Care For Your Rites

Mitchell A. Tyner January/February 2002 Jim Raines (a pseudonym) was hired as a service writer by a major auto dealership in a large Southwestern city. A service writer is the guy who prepares the service order on your car when you take it to the dealer. Jim was scheduled to work Monday through Friday, plus one Saturday a month. He rapidly became the star service writer for that dealership. Then Jim became a Seventh-day Adventist and informed the service manager that he could no longer work on Saturdays, as he would henceforth observe that time as the Sabbath.

Jim didn’t threaten or demand his rights. He just made the service manager aware of the changed situation, offered to work any other time on any other day, and asked for an accommodation. The manager said, “I understand, and I’ll talk to the boss about it.” That was Monday morning. The following afternoon the service manager asked Jim to come into his office. He said, “Jim, I’ve talked to the owners about this. They say that if you can’t work the hours we hired you to work, you need to find another job.”

After another few minutes of conversation, it was evident to Jim that no accommodation would even be considered. As instructed, he turned in his uniforms, cleared out his desk, and left. He then went to the state employment security office and applied for unemployment benefits—which the dealership contested. The state awarded Jim the benefits anyway, and the dealership appealed.

The appeal resulted in a telephone hearing, the most common way of conducting such a hearing. The dealership argued that it should not be chargeable for Jim’s benefits because it hired Jim to work on Saturdays, and he could not do so, and that any possible accommodation of Jim’s Sabbath observance would work an undue hardship on the dealership. At bottom, the dealership seemed to be arguing that Jim’s religion was his business, not the concern of his employer, and they should not be required to do anything at all for him because of it.

Jim’s case raises two points. First, can a person be denied generally available government benefits, such as unemployment compensation, because of conduct mandated by or forbidden by sincere religious belief? Second, did the dealership commit illegal discrimination when it refused to accommodate Jim’s Sabbathkeeping? Both points are governed by case law of long standing, case law that should have obviated the unemployment benefits appeal. Why it did not is subject to conjecture, if not suspicion.

The case in point? Sherbert v. Verner, United States Supreme Court, 1963. Adele Sherbert was a Seventh-day Adventist who lived in Greenville, South Carolina. When the textile mill where she worked went to Saturday overtime, she refused and was fired. Then she was denied unemployment benefits, because to get such, she had to be willing to take any job available to her—jobs that all required Saturday work. Her appeal went all the way to the United States Supreme Court, where Justice William J. Brennan wrote that such a denial was tantamount to a tax on Sherbert’s religion. The Court held that whenever government, intentionally or not, makes religious practice more difficult, it must justify that by showing that its action served a compelling public interest that could not be met by any other method less intrusive on the religious practice. Since South Carolina had not been able to so justify its denial of benefits, Sherbert won. The language of the decision could hardly be clearer: you can’t deprive a person of governmental benefits because of religiously motivated conduct.

The other case is TWA v. Hardison, United States Supreme Court, 1976. Larry Hardison worked in the maintenance facility of Trans World Airlines in Kansas City. As a member of the Worldwide Church of God, Hardison observed the Sabbath, just as did Adele Sherbert. Hardison transferred to a new area of the facility and in doing so lost his seniority for purposes of bidding on preferred shifts. He was assigned to work on Saturdays and could no longer successfully bid for another shift. Fired, he brought suit, alleging that TWA was guilty of illegal religious discrimination because it refused to accommodate him as required by Title VII of the Civil Rights Act of 1964 (42 USC2000e, et seq.).

The Supreme Court ruled that TWA did indeed have a responsibility to accommodate Hardison if it could do so without undue hardship on the conduct of the business. Because TWA had carefully considered every available means of making such an accommodation, and could show that each method would have produced undue hardship as defined by the Court (violation of seniority rights, diminution of productivity, extra cost, or infringement of the rights of other employees), Hardison lost. Yet the legality of the accommodation requirement was upheld. An employer can’t just say “Your religion is your concern, not mine. Work when you’re told to, or leave.” At the very least an employer must do two things: First, sincerely try to find a way to accommodate. Second, if such an accommodation is not found, show the undue hardship that each available method of accommodation would produce.

So what about the argument of Jim’s employer that because any accommodation would produce undue hardship, it should not be charged for Jim’s unemployment benefits? Notice the dates of these two cases: Sherbert was 1963; Hardison was 1976. In between the two was the passage of the Civil Rights Act in 1964. The point? At the time of the Sherbert decision, religious discrimination in employment was not illegal! Therefore there was no discussion of whether Sherbert’s employer could have accommodated her. It was irrelevant. The benefits were requested from the state, not the employer. The concept of undue hardship thus has no place in such an unemployment benefits hearing.

Nor does the idea that Jim changed the terms of the employment get the dealership off the hook. In Hobbie v. Unemployment Appeals Commission of Florida (1987), the Court held that the right to have and practice a religion includes the right to change one’s religion. Therefore Paula Hobbie, who became a Seventh-day Adventist after entering the employ of the company that then fired her for refusal to work on Saturdays, was found qualified to receive unemployment benefits.

Sherbert and Hobbie closed the door on the dealership contesting Jim Raines’ benefits. The state employment security office agreed with Jim’s argument and granted benefits. But it took several hours of preparation and hearing time to get the job done. Employers do that routinely, many times a year. If the employee is not represented by counsel, or aware of his/her rights far more than is the usual employee, the employer often wins. Some hearing officers remember Sherbert, but many do not.

What about the other part of Jim’s case—the allegation of religious discrimination? The case was settled on mutually agreeable ground, thus the need for the pseudonym. Jim had lost three months’ pay. Having begun a business of his own, he has no desire to return to his old job. The settlement, together with his unemployment benefits, equaled approximately the value of his lost wages.

What prompted the dealership to settle? Evidence of the existence of at least five available options to accommodate Jim without undue hardship, options that the employer didn’t even bother to explore. The same week Jim was fired, the dealership hired two new service writers. It could have put them in the Saturday rotation in Jim’s place and the rest of the team would have worked the same number of Saturdays as before: no hardship on other employees, no extra cost. In addition, it could have transferred Jim to positions in car sales, parts warehouseman, mechanic’s helper, or service writer in the body shop, none of which would have caused a problem with Saturday hours. Confronted with the evidence of these overlooked options, the employer decided to settle.

The moral of this story? Past case decisions in your favor that supposedly “establish the law” may have done just that. But if the defendant is not forced to hear and heed their messages, they afford little protection. Rights are never secure “once and for all.” Rights, once established, must be constantly tended, safeguarded, and enforced.

Mitchell A. Tyner, an associate general counsel for the Seventh-day Adventist Church, has much experience in defending cases of religious discrimination. He writes from Silver Spring, Maryland.

Article Author: Mitchell A. Tyner