Michigan Dept. of Civil Rights ex rel. Parks v. General Motors Corp., Fisher Body Division
| Decision Date | 01 March 1982 |
| Docket Number | Docket No. 64141,No. 7,7 |
| Citation | 317 N.W.2d 16,412 Mich. 610 |
| Parties | , 35 Fair Empl.Prac.Cas. (BNA) 957 MICHIGAN DEPARTMENT OF CIVIL RIGHTS, ex rel. Mary PARKS, Claimant-Appellant, v. GENERAL MOTORS CORPORATION, FISHER BODY DIVISION, a foreign corporation, Respondent-Appellee. Calendar |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Michael A. Lockman, Asst. Atty. Gen., Civ. Rights and Civ. Liberties Div., Detroit, for Michigan Dept. of Civ. Rights.
Michael J. Connolly, Detroit, for respondent-appellee; Otis M. Smith, Gen. Counsel, E. L. Hartwig, E. J. Dilworth, Jr., J. R. Wheatley, N. J. Wittner, Detroit, Mich., of counsel.
KAVANAGH, Justice (for affirmance).
Judge Allen's opinion for the Court of Appeals, 93 Mich.App. 366, 287 N.W.2d 240 (1979), fully and accurately analyzes the Michigan statute and case law and recounts the pertinent history of federal cases applying the comparable federal law.
For the reasons set forth in that opinion we affirm.
The Civil Rights Commission found that General Motors had discriminated against Mary Parks because of religion. That finding was based on stipulated facts that Parks, an observant Seventh-day Adventist, when hired on September 18, 1972, at the Fisher Body Plant in Pontiac, was placed on a shift that included hours of her Sabbath (Friday evening and Saturday), that she was discharged from employment when she failed to report for work on three successive Fridays (September 22, September 29, and October 6, 1972), and that General Motors, "upon being confronted with the conflict between the working hours of the second shift and claimant's observance of her Sabbath, considered no alternative other than claimant's discharge and took no action whatsoever other than discharge of claimant".
The circuit court reversed the decision of the CRC. The Court of Appeals affirmed; it concluded "that the FEPA did not impose an obligation on the employer to make affirmative accommodations to conform to the employee's religious needs", and directed that "[a]ll charges brought against the respondent herein [General Motors] are dismissed".
I agree that the Fair Employment Practices Act 1 does not impose a separate obligation to accommodate the religious needs of employees. An employer may nevertheless be required to act affirmatively to avoid discriminating against an employee because of religion.
The FEPA 2 and Constitution proscribe "discrimination against any person because of religion". 3 It is the duty of the CRC, under the Constitution, to investigate allegations of such discrimination "in the enjoyment of the civil rights guaranteed by law and by this constitution, and to secure the equal protection of such civil rights without such discrimination". 4
The right to an opportunity to be employed--although not absolute and subject to numerous limitations--is a civil right so guaranteed by law. 5
The term "discrimination" includes, I agree with Justices Williams and Moody, "not only overt discrimination, but also practices that are fair in form, but discriminatory in operation". An employer may be obliged to act affirmatively to avoid a discriminatory effect.
The stipulation of facts does not advert to whether General Motors, in particular cases or as a matter of policy or practice, made changes in the work schedule, at this or other locations, so that employees can refrain from work during their days of religious observance. Nor does it appear whether GM's refusal to accommodate Mary Parks' religious needs was inconsistent with past conduct, policy or practice respecting the religious needs of General Motors employees or otherwise might have discriminated against Mary Parks on the basis of religion.
The CRC's authority concerns allegations of discrimination against a person because of religion. General Motors' concession that it refused to consider an alternative other than discharge does not, standing alone, establish a policy or practice "discriminatory in operation" or that General Motors discriminated against her because of religion.
In September 1972, after Parks had been hired but before she was discharged, the CRC adopted an EEOC religious discrimination guideline which stated that it concerns "the question whether it is discrimination on account of religion to discharge or refuse to hire employees who regularly observe Friday evening and Saturday, or some other day of the week, as the Sabbath or who observe certain special religious holidays during the year and, as a consequence, do not work on such days". The guideline states that the EEOC "believes" that the duty not to discriminate on religious grounds:
"[I]ncludes an obligation on the part of the employer to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer's business. Such undue hardship, for example, may exist where the employee's needed work cannot be performed by another employee of substantially similar qualifications during the period of absence of the Sabbath observer.
"Because of the particularly sensitive nature of discharging or refusing to hire an employee or applicant on account of his religious beliefs, the employer has the burden of proving that an undue hardship renders the required accommodations to the religious needs of the employee unreasonable." 6
The CRC concluded that General Motors made no effort to accommodate Parks' religious needs, in violation of the guideline, on the basis of General Motors' concession that, when confronted with the conflict between the working hours of the second shift and Parks' observance of her Sabbath, it considered no alternative other than her discharge and took no action whatsoever other than to discharge her. 7 Neither the FEPA nor the Michigan Constitution requires the assimilation into Michigan law of whatever the Congress enacts, federal agencies promulgate or the federal courts decide. The question whether a particular policy or rule of federal law should be incorporated into Michigan law should be decided as the particular issue arises.
If this Court were to adopt the EEOC guideline as a proper or the correct construction of the FEPA, the likelihood is that the argument would be made--and would prevail--that we had also adopted the federal case law construing and applying the guideline, and that the terms "reasonable accommodation" and "undue hardship" have the meaning which has been or will be ascribed to them by the EEOC or the federal courts. Some of the federal case law is conflicting. This Court has not examined that body of law, and it would be neither appropriate nor meaningful for it to attempt to do so in the instant case. 8
The EEOC guideline may reflect a perception that large employers or employers operating large plants generally make an effort to reasonably accommodate the religious needs of employees where this can be done without undue hardship on the conduct of the employer's business and may further reflect the view that it is therefore appropriate to presume discrimination because of religion from a failure to so accommodate the religious needs of an employee and to cast the burden of justifying the failure to accommodate upon the employer. It has not, however, been shown that such a perception or view has a factual basis in the experience of the EEOC or of the CRC in the administration of their responsibilities. We are asked to adopt the guideline as the proper construction of the statute, 9 applicable to all employers and all businesses, although there may be no basis in fact or experience for creation of such a presumption or allocation of the burden of proof. 10
Courts ordinarily refrain from stating rules of general application until their experience in the decision of a large number of cases in varying factual situations justifies a generalization. This is the first case to reach the appellate courts of this state alleging discrimination because of religion based on asserted failure to engage in affirmative conduct to accommodate an employee's religious needs. This Court has no basis in its experience, nor has it been shown the CRC has any basis in its experience to justify the adoption of the generalizations set forth in the guideline.
Both the Michigan Department of Civil Rights and General Motors apparently desire an answer to the abstract question whether the FEPA should be read as imposing a duty of reasonable accommodation to the religious needs of employees and prospective employees where such accommodation can be made without undue hardship on the conduct of the employer's business.
I would, for reasons set forth in Judge Allen's opinion in the Court of Appeals answer the question posed by this test case in the negative; the Court has no present basis for reading the FEPA, enacted in 1955, as imposing the duty first enunciated in 1967 by the EEOC, subsequently enacted in 1972 into Title VII of the Civil Rights Act, 11 and thereafter, in 1977, applied retroactively by the United States Supreme Court. 12
It is my understanding of the lead opinion that it does not preclude a finding of discrimination based on evidence that an employer failed to act affirmatively to avoid the discriminatory effect of a facially neutral practice, 13 and that it leaves open the questions whether the failure of an employer to accommodate the religious needs of its employees or prospective employees may constitute discrimination, what would be a fair allocation of the burden of proof and what should constitute valid defenses to evidence of discrimination. 14
I would remand the cause to the circuit court for further proceedings consistent with this opinion.
The central issue in this case is not difficult of statement:...
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