recently held that Congress's enactment of the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), not only overturned the specific holding in Gilbert "but also rejected the test of discrimination employed by the Court in that case." Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 103 S.Ct. 2622, 2627, 77 L.Ed.2d 89 (1983).
"Reasonable Accommodation" and "Undue Hardship"
The crucial issues in this case remaining for determination involve interpreting the meaning of and relationship between the terms "reasonable accommodation" and "undue hardship." The central precedent, of course, is Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977), the only case in which the Supreme Court has addressed "reasonable accommodation" and "undue hardship" under Title VII. In Hardison, the employee, like appellant Philbrook here, a member of the Worldwide Church of God, sought to be excused from work on Saturdays, the church's sabbath. Id. at 67, 97 S.Ct. at 2268. The employer operated a large maintenance and overhaul base around the clock. The employees' shift preferences were resolved on the basis of a seniority system outlined in a collective bargaining agreement. Hardison's problems arose when he transferred into a new division and lost his seniority. Prior to the transfer, he had used his seniority to observe the sabbath regularly. After the transfer, however, the union would not agree to a change of work assignments — which would allow Hardison to have Saturdays off — in violation of the seniority provisions of the collective bargaining agreement.
Id. at 68-69, 97 S.Ct. at 2268-2269.
The Supreme Court held that the failure to accept these proposed accommodations did not violate Title VII. Addressing what the Court considered the "principal issue" in the case, id. at 83 n. 14, 97 S.Ct. at 2276 n. 14, the Court concluded that the duty to accommodate does not take precedence over seniority rights enunciated in a collective bargaining agreement. Id. at 83, 97 S.Ct. at 2276. And, turning to the issue more pertinent to this case, the Court held that Hardison's four-day work week proposals involved costs to TWA that amounted to "undue hardship." Id. at 84, 97 S.Ct. at 2277. The Court stated that "[t]o require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship." Id. Finally, the Court noted that giving Hardison Saturdays off by "incurring extra costs to secure a replacement for Hardison" would constitute a "privilege ... allocated according to religious beliefs," id. at 84-85, 97 S.Ct. at 2276-2277, which the Court saw as a form of reverse discrimination.
Hardison did not sound a death knell to the employer's duty to accommodate under Title VII. In Anderson, 589 F.2d at 402, the Ninth Circuit rejected a union's argument that any hypothetical hardship constitutes "undue hardship," noting that "[u]ndue means something greater than hardship. Undue hardship cannot be proved by assumptions nor by opinions based on hypothetical facts." Similarly, the Brown court held that speculative costs to the employer could not discharge its burden of proving undue hardship. 601 F.2d at 961.
The school board argues that we should find that its longstanding accommodation of three days of paid leave and additional days of unpaid leave for religious observance constitutes a reasonable accommodation and thus satisfies its duty to accommodate, citing the Tenth Circuit's decision in Pinsker v. Joint District No. 28J, 735 F.2d 388, 391 (10th Cir.1984). The Pinsker court held that a policy allowing two days of paid leave for religious reasons and additional days of unpaid leave satisfied the duty to accommodate. We presume that Ansonia's leave policy is also "reasonable." And if Title VII's duty to accommodate were to be defined without reference to undue hardship, we would hold that the school board has satisfied its burden. The duty to accommodate, however, cannot be defined without reference to undue hardship. In many circumstances, more than one accommodation could be called "reasonable." Where the employer and the employee each propose a reasonable accommodation, Title VII requires the employer to accept the proposal the employee prefers unless that accommodation causes undue hardship on the employer's conduct of his business.
Although the courts interpreting Title VII's duty to accommodate have never expressly articulated this point, their analyses are consistent with this approach. In most cases, the court is called upon to assess only the employee's proposal; the court does not have to assess the propriety of the employer's offering one accommodation but rejecting the employee's proposed accommodation. See Hardison, supra; Turpen, supra. Nevertheless, the Fifth Circuit in Turpen did state, as we have suggested above, that the reasonableness and undue hardship questions were "interlocking." Id. at 1026. Previously, in Brener v. Diagnostic Center Hospital, 671 F.2d 141
As noted, appellant has offered two proposed accommodations — the use of personal business leave for religious observance and the payment of the cost of a substitute in exchange for not being docked salary for religious leave in excess of three days. On remand the district court must determine whether accepting either of appellant's proposed accommodations would cause undue hardship. We note, however, that on the record before us it appears that neither of the accommodations would lead to greater than de minimis costs.
Appellant clearly prefers that the school board allow him to use personal business leave for religious holy days. The critical factual question concerning this proposal is the past and current scope of the personal business leave provisions. As noted earlier, from 1968 through 1977 three personal business days could be taken at the teacher's discretion, and from 1977 to the present, at least one could be taken at the teacher's discretion. This leaves in the air whether any such day may be taken for any reason except those specifically mentioned, such as religious reasons. Thus, the question is open whether they are usable for various secular purposes, including activities not inconsistent with religious observance. The provision does include the words "legitimate and necessary," but left unsaid is whether leaving the reason to the teacher's discretion abrogates this limiting language. Appellant claims that the provision allows attendance at charity meetings, while the school board argues that its scope is much more narrow. One of the appellant's exhibits at trial — entitled "Teacher Absence Report" — indicates that many teachers have taken at least one personal business day a year and some more than one. It also appears that personal business days are taken more frequently than religious holy days. The presence of a contract provision that allows leave for limited secular activities, such as sick leave or leave for court appearances, does not show that additional paid leave for religious observance in lieu of personal business leave would not cause undue hardship. Employers and unions must be free to outline specific types of paid leaves in a contract without the threat of being charged with religious discrimination. But if the personal business leave provision is as broad as appellant claims, it becomes difficult to believe that dropping the religious exception causes undue hardship.
On the record before us, we decline to accept the school board's argument that the substitute accommodation as a matter of law poses greater than de minimis costs. This case thus might well be distinguishable from Hardison. The Hardison Court held that a need for premium pay or a loss of efficiency can cause undue hardship. Under the proposed substitute accommodation, the school board would not be paying premium wages. Appellant is not asking to have his religious activities subsidized, as the school board claims. Appellant has offered to pay the cost of the substitute and to make up for time off: appellant does not ask for payment for time when he is not working.
The school board also suggests that accommodating appellant would constitute preferential treatment. We disagree. While we acknowledge the cautionary language of the Supreme Court in Hardison, we do not interpret Hardison as vitiating the employer's duty to accommodate. Appellant's proposal for the use of personal business leave for religious observance is not one seeking preferential treatment. He is asking the school board and the union to change its leave policy as applied to everyone. Nor would his substitute accommodation allocate a privilege "according to religious beliefs." Hardison, 432 U.S. at 85, 97 S.Ct. at 2277. Appellant has asked to be treated differently; he has not asked for privileged treatment. In exchange for additional days off, he is willing to make up for time off and pay for the substitute. Differential treatment cannot be equated with privileged treatment. Accepting the school board's argument would "preclude all forms of accommodation and defeat the very purpose behind § 2000e(j)." Brown, 601 F.2d at 962.
Finally, we reject the union's argument that we find it not liable for any religious discrimination on the record before us. Title VII places a duty on unions not "to cause or attempt to cause an employer to discriminate against an individual." 42 U.S.C. § 2000e-2(c)(3). We have stated previously that a union's liability depends on its "responsibility for the discrimination." EEOC v. Enterprise Association Steamfitters Local No. 638, 542 F.2d 579, 586 (2d Cir.1976), cert. denied, 430 U.S. 911, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977). This conclusion is consistent with that of other courts. See, e.g., Hardison v. Trans World Airlines, Inc., 527 F.2d 33, 42-43 (8th Cir.1975), rev'd on other grounds, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977). In Hardison, the Eighth Circuit wrote that "the union may be held liable if it purposefully acts or refuses to act in a manner which prevents or obstructs a reasonable accommodation by the employer so as to cause the employer to discriminate." Id. at 42. In this case, various union officers testified that they had proposed changes in the collective bargaining agreement's leave policies, but all were rejected. Appellant claims that the union never really pushed for these changes. The union did join appellant in seeking arbitration on appellant's leave policy grievance, but, at the same time, it appears that the union declined to enter into an EEOC conciliation agreement with appellant. Clearly, any further discussion of the issue must await a more detailed development of the facts.
POLLACK, Senior District Judge (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
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:
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
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
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.
*1. Death in the immediate family 5 day limit each time 2. Family funeral attendance 1 day each time 3. Friend Funeral attendance 1 day each time — limit of 2 days per year *4. Immediate family wedding 1 day each time *5. Immediate family graduation 1 day each time *6. Immediate family religious 1 day each time ceremony (Ordination, Vows, Bar Mitzvah, Bas Mitzvah, First Communion, Baptism) 7. Official delegate to national 1 day per year veterans organization 8. Official delegate (President 1 day per year — without and/or Business Agent) to charge national or state teachers organization 9. Official delegate (other than 1 day per year President and/or Business Agent) — (limit of 3) to national or state teachers organization 10. Mandated religious observance 3 days per year — without charge Those holidays which are required by and obligatory due to written denominational law shall be considered as authorized leave and shall not be charged to annual leave, including accumulated days. No annual leave, including accumulated days, shall be used for absence due to religious holidays in excess of three days per year. 11. Necessary personal business 3 days total per year a. Necessary personal business 1 day per year Granted at the discretion of the professional staff member with 48 hour notification to the immediate supervisor. Professional staff member will note personal day on the form provided by Board of Education. b. Necessary personal business 2 days per year with approval Professional staff member must request the days for personal business on a form provided by the Board of Education forty-eight (48) hours prior to such leave. Reasons for such leave may be stated in general terms if the professional staff member is concerned with protecting the confidential nature of the personal business. The professional staff member shall make all reasonable efforts to plan and conduct personal business so that it does not conflict with assigned professional duties. Exceptions regarding the forty-eight (48) hour notice provision and/or use of prepared form may be made in cases of emergencies. Necessary personal business shall not include (without limitations): 1. Marriage attendance or participation; 2. Day following marriage or wedding trip; 3. Attendance or participation in a sporting or recreational event; 4. Any religious observance; 5. Travel associated with any provision of annual leave; 6. Purposes set forth under annual leave or another leave provision of this contract. *NOTE: Immediate family shall be defined as spouse, children, parents, step-parents, grandparents, brothers, sisters, parents-in-law, family members residing in the professional staff member's household.
The legislative history provides little assistance in interpreting § 2000e(j). See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74-75 & n. 9, 97 S.Ct. 2264, 2271-2272 & n. 9, 53 L.Ed.2d 113 (1977).
In its brief on appeal, the school board seems to assume that the burden is on appellant to show that the personal business accommodation would not cause undue hardship. It is not: once appellant has made out a prima facie case, the school board has the burden of showing that an accommodation would cause undue hardship.
Moreover, in light of our remand, we do not address the hypothetical question whether accepting either of appellant's proposed accommodations constitutes an unconstitutional establishment of religion. We do note, however, that several courts of appeals have held that Title VII's duty to accommodate does not run afoul of the First Amendment. See McDaniel v. Essex International, Inc., 696 F.2d 34, 37 (6th Cir.1982); Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1244-46 (9th Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981); Nottelson v. Smith Steel Workers, 643 F.2d 445, 453-55 (7th Cir.), cert. denied, 454 U.S. 1046, 102 S.Ct. 587, 70 L.Ed.2d 488 (1981); Hardison v. Trans World Airlines, Inc., 527 F.2d 33, 43-44 (8th Cir.1975), rev'd on other grounds, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977).
While we reach only the Title VII issues, the First Amendment issues remain open, if appellant should lose on the Title VII issues on remand.